Sandra is thirty years old. Since she was born, she has always lived locked up. We are not talking about a human being, but about a female orangutan whose existence has been limited to the walls of the different zoos where it has been exhibited. The last of them was that of Buenos Aires, but the Argentine Justice made a historic decision last year by determining that his deprivation of liberty was illegal and recognizing his rights as a non-human person . His destination is now a nature reserve in Brazil.
Cases like that of this orangutan are exceptional, but they show that not only Homo sapiens have rights. Another thing is that they are recognized: for example, the Universal Declaration of Human Rights does not apply in many countries, which does not mean that their citizens do not have them. “In animals, their rights are not clearly recognized”, points out Carles Soliva, vice president of the Animal Rights Commission of the Barcelona Bar Association and head of the Soliva Law Firm. Daniel Dorado, a lawyer specializing in animal law, agrees: ” The legislation considers animals property. This means that, in general, we cannot speak of animals having recognized rights of their own.”
In 1977, the Universal Declaration of Animal Rights was adopted, but, like any declaration, it is a non-binding document, which means that no country is obliged to abide by it. The first article highlights that ” all animals are born equal to life and have the same rights to existence .” The text also recognizes the right to respect, to care for man or to a reasonable limitation of time and intensity of work. In the case of wild fauna, the document indicates that it has the right to live freely in its natural environment.
“At a theoretical level, the current that claims rights for animals focuses those on three essential points: life, freedom and non-suffering . Its promoters thus defend that animals are capable of suffering, that they have an interest in living and doing so. in freedom, “explains Silvia Barquero, president of the animal rights party PACMA.
During the last decades, different legislative initiatives have been developed, at the community, state or regional level that advance on this path. In Spain, the autonomous communities have approved regulations that vary greatly from one to another , without there being a state law that serves as a roadmap. “There is no national law and it is what is being proposed, a framework law and, within it, that each community is adapting,” says Soliva.
In 2014, the Popular Party announced a new law on the possession and trade of living beings, but it did not succeed, and several parties have led in their electoral programs of the last general elections the creation of this animal protection law that would homogenize this disparity normative.
In the case of mistreatment, the penalties vary from one community to another: ” From the ridiculous six euros for a minor offense in Castilla-La Mancha to the 150,253 euros maximum penalty for a very serious offense in Aragon” , compares Barquero . Catalonia is one of the most advanced in terms of respect for animals. The abolition of bullfighting in 2010, approved by the Catalan Parliament following a popular legislative initiative, made it the second Spanish community to ban this controversial spectacle; Canarias already did it in 1991.
One of the main advances of the Catalan Civil Code is article 511, where it explicitly mentions that animals are not mere animated objects : “Animals, which are not considered things, are under the special protection of the laws. Only the rules of the goods in what their nature allows “.
Circuses, in Catalonia, without wild animals
Under this philosophy, the Catalan Bar Association created the first Animal Rights Commission in Spain fourteen years ago. “In a short time, notable advances have been made in respect of animals, such as the abolition of bullfights. We are working on the issue of zoos and we have achieved that in circuses it has been forbidden to keep wild animals, such as an elephant or a chimpanzee, ”, says Soliva as vice president of the aforementioned commission.
At the state level, the Penal Code is the tool used by lawyers to punish abuse. Although animal crime has existed in Spain since 2004, its latest modification, that of 2015, represents an advance for animals, by going beyond domestic ones. Abuse now incorporates abandonment, trafficking in protected species and also zoophilia , which was not punished before.
“In twenty years, the Penal Code has evolved a lot in terms of the rules of punishment against abuse. Before, nothing was contemplated,” recalls the lawyer. In fact, at the beginning of this year there was an unprecedented event in Spain: for the first time a person who let his dog die of starvation is serving the one-year prison sentence that was imposed on him. The same court, the Criminal Court No. 8 of Palma, sentenced a man to prison a few months earlier for clubbing one of his horses to death. However, the Provincial Court of Palma admitted the convicted person’s appeal and changed his prison sentence to an animal protection program.
