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Orca rights: stuff and nonsense?

In the post festive haze, as we wade through the sea of discarded Christmas presents, it is hard not to recognise that one of the things that sets us humans apart from many other species (but perhaps not quite all species), is our relationship with ‘stuff’. We make it, we buy it, we collect it, we recycle or bin it and then the whole process starts all over again. But this is no surprise, our amazing ability to manipulate ‘stuff’, our ancestry as hunter-gathers and our ability to collect and store the objects vital to our existence has enabled our success, bald apes that we are.

This relationship with the material things around us is one element of our existence which differentiates us from whales and dolphins. Our ability to build cities, write and store religious texts, historical chronicles and technical documents, have local and national government and a global economy and through such commerce fund national education and healthcare, all of this and more make us uniquely special as a species. There can be no doubt that we have extraordinarily complex social systems that differ culturally between geographic regions.

As a result it is perhaps understandable that we have a natural tendency to consider ourselves as the pinnacle of evolution and we tend to measure the ‘success’ of any other species against ourselves. But, this may be one of our grandest follies. Success is a relative concept, if biomass were the indicator then many other species, much less complex beings than ourselves, would be resounding winners in the ‘success’ competition.

But back to the issue of complex species and their relationship with ‘stuff’. Who at times does not envy the liberated existence of a whale, swimming wild, feeding, socialising and going about their daily business without the encumbrance of any ‘stuff’. Perhaps admiration for ‘living free’ (not just wild, but also ‘free’) is one of the appealing factors that send us in our droves to go whale or dolphin watching.

Orcas, for example, are top marine predators, a fact which places them, by our own reckoning, at the apex of evolutionary success. However, their ability to go about their lives so successfully without the need for clothing to keep them warm, cooking utensils, food storage facilities or the possession of trinkets to keep them entertained, surely warrants at least some humble respect from we the collectors.

Over the millions of years of our planet’s history, the single biggest driving force for life on Earth has been evolutionary success. The simple point is that when observing the world through the snap shot of geological time which is the existence of Homo sapiens we must be careful not to use ourselves as the benchmark of success and refinement. There is a bigger picture. Whilst we often feel like it – and perhaps we are even wired this way – it is just possible that our species is not the centre of the universe.

There are ever unfolding revelations about whales and dolphins: their intelligence, their complex brain structure, the possession of spindle cell neurons by some species, their multifaceted relationships with each other and even the revelations that behaviour can vary – like our own – between different cultures. We also now know that bottlenose dolphins can demonstrate a sense of self, by recognising themselves in a mirror. The more we learn, the more questions we have. One particularly intriguing notion is the idea that some whale and dolphin species have such close social bonds – biologically important for ensuring feeding and even survival – that rather than just a sense of ‘I’ they may have a more profound sense of ‘us’, almost a collective consciousness driving certain behaviours.

To ask the question ‘Are they smarter than us?’ is to miss the point. Orca’s and many other cetacean species are certainly ‘smart’ by any definition, they are successful, but they are also very different to us.

Many now recognise that these impressive, cognitive beings are a ‘who’ not a ‘what’. They are not the property of any state, corporation or individual and that the time of keeping these sentient, sapient ocean giants in small tanks for our entertainment is over.

PETA (People for the Ethical Treatment of Animals) is bringing a controversial court case against SeaWorld in the USA which will challenge the captivity of five orcas, on the grounds that it is an infringement of the 13th Amendment to the US Constitution which prohibits slavery and involuntary servitude.

The analogy with human slavery is a strong one. There can be little doubt that the orcas in captivity are held involuntarily for our entertainment. These orca’s are not offered a choice about whether they want to live in captivity. But there has also been some sensitivity in the US in comparing the plight of the orcas with that of African American slaves. Perhaps this demonstrates rather well that the initial social and legal hurdle that must first be overcome is that the status of orcas and other cetaceans as non-human persons in their own right must first be recognised. There is a mental journey required to recognise the rights of others, firstly in recognising their status as non-human ‘persons’ we recognise their basic right to life and from there work to recognise the right to various other freedoms and norms. At the time when the 13th amendment was raised in the US, some challenged the notion that African Americans were equal to whites, indeed some argued that African Americans were not even of the same species. Fortunately, those days of ignorance have largely passed and serve to reminds us what a long way we have come as a species in developing respect and understanding for each other, but, of course, we still have a long way to go.

