2013 – The Year of the Nonhuman Person

Happy New Year, readers! Like you, I am hoping for a year of progress for all nonhuman animals. It will be momentous for at least one reason: This year, the Nonhuman Rights Project (NhRP) will go to court to establish legal personhood for someone of another species – an elephant, dolphin or whale, chimpanzee or other great ape. And Kimmela continues to work closely with the NhRP to provide the scientific evidence and expertise crucial to their legal arguments that will bring one of these individuals to “legal life,” as NhRP President Steve Wise describes it.

Only after you’re recognized by the courts as being a “legal person” can you have the capacity to possess such fundamental rights as bodily integrity and bodily liberty. So let’s take a look at what it would mean for a nonhuman animal to be recognized as a person, and at what we mean by the right to bodily integrity and bodily liberty.

These fundamental rights are immunities against the most basic forms of harm. They include the freedom to live in one’s natural environment and not be captured and/or confined; the right to not be used, manipulated or experimented upon; and, of course, the right to not be killed. Asusbrechunres .

These very fundamental rights would protect first one and then many elephants, dolphins, and great apes (at least in this country) from being exploited and harmed in zoos and circuses, in military exercises, in laboratories, and, of course, in fisheries and slaughters.

Only after you’re recognized by the courts as being a “legal person” can you have the capacity to possess such fundamental rights as bodily integrity and bodily liberty.The concept of legal personhood for nonhumans is so new to many people that they often get confused and think you’re talking about human rights. But human rights are, by definition, for humans. Other animals need to be recognized as having rights that are specific to their species. Experts in personhood often equate rights with basic needs – what we need at a basic level in order to thrive. An elephant, for example, has the basic need, and therefore the right, to live her life as part of a family group in her natural habitat.

But before anyone, human or otherwise, can be recognized as having rights, they have to be recognized legally as a “person” with the capacity for a legal right. And that’s what the NhRP lawsuits will be setting out to accomplish. It’s all about giving other animals what they should have in the first place: a chance to live their lives unburdened by our exploitation. Such a small thing is such a big thing for them.

It seems so obvious to most of us that all animals have the need, and therefore the right, to live their lives in a natural setting unfettered by human manipulation and abuse. Kimmela’s work with the NhRP focuses on taking the first steps in accomplishing this in relation to those animals for whom the scientific evidence is abundant in terms of their intelligence, emotional sensitivity and social complexity.

This year, 2013, is the beginning of a process that will involve many lawsuits and appeals in courts all across the country. Some we will win and some we will lose. But in every case, the effort will be groundbreaking. And it seems that others agree. According to the magazine Popular Science, the work of the Nonhuman Rights Project will be one of the top science stories of 2013.

Perhaps, in the future, we will look back on this year as having been the year of the nonhuman person. And I wouldn’t be surprised if, sometime down the road, an elephant, dolphin or great ape graces the cover of Time magazine as their Person of the Year!

Compassionate Conservation Needs to Be Based on Rights


On November 29-30 I joined an international group of conservation biologists and animal welfare experts for a landmark workshop at the Royal Geographical Society in London hosted by the Born Free Foundation. Born Free is an international wildlife charity working to end animal suffering and protect threatened species in the wild. They recently made headlines with their successful rehabilitation and release of two captive bottlenose dolphins, Tom and Misha, into the Eastern Mediterranean

The purpose of the meeting, led by Born Free CEO Will Travers and Senior Scientific Researcher Chris Draper, was to explore how to integrate individual animal welfare concerns into global conservation efforts – a new approach called compassionate conservation. In today’s world, that’s quite a mission.

Compassionate conservation is getting a lot of attention as more and more people are seeing that conventional conservation practices, which focus on population and species-level viability analyses, are missing a critical component: regard for the individual animal. Scientific evidence shows that humans are not the only individuals who are autonomous and socially complex with strong family ties and cultural traditions. So, invasive interventions like culling, translocation, habitat restriction and “sustainable harvesting” almost always create more problems than they solve because these practices destroy cultures, social networks, families, psychological development of individual animals and the very lives of the animals they seek to protect.

