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ARTICLES
Trial on personhood for chimp „Hiasl“

DDr. Martin Balluch, Verein Gegen Tierfabriken, Vienna, Austria
Mag. Eberhart Theuer, University of Vienna, Austria

Summary

The chimp “Hiasl” was abducted in 1982 from the African jungle to be used in experiments in Austria. As his abduction was illegal, he was freed at the airport. After long legal battles with the company responsible for his abduction, he grew up in a human family and now lives at a Viennese animal shelter. In 2006, this shelter ran into financial difficulties and he was threatened with deportation. Therefore in 2007, his close friends started legal procedures to have him declared a person and get him appointed a legal guardian to represent him in court. Four renowned experts in anthropology, biology and law supported the case scientifically. According to Austrian law, all members of the genus “homo” are persons, and chimps belon into this genus as they share 99.4% of human genes. Secondly, it is argued that the definition of person means, biologically, possessing a “theory of mind”, which chimps do. Only if “Hiasl” is accepted as a person, do his interests matter and can he be represented in a legal case against his deportation, so that justice could be done. Only as a person can he collect money for himself. And only as a person could he start legal procedures, claiming for damages against those responsible for his abduction, to secure his future.

Zusammenfassung

Der Schimpanse “Hiasl” wurde 1982 aus dem Dschungel Westafrikas nach Österreich entführt, um hier zu Tierversuchen verwendet zu werden. Da es sich um einen illegalen Transport handelte, wurde er am Flughafen von Zollbeamten befreit. Nach langem Rechtsstreit wuchs Hiasl in einer menschlichen Familie und dem Wiener Tierschutzhaus auf. Durch finanzielle Schwierigkeiten des Tierschutzhauses Ende 2006 war er plötzlich mit Abschiebung ins Ausland bedroht. Deshalb begannen seine Freunde einen Sachwaltschaftsprozess am Bezirksgericht Mödling für seine Anerkennung als Person. Vier anerkannte ExpertInnen in Anthropologie, Biologie und Rechtswissenschaften unterstützten diesen Antrag wissenschaftlich. Nach österreichischem Zivilrecht sind alle Mitglieder der Gattung Mensch („homo“) Personen. Schimpansen, die 99,4% der Gene mit homo sapiens teilen, gehören zu dieser Gattung. Zweitens kann aus dem Kontext des Zivilrechts herausgelesen werden, dass jene Wesen Personen sind, die eine „Theory of Mind“ haben. Auch dazu gehören Schimpansen. Nur wenn Hiasl als Person anerkannt ist, können seine Interessen vor einem Gericht repräsentiert werden, kann er in einem Verfahren seine Abschiebung bekämpfen oder einen Schadenersatzprozess gegen diejenigen führen, die für seine Situation verantwortlich sind.


Introduction – Hiasl’s story

The chimpanzee Matthias “Hiasl” Pan, as he is now known, was born in 1981 in the jungle of Sierra Leone, Western Africa, into a tribe of troglodytes verus chimps. In those days, research labs, zoos and circuses were very interested in chimps caught in the wild and were prepared to pay a big ransom for their capture. In Sierra Leone, a wild animal trader of Austrian origin named Dr. Sitter caught a number of baby chimps to send them over to Austria. For the price of 460.000 Austrian Schillings (corresponding to 33.500 Euro) Hiasl’s fate was decided. His mother was shot and he was ripped from her dead body, aged only 10 months, and stuffed into a box and boarded onto a plane. On 29th April 1982 he arrived together with 11 other baby chimps at Vienna International Airport Schwechat. He and a young female chimp called Rosi, who, like Hiasl, was also about 10 months old, were destined to go to the laboratory belonging to the company Immuno in Orth on the Danube, 30 km East of Vienna, for medical experiments to do with hepatitis and AIDS. In those days, Immuno was trying to build a large chimp colony at their lab to breed them as experimental tools. By 1989, Immuno had 53 chimps, of whom only 2 were not wild caught. For the chimps, being in the lab meant living in tiny cages. At the beginning, the cage dimensions were about 0.7 m x 1.2 m, later the cage size increased to 1.5 m x 1.2 m, depending on the weight of the animals. When the new primate centre in Orth opened up on 23rd of May 1992, it contained 56 single cages of 4.85 m² each (about 2.2 m x 2.2 m) in the windowless basement of the building. The company Baxter, who took over Immuno, stopped the experiments on the chimps on 17th November 1999 and started a rehabilitation project with the surviving 44 chimps from the lab, almost 20 of whom had been infected with a hepatitis virus or HIV or both. (Balluch 2003)

