1. INTRODUCTION
Human beings possess a range of legal rights that protect their fundamental interests. Among these are the right to life and the right to bodily and mental integrity.Footnote 1 Chimpanzees, orangutans, macaques, gibbons, and lemurs, on the other hand, have no such rights.Footnote 2 This is despite the fact that, like human beings, they are primates with an interest in being alive and being protected from bodily and mental harm.Footnote 3 In 2016, the Swiss organization Sentience Politics launched a citizens’ initiative in the Swiss canton (or state) of Basel-Stadt, demanding that the cantonal constitutional rights catalogue be amended to include basic rights to life and bodily and mental integrity for all non-human primates.Footnote 4
Efforts to put the primate rights initiative to a vote by the people of Basel-Stadt came to a halt when the Grand Council (the Parliament of Basel-Stadt) declared the initiative invalid.Footnote 5 The initiative, and the question of whether non-human primates should be granted certain basic rights, then became the subject of a three-year legal dispute. This dispute led to a groundbreaking decision by the Constitutional Court of Basel-Stadt in early 2019, which ruled that the initiative was, for the most part, legally valid and that citizens should be allowed to vote on the question of whether to ‘expand the circle of rights holders beyond the anthropological barrier’.Footnote 6 After six members of the Grand Council appealed against this decision, the Swiss Federal Supreme Court delivered a final verdict on 16 September 2020. The Court upheld the decision of the Cantonal Constitutional Court on the validity of the initiative, thereby paving the way for the first direct democratic vote in the world on whether at least some non-human animals should be afforded fundamental rights.Footnote 7
In this case note, the authors, who were involved in drafting the initiative and acted as independent legal advisers in the court proceedings, discuss the key developments in the dispute and offer first-hand insights into the legal strategies behind the initiative and the court filings. By considering issues such as legal personhood under private versus public law, the protection of animals through rights versus welfare measures, and the protection of animals in federal states, the authors also seek to add critical dimensions to ongoing efforts to secure rights for primates around the world.
The case note unfolds as follows. In Section 2 we provide context for the primate rights initiative by outlining the current state of animal welfare law in Switzerland and highlighting its shortcomings, especially with regard to protecting the basic interests of primates. We then turn, in Section 3, to the central strategic considerations behind the initiative, the key developments surrounding its launch, and the proposed amendment to the Cantonal Constitution. Section 4 then considers the decision by the cantonal authorities to declare the initiative invalid. This leads to a consideration of the groundbreaking decision by the Cantonal Constitutional Court in Section 5 and, in Section 6, the recent ruling by the Supreme Court to uphold that decision. Finally, in Section 7, we discuss why this case is relevant in a transnational context and what can be learned from the decision for the animal rights movement more broadly.
2. ANIMAL WELFARE LAW IN SWITZERLAND
The Swiss generally consider themselves as having one of the strictest legal regimes for animal protection in the world.Footnote 8 This claim is not entirely without merit. Switzerland has played a pioneering role in global animal law and ranks among the most progressive countries in the World Animal Protection Index.Footnote 9 In 1992, for example, it became the first country to ban battery cages and the first to protect the dignity of non-human animals in its constitution.Footnote 10 More recently, Switzerland took the lead in banning the killing of lobsters without prior stunning, effectively prohibiting boiling lobsters alive.Footnote 11
These laws suggest that Switzerland has a strong track record of protecting animals. In practice, however, Switzerland's approach to the protection of animals is in many ways indistinguishable from that of other countries; for example, despite banning battery cages, factory farming is still a reality in Switzerland.Footnote 12
This is because the 2005 Swiss Animal Welfare Act (SAWA),Footnote 13 which is the principal piece of legislation governing the protection of animals in the country, is based on a welfarist paradigm. One of the guiding principles of the SAWA is that ‘[a]ny person who handles animals must ensure their well-being as far as the intended purpose permits’.Footnote 14 Human purposes for using animals, in other words, take precedence over animals’ interests in their own well-being. Switzerland also still considers animals to be property: while the Swiss Civil Code provides that animals are not legal objects, it states that, where no special rules apply, they ‘are subject to the provisions governing objects’.Footnote 15
Non-human primates are subject to the same welfarist regime. While human primates enjoy a robust set of fundamental rights, including the rights to life and to bodily and mental integrity,Footnote 16 the same fundamental interests of non-human primates are neither recognized nor protected by the law. This is despite the fact that all primatesFootnote 17 – human and non-human alike – are highly complex beings,Footnote 18 who have an essential interest in being alive, being free from pain, and having their physical and mental integrity respected.Footnote 19
Establishing the basic rights of non-human primates to life and to bodily and mental integrity would entail official recognition and protection of their most essential interests. Any proposed infringement of these interests would require justification and be subject to a strict balancing of interests test, as is the case where human rights may be infringed.Footnote 20 To justify infringing a primate's rights, a proposed act would need to have a sound legal basis, represent a legitimate interest, and be proportionate (suitable and necessary to achieve a legitimate goal and to protect a more weighty interest).Footnote 21 Furthermore, rights in Switzerland are also considered to have a so-called Kerngehalt (core content), the violation of which cannot be justified under any circumstances.Footnote 22 The core content of human beings’ right to life, for example, protects humans against targeted killing in circumstances where they pose no threat. Establishing equivalent rights for non-human primates would involve a true paradigm shift for these animals: they could not, as a rule, be killed for human purposes, regardless of how important humans might consider these purposes to be.
