Crossing (Conceptual) Boundaries of Transnational Environmental Law

The case comment reflects on the 2019 decision of the Constitutional Court of Basel-Stadt, which ruled that citizens should be allowed to vote on whether to ‘expand the circle of rights holders beyond the anthropological barrier’,23 and the subsequent decision of the Swiss Federal Supreme Court to uphold the validity of the citizens’ initiative.24 Blattner and Fasel explain why including rights for non-human primates in a cantonal constitution could add value to their protection in comparison with the traditional animal welfare protection measures.25 While acknowledging that the change of law advocated by the initiative might have limited practical implications, they posit that the mere symbolism of the initiative is worthwhile.26 These two decisions form part of a recent judicial trend of challenging the absence of basic rights for non-human beings.27 However, it emerges from the case comment that these decisions are particularly original in three ways. [...]the courts addressed, possibly for the first time, the relationship between animal rights and federalism in order to evaluate whether the primate rights initiative would be inconsistent with federal law. The courts responded in the negative, finding that while the Swiss Civil Code precludes animals from having fundamental rights, the initiative sought to reform Swiss public law to alter the relationship between individuals and the state: as a result, cantons were free to extend rights to non-human animals.28 Secondly, the decision of the Federal Supreme Court departed from existing animal rights scholarship, which concentrates on the overlaps between human and animal rights. [...]it declared 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’.29 Thirdly, the case resulted in an important opportunity for citizens to participate in lawmaking processes as it 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’.30 While the two contributions adopt a different starting point – one grounded in a theoretical exercise, the other in the commentary of a judicial decision – they nevertheless converge in their claims that our legal systems need to be reconceptualized to better account for the non-human in our worlds. 3.