Migratory bird treaties' issues and potentials: are they valuable tools or just curios in the box?

AuthorTakahashi, Mitsuhiko A.
PositionThe Migratory Bird Treaty Act: Reshaping a Powerful Conservation Tool Conference
  1. INTRODUCTION II. MBT ACHIEVEMENTS III. ARE MBTs OUTDATED AND LOSING THEIR MERITS? IV. MAKING MORE USE OF THE MBT: FORGOTTEN TOOL IN THE BOX V. MAKING MBTs MORE USEFUL: REFURBISHING THE TOOL BOX VI. CONCLUSION I. INTRODUCTION

    Beginning with the 1902 Convention for the Protection of Birds Useful to Agriculture, (1) which was signed by twelve European countries, and the 1916 Convention between the United States and Great Britain for the Protection of Migratory Birds (U.S./Canada Convention), (2) migratory bird treaties (MBTs) are known to be one of the oldest sources of international environmental law. After briefly looking at the past achievements of MBTs in Part II, Part III of this Essay discusses whether MBTs are becoming less important in light of emerging multinational agreements and initiatives. After discussing the merits of MBTs, Part IV considers ways to maximize utilization and efficacy of the provisions of MBTs, which are often overlooked. Finally, Part V argues for amendments to MBTs to improve the level of avian protection. Discussion in this Essay centers on MBTs signed either by Japan or the United States; however, the arguments should be applicable to MBTs in general.

  2. MBT ACHIEVEMENTS

    Ratification of the U.S./Canada Convention led to the enactment of the Migratory Bird Treaty Act (MBTA), (3) which opened a new era in United States conservation policy. The MBTA initiated the federal government's commitment to wildlife conservation. As in the United States, MBTs have also led to a strengthening of Japan's domestic conservation statutes. The predecessor of the Act on Conservation of Endangered Species of Wild Fauna and Flora (4) (the Japanese Endangered Species Act) was promulgated in 1972 to implement the Convention between the United States and Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment (U.S./Japan MBT), (5) which was signed earlier in that year. Japan's involvement in the U.S./Japan MBT was initiated by a resolution from the International Council for Bird Preservation (ICBP), which is the predecessor of BirdLife International. (6) In 1960, the ICBP met in Tokyo for the first time in Asia and recommended that the governments expand the network of MBTs in the Asian region. (7) After signing the 1972 U.S./Japan MBT, Japan signed three other MBTs with neighboring countries: Russia, (8) Australia, (9) and China. (10) Japan also signed an agreement with South Korea, known as the Agreement on Cooperation in the Field of Environmental Protection. (11)

    Since then, MBTs have been a powerful device to facilitate, encourage, and justify expensive and often low-priority bird conservation and research in Japan. Of recent examples, the recovery projects of the short-tailed albatross (Phoebastria albatrus) are particularly illuminating. (12)

    The short-tailed albatross is a majestic seabird that nests on isolated oceanic islets in the North Pacific. (13) This species of albatross, once amazingly abundant, was gravely exploited for the feather trade in the early twentieth century. (14) The population of the birds declined so drastically that an American expedition shortly after World War II once reported the species to be extinct. (15) The short-tailed albatross was then "re-discovered" on Torishima, a remote volcanic island belonging to Japan; however, the birds were few and the recovery of the breeding birds was slow due to the vulnerability of the nesting site. (16) The nesting site sits on a steep outwash slope, which suffers frequent mudslides aggravated by the loose volcanic soil of the island. (17)

    Hope of recovery for the short-tailed albatross was dependent on the successful relocation of the nesting sites. (18) Beginning in the late 1970s, Japanese ornithologist Dr. Hiroshi Hasegawa devoted himself to the conservation of the albatross. (19) In 1991, Dr. Hasegawa, with the Yamashina Institute for Ornithology (Yamashina Institute), initiated a project to relocate the nesting site to a safer location on Torishima. (20) Although this relocation proved highly successful, the site remained prone to risk of volcanic eruption. (21) In 2002, Torishima erupted again and it became evident that reestablishing a breeding colony on a safer island was essential. (22)