One might consider that a simple ban on the killing of primates in zoos and for research purposes would sufficiently protect their interest in life, and that primates therefore do not need basic rights more generally. However, prohibitions of this kind are specific, context-dependent, and only protect interests negatively. In contrast, fundamental rights are general, applicable in myriad situations, and work positively towards realizing the interests of their beneficiaries.Footnote 23 Another notable advantage of establishing rights for primates is the actionability and enforceability of such rights.Footnote 24 As is the case in most other countries, responsibility for the enforcement of Swiss laws that protect animals lies with underfunded agencies which may have different, and potentially conflicting, mandates (such as environmental protection, or enabling research or farming). While animal welfare protection in theory could also be enforced through human proxies, this mechanism is more commonly available with respect to the enforcement of fundamental rights. Infants or human beings with certain disabilities, for example, may have their rights enforced in court by legal guardians.
3. A CITIZENS’ INITIATIVE TO CHANGE THE LAW
Seeking to depart from the legal status quo, Sentience Politics decided to launch a citizens’ initiative. Citizens’ initiatives are direct democratic instruments that exist at both the federal and cantonal levels in Switzerland and allow a group of citizens to form a so-called ‘initiative committee’ to propose a constitutional amendment. If the group manages to collect a sufficient number of signatures from the citizens within a given time frame, then the proposal will be put to a binding vote by the citizenry as a whole.
In the case of the primate rights initiative, Sentience Politics first had to consider whether the initiative should target constitutional change at the federal or cantonal level. Swiss law allows amendments to the Federal Constitution through citizens’ initiatives, but such amendments are difficult to achieve, as they require collecting 100,000 signatures and a vote by the majority of the people and the cantons.Footnote 25 In contrast, citizens’ initiatives at the cantonal level require fewer signatures (3,000 in the case of Basel-Stadt) and a majority vote by the people (compared with a majority vote by the people and the cantons). It is this lower threshold that has made cantons the laboratories of direct democracy, and secured them a pioneering role in driving socio-political change. For example, various cantons, including Basel-Stadt, introduced voting rights for women long before the federal government did.Footnote 26
Of the 26 cantons of Switzerland, the urban canton of Basel-Stadt was chosen as the most suitable forum for the primate rights initiative, as it is one of the most progressive cantons in the country, not least with regard to animal protection issues. Despite the small size of the canton and its population (just over 200,000 inhabitants), Basel-Stadt is a hotspot for life sciences, and biomedical and pharmaceutical research, with Novartis and Roche – the second- and third-largest pharmaceutical companies worldwideFootnote 27 – having their registered offices there. Furthermore, Basel Zoo owns an estimated 250 primates, all of whom would potentially be affected by the initiative.Footnote 28 For these reasons Basel-Stadt seemed a particularly promising canton to launch the primate rights initiative.
