Cetacean Cultural Rights - A Third Generation of Rights at Sea

Animal Law Review
Volume 27 Issue 1 Article 5
2021
Cetacean Cultural Rights: A Third Generation of Rights at Sea

David Peña-Guzmán
San Francisco State University
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David Peña-Guzmán, Cetacean Cultural Rights: A Third Generation of Rights at Sea, 27 Animal L. Rev. 83
(2021).
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CETACEAN CULTURAL RIGHTS: A THIRD
GENERATION OF RIGHTS AT SEA
By
David Pena-Guzmin*
This Article discusses the cultural rights of cetaceans, as articulated in the

2010 Declaration on the Rights of Cetaceans. It argues that these rights
qualify as 'third-generation rights,' meaning groups of cetaceans-as op-
posed to individuals-have the right to the protection of their respective cul-
tures. The Article begins with an account of the history of third-generation
rights in international human rights law. It then examines how the concept
of third-generation rights can carry over into the animal rights movement.
The article proposes three criteria for determining whether a group qualifies
for third-generation rights. Then, it demonstrates that cetaceans meet these
three criteria and thus the law should recognize cetaceans' third-generation
rights. Finally, the Article reflects on what the third-generation rights of
cetaceans might look like in practice and how incorporating them into do-
mestic and international law could improve human's relationship with
cetaceans in the future.
I. INTRODUCTION ......................................... 84
II. THE HISTORY OF THIRD-GENERATION RIGHTS ........ 87
III. THIRD-GENERATION RIGHTS: THE NEW FRONTIER
OF ANIMAL RIGHTS?.................................... 91
IV. DO CETACEANS MEET THE CONDITIONS FOR THIRD-
GENERATION RIGHTS? ................................. 94
A. Cetacean Personhood .................................. 94
B. Cetacean Culture ...................................... 98
C. Cetacean Cultural Groups as Units of Legal Analysis .... 102
V. YES, BUT WHAT RIGHTS EXACTLY? .................... 111
VI. CONCLUSION ............................................ 113
* David M. Pena-Guzmin is an associate professor at the School of Humanities and

Liberal Studies at San Francisco State University. He received his PhD in philosophy
from Emory University and was a postdoctoral fellow at the Centre for Evolutionary
Ecology and Ethical Conservation at Laurentian University and at the Berman Insti-
tute of Bioethics at Johns Hopkins University. His research interests include critical
animal studies, the history and philosophy of science, social theory, and the history of
philosophy. He is the author of the forthcoming When Animals Dream: The Hidden
World of Animal Consciousness (Princeton University Press, 2022) and a co-author of
Chimpanzee Rights: The Philosophers' Brief (Routledge, 2018).
[83]
84 ANIMAL LAW [Vol. 27:83
I. INTRODUCTION
In 1994, the Italian philosopher Paola Cavalieri published a Dec-

larationon GreatApes in collaboration with the Australian ethicist Pe-
ter Singer.' This was a symbolic document that codified the
signatories' conviction that we should treat chimpanzees, gorillas, and
orangutans as our moral equals. 2 Starting in the early 2000s, however,
Cavalieri began turning her attention to cetaceans (i.e., whales,
porpoises, and dolphins) and insisting that they, too, be included in
what she and Singer called "the community of equals." 3 In an article
published in The Philosophers'Magazine in 2005, she asserted that all
whales have a right to life-a move that some in the animal rights
community interpreted as a sign that perhaps another declaration,
this time devoted to cetaceans, was in the works. 4
This second declaration finally materialized five years later when
a group of lawyers, scholars, and scientists now known collectively as
the Helsinki Group met in Helsinki to discuss the plight of cetaceans
and strategies for cetacean advocacy.5 The crowning achievement of
this meeting was the release of the 2010 Declarationon the Rights of
Cetaceans: Whales and Dolphins, a document that calls upon the inter-
national community to recognize the rights of marine mammals. 6 In its
totality, the declaration reads as follows:
Based on the principle of the equal treatment of all persons;
Recognizing that scientific research gives us deeper insights into the com-
plexities of cetacean minds, societies and cultures;
Noting that the progressive development of international law manifests an
entitlement to life by cetaceans;
We affirm that all cetaceans as persons have the right to life, liberty and
wellbeing. We conclude that:
1. Every individual cetacean has the right to life.
1 See Paola Cavalieri & Peter Singer, A Declarationon Great Apes, in THE GREAT
APE PROJECT: EQUALITY BEYOND HUMANITY 4, 4-7 (Paola Cavalieri & Peter Singer eds.,
1994) (calling for expanded rights for apes).
2 Id. at 4. This declaration framed a book Singer and Cavalieri co-edited later in
1994 titled Great Ape Project:Equality Beyond Humanity. See also Paola Cavalieri, The
Meaning of the Great Ape Project, 1 POL. & ANIMALS 16, 17-18 (2015), https://shifter-
magazine.com/wp-content/uploads/2015/11/The-Meaning-of-the-Great-Ape-Pro-
jectCavalieri.pdf (accessed Feb. 14, 2021) (giving an account of the Great Ape Project
initiative).
3 Cavalieri & Singer, supra note 1, at 4.
4 Paola Cavalieri, Rights for Whales?, 31 PHILOSOPHERS' MAG., 3d Quarter 2005, at
28.
5 The Helsinki Group, Declaration of Rights for Cetaceans: Whales and Dolphins,
CETACEAN RIGHTS (2010), https://www.cetaceanrights.org/pdf bin/helsinki-group.pdf
(accessed Feb. 14, 2021). The Helsinki Group included Philippa Brakes, Chris Butler-
Stroud, Paola Cavalieri, Sudhir Chopra, Nicholas Entrup, Matti Hayry, Lori Marino,
Margi Prideaux, Franco Salanga, Thomas White, and Hal Whitehead. Id. The group's
motto is: "We affirm that all cetaceans as persons have the right to life, liberty and
wellbeing." Id.
6 Id.
2021] CETACEAN CULTURAL RIGHTS 85
2. No cetacean should be held in captivity or servitude; be subject to

cruel treatment; or be removed from their natural environment.
3. All cetaceans have the right to freedom of movement and residence
within their natural environment.
4. No cetacean is the property of any State, corporation, human group or
individual.
5. Cetaceans have the right to the protection of their natural
environment.
6. Cetaceans have the right not to be subject to the disruption of their
cultures.
7. The rights, freedoms and norms set forth in this Declaration should
be protected under international and domestic law.
8. Cetaceans are entitled to an international order in which these rights,
freedoms and norms can be fully realized.
9. No State, corporation, human group or individual should engage in
any activity that undermines these rights, freedoms and norms.
10. Nothing in this Declaration shall prevent a State from enacting
stricter provisions for the protection of cetacean rights.
Done, 22nd May 2010, Helsinki, Finland. 7
This Article explores the legal promise of Article 6 of this declara-
tion, which articulates the right of cetaceans "not to be subject to the
disruption of their cultures."8 In spite of its outwardly simple lan-
guage, Article 6 is open to various interpretations since it can be read
as expressing either the right of each individualcetacean to the protec-
tion of their culture or the right of groups of cetaceans to the protection
of their respective cultures. As the following analysis will show, the
choice between these interpretations is not a choice between two de-
scriptions of the same underlying right; rather, it is a choice between
two different types of rights altogether. This Article favors the collec-
tivist interpretation according to which Article 6 codifies the rights of
groups of cetaceans to the protection of their respective cultures.
Under this interpretation, Article 6 emerges as arguably the most rad-
ical provision in the declaration since it applies a legal concept to
cetaceans that remains highly controversial today even in relation to
human beings: the concept of group rights, also known as third-genera-
tion rights.9
Many may find the application of this concept to cetaceans incom-
prehensible from a practical and legal standpoint. How could
cetaceans be entitled to rights when they are not persons under the
law? And even if they were, on what grounds could they be granted
rights to cultural protection given that culture is typically taken to be
an anthropological category that applies exclusively to human beings?
Furthermore, can one meaningfully say that a group of animals-
human or otherwise-has rights? Is this claim not vacuous seeing as,
7 Id.
8 Id.
9 Peter Jones, Group Rights, THE STAN. ENCYC. OF PHIL. (Mar. 17, 2016), https://
plato.stanford.edu/entries/rights-group (accessed Feb. 25, 2021). It is possible to inter-
pret Article 5 along similar lines.
logically, only individuals can be rights-bearers? Some people, then,

may oppose third-generation rights for cetaceans not out of ambiva-
lence toward cetacean conservation efforts, but out of fear that the ex-
tension this legal construct to nonhuman animals, cetaceans included,
risks vitiating the construct itself.' 0
This Article rejects this view and offers an account of the legal
intelligibility of the third-generation rights of cetaceans. This account
is presented in four parts. Part I summarizes the history of third-gen-
eration rights, which have gained significant traction in international
human rights law over the past four decades. It explains what third-
generation rights are, where they came from, and how they differ from
first- and second-generation rights. Part II contemplates whether the
third-generation rights might represent a new frontier for the animal
rights movement and outlines the three criteria that must be met for
these rights to acquire legal force in any context, which are: (1) the
individuals who make up the group meet the conditions of legal per-
sonhood, (2) the group is glued together by cultural factors, and (3) it
makes sense to treat the group as a rights-bearing entity that serves
as a basic unit of legal analysis." Part III, the bulk of the Article,
merges legal, scientific, and philosophical insights to demonstrate that
cetaceans indeed meet these criteria. From this interdisciplinary in-
quiry, a new image emerges of cetaceans as legal persons who form
stable groups on the basis of shared cultural knowledge and practices.
These groups of cetaceans can serve as appropriate units of legal anal-
ysis since they bear rights that no individual cetacean does. Finally,
Part IV reflects upon what the third-generation rights of cetaceans
might look like in practice and how weaving them into domestic and
international legal frameworks may change our relationship to these
magnificent creatures for the better.' 2
10 Eric Johnson, Nonhuman PersonhoodRights (and Wrongs), ScI. AM. BLOG NET-
wORK (Mar. 9, 2012), https://blogs.scientificamerican.com/primate-diaries/nonhuman-
personhood-rights-and-wrongs (accessed Jan. 24, 2021).
11 Jones, supra note 9.
12 In developing this account, I am influenced by the spirit of the Helsinki Group and
the writings of many of its members. I also build upon previous scholarship on cetacean
rights. See, e.g., Mary A. Winters, Cetacean Rights Under Human Laws, 21 SAN DIEGO
L. REV. 911, 940 (1984) (recommending cetaceans be granted legal rights in order to
afford them the protection of legal advocacy); Anthony D'Amato & Sudhir K. Chopra,
Whales: Their Emerging Right to Life, 85 AM. J. INT'L L. 21, 22-23, 62 (1991) (asserting
the indefensibility of whaling in the face of whales' emergent legal entitlement to life);
David DeGrazia, Great Apes, Dolphins, and the Concept of Personhood, 35 S. J. PHIL.
301, 301, 316 (1997) (arguing, among other things, that the concept of personhood is
morally unhelpful in contexts where it is unclear who qualifies as a person, specifically
in deciding whether great apes and dolphins are persons); Denise L. Herzing & Thomas
I. White, Dolphins and the Question of Personhood,9 ETICA & ANIMALI 64, 65, 79 (1998)
(concluding that dolphins meet many traditional criteria for personhood and should be
recognized as members of the moral community of people); PAOLA CAVALIERI, THE
ANIMAL QUESTION: WHY NONHUMAN ANIMALS DESERVE HUMAN RIGHTS (2001) (arguing
that nonhuman animals deserve human rights); Cavalieri, supra note 4, at 27-28 (advo-
cating for global recognition of whales' right to life and proposing the creation of a
II. THE HISTORY OF THIRD-GENERATION RIGHTS

