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Dolphins: An ethical question


One of the best pieces of news in recent weeks with regards to animals is the ban by the Government of India on the construction of new aquatic parks that use dolphins or other cetaceans in spectacles or exhibitions [1]. This ban is paired with the order to close the parks, such as the park in Kerala, where dolphins, whales and orcas in captivity perform entertainment for the public, which the government depicts "morally unacceptable". With this decision, the Indian Government joins the governments of Costa Rica, Hungary and Chile which had previously adopted the same measures.

The news has been widely reported in the world press [2]. It signifies one more step toward the abolishment of a practice that only contributes to the suffering of animals that enjoy a high level of cerebral development, which, as specialized science has demonstrated and the Indian Government cites in a detailed manner in the regulatory text, allows them: to recognize themselves, establish specific modes of communication that change and can be modified, construct strong family ties, and create their own culture. For this reason, the Indian Government declares that dolphins must be considered as “non-human persons” and must have their own specific rights [3].

This affirmation is echoed in the Declaration emanating from the Helsinki Conference (Finland), of May 22, 2010 [4], which enjoyed the presence of respected scientists such as Lori Marino (Emory University, USA), Thomas White (Loyola University, USA), and Paola Cavalieri, editor of the prestigious international Journal "Etica & Animali" [Ethics and Animals]. Since then, the social and legal movement in favor of respect for dolphins and other cetaceans, has not stopped growing and has been welcomed by wider audiences who have decided to stop a form of entertainment that only leads to illnesses and stress in these animals. A reflection of this affirmation can be seen in awarding the Oscar to the documentary "The Cove" in 2010 about the annual massacre of dolphins in the Park of Taiji (Japan), which I addressed in this same section when the movie came out [5].

To include a moral question as well as the recognition of dolphins as “non-human persons” in a legal regulation may fuel controversy among those who wrongly believe that the term “person” belongs solely (and “naturally”) to human beings. I need no more mention that the term “person” is applied to businesses, for example, in, what seems to me, an uncontested manner. In such cases they speak of a “legal person”, which is decidedly an “unnatural” denomination and is in fact a civil, that is to say, legal denomination. Both rights as well as responsibilities are attributed to these entities, as well the exercise of actions of said “legal person” through their legal representatives. No one seems to react against this centuries-long application and use of the term “person” to beings that are not very human (a bank, a dry cleaners, a brick factory, etc), even though there may be humans who are involved in the actions of said "legal person".

Said in a brief, and I hope, clear manner: ‘person’ is a term that comes from Latin and signifies “mask”. It denotes a form of presenting oneself in society, in public. As such “persons” (masks) were used in Antiquity both in the theater to represent the characters (something similar to what occurs in Japanese kabuki), as well as to show in cortèges the different forms of acting (or of representation) in which the deceased presented their self throughout their life. The Law makes use of such a versatile, rich and neutral term to indicate that rights and obligations can be attributed to an individual, a product, an action, a set of actions; in short, they can be considered a subject, a “person”, in the legal system. Nothing more, nothing less. A person, in other terms, is a legal category that simply signifies what an individual or an entity represents within the society where it lives, and as such, how the Law conceptualizes the ‘person’ and treats the ‘person’ in accordance with what it represents. This being said, I ask myself if there is any technical or legal issue in using the “non-human person” to reference animals and, especially, to some types of animals. It is clearly not the case.

That laws have, or should have, a direct connection with individual and public behavior and ethical principles is, to put it lightly, patently obvious. The Law is something more than a way of legislating how to organize a social group in an efficient manner; the Law assumes ethical principles which are attributed an indelible value by societal consensus. If these moral principles are based for example on respect for nature, for the environment which surrounds us, to the beings that live there, then it’s understood that States can attribute to the existence and respect for animals in themselves a moral value. This is what has been done and declared bluntly by the Italian, German, Austrian and Swiss Constitutions. The Ministry of Economic Affairs, Agriculture and Innovation just proclaimed the same in a very interesting document, saying that animals are, for the Netherlands, "a public good" and that, as such, their "interests" must be respected [6].

Speaking of animal interests is a formal technique of alluding to the basic elements that animals require for themselves to live in a dignified manner. Making reference to the "interests" of animals is a way to refer to those behaviors that each animal, each species, needs to develop their nature in full. In opposition to these interests are suffering, hunger, thirst, the lack of space to develop their nature and panic and fear. All this is covered on a scientific basis in the "5 Freedoms" [7], which has been increasingly incorporated for a couple of centuries in animal protection law in Anglo-Saxon countries and, especially, in the Animal Welfare Legislation of the EU, regarding animals of production [8].

In short, this consists of nothing more than applying those unquestionable foundations which form the basis of the Law, that is, respect for and observance of ethical principles, to legislation regarding animals.

It pleases me to know that these reflections offer a basis upon which to revise some of our laws. This is what I hope for, for the dolphins and for others.

Teresa Giménez-Candela
Professor of Roman Law
Animal Law Professor
Autonomous University of Barcelona

[1] The entire text of the regulation can be found here: F. No. 20-1/2010-CZA(M) DATE: 17.05.2013
[2] External links dw.de, dolphinproject.org,earthisland.org, npr.org.
[3] F. No.. 20-1/2010-CZA (M): "Whereas cetaceans in general are highly intelligent and sensitive, and various scientists who have researched dolphin behavior have suggested that the unusually high intelligence; as compared to other animals means that dolphin should be seen as “non-human persons” and as such should have their own specific rights and is morally unacceptable to keep them captive for entertainment purpose"
[4] Declaration of Rights for Cetaceans: Whales and Dolphins cetaceanrights.org
[5] T. Giménez-Candela, Internal link
[6] Ministry of Economic Afairs, Agriculture and Innovation, Ethics in Policy: weighing values with sense and sensibility (Nederland 2013).
[7] See, for example, on fawc.org.uk
[8] See Welfare Quality Project.

keys law, legal , case law , animal

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