Edna Cardozo Dias Lawyer, PhD in Law, Legal Consultant and University Professor The Legal Guardianship of Animals Belo Horizonte - Minas Gerais 2020 © 2020 EDNA CARDOZO DIAS Editor Edna Cardozo Dias Final art Aderivaldo Sousa Santos Review Maria Celia Aun Cardozo, Edna The Legal Guardianship of Animals / — Edna Cardozo Dias: Belo Horizonte/Minas Gerais - 2020 - 3ª edition. 346 p. 1. I.Título. Printed in Brazil All rights reserved Requests for this work Internet site shopping: amazon.com.br and amazon.com. Email: [email protected] 2 EDNA CARDOZO DIAS I dedicate this book To the common mother of all beings - the Earth - which contains the essence of all that lives, which feeds us from all joys, in the hope that this work may inaugurate a new era, marked by a firm purpose to restore the animal’s dignity, and the human being commitment with an ethic of life. THE LEGAL GUARDIANSHIP OF A NIMALS 3 Appreciate Professor Arthur Diniz, advisor of my doctoral thesis, defended at the Federal University of Minas Gerais - UFMG, which was the first thesis on animal law in Brazil in February 2000, introducing this new branch of law in the academic and scientific world, starting the elaboration of a “Animal Rights Theory”. 4 EDNA CARDOZO DIAS Sumário Chapter 1 - PHILOSOPHY AND ANIMALS .................................................. 15 1.1 The Greeks 1.1.1 The Pre-Socratic 1.1.2 The Sophists 1.1.3 The Socratic Philosophy 1.1.4 Plato 1.1.5 Peripathetism 1.1.6 Epicureanism 1.1.7 The Stoic Philosophy 1.2 The Biblical View - The Saints and the Animals 1.2.1 St. Thomas Aquino 1.2.2 St. Francis of Assisi 1.3 Liberal philosophers and animals 1.3.1 Montaigne 1.3.2 Hobbes and the social contract 1.3.3 Locke 1.3.4 Francis Bacon 1.3.5 René Descartes 1.3.6 Voltaire 1.3.7 Jean Jacques Rousseau 1.3.8 Natural contract Chapter 2 - PROTECTION OF THE FAUNA IN THE EUROPEAN ECONOMIC COMMUNITY AND THE UNITED STATES ............................. 49 2.1 Protection of fauna in the European Economic Community. 2.1.1 Directive 92/43 / EEC of 5/21/1992 2.1.2.The primacy of European law 2.2.2. Animals subjects of law, a new conception that emerged in the United States Supreme Court. Chapter 3 — A THEORY OF ANIMAL LAW IS BORN ................................. 61 3.1 New scientific theories and paradigms 3.2 Animal rights theory 3.3 Animals with fundamental rights holders in Brazil and Animal Law as an autonomous discipline 3.4 The teaching of animal law THE LEGAL GUARDIANSHIP OF A NIMALS 5 3.5 Legitimacy of animal rights Chapter 4- FAUNA LAW IN BRAZIL AND THE LEGAL NATURE OF ANIMALS ................................................................................ 85 4 Wildlife in the Federal Constitution and State Constitutions 4.1. Wildlife Concept 6 EDNA CARDOZO DIAS 4.2.Legal nature of fauna Wild fauna in Brazilian legislation 4.4. Native fauna conservation breeding 4.5. Excotic Conservation breeding 4.6. Comercial exotic fauna breeding in Brazil 4.7. Conservacionist Scientific breeding 4.8. Breeding supervision 4.9. Import and export of Brazilian wildlife and exotic fauna 4.10. Hunting 4.11. Administrative Sanctions 4.12. Division of competences 4.13 Public Civil Action 4.14 Popular Action 4.5. THE LEGAL NATURE OF ANIMALS IN BRAZIL AND OTHER COUNTRIES 4.5.1. Brazilian Civil Code 4.5.2.1 Of the People 4. 5.2.2 Of Goods 4. 5.2.3. Goods and things and the advantage of animals ceasing to be things 4. 5.3 European legislation 4. 5.3.1 Austrian Law 4. 5.3.2 German Law 4. 5.3.3 Swiss Law 4. 5.3.4 French law, affirmative protection 4. 5.3.5 Portuguese LAW 4. 6 Brazilian Law Chapter 5 — CRUELTY AGAINST ANIMALS 131 4.1 Moral Codes and the Sacralization of Animals 5.2 The first protective legislation for animals 5.3 Cruelty to animals under Brazilian law 5.3.1 Painful experience in animals 6 EDNA CARDOZO DIAS 5.3.2 Alternative Methods 5.3.3 Police Inquiry 5.3.4 Criminal Action 5.4 History of the typification of animal cruelty as a crime in Brazil 5.5 20th Century Crimes 5.5.1 Cruelty in Cockfights and Canaries 5.5.2 Cruelty in rodeos and cowherds 5.5.3 Farra do boi 5.5.4 Bullfighting in Brazil? 