A few days ago, the highest court in the US state of New York allowed a landmark hearing: no human being is represented, but an elephant lady. Happy is her name.

Happy is an Asian elephant. For several decades she has lived in the Zoological Garden in the Bronx, New York City. She spent the last 20 years there alone. In 2018, the organization Nonhuman Rights Project accepted Happy as a “client”. The activists see the elephant’s right to physical freedom violated.

Do animals have basic rights? And can people sue for these rights in court? For the first time, an appeal court in the Anglo-Saxon region allows such a case. All instances had rejected the Request of the animal rights activists. This alone, says the lawyer Saskia Stucki, is a great and public success for the Nonhuman Rights Project. Stucki conducts research at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and has been working on animal rights for many years. She says, ” The crucial question is: are animals legal entities?«. That is why the proceedings in New York are turning. There is no date for the hearing yet.

Specifically, the court must decide whether a legal act called Habeas Corpus can be applied to animals, and especially to the elephant lady Happy. Habeas Corpus is one of the oldest civil liberties and includes the right to be heard after an arrest. So that no one can be detained without a legal basis. Lawyers like Stucki explain this as well: “Habeas corpus is the procedural guarantee of the substantial right to freedom”.

The activists of the Nonhuman Rights Project want to ensure that the right of Habeas Corpus is recognized for Happy – so that the elephant lady cannot be illegally detained in the zoo. Instead, she was to be taken to a sanctuary for elephants, where she could spend the last years of her life together with other elephants. The zoo operators reject this. Happy, they say, has a unique personality and individual needs that the zoo’s caregivers know and heed. Happy can’t say where she wants to live.

In many countries, and also in Germany, only those who are affected in their individual rights are entitled to sue. “These procedural issues make it extremely difficult to enforce animal welfare laws,” says Saskia Stucki. If regulations are not complied with, the persons concerned, i.e. the animals, could not sue for their rights themselves. And anyone who has no rights at all cannot become a plaintiff.

Animal welfare organisations around the world are therefore trying to have animals recognised as non-human legal entities. In Colombia, the fate of a spectacled bear was disputed in court. In the end, the Constitutional Court denied the claim to grant the bear the right to freedom over Habeas Corpus. An animal client had more success in Argentina: there, a court ruled that a female chimpanzee is a holder of Habeas corpus in the legal sense. The zoo must live like a prison. The monkey lady came to a reservation in the USA.

Monkeys, bears, elephants – the animals whose rights are contested in court are usually large mammals. This, says Saskia Stucki, is not unproblematic: “In the world, only a fraction of the animals whose rights should be sued live in zoos. Factory farming is much worse. I think it would be good if we did not only grant rights to highly complex cognitive animals.”Because this reinforces anthropocentrism: the attitude of putting people at the centre and devaluing everything that is not human. “An animal does not have to be as human as possible in order to suffer. Meanwhile, for example, it is also proven that fish can feel suffering.«

This sensitivity is recognized by many sides as a criterion for which animals should be granted fundamental rights and which should not. Because there is a difference between an elephant lady and a head louse.

Saskia Stucki does not want to make any prognosis about what the verdict at the New York court might be. But she has a personal opinion: “It seems clear to me that it would be much better to move Happy to an elephant sanctuary. For such social animals as elephants, individual husbandry almost borders on torture.«

When asked if universal animal rights will one day come, she finds a clear answer: “I think the question is not if, but when. This is clearly indicated by the legal development of recent years.”We need, says Saskia Stucki, fundamental rights for animals enshrined in the Constitution. A right to life and freedom. A right not to be tortured. A right not to be treated inhumanly – or perhaps rather: not in a way that is fair to life.

Should animal rights really be introduced, what would that mean? Should animals with animal rights be killed? The German Animal Protection Act already states: “No one may cause pain, suffering or damage to an animal without a reasonable reason.”So far, for example, it is considered reasonable for the legislator to kill an animal because one wants to eat its meat. Saskia Stucki pleads for the claim to be lifted. “I do not consider the interest to eat meat to be higher than the interest to live.”A reasonable reason to kill an animal is self-defense. But not appetite for sausage.

In some countries there are even efforts to extend the concept of fundamental rights over the sphere of humans and animals. There are rivers, in Ecuador or in New Zealand, which have been legally recognized as legal entities, there are forests and mountains with legal claims. Saskia Stucki sees this primarily as pragmatic reasons: “If one grants rights to natural entities, these rights are enforceable.«