Twenty-five years under the Convention on Migratory Species: migration conservation lessons from Europe.

• Author: Baldwin, Elizabeth A.

1. Introduction II. The Convention on Migratory Species and Its Daughter Agreements A. CMS Structure and Function B. Balancing the Competing Needs for Participation and Stringency C. Balancing the Need to Protect Endangered Migrants with the Need to Prevent Migratory Species Endangerment D. Using the CMS to Protect Migration as a Phenomenon of Abundance III. Agreements Under the CMS A. The Wadden Sea Seal Agreement B. The African-Eurasian Waterbird Agreement IV. Lessons for International Implementation A. Gaps in Coverage B. Lessons for Design and Redesign of Agreements 1. Low Participation 2. Insufficient Knowledge About Migratory Habitat and Behaviors 3. Stringency of Requirements 4. Capacity to Implement and Enforce 5. Funding 6. Assessing Tradeoffs in Agreement Design 7. Addressing Intractable Tradeoffs Through Agreement Design V. Conclusion I. INTRODUCTION

   Several scholars are calling for the United States to increase and improve its efforts to protect migratory species. (1)At the heart of this call is the idea that migrations are more than the sum of individual migrants; rather, migrations are often "phenomena of abundance," spectacles of nature with the power to inspire awe, fulfill important ecological purposes, and meet the unique needs of migratory species. (2)

   As many of these scholars have noted, many migratory species are international travelers that do not confine their wanderings to a single jurisdiction. (3) This makes protection of migratory species particularly difficult, since effective conservation efforts may require collaboration between entities that have concurrent jurisdiction over species' breeding, feeding, stopover, and wintering habitats, as well as entities that regulate any commercial activities that pose threats to these migratory species.

   The United States has limited experience in cooperating with other countries on migratory species protection. Under bilateral agreements with the United Kingdom, Mexico, and Russia, the United States has agreed to limit takings of certain migratory bird species, (4) but these agreements probably will not prompt the kind of comprehensive and collaborative conservation effort required to protect and maintain abundant migrations. The agreements also fall far short of protecting migrations as phenomena of abundance.

   Outside the United States, however, 115 countries have ratified the Convention on Migratory Species (CMS), an international treaty devoted to protecting and maintaining migratory species' populations, ranges, and habitats. ' These countries have twenty-five years' worth of experience in international negotiation and implementation of migratory species conservation agreements. An examination of the CMS and its daughter agreements shows that, while international migratory species protection is always challenging, predictable patterns can identify protection efforts that are most likely to succeed. The circumstances of a migration, the nature of the threats to the migration, and the motivations and resources of the parties involved all play a role in determining the effectiveness of a migratory species conservation agreement.

   This Article examines the CMS and its daughter agreements to identify lessons for cross-boundary efforts to protect migrations as phenomena of abundance. Part II describes the basic structure and function of the CMS and assesses its suitability as a vehicle for protecting abundant migrations. Part III describes two CMS daughter agreements in greater detail to illustrate the range of CMS agreements and conservation approaches. Part IV identifies common difficulties in migratory species protection and draws on past strategies under the CMS to identify possible strategies to address these problems.

2. THE CONVENTION ON MIGRATORY SPECIES AND ITS DAUGHTER AGREEMENTS

   The CMS is an international environmental agreement that encourages nations to take action to conserve migratory species. (6) The primary function empowered to proscribe regulations regarding the taking of protected species in order to implement these treaties. Id. [section] 704.

   Elizabeth A. Baldwin, J.D.-M.P.A. Candidate 2011, Indiana University Bloomington Maurer School of Law and Indiana University School for Public and Environmental Affairs. The author would like to thank Matthew Rowe, Rob Fischman, Jeff Hyman, and Bert Lenten for their valuable advice and useful suggestions.

   of the CMS is to encourage both Parties and non-member states to conclude daughter agreements that will protect specific migratory species or groups of migratory species. (7) Negotiated in 1979, 115 countries have ratified the CMS, and over thirty non-Parties participate in one or more daughter agreements under the CMS. (8) The CMS and its daughter agreements have been important in stabilizing population levels of migratory species such as the Wadden Sea Seal (Phoca vitulina vitulina and Helichoerus grypus) (9) and the Bukhara Deer (Cervus elaphus bactrianus), (10) as well as directing resources toward reducing threats and conserving habitat for a wide range of other migratory species.

