The Elephant in the (Court)Room: Interdependence of Human and Animal Rights in the Anthropocene

On 21 May 2020, the Islamabad High Court issued a remarkable judgment in the case of Kaavan the elephant (among other “inmates” [8] of the Marghazar Zoo), affirming “without any hesitation” that “animals have legal rights” [59]. Chief Justice Athar Minallah held that the “pain and suffering of Kaavan must come to an end”, and ordered his release and relocation to an elephant sanctuary [62]. This marks yet another pioneering judgment on animal rights, joining the ranks of courts in India, Argentina, and Colombia, inter alia.

As these Courts have done, the Islamabad High Court’s judgment propels the discussion on the proper treatment of animals within human societies from the predominant welfare paradigm to that of rights, which promises to provide stronger enforceable protections for animals. Compared to welfare laws (which merely impose certain animal welfare duties on humans) and conservationist approaches (which seek to protect animal species as a whole), under the rights framework individual animals are endowed with basic rights of their own. Though law inevitably remains anthropogenic, the rights paradigm aspires to replace the law’s traditional anthropocentrism with a legal community populated by both human and nonhuman right-holders.

Yet this judgment offers a still greater innovation, and one which has the potential to make it a significant landmark in the field. Although this is a decision nominally about animal rights, at a deeper level it is about the interdependence of human and animal rights. In the face of the mounting existential crises of the Anthropocene—climate change, biodiversity loss, and now Covid-19—the Islamabad High Court begins the necessary task of breaking down the artificially stark divide between the rights of humans and of animals (as the Inter-American Court of Human Rights has begun to do between human rights and the rights of nature). In so doing, Chief Justice Minallah projects a vision of the role the rights framework can play in the Anthropocene: not one of mediating between competing kinds of rights  (rights of humans, animals, and nature), but of highlighting confluences, common interests, and shared needs in a limited and increasingly fragile environment.

Setting the Scene: Covid-19 and the “Interdependence of Living Beings”

The judgment begins by situating the case—concerning the captivity of the elephant Kavaan and other animals at the Marghazar Zoo—in the context of the Coronavirus crisis. As “[b]illions across the globe have voluntarily gone into ʻcaptivity’” and have experienced “self imposed ʻlockdownʼ” [2], the Court sees “an opportunity for humans to introspect and relate to the pain and distress suffered by other living beings” [3] who are involuntarily kept in confinement for their entire lives. Moreover, the Court observes that the current pandemic crisis “has highlighted the interdependence of living beings” and that, therefore, the present case has “a nexus with the threat to human existence” [3].

Indeed, in the omnipresent climate crisis and the ongoing Covid-19 pandemic, there is an elephant in the room—and now in court—that can no longer be ignored: humans’ destructive and exploitative relationship with animals. The existential ecological and health crises that humanity faces today are deeply intertwined with the inhuman ways we treat animals. For example, three out of four emerging infectious diseases are zoonoses. Wildlife markets—such as the Huanan Seafood Market identified as a possible point of origin for the SARS-CoV-2 virus—are a breeding ground for such zoonotic diseases that threaten human health, and for animals these “wet markets are hell on earth”, as Peter Singer and Paola Cavalieri have described them. Moreover, as they rightly note, “This is just one small part of the suffering that humans systematically inflict on animals in every country – in factory farms, laboratories, and the entertainment industry.” Perhaps the most damaging of contemporary animal use practices is factory farming—originally a western model but now rapidly spreading across the globe—in which billions of animals are destined to suffer short lives full of pain and anguish. These, too, are breeding grounds for zoonotic diseases, and are among the biggest contributors to the potentially catastrophic rise in antibiotic resistance. Moreover, animal production is a key contributor to climate change, deforestation, air and water pollution, as well as biodiversity- and habitat loss.

In short, tackling climate change, environmental degradation, and the emergence of zoonoses must go hand in hand with addressing the institutionalised exploitation and ill-treatment of animals. Animal welfare and rights have become a matter of human survival and rights.

Human Rights as Living Instruments

This is the backdrop against which the judgment—and its laudable willingness to recognise animal rights—is set. Before turning to the ways in which it compares and links animal and human rights, however, it is useful to recall the general role human rights play in international affairs.