A central conviction of Sentience Politics, the organization that launched the initiative, was that a citizens’ initiative should be used to ignite a broad, public debate on this fundamental question of justice. For this purpose Sentience Politics published a comprehensive policy paper on the issue in early 2016.Footnote 29 At around this time, we began working as independent legal advisers for the initiative and produced a draft provision to be inserted into the Cantonal Constitution, which we circulated among experts, including constitutional law and animal law experts. Questions that we grappled with included how detailed the proposed constitutional provision should be, and where the provision should be placed in the Constitution. We finally agreed that Article 11 of the Constitution – which lists the basic rights guaranteed by the canton such as the human rights to life, bodily and mental integrity, freedom from torture, autonomy and security, and a prohibition on forced labour and human trafficking – should be complemented in its second paragraph with a new provision in the following terms:Footnote 30
[This constitution guarantees, among others:] the right of non-human primates to life and bodily and mental integrity.Footnote 31
4. EARLY DEVELOPMENTS IN THE PRIMATE CASE
Following the launch of the initiative in June 2016 and the collection of the required 3,000 signatures, the initiative was submitted to the Cantonal Executive Council of Basel-Stadt for examination. The Executive Council undertook an initial review to ensure that the proposed reform was not unconstitutional or impossible to implement. As a result of this review, the Executive Council concluded that the initiative violated federal law.Footnote 32 Shortly thereafter, in early 2018, the Grand Council of Basel-Stadt affirmed the Executive Council's decision, and declared the initiative invalid.Footnote 33
In their reports, the Executive Council and Grand Council first stated that the initiative contravened the federal Civil Code. The Civil Code, they held, determines exhaustively who qualifies as a legal person, and therefore leaves no room for legal personhood for animals. Specifically, they referred to Article 11, which establishes the legal capacity of natural persons,Footnote 34 and to Article 53, which regulates the legal capacity of legal persons.Footnote 35 These exhaustive provisions, they held, preclude the cantons from establishing legal personhood for non-human primates and affording them legal rights.Footnote 36 Secondly, the Councils held that the power to protect animals is an exclusive competence of the federal government. Article 80 of the Federal Constitution determines that ‘[t]he Confederation shall legislate on the protection of animals’, while the cantons are responsible for ‘[t]he enforcement of the laws’.Footnote 37
In February 2018, the team behind the initiative commenced legal proceedings before the Constitutional Court of the Canton of Basel-Stadt, challenging the decision of the Grand Council. In their appeal they countered the Councils’ first conclusion by arguing that the definition of legal personhood in the Civil Code does not apply to public law matters, such as the present matter. The Civil Code regulates legal relations between private parties. This means that the federal government can issue regulations that pursue private law objectives and traditionally belong to the private law sphere, particularly if these measures create or restore the prerequisites for a functioning private legal transaction.Footnote 38 Accordingly, although the Civil Code determines legal personhood, it does so only with regard to legal relations between private entities. The team behind the initiative then argued that, in contrast, legal personhood for the purpose of conferring basic rights is conceptually distinct from legal personhood as provided for by the Civil Code. In particular, legal personhood in the former context is not civil (or private) in nature, as it is not designed to enable participation in private legal transactions. Rather, legal personhood for the purpose of establishing basic rights is a genuinely public and, more specifically, constitutional matter, as it pertains to the relationship between primates and public bodies. The team behind the initiative argued that in this public law context, cantons are free to establish legal personhood for any type of entity, including primates.
With regard to the Councils’ second conclusion that the initiative violated federal public law, the initiative's case on appeal accepted that Article 80 of the Swiss Constitution gives the federal government broad legislative competence in all matters of animal protection, such as the keeping and care of animals, experiments on animals, procedures carried out on living animals, the use of animals, and their killing. These areas, in which the federal government enjoys comprehensive competence,Footnote 39 are not exhaustively enumerated but operate as inhaltliche Leitplanken (content-based guard rails).Footnote 40 However, the federal government's competence in these areas is focused primarily on making animals and their bodies accessible for human use, by prescribing how animals may be kept, bred, used, traded, and killed.Footnote 41 Mechanisms to protect animals from these acts are subject to a skewed balance-of-interest test, which considers whether use of the animal is ‘necessary’ from a human perspective rather than ‘proportionate’ from a species-neutral perspective.Footnote 42 This shows that the federal government's competence to protect animals – and, with it, the SAWA – is primarily utilitarian in nature.Footnote 43 The federal government, acting on the basis of Article 80 of the Constitution, is bound by and inherently anchored in this ‘use paradigm’.Footnote 44 Consequently, animals’ lives are effectively not protected under Swiss law;Footnote 45 in fact, ending them does not require justification.Footnote 46 This federal competence in matters of animal protection can be contrasted with the deontological framework on which traditional concepts of fundamental rights are based, and is conceptually different from the legal rights regime which the primate rights initiative seeks to establish.
