They are not properties, but how to prove it?

Marcelino and Cecília at Great Apes Sanctuary of Sorocaba/Brazil - GAP Project International

By Jaqueline B. Ramos *

Watching a TV show about lawyers recently, I was surprised when it dropped a case involving the dispute over the custody of a chimpanzee. Veracities of the story aside, one of the advocates involved in the defense of the animal makes an outburst that sums it all up: I know he's not a property, but I have no law to prove it!

It takes a lot of insensitivity to disagree with the fact that nonhuman animals are not things or objects. They are living beings with cognitive abilities, who feel pain, fear, hunger, thirst, etc. Therefore, treating a chimpanzee, an elephant or a dog as a mere thing or object is at least meaningless. But in the Justice of Men today, all other animals are still considered to be things, not living beings, and lack the capacity of possess any legal rights. Hence comes the restlessness of the legal world that the screenwriter sensibly captured and summed up in the speech of the character.

Fortunately there are very attentive advocates struggling to reverse this outdated view of our domineering and exploratory relationship with non-human animals. They aim to change the Law, so we can begin to make peace with our ethical and moral dilemmas, and build the necessary foundation for the various efforts around the world for Animal Rights to take off.

In April 2017, a case in Latin America was highlighted internationally: chimpanzee Cecília, who lived for more than 10 years in a tiny zoo cage in Argentina, was finally transferred to a great apes sanctuary in Brazil thanks to the concession of a Habeas Corpus. It was the first time in the world that a non-human animal actually enjoyed the right to freedom due to a legal instrument previously exclusive to humans.

The lawsuit was conducted by Afada, an association of lawyers that works for animal rights in Argentina, and is just one among other actions. In December 2014, orangutan Sandra, who lives in Buenos Aires zoo, was considered by a local judge, after a deep examination of the request for her freedom, as a non-human person (her transfer to a sanctuary has not yet been made possible, although it is already authorized) and, last November, a collective request of Habeas Corpus was presented on behalf of the chimpanzees Martín, Sasha and Kangoo, who live at the same zoo.

"After several attempts at consensus with authorities for the transfer of the chimpanzees, who are in a precarious state over there, we decided to appeal once more to Justice. There are national and international precedents and jurisprudence”, affirmed Pablo Buompadre, president of Afada, to the Argentine press.

Bears and elephants

Defending Habeas Corpus claims for great apes may have its advantages in argumentation, due to their proximity to humans - after all, we are also one out of five great apes species - and their already proven autonomy and intelligence. But the antecedents and jurisprudence commented on by Buompadre can, should and are comfortably applied to other species.

In July 2017, also in Latin America, Colombia, the Supreme Court of the country accepted the request of Habeas Corpus on behalf of the bear Chucho, and ordered that he should be transferred from the zoo of Barranquilla to a place where he lives in adequate conditions. In the decision, the Colombian court quoted: "animals are sentient beings and not things, and therefore must be endowed with rights in the eyes of the law."

In the United States, the NGO Non-Human Rights Project, founded and chaired by attorney Steven Wise, is a reference entity, and began the work to prove that animals are not things, but persons under the Law, with chimpanzees - in this case, apes who were used in laboratories. Wise's team has not yet succeeded in US justice, which always ends up denying recognition for the right to freedom, but the work is far from over.

In November, the group filed a motion with the New York Supreme Court for permission to appeal to New York’s highest court, the Court of Appeals, on behalf of Tommy and Kiko, who are still kept under inhumane conditions in captivity (the first one on a used trailer lot and the second on a private home)."We look forward to Tommy and Kiko having their day in court before New York’s highest court. And we remain eager to have their right to bodily liberty recognized by the Courts and respected and hope they will soon go to a sanctuary where they will be able to live their lives in freedom”, Wise declared.

One more step forward, also in November, NhRP filed an application for Habeas Corpus in Connecticut Superior Court on behalf of three elephants - the first n=in the world - held in captivity at the Commerford Zoo: Beulah, Karen and Minnie. All three were captured in the wild and used for many years in circuses.

The NhRP asks the court to release the elephants into the sanctuary of the Performing Animal Welfare Society, where their right to bodily freedom will be respected. Wise explains: "We do not claim the Commerford Zoo is violating any animal welfare statutes. What they are doing is depriving Beulah, Karen, and Minnie of their freedom, which we see as an inherently cruel violation of their most fundamental right as elephants.”

Fortunately, it seems to be just a matter of time for lawyers to have the Law they need to prove that non-human animals are living beings who deserve to be proper legally treated, not mere properties or objects.

* Environmental journalist (Ambiente-se Comunicação Socioambiental) and Communications Manager for GAP Project International