The case for Cetacean Personhood – the legal approach.

The recognition of non-humans as persons, in both the social, philosophical and legal term is one of the main goals of the Institute for Ethics and Emerging Technologies, The Dolphin Project, Sea Shepherd and numerous other organisations . This idea mostly resides on the principles of sapience, intelligence, and sentience. Taking those traits into account however, does not really correspond with the idea of recognizing cetaceans, mainly dolphins and orcas, as legal entities.

In legal terms, a person – either natural or artificial – is an entity that possesses legal capacity, including the capacity to contract. Numerous studies show that dolphins and orcas are sentient, self-aware, possess intelligence and show complex social behaviors. That alone does not qualify any member of those species, or specie as a whole to the title of personhood, or being considered a legal entity.

Despite all scientific efforts and endeavors, there are still barriers between humans and cetaceans, the major one is communicationi. This is the basic problem in legal relations between two separate entities. Humans, as a species have developed many methods of communication, from speech, gesture, writing to sophisticated technologies enabling long distance communication, such as the internet. Although cetaceans have their own speech patterns, which allow them even to distinguish names, the basics issue is the lack of sufficient human-cetacean communication.

Let us divide available legal models to two categories:

  1. Not requiring communication

  2. Enforced communication

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1. A legal model that does not require human-cetacean communication.

This model applies to the most current issues of cetacean personhood, as well as their legal protection. This model has already established a legal foothold, with the Indian Ministry of Environment and Forestsii statement issued on the 27th of May 2013, regarding the ban of dolphin shows, declared that “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”. The main idea is that dolphins, as well as other cetaceans are issued a “human-like” legal protection against violence, captivity, torture etc. They are not however granted any form of legal capacity, including the capacity for contracts, which leaves them incapable of performing any legal action on their own. But in the case of legal protection, they’re still treated as humans. They will no longer fall under the legal category of animals or wildlife, no longer considered a game. This would change the international maritime law in many senses, such as the ultimate ban for whaling, dolphin drive hunting and the persecution of “bycatching”. Any kind of marine accidents involving cetaceans would be considered a non-human manslaughter.

On the other hand they could be represented by an intermediary, pleading in court on their behalf, acting as their legal representative. That would still leave lacking any means to take any legal action on their own.

2. A legal model requiring enforcing two-way human-cetacean communication.

While it would be viewed as highly unethical or immoral to force the mean of communication on another person or specie, it should be viewed as highly necessary. A person must have the ability to communicate other entities in order to exercise its full legal capacity. Thus there is a need to either create neuro-lingual implants, ones inside person’s body, allowing it to communicate with other persons of different genus, or specie, or wearable electronics, that don’t require any direct connection to the nervous system. BCIs and other devices would provide the means in order to establish communication, internal or external devices working as prosthesis, removing their disability to speak human languages.

Those achievements of science and technology, would certainly allow a radical social change, establishing the working non-human personhood system, compatible with the traditional “natural and legal” personhood models. A dolphin, whale or an orca would in fact obtain every civil right as a humanborn natural person. This would be the difference between non-human natural personhood, and legal personhood, which doesn’t require the person to possess a body, and thus require it to have a representative. A non-human can run its own business, drive a vehicle, in the same manner as a human with physical disabilities can, vote and run as a candidate in an elections, acquire marital status, inherit wealth and rights, can take legal actions, suing other persons and entities. And be held liable for its actions.

The civil and criminal liability of non-human natural persons.

Most non-human personhood activists tend to forget that natural persons, at full age and capacity, obtain a certain set of rights, and are subjected to numerous obligations. If a dolphin for an example, rapes another dolphin, it would be treated merely as a “natural animal behavior”, but as a public offense and a crime against another person. Non-human perpetrators of sexual assaults or killings are not to be treated as animals any more, but trialed and punished on the same terms as human persons. The non-human, who has been found guilty of fraud, breaching a contract, industrial property infringement, would be forced, same as with humans found guilty of same criminal conducts, to serve their time in jail, pay the compensation for damage sustained by another party due to his or her actions. As long as no person can be held in captivity against that persons will, the criminal and penal codes would have to be adjusted for non-human criminals, thus, a cetacean would have a strictly regulated volume of the tank in which the sentence would be served, the amount of food, exercise, access to books, computers and so on.

Walk like a cetacean – legal activities of non-human natural persons.

As it has been already established, no person should be forced to captivity, especially the likes of seaworlds and dolphinariums. But dolphins, orcas and others can be employed in those theme parks as paid performers, as well as take part in cyborg/augmented Olympics. One of the main ideas here is that today’s disabled are the future augmented. Thus, if a dolphin can’t walk on land, an exoskeleton suit, providing the non-human both mobility on land and moist environment for the delicate cetacean skin. The problem with lacking arms and fingers can be also solved with prosthetics, the same way as an extra set of fingers augment is being experimentally provide to a human being Despite the ongoing advancements in telepresence technology or even robotic avatars, as proposed by the 2045 Initiative, one has to keep in mind that instead of forcing humans with disabilities to stay indoors, and access the outside world via avatars or mobile telepresence platforms, we adjust our environment to their needs, providing access slopes for the wheelchairs, clicking sounds and pavement markings for the blind and so on. The same thing will have to be done, if non-human persons were to be allowed to walk alongside us, acting in the same manner, as natural persons of human origin.