5.5.5 Cruelty in dog racing 5.5.6 Cruelty in dogfights 5.5.6 Cruelty in Snake antivenom Production and the Horse Case 814 THE LEGAL GUARDIANSHIP OF ANIMALS 7 Chapter 6 - TRADE AND ANIMALS AND WILD ENDANGER (CITES) 245 6.1.1 Fundamental principles of the Convention 6.1.2 Regulation of trade in specimens included in Annex I 6.1.3 Regulation of trade in specimens included in Annex II 6.1.4 Regulation on trade in specimens included in Annex III 6.1.5 Licenses and Certificates 6.1.6 Exemptions and trade provisions 6.1.7 Obligations of the parties 6.1.8 Trade with States Not Parties to the Convention 6.1.9 Other provisions 6.2 Trade in fauna in the European Economic Community 6.2.1 Specimens born and bred in captivity or artificially propagated 6.2.3 Circulation of live specimens 6.2.4 The sanctions 6.2.5 The European Union and the conventions signed at the European Council and animal welfare 6.3 Eco-label, green seal, EEC comes out front 6.4 BATTERY CAGE SCHEME AND EGG MARKET, in EEC OUT IN VANGUARDA 6.4.1 Stress and illness 6.5. Fur industry 6.6.FUR INDUSTRY AND LEG-HOLD TRAPS 6.7 Cruelty free products 6.7.1 Cosmetics 6.8 THE MEAT MARKET IN EUROPE 6.8.1 Farming and farm animals 6.8.2 Pork trade and the methods usually adopted for intensive THE LEGAL GUARDIANSHIP OF A NIMALS 7 farming in countries where there are no animal and consumer protection legislation 6.9 TRADING OF MEAT IN CENTRAL AMERICA AND SOUTH AMERICA 6.10 Slaughter methods used in Brazil - history 6.11 Mercosur and the amendment Decree 30.691 / 52 6.12 What is humanitarian slaughter according to the WORLD HEALTH ORGANIZATION? 6.13 Fur Farms Chapter 7 - ANIMALS AND MERCOSUR ................................................... 277 7. 1 MERCOSUR 7. 1 Brazil X Argentina Integration and Economic Cooperation Program 7.2. MERCOSUR 7.2.1. MERCOSUR POP structure 7.2.2. The environment in MERCOSUR 8 EDNA CARDOZO DIAS 7.3. Principles 7.3.2. Goal 7.3.3. The thematic areas established by the Agreement are 7.3.4. Legal sources 7.4. The controversy and its solutions 7.4.1 MERCOSUR External Agenda 7.4.2. Conflict between MERCOSUR and third countries 7.4.3. Financial organizations 7.5. MERCOSUR Committee for Standardization - CMN Chapter 8 - The Ecological State 291 8.1 The principles of the ecological state. 8.2 Solidarity as a principle of law 8.3 The principle of interrelationality, the law of other species Chapter 9 - Conclusion. 319 9.1 Seeking a New Paradigm 9.2 The new ethics 9.3 The Cosmic Puzzle 9.4 The all-encompassing network 9.5 Recognition of animal rights BIBLIOGRAPHICAL REFERENCES 327 THE LEGAL GUARDIANSHIP OF ANIMALS 9 8 EDNA CARDOZO DIAS Preface The book “Tutela Jurídica dos Animais” (2018) is an updated edition of the seminal work of professor and lawyer Edna Cardozo Dias, a book first published in 2000, by publishing house Editora Mandamentos. It is the first doctoral thesis about Animal Law in Brazil, presented and defended by the author in 2000 in the Post-Graduate Law Program at the Federal University of Minas Gerais, under the guidance of Prof. Arthur Diniz. Edna Cardozo Dias is one of the pioneers in Animal Law in Brazil, having dedicated all her career to public advocacy, animal rights activism, and to teaching Environmental Law in graduate and post-graduate degrees in Belo Horizonte. Among the positions she has held we can highlight her being the Coordinator of Defense of Animals in the county of Belo Horizonte, Solicitor in the county of Ouro Preto, having also worked in the Chamber of Deputies and in the Secretary of Science & Technology and of Environment in the state of Minas Gerais. When talking about the author, we cannot forget her work in the third sector as the president and founder of the League for the Prevention of Cruelty Against Animals (founded in 1983), her performance as a representative of the NGOs from the southeast region in the Environmental National Council (CONAMA) (an advisory and deliberative agency of the National System for the Environment in Brazil), as well as her participation in the writing of a protective legislation for animals in Brazil. It is also important to enhance the active participation of Prof. Dias in the Constitutional Assembly of 1987, as a representative of the animal rights movement of the state of Minas Gerais, in the writing of the chapter regarding the environment on the Constitution of 1988. In fact, during the Assembly of 1987, Deputy Fábio Feldman designated a representative from each state to make the defense of the articles within the chapter on the environment that were being debated in the Assembly, and it fell on Prof. Dias, then president of the League for the Prevention of Cruelty Against Animals (LPCA), to participate in the elaboration of Article 225, §1º, VII, which happened in the Auditorium Nereu Ramos, in Brasilia, on the 5th of June of 1987, before the rapporteur of the Assembly, Senator Bernardo Cabral.