Bill

File S-1577/2022

The Senate and Chamber of Deputies,...

PROHIBITION OF SHOWS WITH WILD MARINE ANIMALS IN CAPTIVITY


Article 1 OBJECT The purpose of this Law is the prohibition and sanctioning of shows with wild marine animals, their exhibition and/or captivity without rehabilitation and reinsertion or reintegration purposes.

Article 2° DEFINITIONS For the purposes of this Law, wild marine animals shall be understood as individuals belonging to any of the species that temporarily or permanently use either totally or partially the marine environment as their habitat or livelihood, including mammals, birds, amphibians and reptiles.

For the purposes of this Law, the definition of wild fauna is adopted from Article 3 of Law No. 22,421 of the Conservation of Wild Fauna, which includes wild marine animals.

The terms captivity and confinement are used in this Law as synonyms. The term sanctuary shall be understood as a safe, free and/or semi-free, permanent place where wild marine animals that for verifiable reasons cannot be reinserted in their natural habitat can be transferred, where the animal can coexist in the company of other animals and/or congeners until the end of his/her life, in an open or semi-open space surrounded by vegetation, sounds and characteristics of its natural habitat, receiving the appropriate care according to its physical, psychological and behavioral characteristics, and that guarantees a dignified treatment and the best quality of life for its species.

Article 3°. PROHIBITION OF SHOWS - It is hereby prohibited, in all the territory of the Argentine Republic, any action or omission that implies the promotion, encouragement, financing, organization, facilitation or realization, in a fixed or itinerant way, either in places, premises or establishments of permanent or transitory character, of public or private shows of or with wild marine animals.

This includes, but without limitation, the mere forced or even passive exhibition.

Article 4o PROHIBITION OF CAUTIVATION- It is hereby prohibited in the entire territory of the Argentine Republic and regardless of the purposes or objectives, the captivity, semi-captivity or confinement of wild marine animals of any group or subgroup.

The only exceptions are those cases in which the sole purpose or objective of captivity is recovery and rehabilitation for release, introduction, reintroduction or reinsertion into natural habitats or, in the event that this is objectively impossible or detrimental to the individual, such captivity is merely a transit for its subsequent transfer to sanctuaries or reserves that are qualified and adequate to the animal needs, interests and species.

In such cases, a suitable and specialized team appointed by the application authority shall carry out an exhaustive evaluation of the current conditions, both in terms of the health of the individuals as well as economic, building and structural conditions for their support, with the purpose of maintaining the place of recovery or transferring them to adequate centers for the time required for the recovery, rehabilitation and liberation actions. Only in cases of recovery and rehabilitation of wild marine animals will be allowed their training, instruction or education with the sole purpose of generating behaviors that allow their release, reinsertion and/or transfer to their natural environment or sanctuary.

Article 5o PROHIBITION OF EXHIBITION- It is hereby prohibited, in all the territory of the Argentine Republic and in accordance with the provisions of the previous articles, the exhibition to the public and whatever the alleged purpose is, whether in public or private places, permanent or transitory, fixed or itinerant, of wild marine animals; and the interaction and direct contact of any kind, either for feeding or touching, between the public outside the establishments and the captive or semi-captive animals.

Exceptions are cases of entry of public authorities in the exercise of inspection or control functions or judicial proceedings.

Article 6o PROHIBITION ON GENETIC MATERIAL It is hereby prohibited, in all the territory of the Argentine Republic and in accordance with the provisions of the previous articles, the commercialization, import or export of genetic material of wild marine animals whose captivity is prohibited by the present Law, for whatever purpose or objective.

In the event that recovery, preservation or conservation purposes of the respective species are claimed, the scientific, ethical and legal points that justify it must be accredited and it must be demonstrated that there is no other way to achieve the protection or preservation.

Article 7o ABANDONMENT PROHIBITION- It is hereby prohibited, in all the territory of the Argentine Republic and in accordance with the provisions of the previous articles, the abandonment of wild marine animals that, at the time of the sanction of the present Law, are kept captive or semi-captive in authorized establishments or used in shows and/or exhibitions and for those purposes, or for any purpose other than their rescue, recovery, rehabilitation and reintegration or restitution to the natural habitat.

