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Minke whale © Ursula Tscherter - ORES

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Mykines Lighthouse, Faroe Islands

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Chasing ‘Personhood’: Do Whales and Dolphins Qualify?

WDC recently participated in a conference held December 6th-8th at Yale University entitled “Personhood Beyond the Human.” The conference was organized with the intention of exploring and challenging the frameworks that guide our human categorization of non-human animal species and other non-human entities, such as human-manufactured intelligence (e.g., robots) or human-animal hybrids (i.e., chimeras).

From an ethical perspective, we might balk at the very idea of attempting to parse the diversity of life along dividing lines to determine who ‘deserves’ to be in the privileged circle where rights are entitled and granted. We might even argue that such attempts merely entrench the notion of human exceptionalism and maintain the current hierarchies of power that place humankind at the summit of creation, suggesting that only our currently-recognized and familiar frameworks for perceiving and making sense of the world count. In any event, personhood is an important designation because it ushers in a provision of moral standing, a condition that requires us, as moral agents, to consider an individual’s welfare and how she or he is treated, irrespective of the effect it has on others.

That, of course, is one way to look at these human-centric attempts to define ‘personhood’ in order to extend rights and equivalent protection to other species. The other, more positive side, is to view attempts to extend the designation of ‘persons’ to non-human animals as efforts to acknowledge preexisting rights, including within our legal systems and frameworks. Several days before the Yale conference, the Nonhuman Rights Project petitioned three New York courts and jurisdictions on behalf of its four chimpanzee claimants.

Based in the legal cause of action known as the common law writ of habeas corpus, these suits are seeking relief on behalf of captive chimpanzees, claiming that they are autonomous, cognitively-complex, and self-aware beings that qualify them as legal persons, rather than property, and therefore have the basic legal right not to be imprisoned. Technically, habeas corpus allows an outside petitioner to seek relief for someone being held captive by forcing the captor to explain why he or she is being held. Although one case has been dismissed, two others were granted a hearing before a judge. Although these petitions were ultimately denied, the judge provided encouraging statements within the court’s record that can be used to support an appeal within a higher court.

Fundamental to psychology is the notion of out-group and in-group biases that directly influence how we treat other species, and each other. As a basic concept, if you are in the ‘in-group’, and share similar characteristics to members of that group, there is a greater chance that you will be treated with preference, dignity, and respect. However, if you are a member of the out-group and are dissimilar to other members, you are more likely to be mistreated with prejudice, discrimination, and even harm.

In the context of these discussions, the ‘in-group’ is human beings, and the out group is everything else, including animals, that don’t resemble or communicate like human beings. If a species is lucky enough to share human-like traits, such as high emotional, social, and intellectual intelligence, we may consider its members to be candidates for a label of ‘person’ and therefore entitled to certain rights. And so we begin to see the problem with our reliance on comparing similar traits and characteristics in search of those ‘others’ that we deem worthy of a personhood label, especially when those others cannot communicate within our human frameworks. What happens to those non-human animal species that don’t make the cut?

Although we might argue that the only practical and feasible way to evaluate personhood is through established and acceptable frameworks, including the best available science that is beginning to reveal the complexity of non-human animals and their societies, these legal, political, and even scientific frameworks have limitations that will need to evolve over time.

Until the conversation on personhood reaches beyond academic and even legal circles, however, there is a way around this predisposed and unfair trap that suggests that only the most like us are worthy of protection. Rather, we can acknowledge now that whales and dolphins have preexisting rights that lay beyond the traditional hierarchical parameters that leave most animals outside the realm of adequate protection and recognition of their individual and inherent rights to life, liberty, and freedom from human-imposed harm.

Regardless of what academic dilemmas are posed by these philosophical quandaries of where we draw our lines of inclusion into our considerations of who is entitled to be treated as a ‘person,’ it is clear that the time has come to simply recognize that whales and dolphins in their own right and independent from our own, as vulnerable denizens in a human-centric world, are deserving of basic rights including the right to life, freedom from servitude and cruel treatment, and protection of their natural environment. The fact that they share some of our cognitive intelligence (e.g., self-awareness has been demonstrated in bottlenose dolphins), sociology (e.g., enduring and complex family units) and even biology (e.g., spindle and mirror neurons) makes consideration of their inherent rights more palatable to our contemporaries, but these characteristics are not prerequisites for inclusion.

WDC is leading the conversation on personhood for whales and dolphins. As part of the Helsinki Group, WDC helped usher in the Declaration of Cetacean Rights in May 2010, and has conceptualized the necessary steps towards the attainment of fundamental rights for whales and dolphins in the below diagram. As legal and scientific systems evolve, so too must the language that we use to refer to whales and dolphins, turning from the use of property-laden pronouns such as ‘it,’ to personal pronouns such as ‘he’ and ‘she.’ Eventually recognizing whales and dolphins as persons rather than things in practice will require a fundamental shift from treating whales as a resource for human utilization, towards protecting their rights as individuals. To achieve this, we must transform our legal and political structures that guide decision making for cetacean protection which over time may convert our customs and practices to a more inclusive, compassionate and equitable cohabitation with these nonhuman persons.

For those that wish to see more, you can view WDC’s TEDx talk on this topic.