This was meant to be Hiasl’s and Rosi’s fate when they arrived as little babies in their boxes at the airport. Another baby chimp, Henry, had been ordered by he Viennese zoo dealer Walter Ullrich, and the remaining 9 baby chimps from the shipment of 12 were to be taken over by the animal dealer H. Demmer in Vienna. But on the day before their arrival, the 28th April 1982, Austria signed the Convention on International Trade of Endangered Species CITES, an international treaty originally drawn up in 1973 to protect wildlife against overexploitation. The 12 chimps did not have the necessary CITES documents and so their arrival in Austria was essentially illegal. Animal rights activists had received a tip-off and seized together with customs officers the 12 babies and freed them from their boxes. On 6th May 1982, Vienna magistrates ruled to confiscate Hiasl and the other chimps according to §12 (2) of the CITES agreement, unlawful import. The 9 Demmer chimps were handed over to the Vienna zoo, where all of them died soon after. Hiasl, Rosi and Henry were on 17th May 1982 officially given into the care of the Vienna animal shelter, where a carer took them home to raise them together with his own human children in a human family. Hiasl, hence, is socialized like a human and considers himself part of the human species. He reacts to other humans like his social partners, or his rivals or his sexual mates, till today.

More than a year later, on 14th July 1983, Vienna magistrates found the company Immuno guilty of breaching the CITES agreement and ruled that therefore, Immuno cannot be considered as having legal possession of Hiasl and Rosi. Immuno appealed against this decision. On 10th October 1983, this appeal was refused. Hence, Immuno went to the High Court, which ruled on 10th April 1984 – almost 2 years after the arrival of the chimps – in favour of the company. On 18th September 1984, the High Court even ruled the penalty for breaching CITES unlawful and ordered the chimps to be handed back. On 20th November 1984 the mayor of Vienna issued an order to the human family and the Vienna animal shelter, to hand over the chimps to Immuno. When Immuno representatives arrived on 29th November 1984 to take over the, by now, 3 year old chimps, they were physically blocked by animal rights activists and prevented from taking them. The activists, many of whom had befriended the chimps and loved them dearly, were not willing to allow these creatures to be delivered to their fate inside the research lab. An offer was made to buy the chimps, but Immuno declined.

Since Immuno was not able to get their hands on the two chimps, they started legal procedures on 10th July 1985 against the Republic of Austria to legally demand the removal of the chimps from those caring humans by physical force. The charge was based on article 137 of the Austrian constitution, which deals with property rights claims against the republic. For the zoo dealer Walter Ullrich, such court proceedings were not to his liking, and he agreed on 16th December 1985 to sell “his” chimp Henry for 48.000 Schillings (3500 Euro) to the animal shelter. Since the shelter was not equipped to keep the chimp, one year later, on 10th December 1986, they handed Henry on to the zoo in Heidelberg, Germany, where, as in the zoo in Vienna, the chimp died.