The person of visible or ideal existence that has animals under its care or custody with or for these purposes must prove it reliably and objectively, as well as the actions developed and their progress, evolution and prognosis, following the procedure and deadlines established by the application authority.

Article 8o SANCTIONS- In case of non-compliance or contravention of any of the rules set forth in this chapter and as long as they do not result in conducts reached by penal norms, the following penalties shall be applicable:

(a) Fine of between ten (10) and one hundred and twenty (120) times the monthly value of the Minimum, Vital and Mobile Wage (MVMW).

b) Provisional closure of the establishment in violation for up to two (2) years.

c) Definitive closure with passing of antecedents to the competent authority for the purpose of evaluating the continuity or cancellation of the legal status.

In case of closure, either provisional or definitive, those responsible for the establishment shall be in charge of the care, containment and integral and full attention of the animals. This will include, only by way of example, feeding, veterinary medical assistance, medicines, transfers and/or destination.

CRIMINAL PENALTIES

Article 9o- Whoever by any title organizes, promotes, facilitates or carries out shows as defined in articles 3° and 5o shall be punished with imprisonment from three (3) months to six (6) years and a fine of between two hundred (200) and three thousand (3,000) times the monthly value of the Minimum, Vital and Mobile Wage (MVMW).

Article 10 - Whoever holds or keeps wild marine animals in captivity for any reason shall be punished with imprisonment from three (3) months to four (4) years and a fine of between one hundred (100) and two thousand (2,000) times the monthly value of the Minimum, Vital and Mobile Wage (MVMW).

The same penalty shall apply to anyone who by any title and by any means finances, organizes, promotes or facilitates the captivity, semi-captivity and confinement of wild marine animals.

Article 11o- Whoever by any title manipulates, commercializes, imports or exports genetic material of wild marine animals whose captivity is prohibited by the present Law, whatever the purpose or objective may be, shall be punished with imprisonment from six (6) months to eight (8) years and a fine of between three hundred (300) and four thousand (4,000) times the monthly value of the Minimum, Vital and Mobile Wage (MVMW).

Article 12 - Whoever, by any title, abandons wild marine animals that, prior to the sanction of this Law, had or kept captive or semi-captive in their own or others' establishments, regardless of the purpose pursued, shall be punished with imprisonment from four (4) years to eight (8) years and a fine of between five hundred (500) and five thousand (5,000) times the thousand (5,000) times the monthly value of the Minimum, Vital and Mobile Wage (MVMW).

If the individuals placed in a situation of abandonment are or have been in charge of a person of ideal existence, the penalties for criminal liability shall be applied to their legal representatives.

COMPLEMENTARY PROVISIONS

Article 13o- Wild marine animals that at the date of sanction and promulgation of the present Law are captive in establishments or in public or private properties within the territory of the Argentine Republic, and whose confinement does not have as its original or current purpose or object, to achieve their recovery, rehabilitation and definitive release to the natural environment, shall be registered and included in a transitory recovery and rehabilitation program under the orbit of the Authority of application.

Article 14o- The release of wild marine animals in the process of recovery and rehabilitation shall be carried out within the terms established for each process initiated with permanent control by the Authority of Application.

The transfers to adequate centers of the wild marine animals with respect to which it is determined the impossibility of definitive liberation, will be made unfailingly within the fatal, peremptory and non-extendable of TWO (2) YEARS, to be computed from the promulgation of the present Law.

Article 15o- The present Law, as regards its penal provisions, shall be considered complementary to the National Penal Code. The conducts described in sections 9o to 12o shall be considered acts of cruelty.

Article 16o- The Executive Power shall determine the Authority of Application of the present Law.

Article 17o- Communicate it to the Executive Power.


Antonio J. Rodas.- Nora del Valle Giménez.-



FOUNDATIONS

Madam President:

The presentation of this project is motivated by the objective of guaranteeing the protection of wild marine animals, in order to free them from the subjection and exploitation that means being exposed to conditions of captivity, semi-captivity, confinement or confinement with the purpose of being exhibited for the entertainment of human beings.

