It’s probably fair to assume that Happy isn’t happy. We can’t ask the 50-year-old gray lady, but a visit to her enclosure at the Bronx Zoo indicates that her life could be richer. She is an Asian elephant who was born in the wild, probably in Thailand, was captured as a baby, imported to the U.S., and sold for $800 to a now-defunct zoo in California. After a tussle with other elephants, she has spent the last 16 years alone in her enclosure, divided by a fence from the other lone remaining elephant. In the wild, elephants live in herds and form life-long emotional bonds. Their deeply social nature is why activists have demanded for years that Happy be moved to a sanctuary where she could live under conditions that more closely resemble the wild.
Happy has been the “client” of the Nonhuman Rights Project (NhRP) since 2018. This July, its founder, Steven M. Wise, filed a 14,000-word brief with New York’s highest court. In the habeas corpus case, NhRP is “demanding the right to bodily liberty of an elephant named Happy held alone in captivity in the Bronx Zoo.” The New York Court of Appeals agreed to consider the arguments. Calling it a “landmark elephant rights case,” the Nonhuman Rights Project says it is “the first time that the highest court of an English-speaking jurisdiction will hear a case that demands that a nonhuman animal be given a legal right.”
Every pet owner knows that animals experience sorrow and joy. Research has proven that even fish feel pain, and that species from orcas to bats communicate extensively in complex languages. Chimpanzees can do math calculations at the level of a five-year-old child. Not only mammals, but birds and even ants care for injured members of their group. In 2005, Happy herself was part of an Emory University experiment in which she seemed to recognize herself in a mirror — a feat of self-awareness previously attributed only to humans, dolphins and chimpanzees.
This is why, in a subtle but meaningful shift in syntax, Steven Wise calls the Nonhuman Rights Project a “civil rights organization, not an animal rights organization. We focus on legal personhood.”
The worldwide movement to seek basic rights for animals has been underway for decades, but it is only recently that courts are beginning to confront the fundamental question it raises: What rights does an animal have? In 2016, Argentina became the first country to recognize the rights of a chimpanzee named Cecilia, and as a result, the shy primate was relocated from her crowded zoo to a nature reserve in Brazil. Switzerland legally recognized the reality of animal consciousness in 2018, which led to a series of new laws regulating puppy farming, restricting animal testing and outlawing boiling lobsters alive. The U.K. is currently weighing a similar law. And in May 2020, the Islamabad High Court issued a ruling about Kaavan, an elephant at the Marghazar Zoo, stating “without hesitation that animals have legal rights.”
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Expanding the definition of legal personhood is not at all unprecedented. The U.S. has done it many times over, to include slaves, women, children, even corporations. Steven Wise believes that “civil rights for nonhuman animals” are the next leap forward in this ongoing expansion of human-level legal protections.
In Wise’s view, this is simply good science. Whether you look at it from a philosophical, biological, or legal perspective, it is impossible to categorize Homo Sapiens separately from Homo Troglodytes (chimpanzees) — with which we share 99 percent of our genes — and other animals. This view may seem radical, but it is increasingly common. According to Gallup, one-third of Americans believe animals should be given the same rights as people.
Yet when it comes to our daily choices, the cognitive dissonance is palpable. While more than 1.4 million people signed a petition to free Happy from the Bronx Zoo, for instance, less than two percent of Americans are vegan. We spend more money than ever on kidney transplants for our cats and silicone testicles for our dogs, while every year the number of animals we incarcerate, slaughter and exploit increases. The chicken breast we might serve our beloved pug definitely didn’t swell to its unnaturally gigantic size on a diet of grubs in an idyllic meadow. Gary Francione, law professor at Rutgers University and co-founder of the Rutgers Animal Rights Law Clinic, calls it “moral schizophrenia” when thousands of people sign petitions to save one alpaca, but then eat a burger for lunch.