In 1977, the Czech jurist Karel Vagak published an article in the
November issue of UNESCO Courier titled A 30-Year Struggle: The
Sustained Efforts to Give Force of Law to the UniversalDeclarationof
Human Rights.13 In the span of only four pages, Vagak divided human
rights into three generations.1 4 First-generation rights are civil and
political rights whose principal function is to protect the basic individ-
ual liberties that we take to be the cornerstone of political life, espe-
cially the right to life and the right to liberty.1 5 In the wake of Isaiah
Berlin's now-famous 1958 lecture at the University of Oxford, Two
Concepts of Liberty, the liberties protected by first-generation rights
are typically referred to as negative liberties since their protection does
not require much beyond the inaction of others.1 6 For example, as long
as no one kills me, my right to life is intact and as long as nobody
enslaves me against my will, my right to liberty is likewise intact.17
By contrast, second-generation rights concern equality and the
fair treatment of citizens under the law.1 8 Often described as social
United Nations institution tasked with declaring and elaborating this right); Paola
Cavalieri, DeclaringWhales'Rights, 42 TAMKANG REV. 111 (2012) (discussing the impli-
cations of, and justifications for, the Helsinki Group's 2010 declaration of whales' right
to life); Thomas I. White, Dolphin People, 49 PHILOSOPHERS' MAG., 2d Quarter 2010, at
36, 43 (contending that dolphins possess an individual consciousness analogous to that
of humans, and thus should be treated as persons); James Yeates, Whale Killers and
Whale Rights: The Future of the InternationalRegulation of Whaling, 36 ENV'T ETHICS
489, 503 (2014) (arguing it is legally and ethically appropriate to grant cetaceans rights
against whaling); David Mence, The Cetacean Right to Life Revisited, 11 INT'L J. L. IN
CONTEXT 17, 33 (2015) (asserting that cetaceans have an established right to life and
highlighting obstacles to the enforcement of that right on a global scale); Rachel Nuss-
baum Wichert & Martha C. Nussbaum, The Legal Status of Whales: Capabilities,Enti-
tlements and Culture, 72 SEQRNCIA (FLORIANOPOLIS) 19, 38 (2016) (contending that
while international law does not recognize whales as creatures with rights, whales
should be regarded as such); Katie Sykes, The Whale, Inside: Ending Cetacean Captivity
in Canada, 5 CAN. J. COMPAR. & CONTEMP. L. 349, 350, 405 (2019) (providing an over-
view of a 2019 Canadian law making it illegal to keep cetaceans in captivity, and argu-
ing that social and legal norms regarding the concept of cetacean rights have
fundamentally changed over time).
13 Karel Vagak, A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the
Universal Declarationof Human Rights, UNESCO COURIER, Nov. 1977, at 29.
14 Id.
15 Id.
16 Isaiah Berlin, Two Concepts of Liberty, in LIBERTY 166, 169 (2002).
17 See id. (associating a lack of enslavement with freedom). While the two most im-
portant first-generation rights are the right to life and the right to liberty, others in-
clude "freedom of speech, freedom of religion, right to fair trial, equality before the law,
and other civil and political rights." Spasimir Domaradzki et al., Karel Vasak's Genera-
tions of Rights and the ContemporaryHuman Rights Discourse, 20 HUM. RTS. REV. 423,
425 (2019), https://link.springer.com/article/10.1007%2Fs12142-019-00565-x (accessed
Jan. 25, 2021). These rights are normally associated with such foundational political
documents as the Magna Carta, the U.S. Bill of Rights, and the French Declaration of
Rights of Man and of the Citizen. See id. (listing the aforementioned documents as ex-
amples of the aforementioned rights).
18 Vagak, supra note 13.
and economic rights, they protect those positive liberties that are es-
sential for individuals to see themselves as valued members of a larger
political body and to participate fully and meaningfully in communal
life.1 9 Second-generation rights include the rights to education, food,
housing, and health care. 20 A feature that differentiates these rights
from first-generation rights is that the former, unlike the latter, re-
quire more than the inaction of others for their implementation and
defense. 2 1 They require, as Vagak says, "positive action by the state." 2 2
For example, it would not make sense to say that a person's right to
education is upheld as long as others refrain from doing x, y, or z. 23 If
this right is to have any content at all, it must oblige the state to take
proactive steps to ensure that the person in question can exercise this
right. At bare minimum, a right to education requires the state to pro-
vide them with concrete educational opportunities (e.g., by creating
and maintaining a system of free and public education) and to ensure
they have the material resources needed to take advantage of these
opportunities (e.g., by offering free public transportation). 24 All sec-
ond-generation rights are identical in this regard: they impose duties
upon the state.
Vasik's stroke of genius was to introduce into his taxonomy of
rights a third category, which he labelled rights of solidarity.25 These
rights, he argued, did not come out of nowhere.2 6 They had slowly but
steadily gained ground in the international human rights arena since
the 1940s. 2 7 Initially, experts were not sure whether these newcomers
were aberrations or white noise, but by the 1970s it became clear that
they represented a new generation of rights. 28 While Vasik did not say
much about rights of solidarity in his 1977 piece, he did clarify that in
this category were included "the right to development, the right to a
healthy ... environment, the right to peace, and the right to ownership
of the common heritage of mankind." 29
Despite its brevity, Vasik's essay proved a watershed moment in
the history of human rights discourse. In the decades following its pub-
lication, myriad lawyers, legal scholars, diplomats, and policymakers
tarried with the concept of third-generation rights. Often these parties
disagreed about their definition, their philosophical foundations, and
their ethical, legal, and social implications. 3 0 Still, the general consen-
19 Berlin, supra note 16, at 169.

20 Vasik, supra note 13, at 31.
21 Id. at 29.
22 Id.
23 Id.
24 Id. at 31.
25 Id. at 29.
26 Id.
27 Id. at 30.
28 Id. at 29.
29 Id.
30 See, e.g., Rosa Freedman, 'Third Generation' Rights: Is There Room for Hybrid
Constructs Within InternationalHuman Rights Law?, 2 CAMBRIDGE J. INT'L & COMP. L.

sus was that Vasik put his finger on an important development in in-
ternational human rights law. In fact, many of the rights enshrined in
international legal frameworks after World War II were different
enough from their predecessors to warrant recognition as a new
class. 3 1
Much of the secondary literature on this subject tries to isolate the
unique features of third-generation rights. Rosa Freedman, an expert
on human rights law and the Chair of Law, Conflict and Global Devel-
opment at the University of Reading, identifies three features that dis-
tinguish third-generation rights. These are "substance, subjects, and
scope." 32 First, they differ in substance because they focus more on lay-
ing out responsibilities and less on articulating rights, marking a clear
departure from first- and second-generation doctrines. 33 For instance,
U.N. resolutions affirming the right to a healthy environment spend
less time clarifying the content of this right-that is to say, who is
entitled to what-and more time laying out the duties that the inter-
national community incurs as a result of it-that is to say, who is
bound to what. 3 4 These resolutions may reference the duty of each
U.N. member state to not dump waste in poor countries and the duty
of nongovernmental organizations (NGOs) to contribute to local envi-
ronmental efforts in the places they operate. 35 However, it is rarely
stipulated what affected parties can expect when said actors fail to
properly discharge their duties.3 6
935 (2013) (discussing the implications of hybridization of rights on the international

human rights system); Domaradzki et al., supra note 17, at 423-24 (researching how
third-generation rights discourse has changed since Vasik first articulated the
concept).
31 Domaradzki et al., supra note 17, at 424; See Vasik, supra note 13 (describing the
1948 adoption of the Universal Declaration of Human Rights by the United Nations, the
tenets of which were subsequently embraced by numerous nations).
32 Freedman, supra note 30, at 944.
33 Id. at 950.
34 Press Release, Econ. & Fin. Comm., Second Comm. Approves 28 Resolutions, In-
cluding on Combating Protectionism, Eliminating Unauthorized Unilateral Trade Mea-
sures, U.N. Press Release GA/EF/3528 (Nov. 26, 2019).
35 See, e.g., G.A. Res. 66/288, 1 219 (July 27, 2012) ("We urge countries and other
stakeholders to take all possible measures to prevent the unsound management of haz-
ardous wastes and their illegal dumping, particularly in countries where the capacity to
deal with these wastes is limited."). Jason Morgan-Foster argues that this is one place
where we see the limits of a uniquely Western approach to legal theory and the benefits
of non-Western, especially Islamic, frameworks. Jason Morgan-Foster, Third Genera-
tion Rights: What Islamic Law Can Teach the InternationalHuman Rights Movement, 8
YALE HUM. RTS. & DEV. L.J. 67, 68, 115-16 (2005). Unlike Western models, Islamic
models of law tend to focus on duties rather than rights. Shifting from rights to duties,
he argues, is "necessary to render justiciable third-generation solidarity rights." Id. at
67.
36 See, e.g., U.N. DEP'T ECON. & SOC. AFFS., DIV. FOR SUSTAINABLE DEV., TRENDS IN
SUSTAINABLE DEVELOPMENT: CHEMICALS, MINING, TRANSPORT AND WASTE MANAGE-
MENT, at 27-28, U.N. Sales No. E.10.II.A.3 (2010), https://www.un.org/esa/dsd/resources
/respdfs/publications/trends/trendsChemicals_miningtransport_ waste/ch4 waste
management.pdf (accessed Jan. 26, 2021) (explaining that much of the hazardous waste
Second, third-generation rights differ in subject because, as fur-

ther discussed below, they apply to groups rather than individuals. 3 7
The right of a people to self-determination, one of the most-discussed
third-generation rights, illustrates this principle well. 38 Every citizen
of a polis has an individual right to bodily liberty, but no citizen has an
individual right to political self-determination. Someone who identifies
as Quebecois cannot unilaterally exercise their right to political self-
determination to secede from Canada. But the people of Quebec, as a
collective, could. This is because, as the legal scholar Btlent Algan ob-
serves, third-generation rights have a unique means of realization. 3 9
They are realized communally rather than individually. 4 0 This com-
plex feature of third-generation rights raises difficult ontological ques-
tions about which entities constitute legitimate units of legal analysis
to which rights attach. Should the unit always be the individual, or are
there circumstances when society is better off treating other entities,
such as the group, as the analytical building block of its legal universe?
Finally, third-generation rights differ in scope because they rest
upon a conception of shared responsibility. 4 ' This conception impli-
cates as duty-bearers not just other individuals and the state-as with
first- and second-generation rights-but also a vast network of domes-
tic and international actors, including private corporations, proto-stat-
ist actors, NGOs, and international organizations of all sorts (e.g., the
U.N., E.U., N.A.T.O., I.M.F., and Organization for Security and Co-
operation in Europe). Vasik recognized this, writing, "Since these
rights reflect a certain conception of community life, they can only be
implemented by the combined efforts of everyone: individuals, states
and other bodies, as well as public and private institutions."4 2
The features that set third-generation rights apart from their
predecessors-namely, subject, and scope-have caused some to hail
these rights as the most promising and progressive mechanisms in
contemporary international law,4 3 but have caused others to express
reservations about their coherence as legal constructs.4 4 Still, this ten-
exported from developed countries to developing countries ends up "in toxic wastelands,
where the heavy metals and toxic chemicals are released into the soil, atmosphere, and
water supply").
37 Freedman, supra note 30, at 952-53.
38 Id. at 947-48, 952.
39 Bnlent Algan, Rethinking "Third Generation"Human Rights, 1 ANKARA L. REV.
121, 129 (2004).
40 Id. at 128-29.
41 Freedman, supra note 30, at 954-55.
42 Vasik, supra note 13. Because of their globalist scope, third-generation rights are
promulgated through soft law methods, such as U.N. General Assembly resolutions and
declarations, more often than hard law methods, such as bilateral or multilateral trea-
ties, constitutional amendments, legislative statutes, or executive orders. Freedman,
supra note 30, at 946-47, 949-50, 956-58.
43 See id. at 958 (explaining that "[e]mbracing hybridity" will lead to better rights
protection and promotion across the world).
44 See Algan, supra note 39, at 126 (fearing that Vasik's use of the term generations
is counterproductive, since it makes first- and second-generation rights seem pass6).
sion has not stopped third-generation rights from flourishing. Quite

the opposite. Since the publication of Vasik's 1977 essay, these rights
have only proliferated. They have infiltrated milestone documents of
international human rights law, such as the 1981 African Charter on
Human and Peoples' Rights,4 5 the 1986 United Nations Declaration on
the Right to Development,4 6 the 1993 Vienna Declaration and Pro-
gramme of Action,4 7 and the 2007 United Nations Declaration on the
Rights of Indigenous Peoples,4 8 among others. Some scholars have
even argued that, despite their idiosyncrasies, third-generation rights
"taken over" the entire doctrine of the U.N. to the point of becoming
the lingua franca of international human rights law.4 9 Today, the pro-
motion of these rights, especially the right to development, has become
the prime directive of the U.N. 50
III. THIRD-GENERATION RIGHTS: THE NEW FRONTIER OF