Despite these achievements, the sources consulted agree that the reform of the Penal Code is insufficient. For example, in the case of zoophilia, only “sexual exploitation” is considered a crime and abuses of this nature go unpunished .
If we compare ourselves with other countries, Spanish laws are among the most permissive. “In its Civil Code, France expressly recognizes that animals are not things since January 2015. Already before, both the Rural Code and the Criminal Code recognized animals as living and sensitive beings,” says Barquero.
In Germany, animals are not things since 1990 . “There, animal protection is in the Constitution,” Soliva emphasizes. Austria also recognizes in its Civil Code, since 1988, that animals are not things, but are protected by special rules.
At the community level, Article 13 of the Lisbon Treaty recognizes them as sentient beings , and urges member states to try to support this capacity in their legislation. However, the exceptions that are contemplated, such as religious rites, regional customs and cultural traditions, “have left the article and its applications very weakened, particularly in the case of Spain and France with respect to bullfighting”, admits the president of PACMA .
Another initiative that States may or may not join is the European Convention for the Protection of Companion Animals, in force since 1985. This agreement, to which we joined in 2015, provides that pets cannot undergo surgical interventions of aesthetic order, but, having not yet entered into force, it is not applied in all communities. ” In some regions, the amputation of the tail and ears in dogs and nails in cats is still legal in some regions ,” says Barquero.
Pets are not the only ones protected
Another question also arises when it comes to recognizing the rights of animals: which living beings are we referring to. Is abandoning a dog the same as killing a snake in the field? Treaties that refer to endangered wild species aside, most national and European legislation is limited to domestic animals. However, thanks to the 2015 reform, the Spanish Penal Code includes in the crime of mistreatment, in addition to domestic animals, domesticated animals, such as sheep and donkeys, those who live under human control or those who do not live in the wild.
“All animals that can feel, that is, with a nervous system, should be legally protected. If a being suffers, that suffering must be avoided”, argues Barquero. In 2012, a group of scientists signed the Cambridge Declaration on Consciousness , a document resulting from a meeting at the university of that British town in which they reviewed the neurobiological substrates of conscious experience and other behaviors both in “human animals and in human beings. not humans, “according to the text.
The absence of the neocortex does not appear to prevent an organism from experiencing sensations and emotional states. “A great deal of evidence – notes the document – indicates that nonhuman animals have the substrates of neuroanatomical, neurochemical and neurophysiological conscious states along with the ability to exhibit intentional behaviors. Therefore, the weight of such evidence indicates that humans are not the they are unique in that they possess neurological substrates that generate consciousness. Non-human animals, including mammals and birds, and many other creatures also possess these neurological substrates . “
From the philosophical point of view, in the 5th century BC. C., Pythagoras, a mathematician and a convinced vegetarian, was one of the first scholars to defend their rights by affirming that they too had souls.
In Hindu or Buddhist societies , respect for animals is based on the concept of non-violence on which they are based, which leads to consider some as sacred as cows, a symbol of fertility and motherhood.
In more recent times, the philosopher Arthur Schopenhauer denounced in the nineteenth century that the rights of irrational creatures were not recognized: “He who is cruel to animals cannot be a good man”, he maintained in his work On the foundation of morality .
“The conquest of rights of any movement, also the one that fights for the recognition and protection of non-human animals, is gradual and is marked by the social, ethical or economic evolution of the historical moment in which we are”, comments Nuria Menéndez de Llano, lawyer specialized in animal law at the Menéndez De Llano law firm and director of the Legal Department of the Animal Justice and Defense Observatory.
Jurists and philosophers agree that a society where animal rights are respected is fairer . “It is society that demands that we go in a certain direction because it is considered an improvement for the whole. The evolution of a more ethical relationship with animals is part of the progress of being human,” says Menéndez de Llano.