On 10th December 1986, Immuno’s case against the Republic of Austria was decided on by the High Courts in their favour. The judges ordered the government to enforce their ruling to hand over the remaining chimps, Hiasl and Rosi, to the research lab. On 23rd March 1987, the Republic of Austria gave the animal shelter 14 days to surrender the chimps voluntarily. The shelter refused. Instead of using police force, the Republic of Austria went to court once again on 11th June 1987 against the shelter. On 18th February 1988, the trial took place at the provincial court of civil law in Vienna. The shelter argued that it has to protect animals from pain and suffering, which would undoubtedly be the consequence for Hiasl and Rosi if they were to go into the lab. The judges, however, responded by saying that animals are things and as such, have no interests themselves. The only interests existing in this case were, according to the court, the interests of the owner Immuno in their property rights, which had been infringed upon. (Wiener Tierschutzverein 1988)

The shelter appealed against this decision. At the beginning of 1989, independently of this case, the Austrian parliament added a new paragraph to the Austrian civil law code dealing with the property status of animals. §285 of the civil law code says that any entity that is not a person is a thing, implicitly declaring all nonhuman animals to things. To this paragraph, a new section §285a was added that explicitly says that animals are not things, but that they shall be treated as things unless there are specific laws saying otherwise. Referring to this new law, the animal shelter argued at the High Court appeal that animals, not being things, have a value in themselves that goes beyond the value of property for the property owners. And this value shall count higher in this case than the property value of the utility of the chimps as experimental tools for Immuno’s research lab. However, on 27th September 1989, the High Court ruled that, §285a not withstanding, nonhuman animals are still things and have no value in themselves. The property owner has the right to take possession of his property, even if that means suffering and death for the chimps. The shelter, however, refused once more to comply and the Immuno representatives did not dare to come back and try to get their property.

Hiasl and Rosi were by then already 8½ years old. Eventually, the two lost contact to their human family and moved permanently into a specially built enclosure at the animal shelter in Vienna. In 1999, the company Baxter, who had taken over Immuno, stopped their experiments on chimps, and 3 years later they officially donated Hiasl and Rosi to the shelter. In 2005, the actions of those activists back in 1984, who prevented Immuno removing the chimps, were officially recognized as justified since the Austrian parliament unanimously voted to ban all experiments on apes. From 1st January 2006 onwards, any experiments, not only on chimps, but also on bonobos, gorillas, orangutans and gibbons, became illegal in Austria if they are not for the benefit of the individual concerned. This breakthrough is much like the human rights declaration of Helsinki 1964, which protects humans from medical experiments against their own interests.
Initiation of a trial for personhood

Starting a trial for personhood In 2006, the Vienna animal shelter ran into financial difficulties. In the bankruptcy proceedings, a business manager was put in charge of the assets of the shelter, with the aim to secure as much as possible for those people the shelter was owing money to. The shelter usually takes cats, dogs and other pet animals in if they are homeless, and seeks people willing to give those animals a new home. Vienna city council pays the shelter money for each animal that was found within the city perimeter. Hiasl and Rosi, being no pets, are a big liability for the shelter. They cost about 5000 Euro each a month. If the shelter goes bankrupt, Hiasl and Rosi will be one of the first creatures, who have to go. Being 26 years old, they are still in the prime of their life, and might be very valuable for a zoo or a circus or, indeed, even a research lab doing experiments on chimps abroad, in countries, where this is still allowed.

At the end of 2006, a person gave a donation of a large sum of money to the president of the animal rights association VGT under the condition that he may only take possession of it if Hiasl has been appointed a legal guardian, who can receive this money at the same time, and who can decide what the two together would want to spend the money on. With this contract, VGT’s president could argue to have legal standing to start court procedures for a legal guardian for Hiasl, or rather, under his full name, Matthias “Hiasl” Pan. This he did on 6th February 2007 at the district court in Mödling, Lower Austria.

The application was supported by four expert statements from Prof. Stefan Hammer, professor of civil rights and constitutional law at the University of Vienna, Prof. Eva-Maria Maier, professor of philosophy of law at the University of Vienna, Prof. Volker Sommer, professor of anthropology at the University of London and Dr. Signe Preuschoft, biologist and chimp expert at the University of Zurich, who was scientific head of the rehabilitation project of the ex-lab chimps in Austria. With the help of those expert statements, an argument was put forward that a chimp, and in particular the chimp Hiasl, is to be considered a person according to Austrian law. Why chimps are persons according to Austrian civil law
Why chimps are persons in accordance with the Austrian civil law

The Austrian civil law code ABGB does not define what a person is. §16 of the civil law code declares all humans to persons: “Every human is born […] with rights and therefore has to be considered a person”. What, however, is meant with the term “human”? The definition of “human” in §16 ABGB has to be interpreted biologically. After all, beings acting like humans but not being genetically human (possibly computers or robots) are not included. On the other hand, genetically human beings, who have mental defects or have been socialized in a tribe of monkeys, definitely do count as persons before the law.

