Human rights are subject to evolution and revolution. For example, women and children were once new human rights-holders, and the right to a healthy environment may be considered one of the newest human rights. Recent developments in theory and practice suggest that we may be at the onset of the next, and perhaps most profound, human rights revolution: the extension of old human rights to a new class of nonhuman right-holders.
SASKIA STUCKI: Not long ago, the very notion of human rights for nonhuman animals was easily dismissed as nonsensical. After all, human rights are considered to be ʻliterally the rights that one has simply because one is a human being’… New human rights—or claims to such—are novel (contested) rights that seek to enlarge the ‘protective umbrella of human rights’ beyond the currently accepted catalogue of rights in order to address an extant protective gap or new protective need. New human rights discourses are a constant companion to the established human rights order. This is because human rights, by their very nature, are subject to evolution and revolution; they carry in them the permanent possibility of generating new human rights or extending old human rights to new right-holders. For example, women and children were once new human rights-holders, and today, the right to a healthy environment may be considered one of the newest human rights…
At present, animal rights are new human rights claims and as such ‘merely candidates for legal recognition’. Broadly speaking, we can distinguish three stages in the ‘birth process’ of a new human right: from its intellectual inception (the idea phase), to its gradual reception and consolidation in legal and political arenas (the emergence phase), to its eventual legal recognition and codification (the recognition phase). Animal rights are currently located in between the first and second stage of this ‘lengthy period of gestation’.
New human rights start out as (oftentimes fringe) discursive articulations by intellectual and political ‘norm entrepreneurs’ expressing a need to develop existing human rights law. In animal rights discourse, we can clearly discern a human rights turn—a rising trend to articulate and integrate animal rights in the language, concepts, and frameworks of human rights. In animal rights theory, a growing body of scholarship casts animal rights as a ‘necessary dialectical derivationʼ or ‘logical extension of the doctrine of human rightsʼ, and explores the continuities and interconnections between human and animal rights. Conversely, the idea of animal rights is gradually permeating human rights theory, where the ‘universal rights of animals’ are starting to be considered as a possible ‘fourth generation of human rights’.
In animal rights practice, we can observe a push to have animals’ fundamental or human rights legally recognized through legislative or judicial means. For example, a citizens’ initiative in the Swiss Canton of Basel-Stadt demanded a constitutional amendment recognizing the fundamental rights of nonhuman primates (which was, however, rejected at the ballot box in 2022). Others have attempted to invoke before courts human rights on behalf of captive animals, such as the right to a fair trial, the prohibition of slavery, or — the litigation strategy of the US-based Nonhuman Rights Project — the right of habeas corpus. These activities are typical for the first, idea phase of new human rights: scholars engage in fleshing out the conceptual foundations and contours of animal rights, while strategic litigation takes first steps to attain human rights for animals in practice.
Overall, the once quixotic idea of extending human rights to animals is gaining wider traction in the political and legal sphere. Moreover, marking the beginning of the next developmental phase, there is a nascent but growing global animal rights case law. Over the past decade, some pioneering courts have embarked on a path of judicial recognition of fundamental animal rights, arriving at them either through a dynamic-extensive interpretation of constitutional (human) rights or via a rights-based interpretation of animal welfare law. Most notably, courts in Argentina and Colombia have extended the fundamental right to habeas corpus, along with the underlying right to liberty, to captive animals. In another habeas corpus proceeding, the Constitutional Court of Ecuador has recognized a range of basic animal rights as part of the rights of nature.
Meanwhile, the Supreme Court of India and Indian High Courts have developed a remarkable case law recognizing and fleshing out the fundamental rights of animals, such as the right to life, dignity, and freedom from torture—or the fundamental right of birds ʻto fly in the sky’. The Islamabad High Court has also affirmed a range of fundamental animal rights, and further underscored their nexus with human rights and the ‘interdependence of living beings’. Lastly, albeit more tentatively, the Swiss Federal Supreme Court has confirmed the legal possibility of fundamental animal rights in principle. Suchlike (as yet still isolated) acts of judicial recognition of animal rights correspond with the early stages of the second, emergence phase of new human rights. This stage is characterized by the occurrence of legal activities that are more immediately relevant to the formation of rights, such as courts corroborating the idea of extending fundamental or human rights to animals.
Overall, recent developments in theory and practice suggest that legal animal rights are on the horizon, and that fundamental animal rights may be emerging as a new generation of (non)human rights. We may thus be at the onset of the next, and perhaps most profound, human rights revolution — a nonhuman rights revolution: the extension of old human rights to a new class of nonhuman right-holders. However, animal rights have yet to progress into the final developmental stage of new human rights: legal recognition and codification. Until such wider institutional, political, and legal validation occurs, they remain contested claims or ‘wannabe rights’. Indeed, among the potpourri of new human rights claims, animal rights are particularly controversial, and contestation and opposition to them perhaps strongest. SOURCE…
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