Migratory Bird Treaty with Russia: Continued International Wildlife Protection

The recently concluded migratory bird protection convention between the United States and Russia¹ is a direct result of the "environmental detente" established during former President Nixon's trip to Moscow in 1972.² The treaty is especially significant, however, because it is the fourth, and most sophisticated, bilateral agreement in 60 years calling for protection of migratory birds. The other conventions are the 1916 agreement with Great Britain (concerning migratory birds in the United States and Canada),³ the 1936 agreement with Mexico,⁴ and the 1972 agreement with Japan.⁵ The Russian treaty is the product of long negotiations and contains little that will be particularly controversial. At the same time, the Senate ratification process can be expected to consider carefully the treaty provisions for ecosystem protection, the exceptions for "indigenous inhabitants" of Alaska, and the legislation needed to implement the treaty.

Elements of the Treaty

All four migratory bird treaties recognize the need to protect birds from extinction, but the underlying reasons have changed over the years. In their preambles, both the 1976 Russian treaty and the 1972 Japanese treaty justify their particular concern for migratory birds on the grounds that they "are a natural resource of great scientific, economic, aesthetic, cultural, educational, recreational and ecological value and … this value can be increased under proper management." The words clearly reflect a stronger environmental sensitivity than did the preamble to the 1936 Mexican treaty, which urged "adequate measures which will permit a rational utilization of migratory birds for the purposes of sport as well as for food, commerce and industry." Utilitarian attitudes toward migratory birds were also the basis of the 1916 convention concerning Canada: the "species are of great value as a source of food or in destroying insects which are injurious to forests and forage plants on the public domain, as well as agricultural crops … [and] are either useful to man or are harmless."⁶

Each of the four conventions lists the migratory birds covered, and all but the 1916 listing may be amended. In addition, the Russian and Japanese treaties define migratory birds as those for which there is evidence of migration between those countries and the United States. The Japanese treaty, however, also includes all birds that are "common to both countries." Because of uncertainty as to the exact scope of this commonality, the Russian treaty changed this phrasing to "species or subspecies of birds, population of which occur in" the two countries.

A more significant feature of the Russian treaty, however, is the "open triangle" approach for defining migratory birds. The earlier three treaties included only those migratory birds that passed between the two countries. The Russian treaty, on the other hand, extends its protection to birds that may spend part of their time in a third country and migrate back and forth between the third country and the United States or Russia without migrating directly between the United States and Russia. The treaty's operative language refers to birds, "populations of which occur in" the two countries and "have common flyways or common breeding, wintering, feeding, or moulting areas, and for these reasons there exists or could exist an exchange of individuals between such populations."

The general prohibition on taking migratory birds and import-export restrictions are present in all four conventions, as well as exceptions for hunting seasons and allowing each signatory to regulate hunting. Besides the additional exception for "indigenous inhabitants," which will be discussed below, the other excepted takings have changed over the years. In the 1916 convention, migratory birds could be taken during closed hunting seasons for "scientific or propagating purposes" or for hunting birds "which, under extraordinary conditions, may become seriously injurious to the agricultural or other interests in any particular community." Twenty years later, the Mexican treaty repeated the scientific and propagating purposes exception and added private game farms and museums, but the depredatory birds were limited to migratory insectivorous birds "when they become injurious to agriculture [7 ELR 10027] and constitute plagues." The treaties in the 1970's, however, recognized that the exception must be stated broadly to allow the signatory nations to respond to unanticipated circumstances. As a result, the Japanese convention permits takings for "scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Convention" and for "protecting persons and property." The 1976 Russian convention parallels this almost exactly.

Regarding restrictions on hunting practices, the 1916 convention prescribed certain closed hunting seasons. The 1936 Mexican treaty directed that such seasons be delineated and prohibited hunting from aircraft.⁷ The Japanese treaty directed that each signatory should decide the hunting seasons for itself but added that the seasons for hunting migratory birds "shall be set so as to avoid their principal nesting seasons and to maintain their populations in optimum numbers." The "optimum" maintenance concept has never been fully explored,⁸ and ambiguity concerning it may have led the drafters of the Russian treaty to adopt the relatively more clear and uncontroversial direction that the hunting seasons "shall be set so as to provide for the preservation and maintenance of stocks of migratory birds."

The 1976 Russian treaty has one additional feature that could be a device for "shoehorning" in protection of birds that are not migratory across international boundaries and thus presumably not of international concern. An appendix to the convention lists the subject migratory birds. Unlike the Japanese treaty, which listed the 189 species or subspecies individually, the Russian treaty lists bird families and under each family names the particular species or subspecies that is a protected migratory bird under the convention. Article VIII, however, purports to extend the convention's protective measures to "any species or subspecies of birds not listed in the 'Migratory Birds' Appendix but belonging to the same family as a species or subspecies listed in the 'Migratory Birds' Appendix." As treaties have the same legal weight as statutes in the United States, the result of Article VIII is to give the federal government the authority to protect non-migratory species of listed families without specific legislative authority. The Senate doubtless will weigh carefully the effects of this provision when it is faced with ratification of the convention. Unlike the usual legislative process, the Senate will not be able to amend the treaty to conform to its views, nor will the House of Representatives have any voice until action is taken on implementing legislation.

