Chimpanzees in court: What difference does it make?

Chapter 5

Chimpanzees in court

What difference does it make?1

Ciméa Barbato Bevilaqua

Concerns about animal welfare have been reflected in Western legal systems since at least the nineteenth century. Changing conceptions regarding the position of the human species among other living beings gradually led to the legal protection of animal species in their own right, as elements of biodiversity, irrespective of their economic or scientific value to human beings. Over the last decades animal rights movements have been increasingly active in the advocacy of animals as legal subjects entitled to rights that were, until recently, regarded uncontroversially as specifically human. While destabilizing the traditional classification according to which animals can only exist legally as things, these shifts also affect the legal status of persons, human or otherwise. As in other contemporary arenas of debate, what qualifies as a person or a thing is no longer an unproblematic and context-free issue when it comes to the legal status of animals.

By focusing on lawsuits in which the long-established categorization of non-human beings as things is under challenge, the intention of this chapter is not to intervene in the animal rights debates as such, but rather to examine some mutual implications of animal rights activism and legal techniques. I believe that there is a strategic advantage in taking legal cases as ethnographic documents of meaningful practices that actually constitute the distinctions between persons and things, human and non-human entities, as well as the equivocations between legal categories and different forms of existence. Whereas the politico-philosophical debate on animal rights is virtually endless, and the tensions between traditional and new legal regimes applicable to animals are far from stabilizing, one of the defining features of legal procedures is the impossibility not to reach a final verdict.2

Moreover, when particular rulings become recognized as precedents that expand jurisprudential knowledge and define the outcome of subsequent cases, they actively contribute to creating or reshaping the world to which these dispositions refer, both conceptually and practically. This ‘practical’ legal thought – embedded in legal decisions and indissociable from the very context of the matters that it regulates3 – can be apprehended in the careful interweaving of documents and arguments that forms actual proceedings.

Expanding on this premise, I focus on two cases involving apes, both of which challenge the traditional legal definition of animals as things. The first case is an application for habeas corpus filed in the Brazilian Superior Court of Justice (Superior Tribunal de Justiça – STJ) on behalf of two female chimpanzees. The second case, involving the acknowledgement of legal personhood to a male chimpanzee, originated in Austria and eventually gave rise to an appeal to the European Court of Human Rights (ECtHR).4 Inspired by these cases I also elaborate on the interplay between persons and things, human and non-human agencies, and legal forms of constituting (ontological) differences.5

Human and non-human rights

Do chimpanzees have a right to freedom?

A female baby chimp born in a private zoo in North East Brazil was allegedly donated to a businessman and subsequently taken to the state of São Paulo – a journey of approximately 1,900 miles. IBAMA,6 the federal agency responsible for enforcing the National Environmental Policy, identified a list of irregularities relating to the animal’s provenance, donation and transportation papers, as well as the facilities to which it was taken. To prevent confiscation of the chimpanzee, the businessman applied for an injunction in May 2005 to assure his ‘guardianship, possession and property’ of Lili – the chimp’s name mentioned in the proceedings.7

Another chimp, Megh, was later born in the same zoo in October of the same year. There are no available records concerning how or when she was handed to the businessman, but an injunction was filed by him in June 2006 to keep the chimp in his possession. Two other lawsuits relating to both chimps and the facilities’ environmental licence were also initiated, running concurrently in the São Paulo Federal Court of Justice.8 These suits eventually led to 11 appeals filed by both parties (the businessman and IBAMA) in the Regional Federal Court of Justice.

Although all these proceedings revolved around a single issue (whether or not the chimpanzees should remain in the possession of the businessman) and derived from one another, once initiated they perpetrated relatively autonomous narratives. The ‘facts’ established in each case varied, as well as the argumentation developed by the parties and, by the same token, the legal provisions invoked in their support.

If the facts prove to be variable when we examine the different lawsuits, the rulings of the judges are also context-dependent and, though always consistent with the documents within the respective files, often have diverging practical outcomes. Deciding on different petitions, one judge ruled (without legal contradiction) that the chimpanzees should remain in the possession of the businessman9 and, a few months later, that ‘according to the facts presented by the parties’ the (same) situation was entirely contrary to environmental law provisions.10

This last ruling added a new twist to the story. Up until that point, Lili and Megh had been unequivocally regarded as the objects of a legal dispute which had only two possible outcomes: either the chimpanzees would remain with the businessman or they would be handed over to IBAMA. The judge’s new decision opened up another path, one which eventually affected the previously undisputed legal status of the chimpanzees (as things), as well as their ontological status (as non-humans).

