Do Dolphins and Whales Have Rights?

Last week, the American Association for the Advancement of Science (AAAS), held a session on expanding rights for dolphins and whales. Since cetaceans (whales, dolphins, and porpoises) are highly intelligent animals and very social, some scientists and ethicists argued cetaceans deserve legal protections as "non-human persons." The panelists outlined a "Declaration of Rights for Cetaceans," which among other rights, would recognize whales and dolphins' right to life, an undisturbed natural environment, and the right to not be held in captivity. So say goodbye to whale sushi and SeaWorld.

To support cetacean rights, the panelists listed evidence for dolphin and whale intelligence. Scaled for size, cetacean brains are almost as big as human brains. Cetaceans can also recognize themselves in a mirror. Humans, elephants, great apes, and magpies are the only other species who have that trait. Cetaceans also communicate with each other and grieve for their dead.

Dr. Lori Mano, of Emory University and one of the co-authors of the declaration, expands on changing perceptions toward cetaceans:

Once you shift from seeing a being as a property, a commodity, a resource, to a person, an autonomous entity that has a right to life on his or her own terms, the whole framework shifts…this is not about harvesting resources, this is about murder.

Back in September 2011, A. Barton Hinkle covered many of the arguments and rebuttals to animal rights, including moral agency and marginal cases. One thinker Hinkle did not mention in his article was Murray Rothbard. In The Ethics of Liberty, Rothbard criticized the notion of animal rights, writing:

In short, man has rights because they are natural rights. They are grounded in the nature of man: the individual man's capacity for conscious choice, the necessity for him to use his mind and energy to adopt goals and values, to find out about the world, to pursue his ends in order to survive and prosper, his capacity and need to communicate and interact with other human beings and to participate in the division of labor. In short, man is a rational and social animal. No other animals or beings possess this ability to reason, to make conscious choices, to transform their environment in order to prosper, or to collaborate consciously in society and the division of labor.

For Rothbard, the act of homesteading demonstrates rationality. Since Homo sapiens can homestead, but animals can't, animals do not have rights.

While this is certainly true for many animals, the distinction between human and cetacean is not so clear-cut. Dolphins use tools to hunt, turning conch shells into traps and sea sponges into probes and protective gear. There have also been a few cases of cooperative hunting and role specialization. In addition, mother dolphins have also been seen teaching their daughters how to use these tools. Michael Krützen, a researcher at Zurich University, and one of the first observers of this behavior, has labelled this training a "cultural transmission." 

More impressively, dolphins have been known to delay gratification and plan for the future. The Guardian explains how one dolphin even outsmarted humans:

At the Institute for Marine Mammal Studies in Mississippi, Kelly the dolphin has built up quite a reputation. All the dolphins at the institute are trained to hold onto any litter that falls into their pools until they see a trainer, when they can trade the litter for fish. In this way, the dolphins help to keep their pools clean.

Kelly has taken this task one step further. When people drop paper into the water she hides it under a rock at the bottom of the pool. The next time a trainer passes, she goes down to the rock and tears off a piece of paper to give to the trainer. After a fish reward, she goes back down, tears off another piece of paper, gets another fish, and so on. This behaviour is interesting because it shows that Kelly has a sense of the future and delays gratification. She has realised that a big piece of paper gets the same reward as a small piece and so delivers only small pieces to keep the extra food coming. She has, in effect, trained the humans.

Perhaps so long as animal rights are defined as negative rights, they can be compatible with libertarianism. David Graham, a libertarian writer and animal rights advocate, continues in this vein:

Unlike incoherent positive rights, such as the 'right' to education or health care, the animal right is, at bottom, a right to be left alone. It does not call for government to tax us in order to provide animals with food, shelter, and veterinary care. It only requires us to stop killing them and making them suffer.

Depending on the level of rationality, intelligence, and pain sensitivity an animal has, the more rights it should have. Under this ethical framework, a whale or a dolphin would more or less be the moral equivalent of a young child, the mentally handicapped, and possibly a fetus, depending on the latter's stage of development. Cetacean rights and fetal personhood advocates could become unlikely allies in the years ahead. 

If cetacean rights are taken seriously, protecting whales and dolphins would mean everything from stopping whaling and ocean pollution, to developing safe havens in international waters, free from human interference. Building on the latter, some advocates even support the creation of a "cetacean nation," most prominently, John C. Lilly. A heterodox thinker, Lillly was the creator of the isolation tank and one of the pioneers in LSD experimentation and human-dolphin interspecies communication. As Lilly envisioned, a cetacean nation would formally encode protecting whales and dolphins, with the ultimate goal of gaining formal recognition by the United Nations.

Cetacean rights activists also want all whales, dolphins, and porpoises free from aquariums and theme parks. As Mike Riggs wrote a few weeks ago, People for the Ethical Treatment of Animals (PETA) recently tried to free killer whales from SeaWorld. PETA argued the orcas were "enslaved," which would violate the 13th Amendment. Unsurprisingly, the U.S. district court judge dismissed Tilikum v. SeaWorld for lack of standing, remarking that "the clear language and historical context reveal that only human beings, or persons, are afforded the protection of the Thirteenth Amendment." 

In addition, Tilikum was not a sympathetic plaintiff: He's been involved with the deaths of three SeaWorld trainers. If Tilikum were granted personhood, wouldn't he be liable for murder? Or at the very least, manslaughter? If convicted, Tilikum would get prison time, and since he couldn't be imprisoned on land, he would serve his sentence in a tank.  A tank at, say, SeaWorld.

Reason on animal rights.