The entrenchment of human rights has been one of the most remarkable achievements of the last century. In many States, and in particular those within the African, American, and European convention systems, human rights offer a legally binding minimum standard of treatment of individuals by States. Moreover, human rights structure international discourses, as a form of international positive morality. In constraining State action, in providing criteria for assessing outcomes, and as implied or explicit referents in other legal fields, human rights help to divide acceptable and unacceptable behaviours. Understood as living instruments, the interpretation of human rights conventions has developed in line with (and guiding) social change, in order to provide protections appropriate to and adequate for the societies to which they apply.

But in what direction should international human rights standards continue to develop and evolve in the Anthropocene, a context in which we—understood as a global community—face accelerating threats related to our relations with animals and the wider natural world? It is that question which Chief Justice Minallah seeks squarely to address.

(Some) Human Rights Are Animal Rights…

After comprehensively recounting and considering the existing world-wide case law on animal rights [30-45], the Court states that “Like humans, animals also have natural rights which ought to be recognized” [60]. Indeed, some fundamental rights that have traditionally been labelled “human” rights can be readily rethought as animal rights, as this judgment—read along the emerging global animal rights jurisprudence—illustrates. Human rights are natural rights and have a “nexus with ʻlifeʼ” [59], which makes such rights as the right to life and to bodily integrity available for other living beings. The Court spells out a range of natural animal rights, notably the right to live in an environment that meets the behavioural, social and physiological needs of an animal; the right not to be treated in a manner that subjects an animal to unnecessary pain and suffering; and the right not to be tortured or unnecessarily killed [60]. Furthermore, the Court rejects the human “right or prerogative of enslaving or subjugating” animals [60].

While this far-reaching judicial recognition of animal rights is commendable, it should be taken with a grain of salt, as it remains questionable whether, and to what extent, courts and society at large will be willing to accept the full consequences of animal rights. Generally, animal rights case law has so far almost exclusively concerned individual animals held captive in zoos, and often particularly human-like or “magnificent” animals such as great apes, whales or elephants – and thus animals who, as Will Kymlicka puts it, are “largely peripheral to the ʻanimal-industrial complexʼ that is at the heart of the oppression of animals.” The real challenge will be to gain rights for the large masses of farmed animals, such as pigs or chicken. Moreover, certain of the Chief Justice’s most progressive pronouncements should likely be understood as obiter dicta—the non-binding opinion of the judge—rather than ratio decidendi. Nonetheless, judgments such as the present one mark important first steps towards a more comprehensive recognition of universal animal rights, as they break down a deeply entrenched human-animal divide in law.

… and Animal Rights Are Human Rights

Perhaps the most noteworthy aspect of this judgment is its deliberation of animal rights alongside, and as integral part of, human rights and environmental protection. The Court notes that the existence and survival of the human species is dependent on other living beings, and that it “is, therefore, obvious that neglect of the welfare, wellbeing of the animal species, or any treatment of an animal that subjects it to unnecessary pain or suffering, has implications for the right to life of humans” [55-56]. The interdependence of the wellbeing of humans and animals is not just evident as regards climate change, zoonotic diseases and biodiversity loss, but moreover, the judgment relies on “compelling evidence” showing the interlocking mechanisms of violence against humans and animals [57]. In light of this, the Court concludes that any violations of animal rights (notably “Cruel treatment and neglect of the wellbeing of an animal in captivity, or exposing it to conditions which do not meet the animals [sic] behavioural, social and physiological needs”) also constitutes an “infringement of the right to life of humans” [57]. This nexus between animal and human rights “makes it an obligation of the State and its authorities to jealously guard against cruel and illegal treatment of animals” [57].

Towards a “One Rights” Approach

The Islamabad High Court shows the way. Chief Justice Minallah arrives at the interdependence of human and animal rights as a (and arguably the only) fitting legal paradigm for the Anthropocene. The interlinking of human and animal rights is both bold and necessary. It marks a clear departure from traditional human rights exceptionalism or supremacism, and instead emphasises the independent rights of animals as well as the interdependent rights of human and nonhuman animals. In a time of multiple, overlapping and reinforcing anthropogenic existential crises, this change in legal perspective is both sorely needed and long overdue as a means to tie together the challenges that humans, animals, and ecosystems currently face. Increasing awareness of the interconnectedness of human, animal and ecosystem health has led to an integrative One Health (or One Welfare) approach in the natural sciences. Perhaps the time has come for a corresponding, holistic “One Rights” approach in law: human rights are animal rights, and animal rights are human rights.