There is no judicial literature on this subject since everybody apparently assumed that they knew which creatures are human and which are not. This might have been a reasonable assumption to make in the pre-Darwinian days of 1811, when the law was written. However, since evolution has been taken seriously, a number of species or subspecies of humans have been identified. Take, for example, Neanderthals. Would they count as humans according to §16 ABGB, if, say, they suddenly appeared alive in a remote Himalayan valley? Or homo habilis, or homo erectus, or the recently discovered homo florensis, who apparently lived still 12.000 years ago? In human rights charters (Heidelmeyer 1997), basic rights are recognized for “members of the human family”. To give this phrase a scientific meaning, it must be interpreted as the term “family” of the Linnean classification. The biological family today’s homo sapiens belong to, is the family of Great Apes, which includes chimps. If the term “human” has to be considered in its more narrow sense, then it must be referring to the genus “homo”, which, after all, is Latin for human. Now, while there might be controversy over which species belong to the genus homo, a well based scientific argument can be made that chimps (and bonobos) must be part of it as homo pan. The primary reason for this classification is the very close genetic relationship between homo sapiens and chimps, who share about 99.4% of genes (Hecht 2003, Wildman et al. 2003). A study looking at amino acid chains, the building blocks of protein, found that of 1271 positions only 0,4% differed between chimps and homo sapiens (Bekoff 2001). Other pairs of species like brown bear and ice bear, lion and tiger, horse and donkey, who are similarly closely related, do belong to the same genus (Balluch 2005, page 151). Further, at least theoretically if not already experimentally, homo sapiens and chimps, especially male chimps and female homo sapiens, can produce fertile offspring (Balluch 2005, page 151).

Homo sapiens have one chromosome fewer than chimps, since the chimp chromosomes 2p and 2q have fused into a large chromosome in homo sapiens. Having different numbers of chromosomes is not an absolute barrier to hybridization, though. Similar mismatches are relatively common in existing species, a phenomenon known as chromosomal polymorphism. (hxxp://en.wikipedia.org/wiki/Humanzee)

The genetic structure of all the great apes, including homo sapiens, is similar. Chromosomes 6, 13, 19, 21, 22, and X are structurally the same in all great apes. 3, 11, 14, 15, 18, and 20 match between gorillas, chimpanzees and homo sapiens. Chimps and homo sapiens match on 1, 2p, 2q, 5, 7 - 10, 12, 16, and Y as well and they have recently been found to share a large transposition from chromosome 1 to Y that is not found in any other ape. This level of chromosomal similarity is roughly equivalent to that found in equines. Interfertility of horses and donkeys is common, although sterility of the offspring (mules) is nearly universal. Similar complexities and prevalent sterility pertain to horse-zebra hybrids, or zorses, whose chromosomal disparity is very wide, with horses typically having 32 chromosomes and zebras possessing between 44 and 62 depending upon species. In a direct parallel to the chimphuman case, the Przewalski horse (Equus przewalskii) with 33 chromosome pairs, and the domestic horse (E. caballus) with 32 chromosome pairs, have been found to be interfertile, and produce semi-fertile offspring, where male hybrids can breed with female domestic horses. (hxxp://en.wikipedia.org/wiki/Humanzee) Examples of species that are included in the genus homo, i.e. that are humans

To summarize, a reasonable argument can be made that the definition of the term “human” in §16 ABGB must include chimps, i.e. also the chimp Hiasl. On the other hand, §16 ABGB also makes it clear that not only humans are persons. If the terms “human” and “person” were interchangeable, the statement that all humans are persons would not make any sense. Indeed, judicially speaking, companies or associations can be persons before the law, for example. The reason is that companies and associations might have interests by themselves, which differ from the interests of the people working within those companies and associations. Only if the companies and associations are recognized as persons before the law, can their interests be represented in court. That clearly shows that “having interests” must be one defining aspect of being a person.

