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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