From Duane Morris Animal Law Blog
by John M. Simpson
Animal rights activists have pointed to a recent decision by the highest court in Ecuador — the Constitutional Court (Corte Constitucional Del Ecuador) — as a breakthrough for animal rights. As the NonHuman Rights Project (NHRP) described it, the decision “constitutes one of the most important advances in the field of animal rights and environmental law in recent years. . . . The Court’s groundbreaking ruling advances the constitutional protection of animals — ranging from the level of species to the individual animal — with their own inherent value and needs.”
Upon closer examination, the Court’s Final Judgment is not as far-reaching as has been claimed.
The case involved a female chorongo monkey named “Estrellita.” The chorongo monkey is endangered under Ecuadorian law and is listed in Appendix II of CITES as a species that could become endangered unless trade is strictly controlled. Estrellita evidently was taken from the wild at the age of one month, was domesticated and lived with her human owner, a librarian, for 18 years. Apparently based on a neighbor’s tip that the owner had possession of a wild animal without a license, local authorities seized the animal and transferred it to an “ecozoo” where it died about 3 weeks later. A necropsy indicated cardiorespiratory arrest as the cause of death and noted nutritional deficiencies, exposure to unfavorable environmental conditions, stress levels, confinement and mistreatment. The record was disputed as to whether this stemmed from actions by the owner or the seizing authorities or both, but the Constitutional Court ultimately viewed it as attributable to both. (¶¶ 153-54).*
Unaware of the animal’s death, the owner filed a habeas corpus petition seeking return of the animal, along with a license to lawfully possess it. When notified of the animal’s death, the owner revised her petition to seek a declaration that the monkey’s right to life had been violated and the establishment of a protocol for restraining animals. The lower courts dismissed the petition but the Constitutional Court reversed.
The Ecuadorian Constitution recognizes the rights of Nature, and the Constitutional Court had previously recognized that this included ecosystems such as mangroves, rivers and forests. (¶ 70). Thus, the Court’s focus in this case was on the rights of an animal living in the wild as “a specific dimension with its own particularities of the rights of Nature.” (¶ 91). In that regard, the Court did broadly state that “wild species and their individuals have the right not to be hunted, fished, captured, collected, extracted, kept, retained, trafficked, traded or exchanged.” (¶ 112). However, while this pronouncement was framed in terms of “rights,” this is not materially different from the legal protections that already exist in many countries for endangered species. The U.S. Endangered Species Act, for example, prohibits “taking” an endangered species and would encompass all of the items that the Court recognized as “rights” for free-ranging endangered species.
Furthermore, while the Court enumerated certain minimum procedures and standards that must be followed when an animal is seized and when it is being cared for after seizure, these measures are no different than the typical animal welfare standards that apply at the state and federal level in the U.S. or that are prescribed by various certification organizations. Again, while phrased in terms of “rights,” none of these items is new.
Animal rights activists will probably point to this decision as affirming some of their theories, particularly the Court’s allowance of a habeas petition on behalf of an animal (a claim that no U.S. court to date has permitted). However, the Court’s decision has several aspects that clearly run counter to the animal rights narrative, especially in those quarters that advocate veganism.
While the Court recognized that wild animals have certain rights, it also recognized that humans have the right to eat. Because humans “are biologically conditioned to feed themselves on other organisms,” humans have the right to eat animals, and this human right to eat violates no eaten animals’ rights:
“[W]hen a predator kills its prey in compliance with the trophic chain, the right to life of an animal is not illegitimately violated. The latter is of great concern, particularly with regard to the relationship of human beings with other animals, insofar as human beings are predators, and being omnivorous by nature, their right to feed on other animals cannot be forbidden. In addition to being a biological condition of human beings, driven by the intrinsic principal of survival, food is a right established in the Constitution and in international human rights instruments.” (¶¶ 102-03).
The Court also recognized the legitimacy of other human uses of animals:
“Similarly, the domestication of animals has served to enable humans to respond to threats to their physical integrity and the security of their possessions; to control pests that can endanger livestock, crops and human health; to provide transportation, help in work, for clothing and footwear; and even for recreation and leisure.” (¶ 109).
Furthermore, notwithstanding the recognition that wild animals have the right not to be taken from their natural habitat, the Court recognized the legitimacy of removing animals from the wild to ensure survival of the species:
“[A] legitimate activity that justifies removal of a wild animal for the realization of interspecies principles or ecological interpretation is the removal of parental stock, which is intended to provide reproductive specimens for ex situ management programs, in order to ensure the survival of the species.” (¶ 141 n.130).
And, while the reinsertion of a wild animal back into the wild is preferable “when circumstances permit,” the ultimate decision by a court has to be based on the best interests of the animal and not “the claims, desires or intentions of third parties.” (¶¶ 173-74). This could include the animal’s “reinsertion in its natural ecosystem” or “its translocation to shelters, sanctuaries, aquariums, eco zoos or its treatment in animal rehabilitation centers.” (¶ 173). That is, when the circumstances dictate, holding a wild animal in a zoo or aquarium does not violate that animal’s rights.
In short, this is not the animal rights victory that it has been portrayed to be.
*Citations herein are to a certified English translation of the Final Judgment of the Constitutional Court posted on the NHRP website.