Although all the participants were driven by a common goal of protecting the lives of other animals, the discussion quickly grew into a lively debate about one central issue: welfare versus rights. On the one hand, many of the conservationists argued for minimizing harm to other animals in conservation practices but contended that highly invasive methods, such as culling, cannot be excluded. Others of us argued for a much greater shift towards a rights-based conservation paradigm. We pointed out that welfare measures, such as the Animal Welfare Act, which is supposed to cover animals used in research, factory farms, and other exploitive industries do little to protect animals from suffering and abuse. Welfare is a step in the right direction but does not go far enough.

If we are to take seriously the scientific evidence that many other animals are cognitively and emotionally complex, autonomous individuals, we must move toward a conservation paradigm that respects the right of other animals to thrive. This means that practices such as culling and translocation without regard for social networks must be phased out and a new perspective, based upon recognition of their individual lives, societies and cultures must replace them. It means that the basic needs of other animals must be given priority over the nonessential desires of humans, and that when there is a conflict of basic needs, the process must involve negotiation rather than “management”. Human behavioral change becomes an integral part of the process and success is measured not just by numbers but whether there is human and nonhuman thriving.

The shift in perspective for compassionate conservation is not going to be accomplished overnight, but it will be long-lasting and better for everyone involved when it does occur.

Meat-Eating is Not Sustainable at Any Level


No one, by now, is unaware of the impassioned controversy over two oxen, Bill and Lou, and the broader issue of meat-eating that their situation has brought to the fore. Green Mountain College (GMC), where Lou and Bill tilled the fields for ten years, publicly announced that they would slaughter them and serve them in the dining hall, claiming that this action teaches “sustainable farming”. But, they ran into a problem. Animal advocates and many others responded to this morally questionable decision and no slaughterhouse was willing to brave the glare of the controversy. GMC ended up killing Lou in the middle of the night and burying his body, claiming that the medication they gave him for an injured leg made it impossible to serve his meat. Bill remains subject to an uncertain future while remaining on the farm.

The fact is that GMC has yet to provide a substantive reason why killing and eating Bill and Lou would be a lesson in sustainability. In my view, meat eating is a lesson in unsustainability at both the moral and scientific level.

Meeting the GMC argument on its own terms, the science tells us there is absolutely nothing sustainable about meat-eating. From a crop yield point of view, meat-eating simply does not make sense. Instead of growing crops to feed Bill and Lou and then eating Bill and Lou those same crops can yield a great deal more by directly being eaten by humans. The equation is simple and meat-eating is untenable as a sustainable practice.

Furthermore, GMC has decided to ignore the substantial body of scientific evidence that demonstrates other animals are emotionally and cognitively complex beings capable of great suffering. Lou was betrayed in the worst possible way. And now Bill is clearly showing signs of grieving for his friend Lou. Instead of being educational GMC’s decision has caused tremendous suffering.

Finally, GMC teaches their students that so-called sustainability equates with lack of compassion, betrayal and continuing down old unsuccessful paths. But GMC does not see the dangerous self-perpetuating logic in this objective. The reason the planet and all of its inhabitants are in such a desperate state is because our species has continued to exploit everyone and everything without compassion. Killing other animals reinforces that insensitivity and the very attitudes that have led to global destruction. We are currently facing the sixth mass extinction event, human overpopulation and starvation, and devastating planetary destruction from rampant ecological exploitation and climate change. The same insensitivity that leads to lack of concern for Bill and Lou as individuals has led us to the brink of global devastation. They are intimately related and anyone who claims otherwise is being disingenuous. Every individual currently in factory farms is Bill and Lou and factory farms are not only engines of unspeakable suffering for the luxury wants of our species but are contributing substantially to global warming.

In their many public relations efforts to the public, GMC wanted to convince others that they were being bullied by extremist animal rights groups. I have seen no evidence of this. Two legitimate animal sanctuaries, VINE and Farm Sanctuary, offered to take Bill and Lou and provide them with a decent life – free of charge. And there were other offers too. GMC was unresponsive to all of them. leonaobrienfup44.blogspot.com GMC rejected all reasonable requests to discuss the matter.