In the decision handed down in November 2007, the judge ruled that

[…] the chimpanzees Megh and Lili must be reintroduced into nature, since animals kept in captivity behave completely contrary to natural patterns and serve mostly as mere adornments to please human beings. […] It is sure that the sooner the baby chimpanzees are reintroduced to their native habitat, the greater will be their chances of adaptation and survival.11

The businessman and the environmental agency agreed that the release of the chimps into the wild would result in their deaths. Seeking to avoid this undesirable consequence, an application for habeas corpus on behalf of Lili and Megh was filed by the businessman’s lawyers at the Superior Court of Justice in Brasilia.12 As a constitutional right embedded in the Brazilian legal system as part of the ‘fundamental rights and guarantees’,13 a petition for habeas corpus can be filed by any lay citizen and does not give rise to the problem of legal standing. (As we shall see, this factor was crucial to the case described below.) The main legal question in Lili and Megh’s case, therefore, was whether a petition for habeas corpus on behalf of non-human beings could be accepted by the Superior Court of Justice.

Can a chimpanzee be a person?14

In April 1982, 12 chimpanzees captured in Sierra Leone, Western Africa, arrived at Vienna International Airport Schwechat. Two of them, aged approximately ten months, were en route to a laboratory belonging to the company Immuno to be used in medical experiments.

Since Austria had signed the Convention on International Trade of Endangered Species (CITES) the day before their arrival, the shipment lacked the now necessary CITES documents. The animals were confiscated and most of them were handed over to the Vienna Zoo, where they all died within a few weeks. The two chimpanzees due to be transferred to Immuno were officially placed in the care of the Vienna Animal Shelter until the legal proceedings initiated by the Austrian government against the company were over. The pair, called Hiasl and Rosi, were soon after taken home by one of the shelter’s volunteers.

More than a year later, Viennese magistrates found the company Immuno guilty of breaching the CITES agreement and ruled that it could not be considered to have legal possession of the chimpanzees sent to its laboratory. The company’s appeal against this decision was dismissed. The matter was then taken by Immuno to the High Court, which ruled in its favour and ordered the chimps to be handed back to the company.

When Immuno’s representatives arrived to take possession of the chimpanzees, they were blocked by animal rights activists. The company initiated new legal proceedings to demand removal of the chimpanzees from their carers by physical force. Immuno’s case was decided by the High Court in the company’s favour in December 1986, but once again the animal shelter refused to surrender the chimpanzees.15

Section 285 of the Austrian civil law code stipulates that any entity that is not a person is a thing, implicitly declaring all non-human animals to be things. However, a new section 285a was added to this paragraph at the beginning of 1989, explicitly stating that animals are not things. Referring to this new provision, the animal shelter argued in its High Court appeal that animals, not being things, have a value in themselves that exceeds their value as property to their owners. The High Court once again ruled in favour of Immuno, and once again the shelter refused to hand over the two chimpanzees. Hiasl and Rosi, by then already over eight years old, remained in the shelter’s care over the following years. In 1999 Immuno was taken over by another company which stopped experiments on chimpanzees. Three years later Hiasl and Rosi were officially donated to the shelter, but this was not the end of the story.

In 2006, the animal shelter ran into financial difficulties and found itself on the verge of bankruptcy. The chimpanzees were likely to be alienated during the legal proceedings to secure the shelter’s creditors’ interests. With this threat looming, a money donation was made to the president of the Viennese animal rights association VGT (Verein Gegen Tierfabriken – Association Against Animal Factories)16

under the condition that he was only to take possession of it if Hiasl was appointed a legal guardian, who was allowed to receive this money at the same time, and who should be able to decide what the two together would want to spend the money on.17

Armed with this donation agreement, VGT’s president was able to argue that he possessed the legal standing to start court proceedings demanding a legal guardian to be appointed for Hiasl. This application, made in February 2007 at the district court in Mödling, Lower Austria, argued that a chimpanzee, and in particular Hiasl, might be considered a person under Austrian law.

What does it mean to be a chimpanzee?

The habeas corpus application for Lili and Megh and the claim for legal personhood for Hiasl are examples of a political strategy internationally pursued by some strands of the animal rights movement over recent years, which involves filing legal claims on behalf of specific non-human individuals. The main purpose is to elicit court rulings that might create favourable precedents for future lawsuits and thereby lead, over the long term, to the full recognition of non-human beings as subjects of rights.

