1st November 2021
One of my interests in law is not about human beings and their constitutional ups and downs, but about something which (I aver) is of fundamental importance.
That is the extension of rights to animals that are recognised and enforceable by courts, and the acceptance that animals can be legal persons.
This should not be a strange proposition: after all, we confer rights and legal personality on corporations which do not actually (that is directly in a tangible form) exist.
This is not to say animals should have absolute rights (other than against human cruelty), but then again few human rights are absolute.
And if minors and the incapacitated (as well as corporations) can have their rights enforced on their behalf then there is no reason, in principle, why the rights of animals cannot be enforced on their behalf too.
It is just that, unless there is a reason not to do so, a court should be able consider the rights of an animal in any given situation.
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But, as a commentator, one has to take cases and other legal developments as you find them, and so that brings us to today’s subject.
The hippopotamuses of a drug lord.
This is the story of the hippopotamuses that descended from those that formerly belonged to Pablo Escobar.
(That is not a sentence I ever expected to type.)
This was the Guardian news report (based on a news agency report).
Huge, if true.
An American court conferring personality on an animal.
However, if you look at the report carefully, that is not quite what has happened – though what has happened is a welcome development.
The group which handled the American litigation is the Animal Legal Defence Fund.
Their press release is here.
In essence, the American court was asked to make an order in respect of litigation in Colombia.
The hippopotamuses are a party to the Colombian litigation.
From the press release, it appears that the American court had an application under this provision: Assistance to foreign and international tribunals and to litigants before such tribunals.
In that provision you will see this passage:
“The order may be made […] upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.”
Stripped of the hippopotamus dimension, this is about a court in America making an order for the benefit of a party to litigation in another jurisdiction.
On this occasion, that party happened to be hippopotamuses, as opposed to a natural person or a corporation.
We have not seen the actual order of the American court (or a judgment), but going on the basis of the press release, that is more-or-less what the court did (with emphasis added):
“In granting the application pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings, the court recognized the hippos as legal persons with respect to that statute.
“This U.S. statute allows anyone who is an “interested person” in a foreign litigation to request permission from a federal court to take depositions in the U.S. in support of their foreign case.
“The U.S. Supreme Court has said that someone who is a party to the foreign case “no doubt” qualifies as an “interested person” under this statute.
“The Animal Legal Defense Fund reasoned that since the hippos are plaintiffs in the Colombian litigation, they qualify as “interested persons” under this statute.”
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What the American court has decided, it seems, is not so much that an animal is a legal person but that the fact a party to foreign litigation happens to be an animal is not a bar to being an “interested person” under one statutory provision.
This does not mean the hippopotamuses are now legal persons for all purposes should they somehow manage to come to America.
Nor does it mean that the hippopotamuses have had any substantive rights (or perhaps even any procedural rights) recognised by the court.
The decision means only that hippopotamuses can be brought within a procedural definition.
In essence: a party to foreign litigation was accepted as being a party to foreign litigation.
They just happened to be hippopotamuses.
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Still: it is a start.
An American court could have (conceivably) have rejected the application on the basis that hippopotamuses are not capable of being persons, and so could not even be interested persons for this one procedural provision.
And a minor decision like this can be a move towards wider recognition in the next well-chosen case.
In America as in the United Kingdom we are some way off animals being accorded legal personality and having rights recognised by and enforceable in courts.
This case is a hippopotamus’s step towards that objective.
But on close examination the case perhaps does not live up to the news report headlines.
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I recently wrote an essay on the fact that, under Jewish law, the route to recognising animals as legal persons is far clearer. (The Israeli Supreme Court once dismissed a lawsuit brought by a gazelle, but commented that traditional Jewish law may well have allowed such a thing.) Do feel free to contact me through my website for a copy.
It would be interesting to know what the status of animals (hippos or otherwise) is under Colombian law, given that the underlying case is in Colombia rather than in the US and the hippos appear to be parties to that litigation.
This seems to be a very fair result from a US court. The US court is, presumably, not necessarily taking any position on whether hippos are legal persons, but merely respecting the jurisdiction of a foreign court and saying that if a foreign court allows a plaintiff, then the US court will accept that for the very narrow purpose of assisting a foreign court.
Animals, of course, should not be regarded as having rights at all. If you think they should, then how do you deal with the case of a seal about to be ripped apart and eaten by a polar bear? Presumably, you agree that if a human were to treat a seal like that, it should be illegal, so it’s not the seal’s rights which protect it, but a human obligation.
Minors and the incapacitated, of course, should not be regarded as having rights at all. If you think they should, then how do you deal with the case of a baby about to be ripped apart and eaten by a polar bear? Presumably, you agree that if an adult human were to treat a baby like that, it should be illegal, so it’s not the baby’s rights which protect it, but an adult human obligation.
Since humans do have rights, there are obligations on others to uphold those rights. In some jurisdictions there is a legal duty to come to someone’s aid if they are in danger (where reasonably possible). And people in general have a duty to others based on human rights. So, in the example, a person would be legally liable for leaving a baby at risk of polar bear attack, and anyone seking asylum on the grounds that their life was in danger should be granted it. Animals have no rights, so there is nothing wrong with releasing a seal into the wild even if you know that it is likely, or even certain, to be killed by a bear (except in narrow circumstances where you are doing for sadistic enjoyment, in which case you might be in trouble depending on the jurisdiction). Similarly, if a seal is fleeing from a bear, you are under no obligation to assist it, even if you could do so at no risk to yourself.
It is possible to impose obligations with respect to some animals, such as livestock or pets, but I hope it is perfectly obvious that that is limited to specific people. A dog owner may have an obligation to not mistreat their pet, but a neighbour is under no obligation to take in a mistreated pet. We may collectively have a duty towards homeless people, but none towards homeless animals.
Unless you are going to take on the godlike powers of regulating all of nature, animals simply cannot have rights like people.
From the point of view of the hippos, we seem to be approaching a riff on Gordon Pollock’s famous ‘debeo ergo sum’, along the lines of ‘litigo ergo sum’.
It might be worth noting that legal action can be taken against ships (a maritime action “in rem”). If a chattel can be a party to a lawsuit, then why not living beings?
Indeed – I have made that very point elsewhere.
Ships can be arrested too, but I don’t think that turns the subject matter of the litigation into a legal person.
There has been a slew of amusingly titled “in rem” cases in the US: here is a recent example: https://en.wikipedia.org/wiki/United_States_v._One_Tyrannosaurus_Bataar_Skeleton As far as I am aware, the dinosaur skeleton was not separately represented. Perhaps job for Mr Slant…
Apparently, “In Colombia, animals have standing to bring lawsuits to protect their interests.” I suppose charismatic megafauna find it relatively easy to engage advocates, even if they are an invasive species, imported and released illegally, and causing environmental damage. (The hippos, not the advocates.)
There are many curious legal practices in the USA, to describe the situation politely. One of them is “in rem” jurisdiction, where a legal action is taken against an object. Normally the object is a valuble object, such as the classic cases United States v. 422 Casks of Wine or United States v. $124,700 in US Currency. But animals may also be subjected to in rem jurisdiction, such as another classic case, South Dakota v. Fifteen Impounded Cats, illustrates.
I wondered therefore, whether, in this case, Pablo Escobar’s hippopotamuses are being made subject to in rem jurisdiction.
There are rivers with legal personality in New Zealand, Canada, Bangladesh. https://www.lrb.co.uk/blog/2021/october/foetid-runnels