    The resources and expertise necessary to relocate the birds to a safe island were not available through Japanese agencies, and it was cooperation with the U.S. Fish and Wildlife Service (FWS) that led to a breakthrough. In 2000, the short-tailed albatross was listed under the U.S. Endangered Species Act (ESA) (23) and the FWS began collaborating with Japanese agencies and scientists. (24) From 2000 to 2008, the United States and Japan jointly participated in satellite telemetry monitoring to track sub-adult short-tailed albatrosses--a project that has produced data critical for conservation. (25)

    Cooperation between the countries continued when FWS formed the Short-Tailed Albatross Recovery Team (START), and involved Japanese scientists and officials as members. (26) At START's second meeting, held in May 2004 at the Yamashina Institute, the parties agreed that re-establishment of the nesting site within the Bonin (Ogasawara) Islands was a priority issue. (27) The parties also agreed that the proposal should be included in the Short-Tailed Albatross(STA) Recovery Plan under the ESA. (28) In February

    2008, following pilot studies in 2006 and in 2007, the Yamashina Institute captured ten albatross chicks and transported them to Mukojima in the Benin Islands. (29) In 2008, all ten chicks fledged successfully after being reared by Yamashina staff members. (30) Similar translocations have been conducted every year since, and the birds successfully returned to Mukojima in February 2011. (31) Despite the fact that this hugely successful project is recognized by the Ministry of the Environment as part of the Japanese government's recovery plan under the Japanese Endangered Species Act, (32) most funding comes from the United States--namely the FWS. (33)

    Although it was the ESA listing that motivated the FWS to commit to the conservation of the short-tailed albatross in Japan, the mutual relationship between agencies and scientists created by the U.S./Japan MBT has been crucial in making the joint effort possible. (34) Since establishing this formal cooperative effort, coordination of the joint project continues to be an issue at meetings of the U.S./Japan MBT. (35) Therefore, this success could not have been realized without collaboration between the two countries.

    MBTs with other nations have also made important projects possible, especially in the field of research. An MBT between Russia and Japan has recently facilitated monitoring of Steller's sea eagles (Haliaeetus pelagicus), (36) a species suffering from lead poisoning in Japan and from contamination due to oil and gas drilling in Russia. (37) Joint research on shorebirds with Australia, (38) and on black-faced spoonbills (Platalea minor) and Saunders's gulls (Larus saundersi) with China and Korea (39) is also facilitated by MBTs. Exchange of information on avian influenza is also a new phenomenon in the MBT scheme. (40)

    These once isolated achievements are starting to form a network of international conservation efforts. Australia, China, and Japan have held the Meeting of the Parties at the same venue since 1995, and the United States, Russia, and Japan have followed suit since the early 2000s. (41) These meetings allow countries to share information and discuss matters collaboratively in informal joint meetings following a bilateral Meeting of the Parties. (42)

    To strengthen multinational cooperation for migratory bird conservation, Australia and Japan, as well as Wetlands International, proposed a regional partnership initiative at the 2002 World Summit on Sustainable Development. (43) This materialized as "The Partnership for the East Asian-Australasian Flyway" in 2006. (44) Although it is an informal and voluntary initiative, currently twenty-seven partners, including fourteen governments, three intergovernmental agencies, and ten international nongovernment organizations are participating as partners. (45) Thus, ICBP's 1960 resolution to expand the network of MBTs in the Asian region has finally started to take shape.

  3. ARE MBTS OUTDATED AND LOSING THEIR MERITS?

    As shown, MBTs have helped to facilitate domestic wildlife conservation law and policy. MBTs, however, are known to have a lot of gaps and weak points. (46) Since the 1970s, many multinational environmental treaties have been signed and this process has seemingly become the mainstream of international environmental law. (47) This begs the question: Are MBTs outdated and losing their significance as an international conservation tool? This Part undertakes a comparative analysis between multinational wildlife treaties and MBTs to answer the question of MBT value.

    The Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention), (48) was signed in 1971 and has been successful in facilitating national and local governments to protect important wetlands around the globe. (49) The Ramsar Convention requires signatories to register internationally significant wetland sites and work to conserve the sites. (50) Although MBTs generally have provisions such as "[e]ach Contracting Party shall endeavor to establish sanctuaries and other facilities for the protection or management of migratory birds," (51) the Ramsar Convention's mechanism is more direct in conserving the wetlands on which many migratory birds depend. (52)

    The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (53) has been the driving force in regulating international trade of endangered wildlife throughout the world. (54) After entering into force in 1975, CITES has almost taken over the MBTs' ancillary task of regulating trade of...

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