However, since there is actually no judicial literature on the question of what constitutes a person according to the Austrian civil law code, we have to look at the philosophical background of this law. The Austrian civil law code was prepared by a specific ABGB commission, in which Franz von Zeiller was the most important member. It was primarily influenced by the ideas of the enlightenment area, and, more specifically, by the ideas of Immanuel Kant, who had published his thoughts in the years just before. Within this context, it is the ability to reason, which must be isolated as the defining factor for personhood (Kant 1786, Schönecker and Wood 2002 page 142-144, Jean Grondin 1994 page 117f, Lehner 2005 page 22-30 with further references). Zeiller himself speaks of the “dignity of a reasonable, free acting creature” (italics by author) when commenting §16 ABGB (Zeiller 1819 page 65). The ability to reason should include the ability for abstract thought, thinking in terms of cause and effect and being able to put yourself into the position of another being, i.e. being able to predict what another being might feel or do next. Through abstract thought and thinking in terms of cause and effect, you might say that a person has interests. By being able to put himor herself into the position of other persons, the person can appreciate the interests of other persons as well, thereby recognizing personhood in others. This ability we can translate into biological terminology: a person is biologically defined as a being capable of recognizing the interests of other beings, i.e. a person is a being who has what is called a “theory of mind”.

This conclusion is supported if we look at the detailed wording of §16 ABGB. There it says that it can be recognized through reason that all humans are born with rights and therefore are persons. Reason in this context is hence used to describe the ability to recognize a rightsholder, i.e. a person. That supports the conclusion derived earlier, that a person is a being that recognizes personhood in other persons, i.e. a being with a theory of mind.

Now, chimps in general, and Hiasl in particular, have been shown to possess a theory of mind (Taylor-Parker, Mitchell and Boccia 1994, Sommer 2000 page 131, Taylor-Parker and McKinney 1999 page 145, Savage-Rumbaugh and Lewin 1994 page 274). Within a behavioural enrichment program, Hiasl passed a mirror self-recognition test, he showed tool use and understanding, played with human caretakers, watched TV and drew pictures. Hiasl can understand if caretakers want to lure him into doing something, and then decides whether this is in his interests or not. He can pretend to feel or do this or that, and actually willfully deceive others by intending something completely different, but hiding his actual intentions. Those humans close to him, who know him best, clearly support the proposition that he has a theory of mind and does understand intentional states in other persons.

This is supported by scientific findings on cognitive abilities of chimpanzees in general. There is practically no quality or ability traditionally considered typically human that chimpanzees do not possess too. They do not only use but also produce tools, which they might reuse regularly. Chimps create brushlike ends out of sticks to fish for termites, stone tools to break nuts and spears to got hunting (Hooper 2007). Their tools are so sophisticated, that it is hard for paleontologists to decide whether certain stone tools were made by homo sapiens or chimpanzee ancestors (Holmes 2007). Chimpanzees show medical use of plants – a medical knowledge that could have only been accumulated by trial and error and by passing it on over generations, i.e. culture. And chimps do pass on knowledge from one generation to another as has been verified both in observation in the wild and tests on captive chimps (Holmes 2006). Therefore, they possess culture, which is illustrated by the fact that different chimpanzee populations have different methods of tool making or using, of greeting and different rituals – very much like different populations within the homo sapiens species do have different cultural traditions. Chimpanzees can learn to use sophisticated sign language and to understand spoken English. Chimpanzees possess all aspects of rational thought including the ability of thinking in causal relations and of drawing analogies (Matsuzawa 2006, Stanford 2002, Savage-Rumbaugh and Lewin 1994). Moreover, as they are able to adapt their behaviour to the knowledge, feelings and needs of others, they have a theory of mind, being able to act Machiavellan or altruistically by using others for their purposes or helping them in need (Gomez 1998).