   The CMS is not the only international agreement that addresses conservation of migratory species. Numerous other multilateral and bilateral agreements seek to conserve migratory species, regulate the management and use of migratory species stocks, or protect migratory species habitat. (11) Most of these agreements focus on particular types of migratory species: commercially valuable fish, marine mammals, and buds. (12) The CMS is unique among these agreements because it is not limited in either scope or geography; the CMS includes terrestrial, aquatic, and avian species and is worldwide in its coverage."

   This Part describes the CMS, with particular focus on how the CMS has balanced the need to protect endangered migratory species with the need to protect migratory species as phenomena of abundance." Part II.A describes the basic structure and function of the CMS. Part II. B examines the way the CMS balances the need to maximize participation by key Range States (15) with the need to maximize the stringency and effectiveness of daughter agreements. Another conflict, addressed in Part II.C, is the tension between protecting endangered species and the need to prevent non-endangered migratory species from becoming endangered. Part II. D examines a related concept in greater detail-the need to protect migratory species as a phenomenon of abundance.

   1. CMS Structure and Function

      The CMS identifies two overlapping categories of migratory species. Species that are endangered (16) are listed in Appendix I of the CMS, and all CMS Parties must provide certain protections to these species. (17) Parties must prohibit most takings of Appendix I species, (18) and "shall endeavor" (19) to conserve and restore habitats, remove or minimize barriers, and prevent or control for factors that might further endanger these species, such as the introduction of invasive species. (20)

      Species that have "unfavourable conservation status" and "which require international agreements for their conservation and management" are listed in Appendix II of the CMS. (21) Parties are urged to conclude daughter agreements to restore these species to favorable conservation status, (22) but they are not bound to prohibit all takes. "Unfavourable" conservation status is based on four factors: population viability, long-term availability of adequate migratory range, long-term availability of adequate habitat, and the extent of population distribution and abundance. (23) Based on these factors, many migratory species are eligible for protection under CMS daughter agreements. (24)

      The scope and coverage of daughter agreements is guided to a large extent by the motivations and interests of the Parties. While the CMS Scientific Council (25) recommends species for listing in the Appendices, the Parties have sole authority to determine which species will be the subject of daughter agreements. The only guidance provided by the CMS is that Parties should "give priority to those species in an unfavourable conservation status." (26) Similarly, the Range States to a daughter agreement are in the driver's seat in determining the nature of the agreement, including whether the agreement will be binding or informal, what kind of protections will be encouraged or required, and the stringency of those protections. (27) The CMS provides limited guidance by only identifying important elements that should be part of agreements. (28) The details of the agreements, however, are entirely up to the Parties. (29)

      Initially, most CMS Parties were from Europe and North Africa and the CMS focused primarily on European migratory species. (30) Over time, the geographic scope of CMS activities expanded to include several species that migrate through Africa, Central Asia, and the Middle East. (31) Between 2007 and 2010, ten new daughter agreements were adopted under the CMS. (32) Several of these agreements focus on species that migrate through developing countries, including Pacific island states and countries in South America. (33)

      The purpose of the CMS is not limited to creating new agreements. The CMS also includes a Scientific Council that oversees and coordinates migratory species research, identifies migratory species in need of protection, and recommends conservation actions. (34) The CMS Secretariat coordinates CMS meetings and activities, distributes resources for conservation projects, and maintains institutional memory about migratory species needs, conservation approaches, successes and failures. (35)

   2. Balancing the Competing Needs for Participation and Stringency

      Participation by key states is important to all international environmental agreements. Effective migratory species conservation requires participation by Parties with jurisdiction over key habitat (e.g., stopover sites, food sources) or barriers to migration. The importance of...