ANIMAL RIGHTS?
Up until now, the literature on third-generation rights has as-
sumed these rights apply only to human groups. 51 This article, how-
Similarly, Domaradzki, Khvostova, and Pupovac say that focusing on new rights may
distract us from fighting for the older ones, which could be disastrous for the most vul-
nerable among us. Domaradzki et al., supra note 17, at 426. Focusing on the problem of
scope, Peter Kooijmans states that third-generation rights are incoherent as rights be-
cause they fail to specify a clear duty-bearer; and where there is no duty-bearer, as a
matter of principle, there can be no rights-holder. Peter Koojimans, Human
Rights-Universal Panacea? Some Reflections on the So-Called Human Rights of the
Third Generation, 37 NETH. L. REV. 315, 320-25 (1990). Meanwhile, Freedman takes
Vasik to task for failing to properly recognize the arbitrariness of his classification,
noting that many first- and second-generation rights are also communal, and that all
rights are, in reality, interdependent. Freedman, supra note 30, at 949. One of the most
common critiques is that only individuals can logically bear rights. James Crawford,
The Rights of Peoples: Some Conclusions, in THE RIGHTS OF PEOPLES 159, 159, 168-69
(James Crawford ed., 1988) (accounting the challenge of defining the term group).
45 Org. of African Unity [OAU], African Charter on Human and Peoples' Rights,
adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S 217 (entered into
force Oct. 21, 1986), https://www.achpr.org/public/Document/file/English/banjulchart
er.pdf (accessed Jan. 23, 2021).
46 G.A. Res. 41/128, annex, Declaration on the Right to Development (Dec. 4, 1986),
https://www.un.org/ga/search/viewdoc.asp?symbol=A/res/41/128 (accessed Jan. 27,
2021).
47 World Conference on Human Rights, Vienna Declarationand Programme of Ac-
tion, U.N. Doc. A/CONF.157/23 (June 25, 1993), https://digitallibrary.un.org/record/
183139/files/ACONF.157_23-EN.pdf (accessed Jan. 27, 2021).
48 G.A. Res. 61/295, annex, Declaration on the Rights of Indigenous Peoples (Sept.
13, 2007), https://www.un.org/ga/search/viewdoc.asp?symbol=A/res/61/295 (accessed
Jan. 27, 2021).
49 Domaradzki et al., supra note 17, at 427.
50 Id.; See also Carl Wellman, Solidarity, the Individual and Human Rights, 22
HUM. RTS. Q. 639, 644 (2000) (noting that the "third generation of solidarity rights has
been highly influential . . . within the United Nations").
51 See, e.g., Vasik, supra note 13, at 32 (describing the rights of solidarity as human
rights in his seminal article about third-generation rights); Wellman, supra note 50, at
639-57 (continuing at the turn of the century to call third-generation rights human
ever, challenges this assumption by specifying the formal conditions

under which third-generation rights are activated and arguing that
these conditions hold for cetaceans.
As suggested in Part I, for any group of individuals to be consid-
ered a suitable recipient of third-generation rights, three criteria must
be met:
1. LEGAL PERSONHOOD. Third-generation rights only apply to groups
made up of legal persons. In modern legal culture, a person (as opposed
to a thing) is a special entity with interests and capacities recognized
as worthy of legal protection. 5 2 Personhood, therefore, marks entrance
into the domain of rights and is a precondition for rights discourse. 53
2. CULTURE. Third-generation rights only apply to cultural groups,
meaning groups of legal persons bound by shared cultural knowledge
and practices. This means that neither a group of persons who do not
have any cultural properties (e.g., a group of neonates in a maternity
ward) nor a group of persons who have cultural properties but whose
principle of association is not itself cultural (e.g., a group of adult
rights); Domaradzki et al., supra note 17, at 423-42 (making reference to third-genera-
tion rights as human rights, even in 2019).
52 STEVEN M. WISE, RATTLING THE CAGE: TOWARD LEGAL RIGHTS
FOR ANIMALS 4,
31-32 (2000); See also Katsuhito Iwai, Persons, Things and Corporations:The Corpo-
rate Personality Controversy and Comparative Corporate Governance, 47 AM. J. COM-
PAR. L. 583, 583, 587 (1999) (discussing property rights especially).
53 The law recognizes only two types of entities: persons and things. WISE, supra
note 52, at 4. Persons can own things, but not other persons. Iwai, supra note 52, at 587.
Things, by contrast, can own neither persons nor things. Id. Persons, moreover, are
recognized as having interests that deserve legal protection in the form of rights. Steven
M. Wise, Legal Personhoodand the Nonhuman Rights Project, 17 ANIMAL L. 1, 1 (2010).
But, since things are conceived on the model of inanimate objects, the law does not
recognize them as having interests in the first place. Consequently, they are incapable
of having rights of any sort. Personhood, it could be argued, is the entry point into rights
discourse, since it draws a line in the sand in our legal universe-a line that separates
the wheat (entities that can have rights) from the chaff (entities that cannot). Adolf
Trendelenburg, A Contribution to the History of the Word Person, 20 MONIST 336,
346-56 (1910). Many animal rights activists treat legal personhood as the highest-or
at least most pressing-objective of the animal rights movement. See, e.g., David
Bilchitz, Moving Beyond Arbitrariness: The Legal Personhood and Dignity of Non-
Human Animals, 25 S. AFR. J. ON HUM. RTS. 38, 40, 42 (2009) (opening the article sug-
gesting the possibility of ascribing personhood to nonhuman animals and advancing it
as a way to ensure them greater rights and protections); WISE, supra at 1-2 (stating
that a main purpose of the Nonhuman Rights Project is to persuade a court to grant
personhood to a nonhuman animal); Steven M. Wise, Nonhuman Rights to Personhood,
30 PACE ENV'T L. REV. 1278, 1280-83, 1286, 1288-90 (2013) (lecturing about the signifi-
cance of personhood for nonhuman animals and how to convince courts to grant it);
WISE, supra note 52, at 4-5 (analogizing the legal barrier between thinghood and per-
sonhood for nonhuman animals as a wall, and then previewing how his book would
describe the wall's history and weaknesses, explain why the wall should fall, and show
why common law could be used to rebuild the wall to protect nonhuman animals as
persons, too); Alexia Staker, Should Chimpanzees Have Standing? The Case for Pursu-
ing Legal Personhoodfor Non-Human Animals, 6 TRANSNAT'L ENV'T L. 485, 487, 502-07
(2017) (recognizing personhood as a key barrier between nonhuman animals and legal
rights and arguing for the continued pursuit of such personhood); See Trendelenburg,
supra 53, at 336-59 (describing the historical unfolding of the concept of personhood).
humans who are part of the same international soccer team) qualify as
a cultural group. Although the definition of culturalgroup is debated in
legal literature, third-generation rights are usually intended for: (a)
groups united by a national identity (e.g., the people of India or the
people of Uruguay), (b) groups that share a political history and occupy
a territory that is not yet considered an independent state (e.g. the peo-
ple of Quebec or the Zapatistas of Southern Mexico), or (c) groups that
pivot on ethnic markers and cultural traditions (e.g., the Roma people
of Europe or the Amazigh people of the Maghreb). 5 4
3. RECOGNITION OF GROUPS AS UNITS OF LEGAL ANALYSIS.
Third-generation rights only apply if groups are possible rights-bear-
ers, which is to say, if they represent a category to which rights legally
attach.
These are the formal conditions under which third-generation rights

acquire force. It remains to be seen whether they are met in the case of
cetaceans. If they are, it would mean that cetaceans meet the require-
ments for legal personhood, that they are cultural beings who organi-
cally form cultural groups in nature, and that the groups they form can
be treated as units of legal analysis.
54 See, e.g., Ian Brownlie, The Rights of Peoples in Modern International Law, 9
BULL. AUSTL. Soc'Y LEGAL PHIL. 104, 107-08 (1985) (stating a group's "distinct charac-
ter depends on a number of criteria which may appear in combination," including "[r]ace
(or nationality) . . . in[to] which matters of culture, language, religion and group psy-
chology" factor); Richard N. Kiwanuka, Comment, The Meaning of "People" in the Afri-
can Charteron Human and Peoples' Rights, 82 AM. J. INT'L L. 80, 87-88, 100-01 (1988)
(describing "commonality of interests, group identity, distinctiveness and a territorial
link" as the main factors used to define a cultural group). A common criticism of
Vasikian third-generation rights is that it is not easy to come up with a set of necessary
and sufficient criteria that define a cultural group. See, e.g., Wellman, supra note 50, at
655-56 (discussing the difficulties of recognizing a group or people, and their will or
actions, when they lack the organization of a state or corporate body). This may be true,
but even without a decontextualized and analytical definition for cultural group, some
pragmatic definitions have been put forth in the literature. Dinstein defines peoplehood
using both objective and subjective factors. Yoram Dinstein, Collective Human Rights of
Peoples and Minorities, 25 INT'L & COMPAR. L.Q. 102, 104 (1976). The objective factors
he uses are ethnic markers plus a shared history (i.e., observable traits); for subjective
factors, he uses the state of mind associated with belonging to a particular group (i.e.,
personal identification). Id. Meanwhile, Kiwanuka identifies four meanings of the word
"people" in the African Charter on Human and Peoples' Rights. Kiwanuka, supra at
86-101. Part of what motivates this criticism is a desire to know which cultural forma-
tions might have a claim to the legal protections afforded by third-generation rights. For
example, Saito asks: "What is a group, and which groups should be recognized as hav-
ing rights? Would recognition of religious groups violate the separation of church and
state? Would recognition of racially identified groups lead to entrenchment of what are
increasingly recognized as invalid classifications? Should white survivalists or others
who deny the legitimacy of the federal government have group rights protected by that
government?" Natsu Taylor Saito, Beyond Civil Rights: Considering"Third Generation"
InternationalHuman Rights Law in the United States, 28 U. MIAMI INTER-AM. L. REV.
387, 409 (1996). See Brownlie, supra at 113-15 (1985) (giving a historical overview of
the rights of peoples).
IV. DO CETACEANS MEET THE CONDITIONS FOR THIRD-

GENERATION RIGHTS?
Based on what we know about cetaceans' behavioral, emotional,

and cognitive profiles, these creatures meet the criteria for third-gen-
eration rights, including the right to cultural preservation expressed in
Article 6 of the 2010 Declaration on the Rights of Cetaceans: Whales
and Dolphins.5 5
A. Cetacean Personhood
One of the obstacles to overcome when thinking of cetaceans as