To summarize, Hiasl is, as a chimp, a human according to the definition of the term as it is used in §16 ABGB. But he is also a person according to the definition of this term within the philosophical tradition of the enlightenment, which is the basis for the Austrian civil law code altogether. He therefore is a person according to today’s Austrian civil law. Change in paradigm! A modern understanding of personhood includes all great apes.
The trial for personhood

On 6th February 2007, the application for a legal guardian for the chimp Hiasl was put to the Mödling district court in Lower Austria. The judge called two hearings. In the first, she bemoaned the fact that Hiasl had no documents proving his identity. The applicants could remedy this shortcoming, by providing witnesses of his arrival as an abducted child in Austria, as well as his continued identity over the years in Austria since. After the second hearing, the court issued a decision not to continue the proceedings, arguing that Hiasl is not mentally handicapped and that he faces no imminent threat. According to Austrian law, both of these are pre-conditions for getting a legal guardian.

Regarding mental handicaps, the applicants conceded that Hiasl has no mental defect. But he was abducted as a child, taken from his family and his native environment, and seriously traumatized. He had to grow up in an alien environment, where he is not capable of an autonomous life, in contrast to if he had been left in the jungle, where he would not need a legal guardian. Hiasl has been locked up for most of his life, which obviously does not put him in the position to look after himself within the society he is living in. He therefore needs a legal guardian to make sure his interests are being recognized and respected, and that he does not lose out.

And these interests are seriously threatened due to the imminent bankruptcy of the animal shelter he is living at. He is threatened with deportation into an unknown future, possibly abroad where many laws protecting him in Austria might not be existent. Also, as a person with a legal guardian, he could receive donations for himself instead of only as an asset of the animal shelter. If the shelter goes bankrupt, those donations are lost to him. If he had received the money personally, he would be able to keep it and make good use of it for himself. And further, the donation that has been given to him and the president of VGT together, he would also lose, if he is not represented by a legal guardian. All these aspects clearly show an imminent threat, but also a clear disadvantage for him personally, should he not get a legal guardian.

The applicants appealed against the court’s decision. On 9th May 2007, the judge eventually turned down the appeal, arguing that the applicant had no legal standing to appeal. By doing that, she left the question open whether Hiasl is a person or not. Indeed, in all her decisions and correspondence, she wrote as if Hiasl was a person. On 22nd May 2007, the applicants appealed against this decision to the provincial court in Wiener Neustadt. On 5th September 2007, the provincial court turned down the appeal. The judges argued that according to Austrian law, only the legal guardian or the being him- or herself, for whom the application was seeking a legal guardian, could appeal against a court decision on legal guardianship.

On 26th September 2007, the applicants made an appeal to the Austrian Supreme Court for Civil and Criminal Matters (Oberster Gerichtshof). In this appeal, the applicants argue that the law cited by the judges only applies when a legal guardian has already been appointed. Otherwise it would make no sense to say only the legal guardian can appeal. This law obviously pertains only to cases where an appointed legal guardian does not actually want to be the legal guardian or where the person having a legal guardian appointed wants to appeal against this decision. Usually, in cases of mentally handicapped humans, there will only be appeals if a legal guardian has been appointed, because that reduces the rights of the person getting a legal guardian. In Hiasl’s case, to the contrary, however, the refusal to appoint a legal guardian by the court is taking his rights away. So, the provisions of appeals cited by the provincial court do not apply.

Secondly, the Supreme Court has already ruled in other cases that if necessary, close relatives of a person can appeal in his or her name, if he or she is not capable to do this him- or herself. In the case of Hiasl, the latter surely applies. But since the close relatives have been killed during his abduction, or, in any event, are neither present nor capable of doing such an appeal themselves, in extension of the meaning of this ruling, Hiasl’s close friends should be able to appeal in his name.