A further critical argument made on appeal to the Constitutional Court was that, under Swiss law, citizens must be allowed to vote on an initiative when there is doubt as to its validity.Footnote 47 This duty is encapsulated by the principle of in dubio pro populo. It was argued that this fundamental principle at the core of Swiss democracy and law would be violated if the Court were to uphold the Parliament's decision to declare the initiative invalid.Footnote 48
5. THE DECISION OF THE CANTONAL CONSTITUTIONAL COURT
On 15 January 2019, the Constitutional Court of the Canton of Basel-Stadt, in a much-awaited decision, delivered a groundbreaking judgment in which it sided with the appellants.Footnote 49 At the heart of the Court's ruling was the question of whether the primate rights initiative was inconsistent with federal law and therefore invalid.
The Court first considered whether the Civil Code precludes animals from having fundamental rights. It ruled that if the initiative sought to expand the legal personhood of natural or legal persons under the Civil Code, or to establish distinct personhood for animals under the Code (as a sort of ‘animal personhood’), this would contravene the Code and require an amendment to the Code.Footnote 50 However, the Court accepted the appellants’ argument that the Civil Code is directed at relations between private citizens rather than at the conceptually distinct relationship between private entities and the state, which is governed by public law. Because the initiative sought reform in the realm of public law – essentially with respect to the relationship between individuals and the state – the Court held that there was no conflict with civil/private law. In the striking words of the Court, within the realm of public law, cantons are free to ‘expand the circle of rights holders beyond the anthropological barrier’.Footnote 51
The Court then considered whether the initiative concerns animal protection, which falls within the exclusive competence of the federal government, as stipulated by the Federal Constitution.Footnote 52 The Court again found for the appellants, holding that the initiative does not violate the Constitution, however, it arrived at this conclusion via a different route. The Court did not accept that there is a fundamental difference between welfare protection and fundamental rights, and considered that such a distinction conflates ends with means.Footnote 53 However, it held that the initiative seeks to better protect primates,Footnote 54 and that it uses the instrument of fundamental rights to achieve this aim.Footnote 55 In other words, rights are not categorically different from welfare protection; they are simply a means to achieve better welfare for animals. Viewed in this way, the Court considered that the primate rights initiative would conflict with federal law only if it were to force private individuals to observe stricter standards than those provided by the SAWA.Footnote 56 It would not be permissible, for example, for the initiative to affect the zoo of Basel, which is a private company.
Rather than declaring the initiative invalid, the Court held that there is nothing in the Federal Constitution or the SAWA that prevents cantons from imposing on their own authorities stricter standards than those imposed federally on private individuals, including by creating fundamental rights for primates.Footnote 57 Cantons have the right to introduce more onerous standards for their own institutions as part of their organizational autonomy. Cantonal public organizations, such as public hospitals or cantonal universities (for example, the University of Basel) could therefore be required to observe primates’ basic rights.Footnote 58 Because Basel-Stadt has the authority to establish rights for primates that are binding on its own authorities, the Court held that the initiative must be put to the vote of the people. The Court considered that the question of whether rights should be established for primates is an entirely political (as opposed to legal) question, which the people are best placed to decide.Footnote 59
Finally, the Court addressed the question of how the primate rights initiative could be implemented, which demonstrates that it took seriously the initiative's demands. The Court found that primates would need legal proxies – a task that could be carried out by special officers at the cantonal department for veterinary services, by the agency mandated with protecting children and adults, by an ombudsperson, or by an independent attorney for primates. The Court added that primates’ rights could also be exercised collectively, such as by vesting organizations with the right to file suit and appeal against decisions, in line with the Federal Code of Criminal Procedure.Footnote 60
6. THE DECISION OF THE FEDERAL SUPREME COURT
In February 2019, a few weeks after publication of the judgment of the Constitutional Court, six members of the Grand Council of Basel-Stadt appealed against the decision in the Swiss Federal Supreme Court. They argued that if parts of the initiative are invalid, the initiative must either be interpreted to fit constitutional parameters or its text must be changed by the cantonal authorities. The first approach, they reasoned, was not possible because it would undermine the primary purpose of the initiative (namely, granting fundamental rights to primates). They argued that the second approach was equally impossible because the text would have to be changed completely. As such, the initiative would be deprived of its purpose and have no practical effect. The proponents of the initiative countered the appeal on both procedural and substantive grounds. Our focus here is on the latter.