legal persons is our folk intuition about the meaning of person.56 In
everyday speech the term person is often used interchangeably with
human. This is somewhat understandable since all the humans we
meet daily-parents, neighbors, friends, coworkers, and so on-are
commonly understood to be legal persons. The problem is that this us-
age can mislead us by making us believe that since all the humans we
encounter are persons, all persons must be human. This is both a logi-
cal and legal mistake. Logically, it exemplifies the fallacy known as
affirming the consequent.5 7 Legally, it overlooks the law's distinction
between being a human being and being a legal person, since there
exist entities that are persons but not human (e.g., corporations) and
entities that are human but not legal persons (e.g., fetuses).58 The dif-
ference boils down to the fact that human is a biological category that
refers to organisms belonging to the species Homo sapiens, whereas
person is a legal category that refers to beings capable of bearing
rights. 59 It is the gap between these concepts that explains the ongoing
legal debate on nonhuman personhood, which hinges on whether ani-
mals can qualify as persons under the law. 60
55 See The Helsinki Group, supra note 5 ("Cetaceans have the right not to be subject
to the disruption of their cultures").
56 See, e.g., MARY MIDGLEY, UTOPIAS, DOLPHINS AND COMPUTERS: PROBLEMS OF PHIL-
OSOPHICAL PLUMBING, 88 (Taylor & Francis 2003) (debating which beings constitute
persons); Mence, supra note 12, at 20 (challenging the narrow interpretation of persons
as humans).
57 T. EDWARD DAMER, ATTACKING FAULTY REASONING: A PRACTICAL GUIDE TO FAL-
LACY-FREE ARGUMENTS 78-79 (Worth Hawes ed., 6th ed. 2009).
58 See Jens David Ohlin, Is the Concept of the PersonNecessary for Human Rights?,
105 COLUM. L. REV. 209, 212 (2005) (noting that "despite appearances, the concept of
the person is unnecessary for human rights").
59 See KRISTIN ANDREWS ET AL., CHIMPANZEE RIGHTS: THE PHILOSOPHERS' BRIEF
17-38 (2018) (arguing for the attribution of personhood rights to animals).
60 Id. Recently, the literature on nonhuman personhood has evolved to discuss
largely hypothetical scenarios involving artificial intelligence systems.; See, e.g.,
Jiahong Chen & Paul Burgess, The Boundaries of Legal Personhood:How Spontaneous
Intelligence Can ProblematiseDifferences Between Humans, Artificial Intelligence, Com-
panies and Animals, 27 A.I. & L. 73, 74 (2019), (exploring the different categories of
legal personhood to determine their ability accommodate the potential legal personhood
of artificial intelligence).
The case for cetacean personhood has been made by numerous au-
thors. 6 1 One of them is James Yeates, an animal welfare expert from
the University of Bristol who embraces a deontological approach to ce-
tacean personhood. 6 2 Inspired by the moral philosophy of Immanuel
Kant, Yeates argues that contemporary human rights discourse is
founded upon the Kantian concept of dignity, and that consistent ap-
plication of this concept requires extending human rights protections
to all creatures who meet the criteria for Kantian dignity, regardless
of whether they are human. 63 Yeates's turn to Kant's ethical writings
is surprising because Kant is mostly remembered by animal rights de-
fenders as someone who denied animals moral status and insisted that
humans have no direct moral duties toward them. 6 4 In Kant's view,
any duty owed toward an animal is only indirect. 65 It is something
humans must refrain from doing, not because they owe it to the
animal, but because they owe it to themselves and to their fellow
human beings. 66 In a provocative move, however, Yeates sees promise
in Kant's transcendental philosophy and argues that Kant's ethical
philosophy can be made hospitable to animal rights discourse by down-
61 See, e.g., DeGrazia, supra note 12, at 301 (explaining how the debate around the
concept of personhood can be addressed by investigating the personhood of dolphins);
Herzing & White, supra note 12, at 64-84 (discussing the question of personhood as it
relates to dolphins); Midgley, supra note 56, at 87-95 (exploring the applicability of
legal personhood to dolphins); Cavalieri, supra note 4, at 22 (arguing whales have a
right to life); Cavalieri, DeclaringWhales'Rights, supra note 12, at 131 ("[A] consistent
application of the criteria for both eligibility for personhood and liability to genocidal
damages to evidence about [whales'] psychological and cultural qualities shows that it is
time to internationally articulate their rights to life, freedom and well-being."); THOMAS
I. WHITE, IN DEFENSE OF DOLPHINS: THE NEW MORAL FRONTIER (John Wiley & Sons
eds., 2008); White, supra note 12, at 36-43 (introducing a shift in thinking about
nonhumans through the study of dolphins); Lori Marino, Humans, Dolphins, and Moral
Inclusivity, in THE POLITICS OF SPECIES: RESHAPING OUR RELATIONSHIPS WITH OTHER
ANIMALS 95-105 (Raymond Corbey & Annette Lanjouw eds., 2013) (arguing that dol-
phins "present an extreme challenge to our ability to consider similarity and difference
simultaneously. . .in our moral stance toward other animals"); Jessica Ulrich, On
Dolphin Personhood: An Interview with Karsten Brensing, 2 REL. BEYOND ANTHRO-
POCENTRISM 123 (2014) (discussing the concept of dolphin personhood); Yeates, supra
note 12, at 490 (bringing together "legal, ethical, philosophical, and scientific elements
into a synthetic argument" demonstrating that whales meet the necessary criteria to
"be afforded 'human' rights"); Mence, supra note 12, at 18 (2015) ("Many cetaceans are
borderline persons and, as such, have a right to life" (citation omitted)).
62 Yeates, supra note 12, at 495.
63 Id. at 503.
64 Rights Theories: Different Positions, ANIMAL ETHICS, https://www.animal-eth-
ics.org/ethics-animals-section/ethical-theories-nonhuman-animals/rights-theories-differ
ent-positions/ (accessed Jan. 26, 2021).
65 Nelson T. Potter, Kant on Duties to Animals, 13 JARBUCH FUR RECHT UND ETHIK
299, 300 (2005), https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1017&con
text=philosfacpub (accessed Feb. 15, 2021).
66 Alexander Broadie & Elizabeth M. Pybus, Kant's Treatment ofAnimals, 49 PHIL.
375, 375 (1974). See generally CHRISTINE M. KORSGAARD, FELLOW CREATURES: OUR OB-
LIGATIONS TO THE OTHER ANIMALS (2018) (providing a recent, Kantian-inspired ap-
proach to animal ethics).
playing the distinction between direct and indirect duties and harnes-
sing instead the power of Kant's claim that what grounds a creature's
dignity is their "rational nature." 67 Any animal with a rational nature
d la Kant is an autonomous being entitled to all the benefits that ride
on the back of Kantian dignity, including modern human rights. 68
But what does it mean to have a rational nature d la Kant? Ac-
cording to Yeates, Kant equates having a rational nature with having
a rational will, which is a will capable of practical reason. 6 9 As proof
that cetaceans possess wills of this sort, Yeates presents evidence that
cetaceans have a theory of mind, since they form complex beliefs about
each other's intentions. 70 Second, cetaceans engage in metacognitive
reflection, since they pass variations of the Sally-Anne Test that be-
came famous among child psychologists in the 1980s. 71 Third,
cetaceans have abstract mental concepts that they use to mediate their
relationships with external nature. Fourth, cetaceans engage in vari-
ous types of purposive behaviors, such as teaching. 72 Fifth, cetaceans
act on the basis of norms of reciprocity, which proves they have reasons
for actions that express their normative nature.73 Finally, cetaceans
even have complex linguistic capacities that include grasping exten-
sions of syntactical rules and using signals to coordinate collective
action: 74
Bottlenose dolphins can distinguish between human commands where the
chronology of the words is relevant to the action required, for example dif-
ferentiating between "left ball then right hoop" and "right ball then right
hoop." One studied dolphin appeared to understand extensions of a syntac-
67 Yeates, supra note 12, at 493.

68 Id. at 503.
69 Id. at 494. Yeates preempts important objections to his position by clarifying that
Kant understood rationality as a capacity, meaning one does not need to act rationally
all of the time to be considered rational. Id. Rather, one only needs to be capable of
acting rationally under meaningful circumstances. Id. Furthermore, this capacity need
not be evenly distributed throughout a species. All that matters is that some members
of the species display the right capacity, which allows all members of the species to
enjoy the perks of Kantian dignity. Id. "As with humans," Yeates writes, "we can extra-
polate from a belief that certain members of the class (e.g., a taxonomic clade) are ra-
tional to other members of that class." Id.
70 Id. at 495. Theory of mind describes an individual's ability to understand that
other people have minds of their own and thus have intentions, goals, desires, and be-
liefs that are uniquely their own. Id.
71 Id. at 496. The Sally-Anne Test is a psychological dispositive used to test the attri-
bution of false beliefs. Id. Normally it involves asking a child to identify cases in which
someone, X, will believe something to be true when the child knows to be false. Id. If the
child correctly attributes the false belief to X, the child is thought to have reached a
milestone in cognitive development and can be said to have a theory of mind. Id. at
495-96.
72 Id. at 496-98 (explaining that teaching behaviors are particularly important and
rely on the formation of what philosophers call second-order beliefs, since the behavior
can only be justified in the mind of the teacher by the belief that the action will bring
future rewards to the pupil).
73 Id. at 500.
74 Id. at 499.
tic rule and could extract syntactically meaningful sequences from longer
meaningless sequences of commands. These results suggest that dolphins
thereby understand that the adjective refers to the noun it precedes and
that "then" is a temporal conjunctive. This implies that they can implicitly
represent and appreciate the grammatical structure (i.e., syntax) of lan-
guage (in human commands) which, in turn, may rely on an ability to util-
ize words as concepts combined into overall concepts (rather than
considering combinations of words as isolated, novel concepts). Obviously,
if cetaceans have languages, this evidence supports their having mental
states even under definitions of mental states that posit language as a nec-
essary condition. 7 5
All this evidence, Yeates concludes, "should, in Kantian terms, be con-

sidered sufficient for the ascription of autonomy."7 6 Indeed, the most
potent reason to include cetaceans in Kant's moral universe is simple.
Cetaceans already act as if they belong to it by exhibiting moral
behavior: 77
It could also be argued that cetaceans show evidence of ostensibly moral
behavior. Dolphins, bottle-nosed whales, killer whales, and grey whales
have all been reported as coming to the aid of conspecifics who are sick or
giving birth, fighting off aggressors and pushing them to the surface. There
is also substantial evidence of cetaceans helping humans. Wild bottlenose
and Irrawaddy dolphins herd fish into fishermen's nets, which they accom-
pany with a characteristic rolling dive, the height of which indicates how
many fish there are. There are also innumerable anecdotal tales of dol-
phins and whales saving and helping humans. These actions may be only
ostensibly moral or merely social, but for Kant no one's behavior can be
more than ostensibly moral. 78
Cetaceans, it seems, are more than moral patients; they are moral
agents, too. 79
75 Id. at 499.
76 Id. at 497.
77 Id. at 495-501.
78 Id. at 501.
79 Others have echoed Yeates's position that cetaceans are moral agents. See, e.g.,
Mark D. Reid, Moral Agency in Mammalia, 10 BETWEEN SPECIES 1, 8-10 (2010) (argu-
ing that sperm whales are moral agents because they "are motivated to promote the
significant interest of other sperm whales"); Sara Gavrell, The Moral Duties of Dol-
phins, in THE HUMAN-ANIMAL BOUNDARY: EXPLORING THE LINE IN PHILOSOPHY AND FIC-
TION 157 (Mario Wenning & Nandita Batra eds., 2018) (exploring the moral agency of
dolphins within a Kantian ethical framework). Further, many other animals show
moral behavior, suggesting that moral agency reaches deep into the animal kingdom.
See, e.g., Lawrence E. Johnson, Can Animals Be Moral Agents? 4 ETHICS & ANIMALS 50,
50-54, 56 (1983) (discussing moral agency in monkeys); Paul Shapiro, Moral Agency in
Other Animals, 27 THEORETICAL MED. & BIOETHICS 357, 357-58, 360, 367-69 (2006)
(providing examples of moral agency in gorillas, chimpanzees, and dogs); Kyle Johann-
sen, Are Some Animals Also Moral Agents?, 189 ANIMAL SENTIENCE (2019) (stating that,
in addition to the domesticated animals that arguably "possess the cognitive capacities
associated with agency . . . there is certainly a case to be made for the claim that great
apes, whales, and dolphins do, too").
Paola Cavalieri's psychological approach complements Yeates's

deontological proposal. 80 "The concept of person," she writes, "is the
concept, not of belonging to a certain species, but of being endowed
with certain mental traits."8 ' The two traits that matter most for her
are self-consciousness and intentionality.8 2 She argues that animals
who have a sense of the past, present, and future-which constitutes
self-consciousness-and who see themselves as the source of their own
movements and behaviors-which constitutes intentionality-qualify
as legal persons, regardless of their morphology, evolutionary history,
or genetic makeup. 83 Like Yeates and many other animal rights advo-
cates, Cavalieri mobilizes a host of scientific research to show that
cetaceans possess these traits.8 4 They are endowed with immense cog-
nitive horsepower. They remember the past, inhabit the present, and
anticipate the future.85 They navigate their world in such an intelli-
gent manner that they often outwit the very humans who seek to
study, capture, or even hunt them.8 6 By the end of the book, is anyone
really surprised when it is Moby Dick who ultimately drags Captain
Ahab to his death-and by a harpoon, of all things?8 7
B. Cetacean Culture
Historically, culture has been defined as that which separates