And thirdly it is argued, that the applicants have to have legal standing, because their interests are at stake as well. After all, they have received this donation of a large sum, which they can only use if Hiasl is appointed a legal guardian. In the appeal to the Supreme Court, the applicants stress that this point has been missed by the Provincial Court in its judgment.

By the time of writing of this article, the Supreme Court has not yet reached a verdict, but it has publicly stated that is does take the case very seriously. The applicants have vowed to bring the case to the European Court of Human Rights, should the Supreme Court fail them.
Person versus thing

The law distinguishes on a very fundamental level between person and thing. While a person cannot be someone’s property, but can own property him- or herself, a thing can be someone’s property and cannot own property itself. A person has interests, which can be protected by rights, i.e. a person is a rights-holder, while a thing has no interests, which are represented or recognized by the law in court, and cannot have rights in principle. Things, however, can be protected by laws, but not in their own interest. Monuments, for example, can be protected by specific laws, because it is in the interest of society to protect them. It is not in the interest of a monument itself to be protected. Similarly with nonhuman animals. According to the law they are things (in practice), hence have no interests and hence can only be protected by laws in the interest of society. The animal protection ombudsman, for example, who has legal standing in cases of animal abuse, has the duty according to the law to represent the interests of society in animal protection, and not the interests of animals themselves. Things, in contrast to persons, have no legal standing.

Thing Person Owns property No Yes Is someone‘s property Yes No Interests represented in court No Yes Rights None Some Protected by law (society‘s interest) Yes: protection of monuments, animals Yes Legal standing No Yes Qualities of persons and things according to the law If Hiasl is seen as a thing and not a person, neither he, nor anyone else, can ensure that the laws protecting him are being enforced. As a person, in such a situation he could either file charges against the authorities failing him, or he could make court applications to uphold the law. If Hiasl is considered a thing, then only the interests of his owner are infringed if somebody else does him harm. His best protection would then be the law against criminal damage and the property rights of his owner.

If, however, it is his owner, who does him harm, then only his owner’s interests will be represented in court. That means, for example, he could be sold, evicted or deported any time his owner sees a personal advantage in that. His own interests would play no role whatsoever in such proceedings. As a person, in contrast, he could legally fight his eviction or deportation. Only if he is recognized as a person would the judges have the option of weighing his interests against those of the person trying to evict or deport him. Only then would there be the possibility to do justice.

As a thing, he can be owned, but he cannot own anything himself. That means that nobody can donate money to Hiasl to secure his future or to buy his own land and to build his own enclosure. As a thing, Hiasl will always be dependent not just on the good will of his owners, but also on their ability not to go bankrupt. If they do, no good will can protect him from being taken, evicted, sold or deported. As a person, Hiasl could not be owned by anybody. In contrast, through his legal guardian, he could raise his own money and secure his own future, independently of any misfortunes of others.

And last but not least, as a thing Hiasl has no legal standing by himself in any cases he might wish to bring to court. His situation is not due to bad luck, but due to certain people, companies and governments acting irresponsibly and illegally. The damage done by those people, companies and governments to Hiasl personally is very high. They have destroyed his life. Was it not for sympathetic, caring people, he would long be dead by now. Why should it be the responsibility of good hearted people, to fund his future, if there are culprits, who would have the money to pay for what they have done? As a thing, his owner the animal shelter could only claim money for the damages the shelter has incurred. Damages to Hiasl himself would not count. And since the animal shelter is not legally obliged to care for Hiasl, the shelter cannot sue for the costs for caring for him. If, however, Hiasl was recognized as a person, the damage done to his life would count and he himself could start legal procedures against those responsible for it. He could sue the animal dealers, who abducted him and killed his mother. He could sue the company, who paid for his abduction in order to do experiments on him. And he could sue the governments of those countries, who gave permits for his abduction or for those experiments. All those are responsible for his situation, and all those should therefore be held liable to undo the damage as best they can.
Discussion