Regarding the appellants’ first argument, the proponents of the initiative argued that there was no need to interpret the initiative to fit constitutional parameters because the initiative does not touch on any of the legislative competences of the federal government. There is a difference, the proponents argued, between norms that establish legislative competences and norms that establish basic rights.Footnote 61 Specifically, establishing rights is a competence-neutral endeavour and, because of this, conflict over competences cannot arise where the issue of basic rights is concerned.
In the alternative, the proponents argued that the initiative can be interpreted in accordance with the Federal Constitution, as was done by the Cantonal Constitutional Court. Accordingly, even if the Supreme Court were to follow the Cantonal Constitutional Court's judgment that the initiative can only affect public cantonal authorities, the initiative must be upheld because it is partially valid and, if necessary, could also be rewritten in small parts.Footnote 62 Even if this were necessary, the initiative would still satisfy the primary goal of establishing basic rights for primates. As the Cantonal Constitutional Court recognized, the initiative would still have practical consequences by changing how cantonal authorities, such as hospitals or universities, treat primates. However, the proponents argued, even if the initiative were purely symbolic in nature and did not have a single practical effect, it would still be valid and have to be put to a vote. This is because, according to long-standing jurisprudence of the Supreme Court, citizens’ initiatives do not need to have practical effect to be legally valid. For these reasons, the proponents argued that, in order to comply with the in dubio pro populo principle, the Court must declare the initiative legally valid.
On 16 September 2020, exactly three years after submission of the citizens’ initiative, the first (public law) chamber of the Supreme Court handed down its decision in a rare public hearing that took place on the same day.Footnote 63 In its decision, the Supreme Court upheld the Cantonal Constitutional Court's ruling, thereby rejecting the appellants’ claims concerning the initiative's invalidity.
The Supreme Court largely affirmed the reasoning of the Cantonal Constitutional Court. After setting aside the procedural concerns raised by the proponents of the initiative,Footnote 64 the Court moved on to determine whether the initiative was consistent with federal law or whether it could be interpreted as such. The Court stated that this question was to be determined based on the wording of the proposed amendment to the Constitution, although it would also be possible to consider explanations included in the initiative sheet (which contains the proposed amendment, a list of the members of the initiative committee, the reasons for the amendment, and a form that can be signed by citizens) and to determine how a reasonable citizen would understand the initiative. Invoking the principle of in dubio pro populo, the Court reasoned that the initiative would have to be declared valid as long as it was possible to interpret it in any way that is not incompatible with federal law.Footnote 65
Applying these considerations, the Court found that, based on the wording of the initiative, it was clear that the initiative aimed to establish fundamental rights to life and to integrity for non-human primates. It emphasized that cantons do in fact have the power to create new fundamental rights that go beyond minimum standards guaranteed by the rights catalogue in the Federal Constitution. Following the Cantonal Court's reasoning, the Supreme Court held that such fundamental rights are a matter of public law rather than private law because they concern primarily the relationship between individuals and the state rather than the relationship between individuals (as in civil/private law). The narrow understanding of legal personhood in the context of civil/private law is therefore inapplicable and does not prevent the canton from extending fundamental rights to beings other than humans.Footnote 66
The Court emphasized in this respect that the initiative does not aim to extend existing human constitutional rights to animals, but instead seeks to create special fundamental rights for non-human primates.Footnote 67 The emphasis on this difference is interesting not only because it was not strictly necessary for the Court's decision, but also because the initiators never drew this distinction. Furthermore, it can be contrasted with a recent trend in animal rights scholarship which emphasizes the overlaps (rather than differences) between human and animal rights.Footnote 68
Be that as it may, the Court concluded that because the initiative would bind only the canton's own bodies, the Federal Parliament's exclusive competence to legislate in civil/private law matters is not infringed.Footnote 69 In fact, the Supreme Court went further than the Cantonal Court, suggesting that while private individuals could not be bound directly by primate rights at the cantonal level, it is possible that they would be indirectly bound by the increased level of protection accorded to primates.Footnote 70
Finally, the Court rejected the appellants’ argument that applying the initiative solely to public bodies would change its original purpose and therefore amount to an illegitimate reinterpretation of the initiative. Drawing on the explanations provided in the initiative sheet, the Court found that although the initiative may have implied applicability to private individuals, it was clear that even a more limited scope of application (namely, to cantonal entities only) would still serve the initiative's original purpose: to extend fundamental legal rights to primates.Footnote 71 Although the sheet therefore may have falsely suggested that the initiative would have immediate practical implications for primates, which are currently only kept by private entities in Basel-Stadt, the Court considered that the initiative could nevertheless protect primates in the future.
