Ban on animal experimentation and fundamental rights for primates

Questionable equalisation of humans and animals in the legal sense

by Dr iur. Marianne Wüthrich

On 13 February, voters will vote on four proposals at the federal level. One of them, the popular initiative “Yes to a ban on animal and human experimentation”, is extremely problematic for legal as well as ethical reasons. Also, on 13 February, the canton of Basel-Stadt will vote on the cantonal popular initiative “Basic rights for primates”. Both initiatives have the same ideological background and will therefore be discussed together here.

I. Federal popular initiative “Yes to the ban on animal and human experimentation”

The popular initiative of 18 March 2019 “Yes to the ban on animal and human experimentation” aims at banning all animal experiments in Switzerland itself as well as the import of products that have been developed using animal testing or, in the same way, experiments on humans unable to give consent (which is a matter of course in a constitutional state). Art. 80 of the Federal Constitution is to be amended accordingly (voting booklet, p. 22f.).1

Initiative text (excerpts):
The Federal Constitution is amended as follows:

Art. 80
3 Animal testing and human subject research is prohibited. Animal testing is considered cruelty to animals and may be punished as a felony. This and all the following apply mutatis mutandis to animal and human experiments:
a. Initial applications* are only permissible if they are in the comprehensive and overriding interest of those concerned (animals as well as humans); initial applications must also be promising and must be carried out in a controlled and circumspect manner.
b. After the entry into force of the ban on animal experiments, trade, import and export of products belonging to all sectors and all types are prohibited if animal experiments continue to be carried out directly or indirectly for them; existing products remain exempt from the ban if animal experiments are carried out directly or indirectly for them no longer.
d. It must be ensured that non-animal replacement approaches receive at least the same level of government support as was previously provided for animal testing.

(* on this, the Federal Council explains, “The initiative leaves open the question of how initial applications differ from experiments.” Voting booklet, p. 15)

A unique feature: all national councillors and councillors of states recommend rejection of the initiative (0 votes in favour).

Initiators put humans and animals on the same level

The initiators claim that because both are capable of suffering, animals should not be sacrificed for the health of humans and, furthermore, animal experiments do not usually produce any useful results: “Out of 100 active substances, 95 fail in human experiments, despite apparently promising results in animal experiments. (Voting booklet, p. 18f.)
  An (outrageous!) example is the statement of a doctor on the initiators’ homepage ( “In contrast to the researchers from the pharmaceutical industry, as a doctor, I am at the bedside of seriously ill people every day and, together with the patients, I have to endure the suffering caused by the fact that there are no effective therapies, partly due to the continuing use of animal experiments in research.” (Alexander Walz, MD, Specialist in Internal Medicine, Diploma of Tropical Medicine & Hygiene, Zurich).
  It is up to the reader to decide what to think of a doctor who tells his seriously ill patients that there are “no effective therapies” (as a result of animal experiments!).

Weighty arguments against the initiative (Federal Council)

The Federal Council puts together a whole series of significant counter-arguments in its voting booklet (pp. 20/21):

  • All medicines must first be tested on animals as well as humans before they are put on the market.
  • If the initiative is accepted, many medicines (and vaccines!) could neither be produced in Switzerland nor imported from abroad.
  • The initiative would lead to a two-tier medical system: Only those who can afford to travel abroad would have access to the latest treatments.
  • Often there is no alternative to testing on living organisms in order to develop effective and safe medicines for humans and animals (for example in cancer and dementia research or in surgery).
  • “Switzerland has one of the strictest laws on animal testing and on human subject research in the world” (Voting booklet, p. 21, emphasis mw).
  • The Confederation already promotes non-animal research.
  • In the last 40 years, the use of laboratory animals has decreased sharply - from just under 2 million in the early 1980s to around 560 000 in 2020 (p. 14).

Severe prison sentences threatened for scientists!

The second sentence of the planned Article 80 paragraph 3 BV, “Animal testing is considered cruelty to animals and may be punished as a felony.” does not appear in the Federal Council’s arguments in the voting booklet. Did the Federal Council overlook it? Article 10 paragraph 2 of the Swiss Criminal Code (SCC) defines: “Felonies are criminal acts punishable by imprisonment for more than three years.” This high penalty applies, for example, to kidnapping with the threat of death (Article 185(2)) or rape with the use of a dangerous weapon (Article 190(3)). It is just not possible that a scientist of medical research may be locked up in prison because he gives priority to the human right to health over the right of animals to integrity!

Questionable equation of human and animal rights

The initiative follows the dubious merging of human rights with the “rights” of animals, plants and inanimate nature according to the theory of Peter Singer (“Animal Liberation”) from the 1970s (see box “Ideological background”).
  The protection of animals is, in fact, of great importance in Switzerland. To this end, there is a whole series of laws and ordinances with strict regulations in the areas of animal protection, keeping farm animals and pets, breeding, wild animals (for example, protection of large carnivores), animal protection during slaughter and animal testing.2
  But: human rights first! These include the right of all people to sufficient health care – and thus also to the supply of medicines and vaccines. Especially in times of pandemics and supply shortages, research and the necessary imports must certainly not be made even more difficult.

II Basel popular initiative “Basic rights for primates”

Also, on 13 February, the people of the Canton of Basel-Stadt will vote on the popular initiative “Basic rights for primates”. The initiators aim in the same direction as the animal experiment ban initiative presented above.

Initiative text
The Constitution of the Canton of Basel-Stadt is amended as follows:
§ 11 Basic rights guarantees
2 This Constitution moreover guarantees
c. (new) the right of non-human primates to life and to physical and mental integrity.

