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Earlier this year, the U.S. Fish and Wildlife Service announced a proposed rule intended to protect all chimpanzees as “endangered” under the federal Endangered Species Act. If adopted, this change would eliminate the legal oddity that chimpanzees are “endangered” only if they are in Africa. If the rule is made final, the new protections will extend to chimpanzees in the United States. That would be bad news for a small industry dedicated to breeding chimpanzees in captivity, a dedication which calls for forced breeding to satisfy both demand and profits.

In 1990, under the U.S. Endangered Species Act, chimpanzees in Africa were reclassified from “threatened” to “endanger ed.” Problems created by humans — logging, extractive industries, farms — have ravaged much of the chimpanzees’ territory in Africa. In this country, chimpanzees have endured decades of disrespect and abuse. They have been rented, sold, put on display in cages, and kept as household pets which has, predictably, resulted in a number of hideous tragedies. In 2001, when three chimpanzees got out of an unlocked cage at Chimparty, a Louisiana business known for renting apes out as party novelties, a teenager named Jason Coats shot and killed one of the chimpanzees, Suzy. In 2009, a pet chimpanzee named Travis attacked Connecticut resident Charla Nash. Travis was shot and killed by police; Nash lost two hands and underwent a face transplant.

If the government were to extend the category “endangered” to include captive chimpanzees, such horrors would end. This would support endangered animals generally because it would show a government questioning its previous belief, namely that perpetuating captivity can benefit wild animals by reducing the incentive to take more of them from the wild.

Treating Similar Cases Similarly

During the late 1950s and early 1960s, chimpanzees were hunted and killed so that their babies could be caught and used in entertainment, as pets, and in a wide variety of medical experiments. As a result, their importation was outlawed, so that continuing to breed apes already in confinement was the chosen alternative. Captive-bred primates never develop the coping skills they need in the wild; they live their entire lives within in cages, with excursions only to the lab. If these captive primates (chimpanzees are our closest living relatives, by the way) were granted “endangered” status, they would be offered refuge at one of several private sanctuaries which have been designed to meet their needs, not ours. The New York Times editorial may sneer that chimpanzees in the U.S. would get “retirement villas,” but given what we have done to them, something akin to the lap of luxury would be an appropriate antidote to endless years of slavery. And that is roughly what these sanctuaries are. They are not zoos, and the chimpanzees are not there to amuse or entertain humans. These sanctuaries are not designed for humans, either as visitors or as residents. The whole idea is to create a place where these complex individuals can be at home, as far as possible, with only minimal human involvement. That is the least we owe them.

The National Institutes of Health hopes to keep about fifty chimpanzees for “necessary” future research. The Texas Biomedical Research Institute, which has about ninety NIH-controlled chimpanzees, wants to keep more than fifty of them, arguing that they will be needed in connection with developing preventions or cures for hepatitis and emerging viruses. It seems they just don’t get it. Or do they think that Dr. Mengele should have been allowed to keep fifty pairs of identical twins because he needed them for further research? It appears that there is only one way stop people from giving effect to their belief that chimpanzees are ours, to use as we wish. That is to give them legal rights.

Biomedical research is grotesquely unfair to these victims, but captivity itself is unfair. Even in those zoos where great effort has gone into creating conditions conducive to the development of social lives, “abnormal behaviour is endemic in this population despite enrichment efforts,” according to an international study. Therefore, it is important that the new rule grant no special dispensations to permit captive breeding or research on chimpanzees. None. No exception for research claimed to be of benefit to chimpanzees (let them decide), no exception for cognitive research. The present two-track listing needs to be rectified so that these harmful loopholes are closed for good.

Slippery Slope

In 1997, Britain’s parliament banned the use of non-human great apes in scientific experiments. More recently, Spanish ministers accepted a declaration from scientists and philosophers calling for a nonbinding legal resolution to put an end to using nonhuman great apes in harmful experiments and on stage. It is time for the international community, which includes the United States, to recognize that all great apes ought to be protected, and that the best way is to grant them the legal right to be protected from harm. Meanwhile, we can release chimpanzees from the traps our laws have constructed for them with a rule which extends the“endangered species” protections to all chimpanzees. That would be a first step toward reversing a profound wrong.

Some people object that apes’ rights could lead to the development of rights for other animals, that we are at the top of a slippery slope. So be it. Is there any sound reason why we can discuss basic rights to life and autonomy only with reference to our own biological community? Can we humans not act decently, to both human and other beings? That really is all these chimpanzees are asking for, and recognizing a limited notion of personhood for them would be an effective way to do it.

Lee Hall and Anthony Jon Waters are co-authors of an article in the Seton Hall Constitutional Law Journal, From Property to Person: The Case of Evelyn Hart, which outlines, in the form of a Brief to the Supreme Court of the United States, the constitutional arguments which support the recognition of legal personhood for non-human apes. Follow-up discussion gladly accepted on Twitter: @Animal_Law.