Nevertheless, the strategy of highlighting the captive orcas’ plight as slavery and against the US Constitution is controversial, even among those who advocate for whale and dolphin rights. Steven Wise, a Law Professor and head of the Non-Human Rights Project (NhRP) is concerned that a judge will simply rule that orcas are not slaves under the Constitution (because they are not recognised as ‘persons’), which will then set a difficult precedent. Wise and colleagues believe that first they need to establish the legal non-human personhood status of cetaceans. This certainly seems a more logical strategy.

Rather extraordinarily, the NhRP has been invited to participate in the orca case on the basis of an ‘amicus curiae’ or ‘Friend of the Court’. This in itself is an interesting development. The NhRP has not sought to appear as an amicus to either PETA or SeaWorld, but instead to work to assist the court in understanding some of the legal and philosophical issues raised within the context of this case and to further the interests of the orcas.

“Our purpose is to ensure that the orcas’ best interests are being properly represented, that their legal status is advanced, and that an unfavourable ruling inflicts the least possible harm on the development of an animal rights jurisprudence” said Wise.

The fact that this expert advice has been sought independently by the court reveals that the issue of animal rights, and in particular the interests of these orcas, is being taken very seriously by a US court. There doesn’t appear to be a similar move to have a ‘Friend of the court’ provide a view on cetacean husbandry or the economics of keeping orcas in captivity from the industry perspective. This is an – albeit tacit – recognition that the interests of the orcas in this case may be more important than the interests of the industry itself. Perhaps some progress.

Wise states: “SeaWorld opposes our request to appear as an amicus because it is confident the Court will rule the orcas are not slaves under the Thirteenth Amendment. PETA apparently opposes our request because it wants the case to ‘go down in history as the first time that a U.S. court considers constitutional rights for animals.’ Winning is beside the point. But losing this case will neither help these orcas nor further any long-term strategy for creating a viable animal rights jurisprudence”.

WDCS is committed to the campaign for the recognition of cetacean rights. The Declaration of Rights for Cetaceans agreed in Helsinki provides a series of profound propositions to challenge the way that we currently perceive and treat whales and dolphins. The road to recognising their rights in national and international legislation will not be easy.

At the American Association for the Advancement of Science (AAAS) Annual Meeting, scheduled for next month in Vancouver, WDCS CEO Chris Butler-Stroud will be presenting at a symposium titled ‘Declaration of Rights for Cetaceans: ethical and policy implications of intelligence’.

Many still consider the idea of recognising the rights of other highly cognitive mammals as an extremist view point, some even view it as a threat. Certainly it is challenging to the current status quo. The fact that we can now credibly use the emerging scientific understanding of both cetacean intelligence and the social complexity of whales’ and dolphins’ lives to argue for the recognition of cetacean rights in a highly esteemed forum such as the AAAS demonstrates that the scientific community is now taking the proposition of cetacean rights seriously as a topic for debate. Rationalising how cetacean rights, once recognised, will manifest through legal and political structures will be one of the greatest challenges as we work towards fully realising all the rights enshrined in the Declaration of Rights for Cetaceans and this will be the topic of Chris Butler-Stroud’s presentation.

We have the support of philosopher’s such as Thomas I White, we have the support from leading scientist such as Lori Marino and Hal Whitehead and the commitment of lawyers such as Steven Wise who are working to provide the mechanism by which the rights of non-human persons can be first recognised and then protected. A US court has tacitly recognised that cetacean ‘interests’ are a valid part of the debate and through the AAAS the scientific community acknowledges that we must examine the ethical implications of the emerging science on cetacean intelligence. Is it now only a matter time? The question for the orca’s who remain in captivity is just how long this journey will take us.

Find out more about the issues surrounding whales and dolphin rights on our website. Also, have a look at our new book – “Whales and Dolphins: cognition, culture, conservation and human perceptions” which brings together a wide range of experts to look again at our current knowledge of these amazing creatures. Available from the WDCS Shop.