German animal rights advocates are demanding that great apes be granted the status of legal persons, a status provided for by law for humans.

An Argentinian court has recognised that Sandra the orangutan, who lives in the Buenos Aires Zoo, possesses the same rights as a human.

Scientific American, 09.01.2015.

The demand to grant great apes the same legal status as humans has been heard more and more frequently in recent years and in increasingly serious forums. Genetic discoveries prove that we have much in common with our closest biological relatives in the Hominidae family (Hominidae) – the great apes: orangutans, gorillas, and chimpanzees. Their DNA overlaps with the human genome by more than 97%. Scientists at the University of Pittsburgh (USA), based on genetic data, believe that orangutans are our closest relatives. Previously, chimpanzees claimed this role because scientists had concluded that chimpanzees and humans share 99.4% of their DNA. Some scientists even suggest including gorillas and chimpanzees in the human genus (Homo). We share many identical traits; like humans, apes are capable of moving on two legs (even though they usually move on four) and use their hands for holding and carrying objects, and in some cases, even for using tools. The gestation period of great apes lasts approximately 9 months. Chimpanzees, gorillas, and humans are the only creatures in whose communities grandmothers care for the young. Very recently, this trait has also been observed in the communities of the largest mammals of the dolphin family (Delphinidae) – orcas (Orcinus orca). German scientists have observed that chimpanzees often adopt orphaned infants that have lost their mothers. After long-term research in zoos, Swedish researchers claim that apes, like humans, are able to plan different sequential actions to be carried out later.

In debates about the similarities and differences between humans and other primates, researchers' arguments about our related origins and shared biological and social traits sound convincing, yet they still fail to persuade legislators. In most parts of the world, the law distinguishes great apes from humans: a human is a subject of rights, while apes, like other animals, are objects of rights. This distinction is based on a clear criterion: a subject is aware of and capable of evaluating their actions and is responsible for the consequences of their actions. An object is a thing with which or in relation to which a subject exercises their legal will and their legal capacity. The term “legal capacity” describes the ability of an individual of the human genus (Homo) or a legal entity (for example, a society for the protection of great ape rights) to exercise rights, assume obligations, and be responsible for their actions. Legal capacity arises for every human at the moment of birth and ends at the moment of death. Legal capacity belongs to every human as an expression of natural rights, and it includes the possibility to exercise rights. For the practical exercise of rights, for example, concluding contracts, legal competency is also required. Not all persons with legal capacity are also legally competent – for instance, minors, the mentally ill, and persons under guardianship due to dissolute or wasteful living are not entitled to conclude transactions independently. Minors (under 7 years of age) and the mentally ill are also not liable for damage caused to another person or property. Juveniles under 14 years of age cannot be held criminally liable.

Since Darwin questioned the dominant role of man as the crown of creation in his book “On the Origin of Species” published in 1859, humans have significantly drawn closer to their related animals, not only in terms of species classification but also legal status. Over 150 years, the animal has gradually acquired an increasingly respected role, shifting from a thing, an object of civil circulation. In 1990, the German legislature made a significant amendment to the introduction of the 1900 Civil Code (Bürgerliches Gesetzbuch). The second chapter of the general part of the law, “Things”, was supplemented with section 90a, “Animals”: “Animals are not things. They are protected by special laws. The provisions applicable to things apply to them unless otherwise provided by law.” Since then, the second chapter has been called “Things and animals”. The German Civil Code is an important model for civil law codifications in the continental European legal sphere. Latvia’s 1937 Civil Law was also created under the influence of German legal doctrine and the norms of the German Civil Code. However, our law still classifies animals as things, without any qualification regarding their special status. Article 841 of the Civil Law divides the world encountered by humans into groups of either corporeal or incorporeal things. Several further directives from the legislator apply to animals, which thus fall into the category of corporeal things. From a civil law perspective, we divide animals into two groups: those that already belong to a person and those that can still be considered ownerless property. This is clearly evidenced by the text of Article 932 of the Civil Law: “Animals that are still in a natural wild state become the property of the one who catches or kills them.” An acquired wild animal still retains a small possibility of becoming an “ownerless animal” again. A caught wild animal, if it escapes back into freedom, is again considered an ownerless animal, “but only in the case when it disappears from the sight of its pursuer entirely or, even if it might still be visible to the owner, it is at such a distance that it is no longer possible to pursue it”. However, such a possibility is illusory: “Wild animals that have been tamed after capture and have become accustomed to a certain place remain, even if they roam free, the property of their captor as long as they do not lose the habit of returning home.” (CL, Art. 933.) We have largely inherited these norms from the ancient tradition of local norms, which were compiled in the 1865 Baltic Civil Law, the third part of the collection of Baltic local laws (Свод местных узаконений губерний Остзейских).