GMC has it all wrong. Sustainability is not about using up resources and killing others. It is about having a sustainable ethic of living.

Dolphin Welfare vs. Dolphin Rights at the American Cetacean Society Conference

Is it appropriate to keep dolphins (including belugas and killer whales) in captivity as long as you accord them certain approved standards of care? Or do dolphins have the inherent right not to be held captive by humans in the first place?

It’s a question that hovered in the air at last weekend’s meeting of the American Cetacean Society in San Diego. And at one session, it came right to the surface and took center stage.

The welfare-vs.-rights debate suffuses the whole animal protection movement. In relation to farm animals, welfarists work to get better conditions for farm animals, specifically in factory farms; while animal rights proponents denounce welfarism, insisting that the only moral course is to abolish factory farming – and, indeed, all use of animals as food for humans.

Welfarists argue that the abolitionist approach is impractical and that any improvement is better than none. Abolitionists reply that this is like arguing for better conditions for slaves, and that welfarism simply keeps the whole sordid business going.

In the companion animal area, welfarists work to “euthanize” homeless pets humanely rather than in gas chambers, while no-kill advocates say that humane societies and shelters should simply never be in the business of killing homeless pets.

In every area – vivisection, wildlife management, zoos and other entertainment – the issue keeps rearing its head. And last weekend’s annual conference of the American Cetacean Society was no exception. Over and over, the question was: Do we have the right to treat intelligent marine mammals as subjects for research and other kinds of exploitation?

Are they “stocks” or are they individuals?

One of the key laws that governs our relationship to dolphins and whales is the Marine Mammal Protection Act (MMPA). It is classic animal welfarism, and it has made a big difference for the animals.

Today, 40 years later, many people say the MMPA is out of date. And this became clear in the very first session of the conference, when Barbara Taylor, a member of the International Union for the Conservation of Nature, took stock of how the law is working for marine mammals today.

While the act brought an end to many kinds of abuses – like hundreds of thousands of dolphins being caught and drowned in tuna nets (368,600 in 1972 alone) – new threats to the animals have emerged. Climate change, military and commercial sonar, and complaints from the fishing industry have grown and are all taking their toll on marine mammals. And it isn’t clear that the MMPA can deal effectively with these issues.

Dingell’s language shows the extent to which marine mammals were viewed as resources, stocks and species – not individuals in their own right.

When he was working to push the bill through Congress in 1971, Rep. John Dingell famously said: “Once destroyed, biological capital cannot be recreated.” That’s true, and Dingell deserves great praise for his work. But his language shows the extent to which marine mammals were viewed as resources, stocks and species – not individuals in their own right.

That’s still the case. And in this and other presentations, whales and dolphins were being referred to as “stocks” and resources, with the focus on how many of them we can kill while still ensuring that the species is “sustainable.”

This view of the lives of whales and dolphins is very different from those who take the position that these animals are individuals, not stocks, and that it is simply wrong to be treating them primarily as resources.

Variations on the same issue came up all through the conference. But the whole issue blew into high gear on Saturday afternoon in the session entitled “The Question of Personhood.”

The question of personhood

What is a “person”? And are dolphins and whales persons? At this session, Tom White, professor of business ethics at Loyola Marymount University and author of In Defense of Dolphins, reminded us of the distinction between a “human”, which describes your biological identity, and a “person”, which describes your moral and legal place in the world.

White explained persons as being individuals who are alive and aware, who have emotions and a sense of themselves and their own existence, who can control their own behavior, recognize other persons and treat them appropriately, and who have a variety of sophisticated cognitive abilities.

Rights are the same as needs – you have the right, as a person, to a life that fulfills your basic needs as a member of your species.

Once you understand what constitutes a person, he said, it’s easy to recognize what their “rights” are. Basically, rights are the same as needs – you have the right, as a person, to a life that fulfills your basic needs as a member of your species.

