Orcas in Court, The New Human Rights Claimants

PETA (People for the Ethical Treatment of Animals) filed legal argument in a US court, invoking the 13^th Amendment of the US Constitution, which abolishes slavery and servitude, on behalf of five orcas kept at SeaWorld Orlando and SeaWorld San Diego. 

This could have been the first case dealing with the constitutional rights of animals in an American court.  At a time when studies show that baby dolphins are as intelligent and human babies, PETA argued that orcas should have the same constitutional protection as humans due to their level of intelligence and ability to feel suffering in captivity at the American marine parks. 

The Whale and Dolphin Conservation Society (WDCS) told Law and More that they “argue for the rights of cetaceans to be recognised because our understanding of the intelligence, social complexity and ability of these sentient individual to suffer has grown”.

Whilst there are no captive orcas in the UK, there are 11 orcas in captivity in Europe.  A judgment from the US in favour of PETA could have had serious implications for states subject to the European Convention on Human Rights (EHCR) – it would have been a matter of time before arguments were made that the ECHR should be extended to orcas also.

Simox Cox, Associate Tenant of Doughty Street Chambers and Director of the Association of Lawyers for Animal Welfare (ALAW) told Law and More:

“The English common law prohibits slavery, as does article 4 of the European Convention on Human Rights. Applying them to animals would, of course, require a re-imagining of ‘who’ is entitled to the protection of these laws, yet, the recognition as ‘persons’ of women, black people, and children was also initially rejected by US courts.

The common law prohibition on slavery was developed in relation to humans and that the ECHR is a convention of human rights. But those historical and textual arguments do not stop the courts from re-imagining the reach of those laws. And the application of these laws to animals – some animals – does not require acceptance of the idea that animals have all the same rights as humans. The common law prohibition on slavery in England was adopted before there was widespread state acceptance of the idea that all humans are equal. It is enough for courts to accept that some forms of captivity for some kinds of animals are so similar to slavery as to be prohibited.”

Philippa Brakes, WDCS Senior Biologist and Ethics Programme Leader, reiterates that most groups are calling for the rights which cetaceans already have (the right to life and the right not to be held captive as in the Declaration of Rights for Cetaceans ) to be recognised, rather than calling for all human rights to be extended to cetaceans.

Caution should be exercised as extreme arguments along PETA’s submissions are more likely to irritate the public and block future legal avenues for greater rights to be secured for animals.  At best, the WDCS hopes that this case will “shift people’s perceptions about whether it is acceptable to keep large intelligent animals in captivity”.

US District Judge Jeffrey Miller heard the arguments from Jeffrey Kerr, the lawyer representing the five orcas and Theodore Shaw, acting on behalf of SeaWorld last week.  PETA's application in  Tilikum v Seaworld was rejected yesterday.

For more information on orcas and animal conservation and rights:

www.wdcs.org

www.alaw.org.uk

www.timzimmermann.com

Laura Mckoy