Switzerland has a very progressive animal welfare legislation compared to the rest of the world. In 1992, for example, the recognition of the dignity of creatures was enshrined in the Federal Constitution (FC), and in 2008 the protection of animal dignity was included in the purpose clause of the Animal Welfare Act (AWA). Since 2003, article 641a of the Civil Code (CC) states that animals are not objects (however, apart from a few exceptions, property law still largely applies to animals) Nevertheless, the Animal Welfare Act is primarily oriented towards human user interests and permits the industrial production of animal products, as is the case everywhere in the world. Current legislation neither protects the life of animals nor adequately safeguards their physical and mental integrity. Thus, the Animal Welfare Act allows the use of animals for human purposes that are diametrically opposed to their own interests. This fact is confirmed in article 4 AWA: “Any person who handles animals must ensure their well-being as far as the intended purpose permits.” Furthermore, the animal welfare legislation does not grant animals any party rights, which is why they have no general right to representation of their interests in administrative and criminal proceedings.
Non-human primates too may be used and killed – provided that the minimum requirements of the animal welfare legislation are met. Their interests are generally considered inferior to those of human beings, although they do not differ substantially from the latter in their wanting to live and to be respected in their physical and mental integrity.
The adoption of the initiative would mean a paradigm shift: Primates would no longer be considered objects in legal terms, i.e., assets that humans can dispose of more or less freely. Rather, they would have individual and enforceable rights, and thus a guaranteed claim to protection against the public-law entities of the Canton of Basel-Stadt, such as the University of Basel. The canton would in turn be obliged to actively protect the basic rights of primates, among other things by introducing a legal representation for these animals. The demanded rights would only protect the elementary interest of primates to life and integrity and, contrary to what many sceptics fear, not any specifically human interests, such as economic or religious freedoms for primates.
Any interference with the basic rights of non-human primates would have to meet the strict requirements of § 13 of the Constitution of the Canton of Basel-Stadt – analogous to article 36 of the Federal Constitution: the interference would only be permissible if has a legal basis, is in the public interest or justified by the protection of basic rights of others, is proportionate and does not violate the core of the fundamental rights. The core of the fundamental rights demanded by the initiative would have to be defined in detail by doctrine and case law. In our opinion, euthanasia, for example, should be interpreted as being compatible with the core of primates' fundamental right to life in cases of severe suffering.
If the initiative is adopted, primates would have
enforceable rights of defense against the state.