Dolphin rights, he noted, are clearly not the same as human rights. Dolphins don’t need to drive a car or have equal pay for equal work. They have different needs. For example, as beings whose identity and individuality are intricately bound up with their social group, they have the need, and therefore the right, to live their lives with that group. And that means they have the right not to be held captive.

Lori Marino of the Kimmela Center for Animal Advocacy offered four simple arguments for why cetacean captivity is both a moral and scientific dead end:

  1. Cetaceans possess all the characteristics of personhood, which, ironically, makes them especially vulnerable to being harmed by captivity.
  2. The scientific data show unequivocally that they cannot thrive in captivity. Instead, they suffer stress, become aggressive, self-mutilate, and die early.
  3. Little of any value is currently being learned about cetacean cognition, behavior and intelligence from captive research. By contrast, field studies of wild dolphins are producing fascinating discoveries about cetacean behavior and intelligence.
  4. And the captivity industry is tied to the infamous dolphin and whale drive hunts, at which certain animals are pulled from the slaughter and sent to marine parks around the world.

The third member of the panel was Diana Reiss, a cognitive psychologist who conducts research on captive dolphins at Hunter College, the National Aquarium and the National Zoo, and is the author of The Dolphin in the Mirror. Dr. Reiss focused her talk on the argument that we should all be working together to bring an end to the drive hunts and slaughters. But this was something of a straw man since no one present would dispute that. And when it came to the question of the value of captive research, her examples were from 10 and even 30 years ago, which was not lost on the audience at question time.

Reiss and Marino exchanged strong opposing views during the panel session. And so, the Saturday session came to an end with the clear distinction being made between those who see dolphins and whales as stocks, resources and property, and those who see them as individuals with rights and needs.

Empathy in Nonhuman Animals

On Sunday morning, we heard a fascinating talk by Frans de Waal, the famous primatologist whose books include Chimpanzee Politics and The Age of Empathy. While most of his research has been on apes, monkeys and elephants, he said that much of it could also be applied to cetaceans.

De Waal showed a series of videos demonstrating empathy in nonhumans – for example, how one great ape will console another; how chimpanzees and bonobos reconcile after an argument; how elephants cooperate to solve a problem (even if this means giving up getting a larger share of the reward); and how capuchin monkeys have a sense of fairness and will rebel if they feel they’re being treated unfairly.

But however fascinating and insightful de Waal’s research surely is, he cannot bring himself to take the next step that’s dictated so obviously by his own research: that the insights we’ve gathered from all this painstaking research is that most, if not all, of the animals who have provided it are self-aware beings who have demonstrated that they do not belong in captivity. And while many scientists, like Marino, have either abandoned captive research or, like Denise Herzing, conduct their work with wild dolphins, de Waal and Reiss have yet to take that step.

De Waal defended his position by saying: “I don’t believe that chimps are moral beings. But they have elements of human morality.” Many in the audience said that his research demonstrated to them how very clearly they are indeed moral beings.

Where now?

Just as it took a long time for the Western world to agree that all humans are persons in the legal as well as moral sense of the term, so it will take time for us to agree that many other animals must be recognized as persons with rights appropriate to their species.

This year’s conference of the American Cetacean Society showed how fully this issue has come to the fore – and that the fields of science, ethics and policy are now pointing clearly in the same direction: We cannot continue to treat whales and dolphins simply as stocks, resources and species; they are individuals and persons in their own right.

Kimmela Delivers the Science to the Nonhuman Rights Project

The Kimmela Center has joined with the Nonhuman Rights Project (NhRP) to work toward the common goal of gaining basic rights for animals. The Nonhuman Rights Project, led by prominent animal rights attorney Steven Wise, is working to change the common law status of large-brained, socially complex nonhuman animals from legal “things” or “property” to “persons”, for whom fundamental rights like the right to bodily liberty and bodily integrity are not yet recognized.

Nonhuman animals need to be recognized as having certain fundamental rights, and these can only be enforced through a transformation in the eyes of the law from “property” to “persons”. As a legal person, a nonhuman being’s basic rights would be protected, and if the NhRP is successful it will be a real game-changer in our relationship to other animals.