humans from other animals.88 Only humans, or so the argument goes,
have the cognitive, social, and emotive structures necessary to produce
cultural objects-such as art, tools, and clothing-and engage in cul-
tural practices-such as language, ritual, and cooking. 8 9 Starting in
the 1970s this anthropocentric conception of culture was challenged by
animal researchers who began describing the behaviors of certain ani-
mals as 'cultural,' much to the dismay of professional anthropolo-
gists. 9 0 In the so-called 'animal culture wars' that followed, there was a
bitter tug-of-war over this concept, with anthropologists insisting that
culture can only be a human property, and animal experts doubling-
80 See generally Cavalieri, Declaring Whales' Rights, supra note 12 (arguing that
cetaceans are nonhuman persons because of their self-awareness and cognitive "ability
to look to the past, present and future").
81 Id. at 119. Cavalieri previously developed the basis of this psychological approach
in her 2001 book The Animal Question. CAVALIERI, supra note 12, at 10. In her view,
what makes someone a legal person is not a particular fact about their biology, but
whether they possess the proper mental traits. Cavalieri, Declaring Whales' Rights,
supra note 12, at 18-19.
82 Cavalieri, Declaring Whales' Rights, supra note 12 at 119-21.
83 Id. at 119.
84 Id. at 120.
85 Id.
86 Id. at 121.
87 HERMAN MELVILLE, MOBY DICK 674 (Oxford Univ. Press 1851).
88 Cavalieri, Declaring Whales' Rights, supra note 12, at 122.
89 Id.
90 Id.
down on their claim that culture extends beyond Homo sapiens.9 1 Ini-
tially, the melee centered on nonhuman primates. 9 2 But, as it turns
out, cetaceans were not far behind.
Cetaceans' path to enculturation harkens back to the 2001 publi-
cation of an article by two leading cetologists, Luke Rendall and Hal
Whitehead, in Behavioral and Brain Sciences titled Culture in Whales
and Dolphins.9 3 Defining culture as information transferred through
social learning that cannot be explained by genetic influences or eco-
logical forces, the authors ascribe three behavioral patterns displayed
by cetaceans to cultural processes. 94 The first is rapid spread, which
refers to the fast dissemination of novel and complex behaviors
throughout a segment of a population. 9 5 An example of this phenome-
non is the speedy evolution of humpback whale song, which evolves at
a rate so fast that it proscribes evolutionary explanations rooted in ge-
netic transfer. 9 6 Humpback whale song evolves so quickly that over
the course of only a few decades-or even a few years-humpbacks
from the same ocean basin undergo a process of dialectization, as dif-
ferent subgroups develop a vocalization signature that functions as a
dialect. 9 7 Another is the spread of fads, which are behaviors that
spread quickly through a portion of the population, become fashionable
for a short time, and then disappear almost as suddenly as they came
91 See, e.g., Kevin N. Laland & Vincent M. Janik, The Animal Cultures Debate, 21
TRENDS IN ECOLOGY & EVOLUTION 542, 543 (2006) (defending a "broad definition" of
culture that extends to "all group-typical behaviour patterns, shared by members of
animal communities, that are to some degree reliant on socially learned and transmit-
ted information").
92 Cavalieri, Declaring Whales' Rights, supra note 12, at 123.
93 Robert W. Mitchell, On Not Drawing the Line About Culture: Inconsistencies in
Interpretationof Nonhuman Cultures, 24 BEHAVIORAL & BRAIN SCI. 348, 349 (2001).
94 Luke Rendell & Hal Whitehead, Culture in Whales and Dolphins, 24 BEHAV.
&
BRAIN SCI. 309, 318-19 (2001). Rendell and Whitehead opt for a minimalist definition of
culture that makes no reference to language or the so-called 'ratchet effect.' Id. at 309,
319. 'Ratchet effect' is a term used to capture the cumulative feature of human culture.
Claudio Tennie, Josep Call & Michael Tomasello, Ratcheting Up the Ratchet: On the
Evolution of Cumulative Culture, 364 PHIL. TRANS. R. Soc. B. 2405, 2405 (2009). When
humans participate in cultural practices, we do not start from scratch each time. We
begin where our parents, teachers, and ancestors left off. This creates a ratchet effect
whereby we "lock in" cultural achievements and build upon them. There is substantial
disagreement among those involved in the animal culture wars about whether this is
merely a feature of human culture or whether it is an essential component of the defini-
tion of culture more generally. Rendell & Whitehead, supra at 309-324.
95 Rendell & Whitehead, supra note 94, at 311-12.
96 Id. at 312.
97 James MacDonald, The Cultural Differences in Humpback Whale Songs, JSTOR
DAILY (Oct. 3, 2019), https://daily.jstor.org/cultural-differences-humpback-whale-songs/
(accessed Jan. 19, 2021); Ellen C. Garland & Peter K. McGregor, Cultural Transmis-
sion, Evolution, and Revolution in Vocal Displays: Insights From Bird and Whale Song,
11 FRONTIERS PSYCH. 1, 4 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC75
50662/#ref69 (accessed Feb. 14, 2021).
into existence. 98 One such fad was observed in the southern Gulf of
Maine in the 1980s, when a specific whale was observed 'lobtail feed-
ing', which is to say, hitting the surface of the water with the tail fluke
in order to disorient the prey below right before going in for the kill. 9 9
This novel behavior was observed for the very first time in 1981,100 but
it quickly went viral. By 1989, less than a decade later, it had been
picked up by "50% of the population," a clear example of a cultural
fad.101
A second pattern that Rendell and Whitehead ascribe to cultural
processes is what they call mother-offspring, which denotes behaviors
passed from mother to offspring through social learning.10 2 For exam-
ple, young beluga whales learn migration routes from their
mothers.10 3 Similarly, dolphins rely on their mothers to teach them
important survival tactics, such as feeding techniques.1 04 A technique
that has received significant attention in recent years is the "sponge-
feeding" behavior of some bottlenose dolphins in Shark Bay, Austra-
lia.1 05 These dolphins have learned to cover their beaks, or rostra, with
a sea sponge while looking for food on the seafloor.1 06 The sponge pro-
tects the rostra from getting hurt by rocks and coral.1 0 7 Curiously, not
all dolphins in Shark Bay do this; only those whose mothers learned to
sponge-feed.1 0 8 This makes the behavior 'cultural' under Rendell and
Whitehead's definition, since it cannot be explained genetically or eco-
logically given that all of the dolphins in Shark Bay interbreed with
one another and are subject to the same ecological pressures.1 0 9 Fur-
thermore, analyses of dolphin social network dynamics have revealed
that sponging dolphins spend a lot more time socializing with one an-
other than with their non-sponging counterparts, suggesting a cultural
identity rooted in this uniquely aquatic form of tool-use.110
The third behavioral pattern is what the authors call group-spe-
cific, which refers to behaviors (e.g. foraging tactics, mating strategies,
socialization habits) that spread among a subsection of a population,
causing it to break off as a cultural sub-group."' This has been hap-
pening for some time to the population of killer whales off Vancouver
98 Karen W. Pryor, Cultural Transmission of Behavior in Animals: How a Modern

Training Technology Uses Spontaneous Social Imitation in Cetaceans and Facilitates
Social Imitation in Horses and Dogs, 24 BEHAV. & BRAIN Sc1. 352, 352 (2001).
99 Rendell & Whitehead, supra note 94, at 312.
100 Id.
101 Id.
102 Id. at 311-13.
103 Id. at 313, 321.
104 See id. (describing different feeding habits calves learn from their mothers).
105 Id. at 313.
106 Id. at 313, 329.
107 Id.
108 Id. at 313.
109 Id.
110 Id.
111 Id. at 314.
Island in the Pacific Northwest.1 2 By any objective metric, these crea-

tures form a single population since they socialize and interbreed.113
But the population is divided into two cultural sub-groups-residents
and transients-that have different acoustic dialects, foraging strate-
gies, food preferences, and even greeting ceremonies." 4 These groups
may occupy the same slice of the earth, but live in different worlds
altogether.11 5 The wedge between them is so deep that, at the time of
this writing, residents are recognized as endangered under the Endan-
gered Species Act, but transients are not.116
Rendell and Whitehead's cultural interpretation of these three be-
haviors-rapid spread, mother-offspring, and group-specific-caused a
major splash in the field. In a follow-up piece published soon after,
they responded to several criticisms leveled against their position and
doubled down on their original wager.11 7 Two decades later, they built
upon their earlier work by publishing The Cultural Lives of Whales
and Dolphins. In this book they go into greater detail about the cul-
tural processes at work in the lives of cetaceans, offer an in-depth ac-
count of the meaning of culture, and develop a sophisticated theory of
the cognitive mechanisms that cetaceans have evolved over the past 40
million years that make them capable of culture, namely imitation and
social learning." 8
Thanks to their innovative work, the idea that cetaceans have cul-
ture is now accepted in the field of cetology.11 9 Today, denying that
whales, porpoises, and dolphins are cultural beings seems as unthink-
able as denying that chimpanzees have empathy or that octopuses use
tools.120 If anything, new findings in cetological research have only
yielded further empirical support for Rendell and Whitehead's original
claims. These findings even suggest that cetacean culture goes beyond
112 Id.
113 Alan A. Berryman, Population:A Central Concept for Ecology?, 97 OIKOS, no.
3,
2002, at 439, 441.
114 Rendell & Whitehead, supra note 94, at 314-15.
115 Rendell and Whitehead note that if these differences were ecological or genetic,
they would have scattered a long time ago. But the exact opposite is happening. As time
goes by, these differences are getting more and more pronounced. Id.
116 Southern Resident Killer Whale (Orcinus Orca), Nat'l Oceanic & Atmospheric Ad-
min. Fisheries, (June 3, 2020), https://www.fisheries.noaa.gov/west-coast/endangered-
species-conservation/southern-resident-killer-whale-orcinus-orca (accessed Jan. 27,
2021).
117 Luke Rendell & Hal Whitehead, Cetacean Culture: Still Afloat After the FirstNa-
val Engagement of the Culture Wars, 24 BEHAV. & BRAIN SC. 360, 360-61 (2001) (here-
inafter Cetacean Culture).
118 HAL WHITEHEAD & LUKE RENDELL, THE CULTURAL LIVES OF WHALES AND DOL-
PHINS 10-11, 227 (2015).

119 Cetacean Culture, supra note 117, at 361.
120 Lisa Newbern, Chimpanzee Empathy is Key to Understanding Human Engage-
ment, EMORY NEWS CTR. (Mar. 12, 2014), https://news.emory.edu/stories/2014/03/chim-
panzeesand_empathy/campus.html (accessed Feb. 8, 2021); Charles Q. Choi, Creative
Creatures: 10 Animals That Use Tools, LIVE SC. (Nov. 03, 2011), https://www.livesci
ence.com/16856-animals-tools-octopus-primates.html (accessed Feb. 8, 2021).
the three behavioral patterns described by Rendell and Whitehead and

include phenomena as complex as cetacean communication and ceta-
cean thanatology.121
C. Cetacean Cultural Groups as Units of Legal Analysis
So far, it has been established that cetaceans can be legal persons

and are cultural beings. But to make the claim that they ought to be
granted third-generation rights legally intelligible, we must also see
whether the groups they form in nature can act as units of legal analy-
sis, which is to say, as irreducible components of legal ontology. In
short, can cetacean cultural groups bear rights?
Philosophically, this question is more complicated than it seems at
first glance because Western legal systems have a tendency to atomize
groups into their constituent parts and to treat their putative interests
as nothing more than the sum of the interests of their members.1 2 2
This atomic instinct is an effect of what Colin Bird, an expert in demo-
121 See, e.g., Ferrer-i-Cancho et al., Parallels of Human Language in the Behavior of
Bottlenose Dolphins, arXiv preprint arXiv:1605.01661 (2016) (reviewing the "similari-
ties between human language and dolphin behavior"); Vincent M. Janik, Cetacean Vocal
Learning and Communication, 28 CURRENT OP. IN NEUROBIOLOGY 60, 63 (2014) ("In
delphinids, we find social structures of similar complexity as in primates and a use of
learned vocalizations in social interactions that is absent in nonhuman primates."); Vin-
cent M. Janik, Cognitive Skills in Bottlenose Dolphins, 17 TRENDS IN COGNITIVE SCI.
157, 159 (2013) (providing illustrative examples of bottlenose dolphin communication);
BERND WURSIG & HEIDI C. PEARSON, DOLPHIN SOCIETIES: STRUCTURE AND FUNCTION, IN
DOLPHIN COMMUNICATION AND COGNITION: PAST, PRESENT, AND FUTURE 77, 80 (Denise
L. Herzing & Christine M. Johnson eds., 2015) (explaining that dolphins are capable of
"sophisticated long-term memories" and "individual and culturally mediated learning");
Ramon Ferrer-i-Cancho & Brenda McCowan, A Law of Word Meaning in Dolphin Whis-
tle Types, 11 ENTROPY 688, 695, 697 (2009) (finding that "dolphins['] whistle types have
some sort of 'meaning); Janet Mann & H. Barnett, Lethal Tiger Shark (Galeocerdo
cuvier) Attack on Bottlenose Dolphin (Tursiops sp.) Calf Defense and Reactions by the
Mother, 15 MARINE MAMMAL SCI. 568, 572 (1999) (recounting a mother dolphin trying to
revive her calf by pinning it to the seafloor); Melissa A. L. Reggente et al., Nurturant
Behavior Toward Dead Conspecifics in Free-Ranging Mammals: New Records for
Odontocetes and a General Review, 97 J. MAMMALOGY 1428, 1431 (2016) (adding five
species of cetaceans "to the list of mammals displaying intraspecific nurturant behavior
toward dead calves, either by supporting or carrying the young at the surface"); Gio-
vanna Bearzi et al., Whale and Dolphin Behavioural Responses to Dead Conspecifics,
128 ZOOLOGY 1, 2, 12 (2018) ("[C]etaceans seem to share behavioural traits that include
a strong, sometimes fairly long-lasting attachment to dead conspecifics."); Rendell
&
Whitehead, supra note 94, at 323 (defending the reality of cetacean culture by pointing
to menopause). Rendell and Whitehead argue that menopause allows older females to
shift their energies from reproduction to the transmission of cultural knowledge, espe-
cially teaching young ones culturally appropriate ways of foraging, migrating, and so-
cializing. Id. ("Culture may [...] have had effects on the evolution of life history").
122 Saito, supra note 54, at 410. Algan also asserts that third-generation rights are
superfluous because they do not impose upon us any duties that we would not already
have on the basis of first- and second-generation rights. Algan, supra note 39, at 139.
"In my opinion," he says, "the third generation human rights do not impose on their
individual and group duty-holders a further solidarity than that already existed as a
result of living in a society under the authority of a state." Id. at 147.
cratic theory and liberalism, dubs the myth of individualism.12 3 This

