By KIRSTI WEISZ
In a world-first, two chimpanzees will be plaintiffs in the US Supreme Court tomorrow (Wednesday) in a battle about rights.
Their lawyer, Professor Steven Wise, spoke at Monash University this month as part of the voiceless animal law lecture series.
Prof Wise, also president of the Nonhuman Rights Project (NhRP) and the first lecturer in animal rights at Harvard University, will argue that chimpanzees Hercules and Leo are entitled to basic rights, such as the right against unlawful detainment and cruel treatment.
The argument is based on existing scientific evidence proving the intelligence and autonomy of chimpanzees.
Hercules and Leo are currently held in laboratory cages at Stony Brook University in New York for scientific research.
Manhattan Supreme Court Justice Barbara Jaffe granted the Order to Show Cause, which requires the university to justify its custody of the chimpanzees. It was the first time in the world a judge had granted this order in relation to a non-human creature.
NhRP is the first organisation to petition the courts in the US to recognise that certain non-human animals are entitled to basic legal rights. Prof Wise, who has been working on the project for 30 years, founded the NhRP after reading Animals Liberation by the Australian philosopher Peter Singer.
“I thought to myself, well, if I’m interested in social justice, I can’t imagine beings who are more brutalised than non-human animals,” Prof Wise told the New York Times.
The project also seeks to change the status of animals as "things" to legal persons.
“A legal person is an entity capable of having legal rights. These have included humans, fetuses, corporations, and ships … It’s society’s way of acknowledging that an entity counts in the law,” the NhRP webpage explains.
Justice Jaffe issued a writ of Habeas corpus (a legal action that argues someone is being detained unlawfully) in her original order but amended it by striking out the words that would have recognised the chimpanzees as legal persons.
Prof Wise chose to start by representing chimpanzees because of the scientific evidence of their cognitive capabilities. He said he would next represent elephants and orcas.
“It is often said that we are arguing that chimpanzees should have human rights, and we are not arguing that,” Wise told ABC’s The Law Report.
“But a chimpanzee … should have chimpanzee rights, not human rights, and an elephant should have elephant rights, not human rights, and orcas should have orca rights, not human rights.”
Hercules and Leo’s case is one of three currently lodged by the NhRP. Tommy, a former circus performing chimpanzee, is also being represented by Prof Wise.
According to Prof Wise, the 26-year-old chimpanzee is kept in a small, dark cage inside a warehouse-like structure. The New York State Appellate court denied Tommy legal personhood in December last year. NhRP is seeking to appeal the decision.
“In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal right — such as the fundamental right to liberty protected by the writ of Habeas Corpus —t hat have been afforded to human beings,” judge Karen Peters said.
Kiko, a chimpanzee previously used in the entertainment industry, is the third case. Kiko is kept in a cage near Niagara Falls and was also denied legal personhood by the New York State Appellate Court earlier this year.
The court found that the writ of Habeas corpus couldn’t be granted because Prof Wise wasn’t seeking to immediately free Kiko but to transfer the chimpanzee to another facility.
In a recent visit to Melbourne, Prof Wise gave a keynote speech for the Australian animal protection institution Voiceless. He told his Australian audience that he envisions “a great legal wall”.
On one side there are humans and on the other side are things. He said animals sit on the other side of the wall where slaves, children and women used to be.
“As far as the law goes, a thing is invisible and … essentially a slave to persons,” Prof Wise said.
Labelled one of the “pistons” of the animal rights movement by Yale Law Journal, Prof Wise said that the term animal rights has been “debased by media”.
“I tell people that I deal with animal slave law,” he said.
The next social justice movement – Animal law in Australia
While there is no movement similar to the project in Australia, support for animal law has been growing and is often seen as the next social justice movement.
Barristers’ Animal Welfare Panel (BAWP) spokesperson Meg Good, who spoke alongside Prof Wise at this month's Voiceless lecture series, said 14 of Australia’s 36 law schools now offered animal law as an elective.
“Animal law has witnessed significant growth over the past few years, both as an academic discipline and more generally as an important aspect of the animal welfare and protection movement,” Ms Good said.
She also said the law and legal reform played a crucial role in the movement towards pursuing justice for non-human animals.
“In Australia, animals are generally classified as human property, and animal rights advocates view this legal status as being at the heart of the animal protection problem.”
Ms Good said it was difficult to foresee what the implications of Prof Wise’s court case might be, but that the lawsuits could set a “landmark precedent” if a favourable judgment was passed.
There could also be more far-reaching implications for the entire way in which we conceptualise our relationships with animals.
“For example, it might be much more difficult to justify harm to animals if they were classified as ‘legal persons’ instead of human property,” Ms Good said.
With hard work, dedication and persistence, Ms Good said the movement could be brought to Australia.
Given the relatively conservative approach of the Australian judiciary and the lack of supporting precedent, it would be an uphill battle.
“But that doesn’t mean that it isn’t a challenge worth pursuing – we do need to revise the way that we think about non-human animals,” she said.
Former High Court judge and Voiceless patron Michael Kirby has described animal law as “an idea whose time has come”.
“Progress is made by pushing forward the boundaries of legal protection,” Mr Kirby told the Sydney Morning Herald.
“Women got the vote. The White Australia policy, like apartheid, was consigned to history. Aboriginal Australians gained land rights. Homosexuals witnessed the end of criminalisation. Disabled human beings assert their rights.
“And now a new frontier beckons – animal welfare, protection and rights,” Mr Kirby said.
Prof Wise’s argument is the same one that ended slavery. He hopes the two chimpanzees can be released into the care of Save the Chimps, a sanctuary in Florida.
He said the case being heard on May 27 is only the “end of the beginning” for his project.