This is in line with the need to generate new legislation that expresses the change of paradigm and viewpoint regarding the ethical consideration towards non-human animals, and that promotes the expansion of their rights as living, sentient beings that inhabit the country.

Science has demonstrated that the central nervous system is what makes us capable of feeling, being conscious and having our own will, and it has also been demonstrated that other animals, as sentient beings, are conscious subjects and that is why, as humans, we have the ethical duty to extend respect and protection to the life of other non-human animals.

This has been argued by the scientific community in numerous studies and publicly proclaimed in The Cambridge Declaration on Consciousness in Nonhuman Animals, in Cambridge, UK, on July 7, 2012, at the end of the Conference, at Churchill College, University of Cambridge. The Declaration was signed by conference participants, including Philip Low, David Edelman and Christof Koch, in the presence of Stephen Hawking, this manifesto states, "We declare the following: The absence of a neocortex does not appear to prevent an organism from experiencing affective states. Converging evidence indicates that nonhuman animals possess the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states, as well as the capacity to exhibit deliberate behaviors. Thus, the weight of evidence indicates that humans are not alone in possessing the neurological substrates necessary to generate consciousness. Non-human animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates" .

And specifically in the case of wild marine animals there are scientific publications that demonstrate the damage caused by captivity and animal exploitation, such as the report published by the Animal Welfare Institute that shows scientific and ethical arguments supporting the prohibition of captivity of cetaceans ; the report entitled " The Case Against Marine Mammals in Captivity" CAMMIC published on March 3, 2019; (Rose, N. A. and Parsons, E.C.M. (2019) ; Lori Marino, They Are Prisoners, February 2, 2021 in which she notes "Killer whale brains and bodies have evolved to thrive in a complex and free sociocultural environment. When they are prevented from having this experience, as they are in display tanks where they are forced to live in highly artificial circumstances, the result is chronic stress..." (Lori Marino, 2021)

The valuable technical information provided by science, evidences that the animals currently held captive, being exhibited and exploited for entertainment shows in Argentina, are victims of acts of cruelty and suffering, and oblige us as a society to promote the legislative change that grants these sentient beings the protection and rights to a dignified life, rehabilitation and/or liberation in their natural habitat or whatever is needed according to their own characteristics.

Among the animals that today suffer the consequences derived from their exploitation in entertainment shows is Kshamenk, a male killer whale that was taken from its natural habitat in the sea, appropriated and kept in captivity, trained, used, exploited and exhibited for shows since 1992, whose genetic material has also been extracted through invasive and cruel practices, being commercialized and exported without any regulation in this regard. Kshamenk's reality is the same that other species of wild marine animals live (dolphins, sea lions, penguins, sea turtles) in aquariums that have shows with them instead of rehabilitating them and restoring them to their natural habitat, causing these sentient beings multiple damages and suffering. It is estimated that by 2019 there were about 223 marine animals in captivity between the two bigger oceanariums of the country.

The bill proposed here is harmonious and finds support in our legal system, namely: Article 41 of the National Constitution; Law 14.346, which punishes those who inflict ill-treatment or make animals victims of cruelty; Law No. 22. 421 - section 1, it declares of public interest the wild fauna that temporarily or permanently inhabits the territory of the Argentine Republic, as well as its protection, conservation, propagation, repopulation and rational use, being the duty of all the inhabitants of the Nation to protect wild fauna-; Law No. 24. 375 approves the Convention on Biological Diversity, with the objective of conservation of biological diversity, among others; General Environmental Law No. 25,675 establishes as an objective of the national environmental policy to ensure the conservation of biological diversity, among others; Resolution Ministry for the Environment 311/2017 on reconversion of zoos; Resolution Ministry for the Environment 218/2021 creates the FEDERAL NETWORK OF ASSISTANCE TO MARINE WILDLIFE STRANDINGS finds support in the objectives set forth in the National Strategy on Biodiversity. "That situations of stranding or arrival of marine fauna to the coasts may require rescue, transfer, rehabilitation and, if necessary, reintroduction tasks, for which it is important to coordinate among different institutions and to achieve a prompt implementation."