myth inclines us to recognize as real only self-actualized, self-con-
tained, monadic individuals, rather than the environmental, social,
and communal structures that nourish and sustain them.1 2 4 Because
of this myth, supra-individual wholes-groups, collectives, peoples,
communities, species, etc.-are systematically subjected to a process of
legal de-realization whereby they are ontologically reduced to their
constituent parts until they disappear altogether from the purview of
12 5
law.
Rescuing groups from this fate requires combatting the atomic
tendencies of legal epistemology. In the case of human groups, this has
been done in a plurality of ways: by accentuating their internal
unity;126 by underscoring the profound sense of identification exper-
ienced by their members;1 2 7 by claiming that, despite not being con-
scious agents, they form collective intentions and make collective
decisions;1 28 by stressing that their interests are connected with, but
ultimately irreducible to, the interests of their members;1 2 9 and by
foregrounding our moral intuitions about their intrinsic value.1 3 0
What most of these positions have in common is that they defend the
concept of group rights by supporting the reality and irreducibility of
the relevant groups.131
In animal rights law literature, group rights rarely appear. And
when they do, they do so under the guise of species' rights.13 2 In gen-
eral, the law does not recognize the rights of species, even though a
number of scholars have argued that it should.1 33 The Israeli philoso-
123 COLIN BIRD, THE MYTH OF LIBERAL INDIVIDUALISM 1 (1999).

124 Id at 180-212, 62-64.
125 Id.
126 PETER A. FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY (Colum. Univ.
Press, 1984).
127 MARLIES GALENKAMP, INDIVIDUALISM AND COLLECTIVISM: THE CONCEPT OF COL-
LECTIVE RIGHTS (Erasmus Universiteit, Faculteit der Wijsbegeerte, 1993), https://www-
jstor-org.jpllnet.sfsu.edu/stable/pdf/40887179.pdfrefreqid=excelsior%3Af846a18953
b049731b5e250dba4a787f.
128 Adina Preda, Group Rights and Group Agency, 9 J. MORAL PHIL. 229, 231-42
(2012); MICHEL SEYMOUR, A LIBERAL THEORY OF COLLECTIVE RIGHTS 139-40 (2017).
129 LARRY MAY, THE MORALITY OF GROUPS: COLLECTIVE RESPONSIBILITY, GROUP-
BASED HARM, AND CORPORATE RIGHTS, 18-19, 24 (Univ. of Notre Dame Press, 1987).
Leighton McDonald, Can Collective and Individual Rights Coexist?, 22 MELBOURNE U.
L. REV. 310, 313-18, (1998) (discussing how collective and individual rights are irreduc-
ible to one another through examples of aboriginal rights); Ronald Niezen, Collective
Rights and the Construction of Heritage, in ARCHAEOLOGIES OF "US" AND "THEM" 19,
30-31 (Charlotta Hillerdal et al. eds., 2017).
130 MIODRAG A. JOVANOVIm, COLLECTIVE RIGHTS: A LEGAL THEORY 56 (2012); KEITH
GRAHAM, PRACTICAL REASONING IN A SOCIAL WORLD 66 (2002); BEREL LANG, GENOCIDE:

THE ACT AS IDEA (2017).
131 See supra notes 126-30.
132 Shlomo Cohen, The Ethics of De-Extinction, 8 NANOETHICS 165, 172 (2014).
133 See, e.g., E.P. Pister, The Rights of Species and Ecosystems, FISHERIES, April 1995
28, 28-29 ("Establishment of rights of species other than our own would constitute a
major step in the proper direction."). On some readings, the U.S. Endangered Species
pher Schlomo Cohen, for example, poses the question of whether a tax-
onomic entity, such as a species, "can logically be a right-bearer."1 34 A
look at his analysis will help clarify the neighboring question of
whether a sub-specific entity, such as a cultural group, can be a rights
bearer as well.
Cohen's analysis unfolds in three steps. He begins by asserting the
objective reality of species, thereby implicitly rejecting the nominalist
view espoused by James L. Huffman that species "are nothing but ag-
gregations of individual organisms according to taxonomies contrived
by the minds of humans."1 35 For Huffman, a professor of law at Lewis
& Clark Law School who specializes in environmental and constitu-
tional law, species are not natural categories.1 36 They are construc-
tions of the human mind that pigeonhole animals into arbitrary
categories with no foothold in the empirical world.1 3 7 Cohen, on the
other hand, sees this as a profound misunderstanding of what species
are.'13 For Cohen, species possess an objective reality that other taxo-
nomic categories (orders, classes, phyla, etc.) do not by virtue of the
fact that they are the alpha and omega of the evolutionary process it-
self.1 3 9 Species are what biological evolution works on and toward.14 0
Without species, evolution would make no sense since, as any student
of evolutionary theory knows, evolutionary forces work on populations,
not individuals.141 Populations evolve; individuals do not.14 2 In effect,
one could define evolution merely as the coming and going of popula-
Act of 1973 is an exception since it recognizes the rights of endangered species to exist,
even when this right does not apply to any one member of those species. James L
Huffman, Do Species and Nature Have Rights?, 13 PUB. LAND L. REV. 51, 52-53, 59-60
(1992). This right, as articulated in the Act, functions as a trump-it trumps all other
considerations. Id. at 56 (citing RONALD DWORKIN, LAW'S EMPIRE (1986)). Huffman
writes: "In some respects the Endangered Species Act is a creation or recognition of such
rights. The Act purports to recognize a species right to survival, but not a right of sur-
vival in the individual members of the species. This species right concept has interest-
ing parallels to the group rights focus of some modern constitutional law. It is rooted in
the notion that there is a commonality of interest among the members of a particular
group or species." Id. at 57. See also G.E. Varner, Do Species Have Standing?, 9 ENV'T.
ETHICS 57, 59 (1987); Winthrop Staples III & Philip Cafaro, For a Species Right to Exist,
in LIFE ON THE BRINK: ENVIRONMENTALITS CONFRONT OVERPOPULATION 283, 285 (Philip
Cafaro & Eileen Crist eds., 2012).
134 Cohen, supra note 132, at 169.
135 Huffman, supra note 133, at 56-57, 60, 75. Huffman states that the species rights
concept contravenes Western liberal values and is, at best, incoherent due to the insta-
bility of species. Id. at 59. His disdain for this concept is based on a nominalist reading
of species, according to which species boundaries come from the human mind rather
than the external world. Id.
136 Id. at 59-60.
137 Id. at 60.
138 Cohen, supra note 132, at 170-72.
139 Id.
140 Id.
141 Andrea J. Alveshere, Force of Evolution, in Explorations: An Open Invitation to
Biological Anthropology 5, (Beth Shook et al., 2019).
142 Id.
tions, as the incessant building up and breaking down of species

boundaries.14 3 Surely we use our minds to thematize these bounda-
ries, but it would be a mistake to assume that our minds are the ulti-
mate source of the boundaries themselves. The boundaries are given to
us by nature, not the other way around-even if these boundaries are
unstable, vague, and porous. Cohen leans on this anti-nominalist in-
terpretation of species boundaries to lay the foundation for his account
of species rights.14 4
Cohen's second step is to assert that each species has a "good" of
its own, by which he means that there is always a set of species-spe-
cific interests on the basis of which we can assess the well-being of a
particular species and make educated judgments about whether, at
any one moment, that species as a whole is flourishing or withering
away.1 4 5 Animal welfare experts, for example, have a good sense of
what it takes for polar bears to thrive and can say with a high degree
of certainty that, as a species, they are doing dismally in light of cli-
mate change, even if they can point at particular bears that are in rela-
tively good shape (which, sadly, is also becoming increasingly hard to
do). The point here is that even if what is good for the species is intri-
cately tied to what is good for the individual, the former is not reduci-
ble to-or, as Cohen says, "analyzable into"-the latter.14 6 Just as
what is good for the bird is not always good for the flock, what is good
for the flock need not always be good for the bird.
Indeed, the good of the group and the good of the individual can
clash. Altruistic behaviors are a clear example. When animals perform
altruistic acts, they essentially sacrifice their own interests for the
benefit of their kin:
Now the successful functioning of an individual animal has an evolutionary
logic, but it sometimes makes less or no sense from the perspective attribu-
table to the animal itself. Animals' life often includes tremendous inevita-
ble pain, which confers survival benefit but, we might think, is "not worth
it" for the individual animals; the same is true regarding the "unreason-
able" ordeals animals often endure in rearing and protecting their off-
spring. Yet, as Richard Dawkins writes, "natural selection is indifferent to
the intensity of suffering, except in so far as it affects survival and repro-
duction." The survival referred to clearly expresses the species' perspective.
Beyond sacrifice of self-interest to increase the fitness of kin are the vari-
ous instances of outright self-sacrifice at all levels of the animal kingdom
(from amoebae and shrimp to canines and primates). Inclusive fitness (the
theory in evolutionary biology according to which genetic success requires
cooperation, even self sacrifice) suggests that the conatus is first and fore-
most the species', not the individual's.14 7
143 See id. (discussing the different aspects of evolution and how populations change
through "forces of evolution to either continue their survival or die off').
144 Cohen, supra note 132, at 170-72.
145 Id. at 170.
146 Id.
147 Id.
There is no doubt that altruistic behaviors serve a good, but it is not

the good of the altruist; it is the good of the species. 148 From the
standpoint of the altruist, these behaviors are oftentimes maladaptive
causing more harm than benefit to the individual.1 49 But from the
standpoint of the species, they are of high adaptive value.1 50
Finally, Cohen links his claim that species have their own inter-
ests to his ultimate conclusion that they have rights by characterizing
the good of the species as intrinsically valuable, which is to say, as
something that has value for its own sake rather than for the sake of
anything else.15' He reasons that most humans are already committed
to the notion that life has intrinsic worth and that, consequently, all
living things matter morally.1 52 We recognize the fault line that sepa-
rates the living from the non-living as a morally salient feature of our
universe.153 But to be consistent in our belief that life has value, we
must respect not just the individuals of whom life is predicated, but
also the forms through which life manifests itself in nature.1 54 What
are these forms? "Clearly, these are the species."1 5 5 Because life actu-
alizes itself through species just as species actualize themselves
through their members, there is a moral correspondence-or, to use
Cohen's words, "structural parallelism"-between the intrinsic value
of the individual and that of the species:1 56
Now there is an interesting structural parallelism between the idea of re-
spect for species as explained here and the fundamental ethical idea of re-
spect for persons. In both cases there is an attitude of respect for a
fundamental source of agency-life in the one, freedom in the other-but in
both the attitude in itself amounts to nothing unless redirected toward the
necessary embodiment of the agency; thus we get respect for species, fol-
lowing the same logic as we find in respect for persons. Understanding this
parallelism confers another dimension of plausibility on the idea of respect
for species. . . . [W]e can sensibly speak of the interests of species and that
an accompanying attitude of respect is sensible too. If we accept this, then
we have all we need to establish moral obligations toward species, or, if we
57
wish to use that language, species' rights.1
Even though some resist this parallelism, Cohen argues that as a