7. TRANSNATIONAL RELEVANCE OF THE DECISION
The decisions of the Swiss Federal Supreme Court and the Cantonal Constitutional Court are part of a recent wave of judicial decisions around the world that explicitly deal with the question of whether non-human beings deserve basic rights akin to human rights.Footnote 72 This is because Switzerland is not the only jurisdiction in which non-human animals lack fundamental legal rights. In fact, in almost no country do non-human primates, let alone other animals, possess such rights.Footnote 73
However, the legal status quo is slowly changing. Some of the most prominent recent animal rights decisions include a 2014 ruling from India which held that the right to life protected by the Indian Constitution also extends to the life of non-human species;Footnote 74 a 2016 decision from Argentina granting a writ of habeas corpus to a chimpanzee who was found to be a legal person with a right to life;Footnote 75 and a 2020 judgment from Pakistan which held that animals’ natural right to life must be respected.Footnote 76
In addition to these cases, the Swiss case also bears resemblance to the work of the Nonhuman Rights Project (NhRP), which has been filing habeas corpus writs for non-human animals in the United States (US).Footnote 77 There are, however, some differences between the Swiss initiative and the work of the NhRP as well as that of other animal rights organizations around the world.
Firstly, the Swiss initiative focuses not only on great apes (as the NhRP and other animal rights projects have done until recently), but on the larger category of primates. The Swiss approach is based on evidence that all primates possess the capacities for and interests in holding the rights to life and to bodily and mental integrity. Secondly, because Switzerland is a civil law country, legal change is not effected primarily through courts, but through legislation. Given Switzerland's long tradition as a direct democracy, referenda and citizens’ initiatives are particularly common tools for citizens to participate in lawmaking processes.
The judgments of the Constitutional Court of Basel-Stadt and the Swiss Federal Supreme Court are therefore not the only cases that deal explicitly with the question of fundamental legal rights for animals. However, they represent a major and unique success for non-human rights advocates around the world. In particular, the fact that the continental European legal tradition has so far resisted conferring basic rights on beings who are not human (or not corporations) presented no barrier to the courts’ rulings. In contrast to other courts,Footnote 78 the Swiss courts therefore accepted that the concept of fundamental rights holding can be extended beyond existing categories of rights holder. Specifically, the courts accepted that non-human primates can, in principle, be holders of fundamental legal rights. In contrast to other courts, they did not question whether primates possess allegedly ‘relevant’ capacities, such as self-awareness, autonomy, or the capacity to bear duties.Footnote 79 In doing so, the Swiss courts may have also opened the door for the recognition of rights of other animals. Finally, the Swiss decisions support the view that requirements for fundamental rights holding, and the corresponding definition of legal personhood, may vary from one area of law to another within the same legal system.
To our knowledge, the Swiss rulings are the first of their kind to address specifically the relationship between animal rights and federalism. As discussed above, the courts endorsed the view that cantons are free to recognize animals as rights holders even when the federal system does not. This finding may help in leading the way for similar constitutional amendments in other federal jurisdictions, such as the US, India, or Germany.
8. CONCLUDING REMARKS
On 16 September 2020, the Swiss Federal Supreme Court paved the way for the first ever direct democratic vote on whether some non-human animals should be granted basic rights to life and to bodily and mental integrity. Together with the groundbreaking ruling of the Constitutional Court of Basel-Stadt, this should be hailed internationally as an important success for the animal rights movement.
Among the numerous factors that were critical for this success were a commitment on the part of individual residents in Basel-Stadt in whose name the initiative was submitted; a core group of people dedicated to arguing the case, with substantive expertise; respectful and reliable cooperation and mutual support; and, finally, sufficient funding. These insights and the arguments made in court, as discussed in this case note, can serve to further inform animal rights advocacy and pending cases in other countries to secure basic rights for non-human animals.
Interestingly, in the Swiss case, it would not have been possible for the courts to dismiss the idea of extending fundamental rights to life and to bodily and mental integrity to primates without also limiting the political rights of the citizens of Basel-Stadt. The principle of in dubio pro populo in this case therefore also meant in dubio pro animale: in case of doubt, the people, not public officials, should be the ones to decide whether they want to ‘expand the circle of rights holders beyond the anthropological barrier’.Footnote 80 Whether the people of Basel-Stadt are prepared to cast the first democratic vote in favour of protecting the most basic interests of non-human primates will be seen in late 2021 or early 2022, when the vote is expected to take place.