Even the most progressive cases and court decisions tend to focus on legal personhood for animals that can make complex decisions, like primates and elephants. But what about octopuses and pigs, which are shown to be just as smart? Where do we draw the line? These are real questions that legal systems around the world are beginning to grapple with.
“We rely on the scientific facts,” Wise said during our phone interview. “The animals have emotional and intellectual abilities. That’s why we shouldn’t imprison them, and we focus on the fight for their status. But this doesn’t mean other animals shouldn’t have the same rights.”
Animal philosophers like Markus Wild, professor at the University of Basel, demands, “It is irreconcilable with the dignity of an animal to own it, sell it or buy it as property. We don’t do that with children either.” Wild supports the Swiss “Initiative Basic Rights for Primates” by the non-profit Sentience Politics, which currently fights for fundamental rights for two primates in Basel. They make it clear in their statements that “they shall NOT get human rights. So they will not be able to vote, marry or receive welfare.” But they also point out that primates are only the beginning “while also addressing farming, transport and overall treatment of other animals.”
“Rights of Mother Earth”
“We human beings are animals, and share the world with the other animals, who are in many respects like ourselves,” reasons renowned Harvard philosopher Christine Korsgaard, author of Fellow Creatures: Our Obligations to the Other Animals. “Despite these obvious similarities, we do not treat the other animals the way we at least think we ought to treat each other.”
It might take something as horrific as the pandemic and the climate crisis to drive home the fact that our lives are more intertwined with animals and nature than we care to recognize in the Anthropocene. “The existential ecological and health crises that humanity faces today are deeply intertwined with the inhuman ways we treat animals,” argue Saskia Stucki and Tom Sparks, research fellows at the German Max Planck Institute. “For example, three out of four emerging infectious diseases are zoonoses… Moreover, animal production is a key contributor to climate change, deforestation, air and water pollution, as well as biodiversity and habitat loss… Generally, animal rights case law has so far almost exclusively concerned individual animals held captive in zoos, and often particularly human-like or ‘magnificent’ animals such as great apes, whales, or elephants…. The real challenge will be to gain rights for the large masses of farmed animals, such as pigs or chickens.”
The moral question of how to treat such less-celebrated animals has become even more pertinent now that there are convincing alternatives to eating them. Dozens of companies, some backed by Bill Gates and Richard Branson, are developing lab-grown meat and fish. Some 15 percent of climate gas emissions are traced to meat production, an urgent problem we could fix without relinquishing our steak. There is also the much bigger issue that, in the last 50 years, we have decimated two-thirds of the world’s wildlife population, largely by destroying their habitats.
Legal efforts currently underway to grant nature legal rights could help to mitigate some of this destruction. Some seek to enable court-approved human guardians to file lawsuits on behalf of trees, rivers and mountains. In 2008, Ecuador became the first country to formally recognize the “Rights of Mother Earth,” and the Global Alliance for Rights of Nature (GARN) used it successfully against a construction company that dumped rubble into a river. In 2017, four rivers in Colombia, India and New Zealand won legal rights, including the Whanganui River, the longest navigable river in New Zealand, which resulted in one representative of the Maori Indigenous people and one representative of the government being appointed as guardians of the river.
“Rather than treating nature as property under the law, rights of nature acknowledges that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles,” asserts GARN. Recognizing the inherent right of nature to remain intact would be a wholesale shift of perspective after centuries of regarding it as a resource to be owned, used and exploited.
The U.S. is far behind in these efforts, but some communities have started the process. For example, Pittsburgh, Pennsylvania, passed an anti-fracking law that includes the provision that, “Natural communities and ecosystems… possess inalienable and fundamental rights to exist and flourish.”
The visible destruction of climate change, with its wildfires and droughts and floods, has shown us that human “dominion” over the earth and its creatures has had devastating consequences. This might be the selfish wisdom of the Anthropocene: Maybe we’ll only treat animals and ecosystems right when we recognize that killing them kills us, too.