Should Blue Whales, Albatross and Yellow-fin Tuna (etc) Have Standing?

Insofar, the issue upon standing of natural objects and animals were seen by their defenders as one of the most important legal barriers to stop deforesting, pollution, and animal torture, abuse, experiments, trade and so on, because ‘a thing’ without legal personhood is invisible to law.

However, in the recent decades especially after 1970s many scholars such as Peter Singer, Christopher Stone and Joel Feinberg raised the issue of standing which sounded laughable at the beginning.

Nevertheless, though this issue is not frightening or laughable at the moment, but still natural objects` standing is not a universal norms. But for any ‘should’ to be de facto, once might look at the problems which hinder the process. The most important problem is that the current law sees animals or trees as things to be conquered, mastered  and used in such a way the law once looked upon “man`s” relationship to African Negroes .

Is it time that we realize those species such as whales, albatross and yellow-fin tuna are not that much different from human beings and they deserve to have standing. As Charles Darwin once wrote; “The difference in mind between man and the higher animal …is one of degree and not of kind. We have seen that the senses and intuitions, the various emotions and faculties, such as love, memory, attention, curiosity, imitation, reason, (etc.), of which man boasts, may be found…in the lower animals .”

This paper therefore, tries to discuss whether animals or natural objects should have standing or not together with its necessity, suppressors and challenges followed by a conclusion. In the first part, the focus will be on the legal barriers of standing which are indeed what we have now as law and why it is important to give standing to natural objects. In the second part, the moral standing of animals will be in focus because animals have some degree of rational thoughts tha

t make them capable of enjoying or suffering from what humans may do to them. Natural objects` standing is seen as an inevitable step in evolution of moral and legal body of our life throughout the paper.

Perhaps, one of the most influential literatures on animals and natural objects` standing is “Should trees have standing?” by Christopher D. Stone. He proposed that “we should give standing to forests, oceans, rivers or so called ‘natural objects’ in the environment-indeed, to the natural environment as a whole”. He based his argument on the development of human kind and how throughout history legal rights of children and African Negros were recognized in principle and practice.

Children and slaves were less than a person-a thing -which could be killed or sold. Giving same legal rights to a child or a slave sounded as frightening or laughable as giving standing to animals today. But as we move forward, people came to realize the importance of nature and environment so law should also have parallel development.

In this sense, although blue whales and albatrosses ( maybe not yellow-fin tunas) are listed in appendix I to III of Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)  , but still they do not have standing or locus standi in a court. In the United States legal system, standing will be given to ‘a thing’ if three criteria are met: (1) the plaintiff must have suffered an injury in fact, (2) the injury must be causally connected to the act about which the plaintiff is complaining, and (3) the court must be able to redress the injury.

In addition to the constitutionally mandated requirements, the courts may impose prudential requirements before holding that a party has standing. These include the general prohibition of raising a third party’s legal rights, the requirement that the suit fall within the “zone of interests” of the law at issue, and the disallowance of generalized grievances . The prudential requirement “arises from a perceived institutional need for judicial self-restraint rather than from the Constitution itself.”

The main problem with these requirements in terms of nature and animals is that, the parties bringing suit to a court did not suffer a direct injury. At present, one way that humans can bring suit for environmental de-spoliation is to preserve the “recreational” and “aesthetic” interests. For instance, the enthusiastic whale watchers can bring a suit against whalers for ruining enjoyment of their hobby.

But is it enough? Do the damages go to whales or just to the whale watcher? The common law has proven itself willing to progress with social and philosophical advancements of human kind and has embraced the idea that animals have independent interests that are worthy of protection. The idea that animals should be protected if and only if a human being is adversely affected is absurd and inadequate.

Maybe it is better that whales sue the whalers by themselves but animals cannot speak (though they can but not in a way the humans understand). “Corporations cannot speak either; nor can states, estates, infants, incompetents, municipalities or universities. But lawyers or guardians can speak for them as they speak for legal incompetents-human beings who have become vegetable” .

But even a lawyer, committee or guardian cannot judge what is best for a whale, a river or a forest. Stone here argued that, it is easier to understand what your lawn needs than what, for instance, the United States needs.

In this point, even Stone might be wrong when he said he will know what his lawn ‘wants’ such as water. As Maxwell Kardon wrote; “However, the grass may ‘want’ water but the dirt may ‘want’ the grass to wither up and die so it can feel free to pursue its dirty dreams”.