community we already embrace it, albeit tacitly.1 58 We would not
mourn the extinction of species as we do if we did not see them as
148 Id.
149 Id. at 171.
150 Id. at 176.
151 Id. at 167 ("If nature
has intrinsic value, this value must entail independence ...
from human purpose, activity and interest.").
152 Id. at 171 (describing social attitudes that suggest a general reverence for life).
153 Id. ("Life has a special, more sublime status compared with non-life.").
154 Id.
155 Id.
156 Id.
157 Id. at 172.
158 See id. at 170-72 (arguing humanities language about animal extinction proves
our distaste for it).
worthy of moral admiration and esteem and if we did not feel that
their ongoing existence is a net good.159 When a species goes extinct,
we experience their disappearance not merely as an evolutionary fact
(which it is), but also as a tragedy (which it also is). We experience
species extinction as a loss because we sense in our flesh and bones
that when a species disappears from the face of the earth, we lose more
than an aggregate of particulars; we lose a form of life, which is to say,
a unique and incomparable interpretation of life that we shall never
get back.
Although Cohen's aim is to defend the rights of entire species, his
analysis can help us formulate a sister defense of the rights of sub-
specific cultural groups.1 60 Recall that his position hinges on three as-
sertions: (i) that species are real natural entities, not arbitrary classifi-
cations, (ii) that they have their own interest or good, and (iii) that this
interest or good is valuable enough to merit protection.161 But are the
resident killer whales of the Pacific Northwest and the sponge-feeding
bottlenose dolphins of Shark Bay any less worthy of ethical protection
than the species to which they belong? As a cultural group, are they
not also real? Do they not have their own group-specific good? And is
this good not also intrinsically valuable?
A first step in thinking through these questions is recognizing
that cetacean cultural groups are real for the same reasons that spe-
cies are real under Cohen's account, which is to say, because they are
part and parcel of the logic of evolution.16 2 Cohen's interpretation of
evolution as a natural process that works on and toward species is cor-
rect in a broad sense, but it suffers from one conceptual limitation. It
gives the false impression that evolution advances by essentially leap-
ing from one fully formed species to another, like a frog from one lily
pad to the next.1 6 3 A more accurate description would be that evolu-
tion works by exploiting intra-specific variations that produce differen-
tial rates of reproduction and survival within a population,16 4 and
then amplifying these variations over time until the population
splinters into separate sub-groups. At some point these groups diverge
from one another enough to be considered incipient species, or species-
in-the-making.16 5 Seen in this light, biological evolution is the con-
stant coming and going of species, but only because it is at the same
time the unfolding of a logic of speciation, a logic that involves the cre-
159 Id. at 172.

160 Id. at 170.
161 Id.
162 Id. at 170-172.
163 See Id.
164 Daniel I. Bolnick, Why Intraspecific Trait Variation Matters in Community Ecol-
ogy, 26 TRENDS IN ECOLOGY & EVOLUTION 183, 183-84 (2011).
165 CHARLES DARWIN, THE ORIGIN OF SPECIES
337 (Bantam Books 1999). Rendell and
Whitehead argue that this is what is happening with the killer whales of the Pacific
Northwest. They are undergoing culturally induced sympatric speciation. Rendell
&
Whitehead, supra note 95, at 322. They are slowly diverging from one another on ac-
count of their cultural differences even though they live in the same area.
ation of species out of supra-individual but sub-specific formations.1 6 6

If evolution makes little sense without species, it makes even less
without the sub-specific groups that are both an expression of, and a
condition for, speciation itself.
The variations that drive a wedge in a population are not always
cultural. They can also be genetic or ecological.1 6 7 But when they are
cultural, the resulting formations are cultural groups that have an
equally valid claim to objective status as the species from which they
sprout. Admittedly, the difference between orcas and dolphins is not
the same as the difference between resident and transient orcas in the
Pacific Northwest or between sponging and non-sponging dolphins off
the coast of Western Australia. But the former is not somehow 'more
real' or 'more objective' than the latter. Intra -specific differences, much
like inter-specific ones, track divisions contrived by nature.1 68 This, at
any rate, is the position of Whitehead and his fellow authors when
they refer to cetacean cultural groups as "evolutionarily significant
units."1 6 9
Aside from betting on their evolutionary reality, another way of
establishing the reality of groups is by interpreting certain injuries
that individuals are subjected to as group injuries.170 Cohen does not
pursue this line of argument, but many defenders of third-generation
rights for humans do. If individuals can be harmed in their capacity as
members of a cultural group, said group must be legally significant
even if it is not evolutionarily significant. Philosophically, this insight
lies behind a number of legal developments in the twentieth century,
including the creation of protected classes based on social categories
such as race, gender, sexuality, religion, disability, nationality, and so
166 Speciation, ENCYLOPAEDIA BRITANNICA (May 29, 2020), https://www.britannica.

com/science/speciation (accessed Jan. 27, 2021).
167 Rendell & Whitehead, supra note 94, at 309.
168 Hal Whitehead et al., Culture and Conservation of Non-Humans with Reference to
Whales and Dolphins: Review and New Directions, 120 BIOLOGICAL CONSERVATION 427,
432 (2004).
169 Id. at 430, 433. Rendell and Whitehead observe that although group selection the-
ories have been rejected by biologists since the 1970s, we have to differentiate between
theories that focus on genetic groups and those that focus on cultural groups. WHITE-
HEAD & RENDELL, supra note 118, at 25. Genetic group selection theories are highly
problematic, but cultural group selection theories are more feasible. Id. at 26. The latter
avoid the conceptual shortcomings of the former while giving us invaluable explanatory
power that we would not have were we to limit ourselves to theories rooted in the selec-
tion of either whole individuals or germ-lines. Id. If "group selection on cultural varia-
tion has been an important force in human evolution," it is probable that it has also
been important in the evolution of other species, including cetaceans. PETER J. RICHER-
SON & ROBERT BOYD, NOT BY GENES ALONE: How CULTURE TRANSFORMED HUMAN
EVOLUTION 163 (2008); See also Whitehead et al., supra note 173, at 430 (explaining
that humans are exemplars of ecological success in environments prone to change, but
other species with cultural capacities have shown a propensity to adapt in envoirn-
ments that change as a result of human behavior as well).
170 See, e.g., Stephen Winter, On the Possibilities of Group Injury, 37
METAPHILOSOPHY 393, 411 (2006) (supporting group injuries that are linked to group
interests "derived from the rightfully held personal interests of members").
on, and the international legal prohibition against acts of genocide. For
example, most legal scholars now recognize that sexual harassment
targets women as women and thus contributes to the subordination of
women as a class.171 Similarly, human rights experts regularly point
out that acts of genocide target people on account of the cultural
groups they belong to.1 7 2 In cases of genocide, we do not say that a
crime has been committed against ten, or one hundred, or one million
persons; we say that a crime has been committed against a people, that
an atrocity has been carried out against an entire group. The structure
of the injury forces our hand-it forces us to recognize the legal signifi-
cance of the group as a whole.
But if humans are not the only ones who live cultural lives, it fol-
lows that we are not the only ones who can, in theory, be targeted
along cultural lines. Animals can too. Rendell and Whitehead use the
example of pre-modern whaling in the Labrador Sea in the northeast
of Canada to motivate the claim that cetaceans can be injured on the
basis of a shared cultural trait.173 During the sixteenth and seven-
teenth centuries, Basque whalers decimated the local population of
right whales in the Labrador Sea.1 74 Today, we know that the migra-
tion routes of right whales are culturally transmitted through social
learning.1 75 Different groups of right whales follow different routes.1 76
Therefore, the population in the Labrador Sea was not made up of just
any right whales, it was made up of whales who shared a specific mi-
gration path.1 77 The population was a cultural group.1 78 "By killing
the Labrador animals, [whalers] also destroyed the cultural knowledge
of how to use Labrador waters. While we can document the end of
traditional use of a habitat, whaling probably removed other cultural
knowledge from populations, and this loss likely inhibits their recov-
ery."1 79 Cavalieri echoes this sentiment.1 80 She argues that whaling
can be described as an act of nonhuman genocide since it exploits the
cultural identities of different whale groups and harms whales "as
members of groups embedded in cultural worlds that protect and nour-
171 See generally Catharine A. MacKinnon, SEXUAL HARASSMENT OF WORKING

WOMEN: A CASE OF SEX DISCRIMINATION (1979) (When a woman is harassed in the
workplace by a male superordinate, to choose only one example, it is not just her who
suffers an injury; rather, women as a class are injured because sexual harassment per-
petuates an oppressive social system rooted in male dominance).
172 Damien Short, Culturalgenocide and indigenouspeoples: A sociologicalapproach,
14 THE INT'L J. HUM. RTS. 831, 833-48 (2010).
173 Whitehead et al., supra note 168, at 431.
174 Id.
175 Whitehead & Rendell, supra note 118, at 92, 184.
176 North Atlantic Right Whale, NAT'L OCEANIC AND ATMOSPHERIC ADMIN., https://
www.fisheries.noaa.gov/species/north-atlantic-right-whale (accessed Jan. 26, 2021).
177 Whitehead et al., supra note 168, at 431.
178 Id.
179 Id.
180 Cavalieri, supra note 4, at 26 ("[T]here is ample evidence for culture and cultural
transmission in whales.").
ish them."' 8 ' Whaling, she says, meets all the conditions of Raphael
Lemkin's famous Revised Outline for Genocide Cases,18 2 the origin of
the framework used by the international community to identify cases
of genocide.1 8 3 Whaling, especially modern whaling, leaves entire
whale communities reeling from the impact of genocidal trauma.18 4
Like species, cetacean cultural groups also have their own inter-
ests.1 8 5 They have a good of their own.1 86 This good must not be con-
fused with the good of the species as a whole-since it varies from
group to group, even in the same species-or with that of the individ-
ual. Recall that Cohen used altruistic behaviors as evidence that the
good of the species cannot be "analyzed into" the good of individuals
since the two can cross horns.18 7 Rendell and Whitehead make the
same claim about the good of the cultural group, except that they use
mass strandings rather than altruistic behavior to make the point
come alive.' 88 Mass stranding represents the tragedy of the commune.
They happen because some cetaceans belong to groups with "conform-
ist" cultural norms that incline members to always follow the pod.18 9
These norms which serve the interests of the group, but they prove
catastrophic for the individual from time to time:1 9 0
There is one behavioural pattern seen in group-living cetaceans that is in-

dividually maladaptive but could have arisen within a system of conformist
traditions: mass stranding. Cetaceans of several species fatally strand en
masse. In contrast to individual strandings, most of the animals involved in
these mass strandings appear healthy, but when individually pulled back
to sea, turn around and restrand. A simple, genetically mediated, aggrega-
tion response is unlikely to produce such behaviour as it is so individually
maladaptive. This phenomenon is seen as indicative of extreme social cohe-
sion in the species that mass strand, with the usually adaptive strategy of
remaining with the group proving fatal when one member makes a mistake
or becomes debilitated through disease. There is evidence from pilot whale
strandings that larger (presumably older) animals have a strong influence
on the behavior of the group. We suggest that cultural group conformity in
movement strategies may play an important role in mass strandings; such
181 Cavalieri, supra note 12, at 127.

182 Id. at 127-129.
183 Id. (potential other source United Nations Off. on Genocide Prevention & the Re-
sponsibility to Protect, When to Refer to a Situation as "Genocide.").
184 Id. at 130-131.
185 See Julie Gardella, Cultures of Interspecies Cetacean Groups, ANIMALS & Soc'Y
INST. (2020), https://www.animalsandsociety.org/human-animal-studies/sloth/sloth-vol

ume-6-no-1-winter-2020/cultures-of-interspecies-cetacean-groups/ (accessed Jan. 26,
2021) (finding culture in inter-species cooperation for mutual hunting interests).
186 Cohen, supra note 132, at 170.
187 Id.
188 See Rendell & Whitehead, supra note 94, at 322 ("[C]ultural group conformity in
movement strategies may play an important role in mass strandings .... ").
189 Id. at 312, 322.
190 Id. at 322.
phenomena might then be an example of the maladaptive effects of con-

formist cultures. 191
Needless to say, not all cultural traits are maladaptive in this way.
Some traits harmonize the interests of the group and the individual
relatively well,1 92 but Rendell and Whitehead warn that this harmony
cannot be assumed from the start.1 9 3
Finally, it is possible to establish the intrinsic value of sub-specific
groups by lifting Cohen's comments about the intrinsic value of life
and applying them to all the forms through which life manifests itself,
which include species as well as sub-specific groups. This puts us in a
position to see that cetacean cultural groups are legally significant
units because they are real, because they have autonomous interests,
and because they are intrinsically valuable. This means that we ought
to care about their interests and take the necessary steps to protect
them from being violated.
V. YES, BUT WHAT RIGHTS EXACTLY?
Since the objective of this Article is to defend the legal intelligibil-

ity of cetaceans' third-generation rights, in theory the argument ap-
plies to all third-generation rights, including the right to cultural
protection, the right to a healthy environment, the right to representa-
tion in the political process, the right to self-determination, and so on.
But this does not mean that it makes sense to grant all third-genera-
tion rights to cetaceans in practice. When deciding which rights these
creatures ought to have, we must ask ourselves the same pragmatic
question that guides rights attribution in all cases: Given X's unique
predicaments, needs, and ways of life, what rights should X have?
When X is cetaceans, there are some rights that are more intui-
tively applicable than others. Maybe the right to a healthy environ-
ment strikes a chord as a sensible right for cetaceans, given their way
of life and the challenges they face. Maybe the right to self-determina-
tion is a different story. Since the right to self-determination is cus-
191 Id. at 323.