This work will demonstrate that these animals have the cognitive characteristics that qualify them for common law personhood.

As the NhRP’s Science Director, Kimmela Executive Director Lori Marino has recruited a sizeable team to gather the scientific evidence the NhRP will need to bring its cases in 2013. The international science team is comprised of a group of volunteers ranging from students to librarians to university faculty members who have expertise in the fields of animal behavior and intelligence and online databases. The team is conducting a massive online search of all the relevant, peer-reviewed, scientific research on cognition (i.e., intelligence, self-awareness, emotion, social complexity, and brain size and complexity) in species that are under consideration for NhRP cases. These include the great apes, several cetacean species, and elephants. This work will allow the legal team to demonstrate that these animals have the cognitive characteristics that qualify them for common law personhood.

The research base will also comprise the basis for educational outreach initiatives to professionals and students, media and the general public about the cognitive abilities of these animals.

The first phase of their work – searching and archiving all the scientific papers available – will be completed by the end of December. The materials will then be compiled into a searchable bibliographic database that the legal team can access easily as they prepare to go to trial.

We will keep you posted on the NhRP Science Team’s efforts and accomplishments.

By this time next year we may be close to the day when a dolphin or chimpanzee cannot be owned, held captive, or harmed.

The Georgia Aquarium Plunders the Oceans in the Name of Conservation

By Lori Marino, Ph.D., Emory University Center for Ethics and The Kimmela Center for Animal Advocacy, and Thomas I. White, Ph.D., Conrad N. Hilton Chair in Business Ethics, Loyola Marymount University.

On June 15th, the Georgia Aquarium quietly filed an application for a permit to import 18 wild-caught beluga whales from Russia into the United States. They plan to keep some of them for themselves and to distribute the rest among three SeaWorld facilities, the Shedd Aquarium and, eventually, the Mystic Aquarium and are receiving public comments on this issue until midnight October 29th at https://www.federalregister.gov/articles/2012/08/30/2012-21481/marine-mammals-file-no-17324

The last time a U.S. aquarium took marine mammals directly from the wild was in 1993, when the Shedd Aquarium in Chicago set off a firestorm of protest by capturing some Pacific white-sided dolphins from California waters. Since then, in order to avoid pubic controversy over their profitable marine mammal entertainment programs, U.S. marine parks have abided by a self-imposed moratorium on the capture and import of wild marine mammals. Instead, they have focused on captive breeding to stock their pools and keep the shows going. In seeking to import 18 wild-caught belugas the Georgia Aquarium has abandoned the moratorium on taking wild dolphins and whales. If the import is approved, it will roll the clock back to an era when U.S. marine parks regularly removed wild dolphins, orcas, and whales from their families in the oceans to put them into shows.

The Georgia Aquarium says that the import is all about conservation. But the truth is that the import is about reinvigorating a stalled beluga captive breeding program in order to sustain and grow the population of popular belugas at U.S. marine parks. Currently, there are only 34 belugas in captivity in the United States. The 18 wild Russian belugas the Georgia Aquarium wants to import would push that number to above 50, infusing the existing captive population with new genes, and growing the population to a size that the Association of Zoos and Aquariums considers right for a successful captive breeding program.

Such “species survival programs” are justified on the basis of conservation. But, ironically, the beluga population in the Sea of Okhotsk from which the Georgia Aquarium 18 were captured is healthy (in fact, a condition for receiving an import permit is that the capture will not endanger the target population). In contrast, the longevity and survival of belugas is much more threatened in captive settings like the Georgia Aquarium, where programs to breed and sustain the beluga population have been unsuccessful.

Infant belugas fare very poorly when born into an artificial environment where their mothers lack the social support they would enjoy from sisters, aunts and friends in their natural setting. The last baby born at the Georgia Aquarium died at just a few days old. Overall, belugas in captivity lead more stressful and less healthy lives than their wild counterparts. The bottom line is that most captive breeding programs are not about conservation of animals in the wild; they’re about conservation of zoo and marine park profits.