by ROBBY BERMAN

On May 8, 2018, the New York Court of Appeals Decision once again denied the Nonhuman Rights Project’s (NhRP) petition to appeal a lower court’s ruling on the fate of chimpanzees Tommy and Kiko. Though nominally a defeat, the remarkable concurring opinion by the court’s Associate Judge Eugene M. Fahey constitutes a major step forward, a victory in and of itself. The NhRP characterizes it in its press release as “an historic mark of progress in the fight to secure fundamental legal rights for nonhuman animals.” The opinion begins: “The inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter.”

The NhRP has been trying to convince New York State courts that the two chimpanzees have a right to habeas corpus protection, and has been seeking permission to have the two relocated from the small, squalid cages in which they’re being held to the Save the Chimps sanctuary in Florida. The court’s problem has been that habeas corpus protection is available only to persons. Given that there are only two possible classifications for the chimps from a legal point of view—as either persons or things—the NhRP has been so-far unsuccessfully trying to persuade the court to bestow legal personhood on Tommy and Kiko. After all, as Fahey writes in his opinion, “While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.” The judge says further, “The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a ‘person’ or relegated to the category of a ‘thing’ amounts to a refusal to confront a manifest injustice.”

Fahey’s opinion doesn’t say much about why the current motion was denied, and in fact, its primary focus is on the specific reasons he believes the lower courts were wrong to deny personhood for Tommy and Kiko. It’s a compelling read. Fahey says the entire case represents “a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.”

Source: BigThink