So what Stone is actually projecting is what he ’wants’ for his lawn . Probably what a whale or elephant would reply if they have been asked ‘what do you want?, they might say no intrusion from human beings because it is the cause of our misery in the first place. I also believe human interference in any parts of an ecosystem can be disastrous in which it may accelerate or hinder the development of other parts within that ecosystem or nature as a whole.

Although animals have been historically seen as a property of humans under the law, it cannot be denied that they are totally different from personal properties such as a desk, a sofa or television. They are living beings capable of having some degree of rational thoughts, feeling pain and emotional attachment . These are some characteristics of animals which in addition to legal standing brought the discussion around moral standing of animals. Peter Singer in ‘Animal Liberation’ argued that our exclusion of animals from moral considerability is on the same page as the earlier exclusions of blacks and women. He popularized the term ‘speciesism’ as a parallel with racism and sexism. Singer argued that just as it is morally wrong to deny equal moral standing on the basis of race and sex, it is wrong to deny equal moral standing on the basis of species membership .

He cited from Jeremy Bentham that “The question is not, can they reason? Nor, can they talk? But, can they suffer?”  The capacity for suffering and enjoyment is a prerequisite for having interests at all, otherwise for instance a stone do not have interests because it cannot suffer.

Kicking it along the road does not make any difference to its welfare. “The capacity for suffering and enjoyment is, however, not only necessary, but also sufficient for us to say that a being has interest-at an absolute minimum, an interest in not suffering”. A mouse, for example, does have an interest in not being kicked along the road because it will suffer from it.

To sum up, by the legal and moral developments of human kind, it is time to realize that animals and nature are inseparable parts of our life and they should be protected by any means. Legal and moral standing indeed, can protect their interests as it has done before for women, children and slaves.

Animals have interest because they can enjoy or suffer both physically and metaphorically. Protecting the environment is also a matter of elementary prudence, a matter of love for our children and their children. But from the perspective of our remote descendants it is principally a matter of justice and respect for their rights . Being a ‘Doer’ is far from being just a ‘knower’ and can determine our behavior toward what is right to do.

The people who may object to giving standing to animals believe it would make it impossible for human to go on living as what they have become accustomed: we cannot all become jainists, it is supposed . But if our ancestors were thinking the same, we would still living in a situation where women, children and blacks were ‘things’ who could be killed, sent away or sold. As Immanuel Kant once said; we should act as if our maxims had to serve at the same time as a universal law for all the entities that make up the world . In this sense, I strongly believe that we, human beings, should give standing to natural objects and animals such as blue whales, albatross or yellow-fin tuna (etc) as a possible way to protect them through legal systems. It is to say; we are giving them our moral and legal power to protect them from ourselves.

Bibliography

Cassuto, David N. (2006). “Legal Standing for Animals and Advocates”. Pace Law Faculty Publications. Paper 512

Darwin, Charles (1874).The Descent of Man. Prometheus Books , Amherst, NY; 1998

DesJardins, Joseph (1993). Environmental ethics: an introduction to environmental philosophy. Belmont, Calif.: Wadsworth

Feinberg, Joel (1989). The Rights of Animals and Future Generations. In Animal Rights and Human Obligations, 2d ed., ed. Tom Regan and Peter Singer, pp. 190-96. Englewood Cliffs, NJ: Prentice Hall

Haenn, Nora and Richard R. Wilk (2006). The environment in anthropology: a reader in ecology, culture, and sustainable living. New York: New York University Press

Kardon, Maxwell (2011). “Should Trees Have Standing? Law, Morality, and the Environment.(Book review)”New York University Journal of International Law and Politics, v.43, no.3, 2011 Spring

Magnotti, Lauren (2006). “Pawing Open the Courthouse Door: Why Animals’ Interests Should Matter When Courts Grant Standing,” St. John’s Law Review: Vol. 80: Iss. 1, Article 15

Mendelson , Joseph (1997). “Should Animals Have Standing? A Review of Standing Under the Animal Welfare Act”, 24 B.C. Envtl. Aff. L. Rev. 795

Singer, Peter, eds. (1991). Animal liberation. New York : Avon Books

Stone, D. Christopher (1972). “Should Trees Have Standing? – Toward Legal Rights For Natural Objects”, 45 Southern California Law Review, 450

By

Hamid Akbari Lasboo

Email: hamid-a-at-live.com