TIR supports the people’s initiative “Basic Rights for Primates” in the canton of Basel-Stadt
On February 13, 2022, the popular initiative Volksinitiative "Basic Rights for Primates" launched by the animal welfare organization Sentience will be voted on in Basel-Stadt. Tier im Recht (TIR; Foundation for the Animal in the Law) supports the initiative since it provides an impetus for the actual protection of the dignity of our closest relatives. The support of the cantonal people’s initiative is in line with TIR's efforts for a continuous improvement of the relationship between humans and animals.
January 27, 2022
Switzerland has a very progressive animal welfare legislation compared to the rest of the world. In 1992, for example, the recognition of the dignity of creatures was enshrined in the Federal Constitution (FC), and in 2008 the protection of animal dignity was included in the purpose clause of the Animal Welfare Act (AWA). Since 2003, article 641a of the Civil Code (CC) states that animals are not objects (however, apart from a few exceptions, property law still largely applies to animals) Nevertheless, the Animal Welfare Act is primarily oriented towards human user interests and permits the industrial production of animal products, as is the case everywhere in the world. Current legislation neither protects the life of animals nor adequately safeguards their physical and mental integrity. Thus, the Animal Welfare Act allows the use of animals for human purposes that are diametrically opposed to their own interests. This fact is confirmed in article 4 AWA: “Any person who handles animals must ensure their well-being as far as the intended purpose permits.” Furthermore, the animal welfare legislation does not grant animals any party rights, which is why they have no general right to representation of their interests in administrative and criminal proceedings.
Non-human primates too may be used and killed – provided that the minimum requirements of the animal welfare legislation are met. Their interests are generally considered inferior to those of human beings, although they do not differ substantially from the latter in their wanting to live and to be respected in their physical and mental integrity.
The adoption of the initiative would mean a paradigm shift: Primates would no longer be considered objects in legal terms, i.e., assets that humans can dispose of more or less freely. Rather, they would have individual and enforceable rights, and thus a guaranteed claim to protection against the public-law entities of the Canton of Basel-Stadt, such as the University of Basel. The canton would in turn be obliged to actively protect the basic rights of primates, among other things by introducing a legal representation for these animals. The demanded rights would only protect the elementary interest of primates to life and integrity and, contrary to what many sceptics fear, not any specifically human interests, such as economic or religious freedoms for primates.
Any interference with the basic rights of non-human primates would have to meet the strict requirements of § 13 of the Constitution of the Canton of Basel-Stadt – analogous to article 36 of the Federal Constitution: the interference would only be permissible if has a legal basis, is in the public interest or justified by the protection of basic rights of others, is proportionate and does not violate the core of the fundamental rights. The core of the fundamental rights demanded by the initiative would have to be defined in detail by doctrine and case law. In our opinion, euthanasia, for example, should be interpreted as being compatible with the core of primates' fundamental right to life in cases of severe suffering.
If the initiative is adopted, primates would have enforceable rights of defense against the state.
However, they would not be allowed to participate in private legal transactions and, for instance, assert claims under inheritance or liability law against private individuals. According to articles 11 and 53 CC, only natural and legal persons can be actual legal entities in private law transactions. On the other hand, according to article 6(1) CC, federal civil law does not limit cantons in their authority under public law. Therefore, the cantons may introduce fundamental rights that go beyond the FC and the ECHR, as long as they do not interfere with private law. In a landmark ruling, the Federal Supreme Court dealt with the admissibility of the initiative and concluded that the introduction of fundamental rights for primates was aimed at strengthening animal welfare. Since the federal government has conclusively regulated the protection of animals against private individuals on the basis of article 80 FC, the cantons may not subject the treatment of animals to stricter rules than those already put in place by the federal government based on article 80 FC. The legal capacity of non-human primates would thus be limited to cantonal public rights, which would protect their most elementary interests, namely their right to live and to be respected in their physical and psychological integrity, against the canton.
Nevertheless, the Federal Supreme Court did not rule out an indirect third-party effect analogous to article 35(3) FC, for example in that authorities would have to exercise their discretion in accordance with primates’ basic rights. How this would be achieved in practice cannot be conclusively determined at the present stage.
The practical consequences of the initiative would therefore be limited. However, it cannot be ruled out that, for example, the University of Basel, as a public-law entity of the Canton of Basel-Stadt, decides to conduct primate experiments with a severity level 1-3 in the future. Such a development seems all the more realistic considering pandemic-related worldwide increase in invasive experiments with primates. In its report of December 13, 2017, on the legal admissibility of the primate initiative, the government of Basel-Stadt itself admitted that it is “unlikely that primate experiments can be dispensed with entirely, as it is possible at any time that there could be a need for research with primates again ...”. Fundamental rights for primates would thus have a practical effect in their defensive function against the state.
Furthermore, the initiative's symbolic power should not be underestimated either. Basic rights are not only enforceable rights of defense against the state, but also the expression of a set of values. It is recognized that fundamental rights are basic principles that should permeate the entire legal system and thus determine our entire way of co-existence in society. Acceptance of the “Primate Initiative” would mean a groundbreaking shift away from the use paradigm towards legal subjectivity for non-human primates. Therefore, TIR calls on the population of the Canton of Basel-Stadt to vote for the initiative “Basic Rights for Primates”.