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23 February 2022updated 24 Feb 2022 10:50am

Could Happy the elephant follow an Ecuadorian monkey into legal personhood?

The US lawyer Steven Wise reflects on the long journey towards the recognition of animals as legal persons with rights.

By India Bourke

What distinguishes a human from a nonhuman animal? For years it was believed that the latter was not able to recognise itself in a mirror, was not able to feel, to make decisions or to countenance their past and future. Yet a number of studies have dispelled these myths of non-intelligence, at least in the case of chimps, elephants and dolphins (with more species likely to follow). So what meaningful distinction is left?

For the US lawyer Steven Wise, the most important difference is one of rights: humans have them and nonhumans don’t. Wise and his colleagues have battled in case after case to prove their nonhuman clients’ status as legal persons. The lawyers argue that animals should be granted habeas corpus (under which a person cannot be unlawfully detained) and released from harmful captivity — but for nine years they have lost.

Now that losing streak is starting to shift. This month, Ecuador’s constitutional court ruled in favour of a chorongo monkey’s rights. The win is “weird” for a number of reasons, not least because the monkey is dead, yet it is also groundbreaking, says Wise. Ecuador is the second jurisdiction in the world where a high court has declared that at least some animals have “real legal rights” (the first being India’s Supreme Court in 2014).

For 18 years a monkey called Estrellita, who had been poached from the wild, lived as a pet in the home of a librarian named Ana Beatriz Burbano Proaño in Ecuador. During that time Ana claims that the monkey became part of her family: Estrellita copied their behaviours, learning to communicate through gestures and sounds, and acquired their customs. In 2019 the Ecuadorian authorities seized Estrellita and resettled her in a zoo. Within a month she was dead, having suffered a sudden cardio-respiratory arrest.

[See also: Is it wise to turn birds into litter-pickers?]

At first unaware of Estrellita’s death, Ana filed a habeas corpus action on her behalf against Ecuador’s Ministry of Environment, the owner of Ecozoo, where Estrellita had been kept, and the State Attorney General’s Office. Ana asked for Estrellita to be returned to her home and emphasised the distress she was likely experiencing at the abrupt relocation. Later Ana asked that her body be handed over and that, among other things, a violation of her right to life be declared.

When the case came before Ecuador’s Constitutional Court in December 2021, the judges had a number of questions to consider. Not least, what is the scope of the rights of nature as enshrined in Ecuador’s constitution? Do wild animals qualify as the subject of rights? And were Estrellita’s rights violated? The result: seven to two judges ruled in favour of the monkey’s rights.

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The lengthy ruling was made in light of Ecuador’s recent constitutional amendment, which recognises nature’s general right to “exist, flourish and evolve”. Accordingly, even though animals cannot be equated to human beings — and human beings should be allowed to consume and domesticate other creatures — wild animals are seen to have a right to exist and, crucially, a right to free behaviour. 

As a consequence, the court found that the monkey’s right to integrity had been “violated” by the state when it failed to consider its particular needs in the process of relocation. However, Estrellita’s rights had also been compromised when she was originally poached and subsequently raised in inadequate conditions, the judges ruled. The court then laid out new minimum criteria for keeping wild animals. 

The Nonhuman Rights Project, founded by Wise in 2007, together with the Animal Law & Policy Program at Harvard Law School filed impartial advice, known as an “amicus curiae brief”, in Estrellita’s case. This guidance urged the court to recognise nonhuman animals’ legal rights — and the judge’s subsequent ruling has added momentum to their wider campaign.

As Wise explained over the phone from his office in the US, just because animals haven’t had legal rights for thousands of years, that doesn’t mean that shouldn’t change — even in places without Ecuador’s almost unique constitutional protection. 

[See also: WWF’s decision to fundraise via NFTs puts capitalism above conservation]

While many humans are too young or infirm to carry out duties or responsibilities, they are still considered persons under the law, Wise said. Furthermore, the very notion of “personhood” itself is a legal fiction, he suggested, with everything from corporations to ships already enjoying the privilege. “We’re not saying high cognitive abilities and autonomy are necessary to be a person with rights, but if [an animal] does have just one of those, they would be a person.” 

With each hearing, Wise’s arguments are getting closer to being given substance in US common law. Later this year, a habeas corpus order on behalf of an animal will reach its highest English-speaking court so far. The petition was originally filed in 2018 by Wise’s organisation on behalf of Happy, a then 47-year-old Asian elephant who was being held alone at the Bronx zoo in New York. In 2020 a sympathetic New York Supreme Court judge “regrettably” ruled against Happy, while also advising that she “may be entitled to liberty”. The case will be the first of its kind to be heard by the court’s appeal division.

Seeing Happy’s rights recognised will be no easy task. The Bronx zoo has dismissed the case as a public-relations scheme. Together with the Wildlife Conservation Society, it has gathered an extensive list of amicus briefs to help defend its position — including advocacy groups such as Protect the Harvest and the New York Farm Bureau. 

Wise insisted his team is not pursuing an overhaul of humanity’s entire relation to animalkind, simply the recognition of personhood for an individual, autonomous and intelligent being — in this case, an elephant. “We’re seeking a right to bodily liberty which is protected by common law. Once that is granted, Happy will automatically be a person not a thing,” Wise explained. 

“As for what might happen later, who knows. With humans there’s litigation all the time about what new rights humans should have; same with animals. We’re trying to say at least some animals should have rights and let’s talk about it.”

[See also: Year of the Tiger: why the big cat’s return holds hope for humanity]

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