Prosthesis for doplhins

The impact on culture, industry and wildlife.

Non-human natural persons would not be excluded by any constitutional law, such as US federal law, from any civil rights. While the case of citizenship of non-humans can be debatable, once granted rights would be not. Cetaceans would be legally obliged to carry out help whenever there is an accident, saving the lives of sailors the same way that ship’s crew is obliged to. As mentioned earlier, the mistreatment of other non-human persons, or wild animals such as seals, walruses, porpoises or penguins would not remain unsanctioned, as cetacean persons would be treated the same way as human poachers, or in the case of orca packs hunting sperm whales, brutal murders, a ceticide. In the same way, cetaceans would receive voting rights, as well as the right to run for the congress in the US or even for the president. Let us remind ourselves that even in the early 2000s, an African-American President of the United States was still considered a science fiction trope.

As for the scientific impact of establishing human-cetacean communication, one can be sure that this would once and for all debunk the claims that dolphins possess some kind of a Brain2Brain communication, or telepathy, which is one of the greatest hoaxes of the contemporary New Age Movements, it would help us better understand psychology, cognitive mechanisms and social structures, as well as numerous other ways that will arise from the currently unknown-for-untested fields of knowledge. There are also the proponents of using cetaceans in the SETI programiii.

As pop-culture has given us depictions of Human-cetacean relations, such as David Brin’s Uplift series, Jablokov A deeper sea or the Free Willy franchise, there are also the classics, like Melville’s Moby Dick which could be viewed as stereotypic in its representation of the whale, and offensive to cetacean persons. Probably the name “whale” would disappear from public usage, the same way that the word “negro” fades away, where in the past it didn’t mean a person, but property. Whale songs or videos containing cetacean mating, killing or being killed would be viewed as snuff and pornographyiv, or would be copyright protected, as the intellectual property of particular “singers” or “actors”.

One can also imagine the new fields of industry, creating products addressed for cetaceans that would arise, as the new of consumers floods the markets. A good example would be RFID chips. Cetaceans have no hands, they can’t handle money and conceal it without specialized equipment, and paper bills tend to get wet, and eventually get useless. Humans use RFID credit cards all the time, and some of them even implant chips in their palms, enabling them to pay for the goods and services, without carrying any money or cards with them. Others would include the recently mentioned land activity suits and prosthetics, nutrition, medicine, leisure goods, and even “houses” of some kind.

Here we have to take a step back to the concerns of the international maritime law. The law states the right of salvage to any party, able to put itself (ship and crew, in this case cetacean persons) at risk in order to recover another party’s ship or cargo. Yet there are concerns on the sunken shipwreck treasures. Sunken merchant ships, containing treasures in its cargo holds, can be claimed by salvor upon presenting them before a federal claims court. And the waters of our planet have plenty of wrecks, and forgotten derelicts on buried in their bottom, thus it would be wise to consider one of the first major human-cetacean endeavors, if not a way for non-humans to earn their first major money.

One issue still remains. The legal difference between augmented and unaugmented cetaceans. There might be an agreement on a hybrid model, where the wild cetaceans are treated as humans in the terms of legal protection, but lacking both the legal capacity, and proper education (as it would be viewed a statutory obligation to provide such to augmented cetaceans), thus the knowledge and jurisprudence, they would be treated as minors. If a wild orca would harm non-human person (regardless of augmentations or their lack), it would still be subjected to trial, though due to the lack of communicative skills, would have to act by its intermediary. We shouldn’t however create a double standard for augmented and unaugmented on the basis of the “Nottingham ruling”, where a suspect is being spared the sentence, “because he didn’t knew it was illegal”.

Besides the case of cetaceans being hired to perform a certain task, or a salary job, the case of natural personhood doesn’t end there. Firstly, this would jeopardize any patents concerning certain chimerical or hybrid organisms, especially cetacean, regardless of the inclusion of human genes, or patents resulting with genetically altered cetacean organisms, for cetaceans are no longer viewed as animals, thus human laws also apply to them. Military animals would be considered as recruits or conscripts, engaged in the conflict as combatants. Currently there are two countries officially training and using military dolphins, The United States of America and Russia. It is this time of the Crimea Crisis and the Ukrainian civil war, where the possibility of escalating conflict, the use of non-human persons (not recognized as such by either of the participants) becomes a reality in an open naval skirmish and black ops operations. We can ask ourselves the question of ethics, forcing intelligent cetaceans, beings possessing lethal autonomy of some kind (as they are not remotely controlled as most UCAVs) to kill in a war, possibly killing enemy cetaceans as well. Or will this be the great test, for intelligence and communication, where “living weapons” from both sides communicate each other and refuse to carry out their commanding officers’ orders?

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