These examples accurately confirm that the legal system is anthropocentric – it is an order created by humans, in which the other inhabitants of the planet have a subordinate role, and their legal protection stems from human needs.

Of course, the Latvian legislature has not ignored modern trends in the field of animal rights either. On the first day of the 21st century, the Animal Protection Law came into force. In its introduction, it is declared that humanity has an ethical duty to ensure the welfare and protection of all animal species because “every individual is a value in itself”. The concluding thesis of the introduction is cautionary: “No one is permitted to kill an animal, cause it pain, create suffering, or otherwise harm it without a justified reason.” (Author's emphasis.) Thus, the legislature nevertheless allows for the possibility that there may be a reason for killing and causing suffering to animals that someone might consider justified. Article 3.1 of the law prohibits the purchase, keeping in captivity, alienation, or keeping for sale or exchange and offering for trade several species of animals, including primates and marine mammals. However, this prohibition does not apply to zoological gardens and registered places for keeping wild animal species.

Significant changes to this approach could be brought about by the ruling passed two months ago by a capital city court in Argentina in the case of Sandra the orangutan. 29-year-old Sandra was an inhabitant of the Buenos Aires Zoo until the end of last year. The cheerful female ape spent her days in a metal cage, delighting visitors with her very human non-human daily activity. Last November, activists from the Great Ape Project and animal rights groups turned to the Buenos Aires court, basing their application on a norm that provides humans the right to challenge illegal detention and imprisonment (Habeas Corpus). This constitutional norm is one of the generally recognised human rights. The Buenos Aires court had to evaluate whether keeping orangutans in a zoo infringes upon their fundamental rights. Before hearing the case, the court of first instance requested clarification from the Supreme Court on how Sandra's legal status should be evaluated. The Supreme Court recognised Sandra as a “non-human person” who possesses the same rights as a human. Logically, the court ordered the Buenos Aires Zoo to release Sandra. Since she was born and had lived her entire life in the zoo, it was planned that Sandra would henceforth live in a nature park suitable for keeping wild animals.

The first result of this case could be related to the review of the status of great apes living in captivity. It is plausible that animal rights activists in many parts of the world are already preparing similar claims for the release of great apes. Of course, not all lawyers agree with the considerations of the Buenos Aires court. In January, a New York court in the USA rejected a similar claim for the release of Tommy, a chimpanzee kept in a cage in New York, pointing out that chimpanzees, unlike humans, cannot assume legal obligations or comply with responsibility requirements set by society.

By granting all primates the same legal capacity as humans, we would have to review many existing standards. For example, if great apes were to acquire a legal status identical to humans, the status of space pioneer would belong to Ham the chimpanzee, who at 4 years of age on 31 January 1961 launched from the Cape Canaveral station in Florida in the spacecraft Freedom 7, spent 16 minutes and 39 seconds in flight, and successfully returned to Earth. Ham beat Yuri Gagarin by two months.

However, the question of whether apes deserve a status identical to humans does not depend only on the legislator or the court. Andreas Wacke, Professor of Roman Law at the University of Cologne, aptly points out that the assimilation of great apes to humans in terms of legal status is illusory as long as they have no understanding of human rights. In other words, apes have not yet grasped what they should now demand from humans.
Article first published in the March 2015 issue of the magazine Rīgas Laiks
A cartoon by Zemgus Zaharāns is used for illustration