This trial, in many respects, touches on the core beliefs in our society. Historically and culturally, many of our traditions are based on Christian values, for whom often the biggest point seems to be to separate humans from other animals. Humans are supposed to be made in God’s image, chimps – very much looking like humans – apparently are not. This tradition can be traced from early church elders like Augustinus via influential catholic writers like Thomas von Aquin up until today, when the Salzburgian Weihbischof Laun declared: „Having a soul distinguishes humans from the world of animals. […] No commonality and no similarity in the realm of the body can cover up this deep gulf. The most humanlike ape has, if you look at it, more in common with tadpoles or amoebas than humans.“ (hxxp://www.kirchen.net/bischof/laun/texte). Unfortunately, it is unscientific, dogmatic attitudes such as these, which are to this day very influential in many of society’s actions, and are used to justify them. What should actually have long been discarded as religious fundamentalism, still permeates laws and regulations. We are reminded of debates between creationism or intelligent design versus science, which seem to become increasingly more frequent these days. However, the rules of society about how we shall live together, cannot depend on somebody’s religion. Should those, who do not believe the same religion, be forced with the threat violence to succumb to the collective delusions of the religious fundamentalists?

There is only one plausible option to be taken here, and that is to base any decision concerning the whole of society on rational argument and scientific facts. This is what this trial tries to achieve with the term “person” and with the status of nonhuman great apes in society. Actually, there has been a long tradition of such transitions from religious dogma to secular wisdom regarding who should be considered a person or human since the beginning of the enlightenment era. It was a secular argument winning against the Christian tradition that widened the terms to include “barbarians”, women, people of colour, children and mentally handicapped people. The time has come now to start the debate whether to cross the Rubicon and include, for the first time in history, beings outside the biological species homo sapiens (maybe keeping in mind that the category of species is also an arbitrary convention, as Darwin already wrote in his seminal work “The origin of species”, Darwin 1859). This trial on personhood of the chimp Hiasl has triggered more international media attention worldwide than any other topic regarding animals, or even most other topics concerning Austria altogether. That alone proves that the time has come to question speciesism as the fundamental ideology of today.

But the personhood trial does not go as far as the Great Ape Project (Cavalieri and Singer 1993), which demands basic equal rights for all great apes to life, liberty and freedom of harm. To explicitly recognize basic rights for all great apes is a political decision parliament has to make. And indeed, parliamentary debates on this issue such as those in New Zealand and Spain have already started. But in this particular trial, the applicants only argue that Hiasl is a person and not a thing according to today’s Austrian civil law. This is not a political decision. No change of law is necessary for Hiasl to be appointed a legal guardian.

But if Hiasl was appointed a legal guardian and hence recognized as a person, that would not give him equal basic rights. It would only recognize him as a rights-holder instead of him being a thing. Which rights he has would still be an open question. For example, his rights could be solely to have the laws protecting him executed, i.e. to make him via his legal guardian into a legal player, to give him legal standing. That would be the consequence were he accepted as a person. But further, a political decision could be made to extend basic rights to life, liberty and freedom from harm to him. Nobody, however, talks of extending Hiasl’s rights further to include voting rights etc. In contrast to the basic rights, he could not benefit from those extended rights. Hence they are not in his interest and they do not need to be debated.

It has also been argued, that basic rights for great apes would diminish the idea of human rights altogether. On the contrary. Legal rights for great apes can be seen as a logical step forward in the development of human rights. Rather than being a revolutionary change of traditional human rights concepts, they are evolutionarily (in both, the general as well as the biological meaning of the word) the next step. A modern understanding of human rights therefore necessarily must include at least the most basic rights for great apes. This would not take away anything from the rights that the species homo sapiens possesses, but, on the contrary, would strengthen its position: In a world, where legal rights for all great apes are accepted, no-one could question the existence of rights for certain ethnicities, minority groups, or genders of homo sapiens.

Clear rational arguments based on scientific facts have been put forward to argue for the inclusion of chimps in the realm of beings considered persons according to today’s Austrian civil law code. It remains to be seen whether these arguments will be heard and evaluated, or whether the old religious doctrine of humans being metaphysically different to all other animals will prevail.
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