Problematic merging of humans and animals

The Basel initiative refers to a position paper by Sentience Politics, “Basic Rights for Primates” of April 2016, which in turn draws on Peter Singer’s questionable theory, in particular his Great Ape Project (GAP) of 1993 (see box “Ideological background”). However, GAP quickly lost popularity and “has been stagnating [according to its proponents] for several years without any tangible result”.3 
  And is it to be reawakened in Basel, of all places? One of the best-known zoological gardens, the Basel “Zolli”, and its many visitors would certainly not be happy if the housing of great apes were no longer to be allowed there. It is true that the zoo is privately owned and would therefore, according to the initiators, “only be indirectly affected by the new laws”. But the planned new paragraph in § 11 of the cantonal constitution is certainly packing a punch: just like the rights of humans, those of the apes would also have to be protected morally and legally, i. e., they would be legally enforceable!
  So, the initiators are already pushing in advance for private organisations such as the Zoo or the Basel pharmaceutical companies “… for example to introduce stricter rules for the protection of non-human primates. To enforce this, an ombudsperson created by the canton or an independent advisory board would be conceivable [...]”.4 This does not sound quite entirely voluntary – one can vividly imagine the pressure the initiators would use.

Question mark for the validity of the initiative

The initiative was declared unconstitutional and therefore invalid by the Basel government and its Grand Council (parliament) in 2018. With puzzling a justification, the Federal Supreme Court ruled in 2020 that the initiative did not violate the Federal Constitution and was therefore valid: “The cantons are expressly permitted to enact their own fundamental rights that go beyond the minimum standards enshrined in the Federal Constitution and the European Convention on Human Rights (ECHR). Special rights for non-human primates are unusual, but compatible with federal law - especially since the fundamental distinction between animal rights and human fundamental rights is not called into question.”5 
  The only justification for this “dizzying” Federal Court decision is deference for direct democracy. In Switzerland, popular initiatives at all levels (federal, cantonal, municipal) are very rarely declared invalid on material grounds. Of course, seen from a democratic perspective, this is basically worthy of support.  •

1 (for the English version, click “EN” at the top on the right)
2 (not available in English)
5 Alder, Kathrin. “Grundrechte für Tiere: mehr als nur ein Affentheater – Basic rights for animals: more than just a farce”. In: Neue Zürcher Zeitung of 15 October 2021

All given references refer to texts in the German language, since they are not available in English or can be translated on the spot.

Ideological background of the federal initiative banning animal experiments and of the Basel initiative “Basic rights for primates”

mw. Both initiatives follow the questionable equation of human rights with the “rights” of animals, plants and inanimate nature according to the theory of Peter Singer (“Animal Liberation” of 1975): “The Australian Singer argues that there is no moral justification for not taking into account the suffering of any being. Animals, especially mammals, birds or fish, are sensitive and have an interest in not being caused pain. This interest must be taken into account in a utilitarian consideration, otherwise one is practising ‘speciesism’ – similar to the concepts of racism or sexism."1
  As a consequence, Singer demands the abolition of industrial livestock farming, or rather, he propagates a vegetarian or vegan lifestyle. He rejects animal experiments to a large extent, although not categorically.2
  An extract from the position paper of “Sentience Politics”, the basis of the Basel initiative “Basic Rights for Primates”: “One of the most central principles of justice is that what is equal should be treated equally and what is unequal should be treated unequally according to its inequality. In this position paper, we show that non-human primates are equal to human primates in terms of their interests in not suffering and not being killed, and are therefore entitled – like humans – to a fundamental right to life as well as a fundamental right to integrity”3 (emphasis mw).
  Subsequently, “Sentience Politics” extends the prohibition of discrimination, which is valid for all humans, to primates: “Not so long ago, certain humans were classified as inferior and discriminated against on the basis of arbitrary criteria such as skin colour, ethnicity, origin or gender.” The position paper enumerates the forms of discrimination from slavery or the earlier lack of political rights for women to the failure to respect LGBT rights, and then seamlessly moves on to the “objective of this position paper”, namely “that the interests of non-human primates must be protected by fundamental rights”. (Introduction, p. 1)
  The "Neue Zürcher Zeitung" of 19 January rightly classifies this view as extremely dangerous: “Sentience Politics marks a fundamental break with our understanding of how to treat animals. This is based on the conviction that although protection is provided for animals, human life is fundamentally superior.” The Basel vote on special legal status for primates is “a test run to get this debate going”, the author warns.4
  On 13 February, we Swiss and the Basel voters have the opportunity to counter such value upheavals.
  Of course, we humans do have a responsibility to treat our earth with care and also to ensure that animals do not suffer unnecessarily. But according to the principle that “what is equal should be treated equally and what is unequal should be treated unequally”, human rights and the legal status of animals cannot be placed on the same level. According to Article 11 of the Swiss Civil Code (ZGB), every human being has legal capacity – while animals do not.

1 Alder, Kathrin. «Grundrechte für Tiere: mehr als nur ein Affentheater» (Basic rights for animals: more than just a farce). In: Neue Zürcher Zeitung, 15 October 2020
4 Gerny, Daniel. «Der Trend zum totalen Veganismus ist gefährlich: wie zwei Volksinitiativen die Tierschutzdebatte radikalisieren» 
(The trend towards total veganism is dangerous: how two popular initiatives are radicalising the animal welfare debate)”. In: Neue Zürcher Zeitung of 19 January 2022

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