"ARTICLE 3 - In the case of specimens of marine fauna coming from strandings that are in rehabilitation centers or oceanariums, it is mandatory for them to return the marine fauna to the natural environment...".

It is necessary to emphasize that the aforementioned normative evolution, has had a progressiveness in the expansion of the protection and legal recognition of the rights of other animals. And that Resolutions 311/2017 and 218/2021 issued by the Ministry for the Environment and Sustainable Development of the Nation are a clear example of this legislative progressiveness.

Likewise, jurisprudence -considered a source of law-, has recognized animals as sentient beings, non-human persons and has granted them their protection and has considerably expanded their rights. Thus, we can cite the ruling of the "Orangutan Sandra" on October 21, 2015, and from there it has been evolving through many jurisprudential precedents that is shaping a new legal status of animals, they are no longer considered as things, as objects, but as sentient beings and non-human persons, subjects of rights and even members of our multi-species families.

Among them we can cite: "Pocha and Guillermina elephants case" were declared non-human persons by the Federal Chamber of Mendoza - Chamber B (September 14, 2021); "Cecilia the Chimpanzee case" of Córdoba; "Mara the Dog case" dictated by Judge Carolina Ballesteros, Judge of Criminal Instruction N°5 of Tucumán (May 27, 2021); "Angel Dog Case" (October 18, 2021) where the same judge communicated the grounds of her sentence to the Chamber of Deputies of the Nation, requesting that it may dispense a priority procedure to the bills for the integral protection of animals that have parliamentary status; "Tita Dog Case", (June 10, 2021); "Coco Caraya Monkey Case" also considered as a subject of law, among others.

At an international level numerous countries have banned captivity and shows involving marine animals: on November 25, 2021 France has become the most recent country to officially ban shows involving dolphins and other marine animals; while in June 2019 Canada bans the captivity of whales, dolphins and porpoises for shows, Law S-203.

All these advances respond to the so-called "the animal turn" by which at a national and international level the moral community is being expanded beyond the barrier of our human species, not only on the basis of the recognition of animal capacities, but also attending to the moral obligation to respect the life of sentient animals, who are subjects of their own life, and not to harm beings that can be harmed, which is a decisive advance towards a valuational change in that sense.

The issue raised here requires attention since there is a strong request from the civil society expressing the need for the regulatory prohibition that is proposed, proof of this is that the Change.org https://www.change.org/p/fin-de-espectaculos-marinos-en-argentina where the petition for the end of marine shows currently has 582,241 signatures of support. In addition, since 2012, numerous organizations for the defense and protection of animals have participated and organized actions at the gates of Argentine oceanariums as part of an international network and with the support of important associations, namely: Dolphin Project by Ric O'Barry, USA, Orca Network by Howard Garrett, USA, OPS The Oceanic Preservation Society, USA ; Empty The Tanks International Campaign; SOSDolphins by Faada; Spain, Promar SOS Fauna Marina, Spain; La Dolphin Connection, France; Voice 4 Animals, Canada; C'est Assez ! France; Gac - la page - Groupe anti captivité, France; Empty The Tanks Portugal, Portugal; Keiko The Untold Story, Portland, USA.

Also, from the perspective of children's rights, it is worth mentioning that shows that include wild marine animals in captivity are mostly intended for children who attend even as a field trip through educational establishments. However, the exploitation of marine animals in shows causes disinformation and denial of truthful education to children, as it hides from them thatthese animals are real victims who live inadequately in tiny spaces, far from their ecosystems to which they belong, unable to develop their natural behaviors and completely at the mercy of their "owners". All of which implies the violation of the basic rights of children and adolescents, enshrined in the National Constitution, the Convention on the Rights of the Child (CRC), a treaty approved in 2005.

Due to the scientific, legal, jurisprudential and ethical foundations, the demands of civil society and animal protection associations, it is necessary to provide special protection for wild marine animals in captivity and victims of exploitation in entertainment shows and to establish a framework law that prohibits such shows and eliminates practices that threaten the life, physical integrity, dignity and survival of these sentient beings, treating them as subjects of rights and not as mere objects.

For all of the above, I ask my Peers to join me in the approval of this Bill.

Nora Del Valle Giménez.