192 According to Rendell & Whitehead, some cultural practices can help cetaceans
adapt quickly to anthropogenic environmental change, thus giving them an evolution-
ary edge. Id. at 312. (the author cites: Cetacean Culture, supra note 117, at 367.) For
example, dolphins that learn from their cultural group to collaborate with human fish-
ers increase their energy intake. Rendell & Whitehead, supra note 94, at 316; See also
WHITEHEAD & RENDELL, supra note 118, at 110 (providing a fuller account of dolphin-
human fishing collaborations).
193 For an in-depth account of maladaptive behaviors that are byproducts of cultural
processes, the author suggests Boyd and Richerson's Culture & The Evolutionary Pro-
cess, which the authors cite several times. See BOYD & RICHERSON, CULTURE & THE
EVOLUTIONARY PROCESS (1985) (discussing maladaptive behaviors that are byproducts
of cultural processes).
tomarily interpreted as the right to live under a system of law of one's

own choosing, this right may be a less good fit for cetaceans. 9 4
Given that the contours of third-generation rights are often vague,
on top of deciding which rights apply under different circumstances,
we also need to elucidate the content of each of these rights. 9 5 Take
the right to cultural preservation. Saying that groups of cetaceans
have a right to cultural preservation is provocative, but what exactly
does it mean? What does this right entail? What entitlements or duties
does it create, and for whom? We can concretize this right by noting
that it could be said to entail the following:
" Cetacean groups have the right to live in freedom, peace, and security
and shall not be subjected to any act of violence, including the forced
removal of calves or the forced relocation of entire groups.
" Cetacean groups have the right to revitalize, use, develop and transmit
to future generations their histories, languages, and traditions. Particu-
lar attention shall be paid to the rights and special needs of cetacean
elders.
" Cetaceans have the right to live in a linguistic community and to not be
forced into conditions of linguistic isolation.
" Cetacean groups have a right to the preservation of their migration
routes, which are cultural traditions. To this end, states, corporations,
and international organizations shall take effective measures to ensure
that no hazardous materials are disposed, and that no military sonar
exercises are conducted, along these migratory paths. Efforts must also
be made to minimize and eliminate other sources of danger for
cetaceans, such as excessive shipping traffic.
" States and international organizations shall fund projects monitoring,
maintaining, and restoring the health of cetacean cultural groups.
" States and international organizations shall outlaw and heavily penal-
ize acts that threaten the ongoing existence of cetacean cultural groups,
especially those that are already in danger of going extinct.
" States and international organizations have the duty to consult and co-
operate in good faith with experts on cetacean culture-including ceta-
cean rights experts, animal ethicists, and cetologists who specialize in
culture-before adopting and implementing legislative or administra-
tive measures that may affect these creatures. And,
" States and international organizations have the duty to promote and
ensure the respect of the rights and freedoms of cetaceans through
96
teaching and education.'
194 See SUE DONALDSON & WILL KYMLICKA, ZOOPOLIs: A POLITICAL THEORY OF
ANIMAL RIGHTS 178 (2011). (Donaldson and Kymlicka provocatively suggest that we
should treat populations of wild animals as "sovereign nations," suggesting that the
right to self-determination could be meaningfully applied to nonhuman animals, even if
in a modified form. Id. at 170-71, 180. Still, there will be third-generation rights that
for practical reasons we do not extend to cetaceans, such as the right to have one's
language represented in the media and in government documents).
195 Morgan-Foster, supra note 35, at 87.
196 Org. of African Unity (OAI, African Charter on Human and Peoples' Rights,
adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217 (entered into
force Oct. 21, 1986).
This list is not exhaustive, but it provides a preliminary sense of what

it means to concretize a third-generation right so as to give it legal
traction.
Third-generation rights face important challenges, including that
they are typically enshrined in nonbinding documents that are difficult
to enforce and have, at most, declaratory force. 197 Without denying
the reality of this challenge, we must be careful not to miss the forest
for the trees. Even if the "machinery for [their] implementation" re-
mains to be worked out, these rights carry tremendous political
power.1 98 For starters, they have symbolic power as expressions of po-
litical will and as barometers of impending changes in ethical, legal,
and social epistemologies.1 99 Moreover, their propagation through soft
law channels can shape public opinion and political discourse, increas-
ing the likelihood that they will eventually trickle down into docu-
ments with clearer legal force, such as legislative statutes, executive
orders, and court rulings.2 0 0
At any rate, the problem of enforcement may be exaggerated. His-
torically, many rights have been created before their means of enforce-
ment had been worked out, including the right of racial minorities to
desegregated schools and the right of women to a workplace free of
sexual harassment. 2 0 ' In these cases, practical concerns about enforce-
ment came later. This may seem ludicrous, but according to the Pakis-
tani legal scholar Farooq Hassan this is precisely as it should be.20 2 To
slow down the march of rights discourse on the grounds that the
means of enforcement is not yet clear is to get things backwards be-
cause the creation of a right yields, by a sort of ricochet effect, the crea-
tion of its own enforcement mechanism.2 0 3 Rights chart the path;
enforcement joins along the way. There is no reason why the third-
generation rights of cetaceans should be any different.
VI. CONCLUSION
The animal law scholar Gary Francione has argued that although
there are many approaches to animal protection, a rights-based strat-
egy is vital because other strategies, such as welfare-based reforms,
often fail to protect even the most basic interests of animals and rarely
address the larger social structures that make possible their exploita-
197 Morgan-Foster, supra note 35, at 111.

198 Farooq Hassan, Solidarity Rights: ProgressiveEvolution of InternationalHuman
Rights Law, 1 N.Y.L. SCH. HUM. RTS. ANN. 51, 56 (1983).
199 Id. at 68.
200 Jochen von Bernstorff, The Changing Fortunes of the Universal Declaration of
Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International
Law, 19 EUROPEAN J. INT'L L. 903, 909 (2008).
201 Hassan, supra note 198, at 70-71.
202 Id. at 72.
203 Id.
4
tion in the first place.2 0 By contrast, rights discourse offers protec-
tions that cannot be easily taken away once granted.2 0 5 For this
reason, animal rights can change public attitudes toward animals and
fuel large-scale social change. Granted, a rights-based approach rooted
in the language of third-generation rights is likely to raise doubts, and
not only among those who question the global animal rights move-
ment. Even committed animal rights advocates may worry about the
viability of this approach. Why sprint to third base when animals re-
main stuck, as it were, at home plate? Given that animals do not have
any rights under most existing legal frameworks,2 0 6 wouldn't it make
more sense to fight for their first-generation or maybe even second-
generation rights before invoking the controversial language of third-
generation rights? While I sympathize with this concern and have
written elsewhere in support of animal first-generation rights, 20 7 I do
not see why animal rights advocacy should be limited to one or even
two legal fronts. If our goal is to improve the station of animals in life
by lifting them out of the legal limbo in which they are currently
trapped, we should pursue all avenues for legal change, including
those rooted in the classical language of first-generation rights,'2 0
those that enlarge our legal imagination by centering second-genera-
tion rights,2 0 9 and those that go beyond this classical dyad by aiming
for third-generation rights. 210
204 See generally Gary L. Francione, Animal rights: An Incremental Approach, in

ANIMAL RIGHTS: THE CHANGING DEBATE 42, 42-60 (Robert Garner ed., 1996) ("I argue
that the reliance by animal advocates on animal welfare as a means of achieving animal
rights is completely misplaced and that, in addition to moral and empirical problems,
there are structuraldifficulties with animal welfare that make it highly unlikely (if not
impossible) that animal welfare could ever lead in the direction of animal rights.").
205 Id. at 47.
206 Under the existing legal order, animals have no first or second-generation rights
because the law considers them "property"-no better or worse, really, than a cheap
blender, a personal computer, or a nice dining table. Id.; Peter Barton & Frances Hill,
How Much Will You Receive in Damages from the Negligent or Intentional Killing of
Your Pet Dog or Cat, 34 N.Y.L. SCH. L. REV. 411, 412-413 (1989); WISE, supra note 52,
at 4. This status has made it extremely easy for us to treat the other animals "with an
endless, unrelenting, unrepentant cruelty." Christine Korsgaard, Species - Being and
the Badness of Extinction and Death, 1 ZEMO J. ETHICS & MORAL PHIL. 143, 161 (2018).
207 ANDREWS ET AL., supra note 59.
208 See generally TOM Regan, Defending animal rights (2001) (discussing animal
rights and their historical evolution while comparing animal rights activism to other
social movements).
209 DONALDSON & KYMLICKA, supra note 194, at 24.
210 Id.; Regan, supra note 208.

Cetacean Cultural Rights - A Third Generation of Rights at Sea

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Animal Law Review

Volume 27 Issue 1 Article 5

Cetacean Cultural Rights: A Third Generation of Rights at Sea

Follow this and additional works at: https://lawcommons.lclark.edu/alr

Part of the Animal Law Commons

This Article discusses the cultural rights of cetaceans, as articulated in the

* David M. Pena-Guzmin is an associate professor at the School of Humanities and

In 1994, the Italian philosopher Paola Cavalieri published a Dec-

2. No cetacean should be held in captivity or servitude; be subject to

logically, only individuals can be rights-bearers? Some people, then,

II. THE HISTORY OF THIRD-GENERATION RIGHTS

19 Berlin, supra note 16, at 169.

Constructs Within InternationalHuman Rights Law?, 2 CAMBRIDGE J. INT'L & COMP. L.

935 (2013) (discussing the implications of hybridization of rights on the international

Second, third-generation rights differ in subject because, as fur-

sion has not stopped third-generation rights from flourishing. Quite

III. THIRD-GENERATION RIGHTS: THE NEW FRONTIER OF

ever, challenges this assumption by specifying the formal conditions

These are the formal conditions under which third-generation rights

IV. DO CETACEANS MEET THE CONDITIONS FOR THIRD-

Based on what we know about cetaceans' behavioral, emotional,

One of the obstacles to overcome when thinking of cetaceans as

67 Yeates, supra note 12, at 493.

All this evidence, Yeates concludes, "should, in Kantian terms, be con-

Paola Cavalieri's psychological approach complements Yeates's

Historically, culture has been defined as that which separates

98 Karen W. Pryor, Cultural Transmission of Behavior in Animals: How a Modern

Island in the Pacific Northwest.1 2 By any objective metric, these crea-

PHINS 10-11, 227 (2015).

the three behavioral patterns described by Rendell and Whitehead and

C. Cetacean Cultural Groups as Units of Legal Analysis

So far, it has been established that cetaceans can be legal persons

cratic theory and liberalism, dubs the myth of individualism.12 3 This

123 COLIN BIRD, THE MYTH OF LIBERAL INDIVIDUALISM 1 (1999).

GRAHAM, PRACTICAL REASONING IN A SOCIAL WORLD 66 (2002); BEREL LANG, GENOCIDE:

tions, as the incessant building up and breaking down of species

There is no doubt that altruistic behaviors serve a good, but it is not

Even though some resist this parallelism, Cohen argues that as a

159 Id. at 172.

ation of species out of supra-individual but sub-specific formations.1 6 6

166 Speciation, ENCYLOPAEDIA BRITANNICA (May 29, 2020), https://www.britannica.

171 See generally Catharine A. MacKinnon, SEXUAL HARASSMENT OF WORKING

There is one behavioural pattern seen in group-living cetaceans that is in-

181 Cavalieri, supra note 12, at 127.

INST. (2020), https://www.animalsandsociety.org/human-animal-studies/sloth/sloth-vol

phenomena might then be an example of the maladaptive effects of con-

V. YES, BUT WHAT RIGHTS EXACTLY?

Since the objective of this Article is to defend the legal intelligibil-

191 Id. at 323.

tomarily interpreted as the right to live under a system of law of one's

This list is not exhaustive, but it provides a preliminary sense of what

197 Morgan-Foster, supra note 35, at 111.

204 See generally Gary L. Francione, Animal rights: An Incremental Approach, in

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