The word recognition may suggest an operation by which something existing in the ‘real’ world is perceived and acknowledged by law. And indeed this is the dominant sense in the legal proceedings described here: as we shall see in more detail later, in these cases the argument in favour of extending human rights to non-human beings is based to a large extent on the genetic makeup of the species in question. Recognition can also be conceived, though, as a legal technology for producing distinctions. From this viewpoint arguments, proofs, and precedents (which decisions count as precedents and their relative weight) are essentially aspects of legal recognition.18 In other words, ‘recognition techniques’ are inherently creative.

A second aspect is also worth highlighting: in these court cases, the legal institutions appear to some extent as the patients of activist agency, since they cannot refuse petitions that comply with minimum legal requirements, or refrain from following the steps determined by court regulations. However, being a patient (someone who voluntarily submits to another’s action) is a transitive condition that necessarily implies alternation. As Michael Carrithers suggests, sociality can be better described as agency-cum-patience: at any given moment, the initiative lies with one or other of those who are interacting.19

Complying with the obligation to (formally) admit the claims in favour of animals, judges and courts allow themselves ‘to be acted upon’. Nevertheless, precisely because they are responsible for processing the claim – conducting the trial process based simultaneously on pre-existing norms and on ‘recognition techniques’, in the creative sense outlined above, each of their steps determine the options available to the applicants. Likewise, the judge’s final word not only closes the discussion of the specific demand, it also affects rulings on future legal actions.

By highlighting the mutually generative nature of the activists’ strategies and legal techniques and institutions in the context of concrete cases, I wish to emphasize a crucial point. The strategy of seeking court rulings on animal rights reveals something which was already there, something about which both claimants and judges are well aware, but which still emerges as a surprise: the inherently ambiguous forms of existence produced by the legal opposition between ‘person’ and ‘thing’. When a decision needs to be reached on which properties determine whether an entity belongs to one category or the other, and whether this condition is inherent or contextual, it becomes evident that the tacit assumptions underlying the foundational opposition of Western legal systems can only function properly if they go without saying.

It is precisely because these definitions could be taken for granted, at least until recently, that the applicants in both cases were relatively free to explore an array of different arguments, not necessarily consistent across the submissions, in support of their claims.

The lawyers responsible for the habeas corpus application on behalf of the chimpanzees Lili and Megh object to the legal qualification of chimpanzees as animals belonging to the category ‘wild fauna’, and seek to point out the consequences of a court decision based on mistaken assumptions.20 According to the applicants, wild animals should be regarded as beings that, ‘living from nature and its resources, are independent from men.’21 This step enables the shift from the general legal definition to Lili and Megh’s particular form of existence and their complete dependency on human care. It is not argued that the two chimpanzees are human, but that their existence is indissociable from the human world to which they belong. This argument is then deployed to justify the recourse to habeas corpus – the legal remedy par excellence to protect freedom of movement – in an appeal to overturn a court order to release the chimps from their lifelong captivity and to ensure that they remain confined in private facilities, owned as private property.

The first movement singularizes: although chimpanzees in general can be legally classified as ‘wild fauna’, this qualification is entirely inadequate in the case of these two individuals. Conversely, the second movement generalizes by seeking to obtain a court ruling based on the essential attributes of chimpanzees as a biological species – in other words, their attributes prior to and independent of the legal system: ‘(…) the life of animals, principally of chimpanzees, that share 99% of the human DNA, is above the law, requiring the application of equality.’22

Again it is not claimed that chimpanzees are humans (not even Lili and Megh, whose lives ought to be considered, according to the applicants’ argument, inseparable from human sociality). Yet the two species have been shown to be so similar that they are entitled to legal treatment compatible with the extent of their biological similarity. Moreover, if the dignity of the human person is one of the pillars of the legal system,23 a life that is ‘99% human’ should not be excluded from this provision.

The Austrian case of legal personhood for the chimpanzee Hiasl is premised on the alleged ambiguity of the category ‘person’ in the Austrian civil law code. The applicants, however, do not simply argue that apes could be considered legal persons under specific circumstances, along with other non-human entities. Their claim is that chimpanzees (and Hiasl in particular) also possess the supposedly essential qualities that constitute and distinguish the human subset of entities encompassed by the legal category ‘person’.

The first step is to claim that the definition of human being [Mensch] in section 16 of the Austrian Civil Law code, the Allgemeines Bürgerliches Gesetzbuch (ABGB),24 ‘has to be interpreted biologically’. Moreover, taking into account our present-day knowledge, ‘a well based scientific argument can be made that chimpanzees (and bonobos) must be part of the genus homo, as homo pan’.25

Belonging to the genus homo is obviously not the same as being human. As Ingold remarks, the emphasis on the genetic pre-specification of living organisms conveys a conception of life as a passive process in which organisms react to their environment according to their biological nature.26

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