"Indigenous Inhabitants"

Two other features of the 1976 Russian convention are significant. Alaska's "indigenous inhabitants" are permitted to take migratory birds and collect their eggs "for their own nutritional and other essential needs." Two questions are involved here: first, who are "indigenous inhabitants" and second, for what uses may the birds be taken. The Japanese treaty excepted takings by "Eskimos, Indians, and indigenous peoples of the Trust Territory of the Pacific Islands for their own food and clothing." The 1916 convention allowed "Eskimos and Indians" to take certain birds "for food and their skins for clothing [but not to] be sold or offered for sale." The Russian treaty language of "indigenous inhabitants" clearly is a change from the previous treaties' use of the more specific term "Eskimo."

By comparison, certain exceptions are created in the 1972 Marine Mammal Protection Act (MMPA)⁹ and the 1973 Endangered Species Act (ESA)¹⁰ for Alaskan natives. The MMPA excepts "any Indian, Aleut, or Eskimo who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such taking (1) is for subsistence purposes by Alaskan natives who reside in Alaska," or is for making and selling authentic native articles of handicrafts and clothing.

The Endangered Species Act exception, however, recognizes that tribal identification may not cover all persons who might be worthy subjects of the exception. Under the ESA, an exception is created for "(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska; or (B) any non-native permanent resident of an Alaskan village; if such taking is primarily for subsistence purposes." In addition, non-edible by-products may be made into "authentic native articles of handicrafts and clothing" and sold in interstate commerce. The Russian convention's exception is inexact, but testimony in the Senate ratification hearings may refer to the ESA language to give an indication of the meaning of "indigenous inhabitants" and also indicate the range of "nutritional and other essential needs" that would be permitted.

Ecosystem Protection

The other major item in the Russian treaty is the following provision in Article IV: "To the extent possible, theContracting Parties shall undertake measures necessary to protect and enhance the environment of migratory birds and to prevent and abate the pollution or detrimental alteration of that environment." Article IV goes on to require the signatories to issue warnings in the event of substantial anticipated or existing damage to large numbers of birds or their environment, control harmful wild animals or plants,¹¹ and inventory important breeding, wintering, feeding, and moulting areas and, "to the maximum extent possible," provide special protection for these areas.

[7 ELR 10028]

The concept of habitat protection, beyond protection of just the animals themselves, has developed rapidly in recent years. The 1916 and 1936 treaties spoke in terms mostly of protecting the migratory bird species and encouraged the establishment of refuges where all hunting would be prohibited. By the 1970's, it was recognized that the animals could not be fully protected without protection of their habitat. Thus, the aforementioned Marine Mammal Protection Act acknowledged that the "primary objective" of marine mammal management was to "maintain the health and stability of the marine ecosystem."¹² The 1972 Japanese migratory bird convention urged the signatories to "endeavor to take appropriate measures to preserve and enhance the environment of birds protected" under the convention and to seek "means to prevent damage to such birds and their environment, including, especially, damage resulting from pollution of the seas." Habitat protection appears in other international agreements; in the 1973 agreement on the conservation of polar bears, Canada, Denmark, Norway, Russia, and the United States, each nation agreed to:

take appropriate action to protect the ecosystems of which polar bears are a part, with special attention to habitat components such as denning and feeding sites and migration patterns, and [shall] manage polar bear populations in accordance with sound conservation practices based on the best available scientific data.¹³

Also, § 7 of the 1973 Endangered Species Act¹⁴ requires federal agencies to make sure their actions do not "result in the destruction or modification of habitat" of listed endangered and threatened species.

While it is not strictly mandatory under the 1976 Russian treaty that the United States protect the habitat of migratory birds, the language is strongly hortatory and consistent with the modern view that species protection must include conservation of the areas where the animals live.¹⁵

Implementing Legislation

The 1976 Russian treaty directs the signatories "to take, as soon as possible, the measures necessary to insure the execution of this Convention and its purposes." Although the prohibition against taking migratory birds, collecting their nests and eggs, and disturbing their nesting colonies is mandatory, the signatories are directed to establish their own regulations governing hunting seasons and exceptions to the "taking" prohibition including allowances for "indigenous inhabitants," habitat protection, and protection of non-listed species.

The 1916, 1936, and 1972 conventions were implemented by the Migratory Bird Treaty Act,¹⁶ which was passed originally for the 1916 convention and subsequently amended to include the other conventions. Pursuant to and to carry out the purposes of the conventions, the Act prohibits taking, killing, or possessing convention-listed migratory birds and directs the Secretary of the Interior to adopt suitable regulations governing the prohibitions and any exceptions. In addition, the Act contains directives controlling the transportation of migratory birds and specifies enforcement procedures.

It should not be necessary to enact entirely new legislation to implement the 1976 Russian convention; the convention's undertakings can be conveniently folded into the Treaty Act by amendment. Hunting seasons are annually established by the U.S. Fish and Wildlife Service, pursuant to the Act, and the federal list of migratory birds is taken from the conventions.¹⁷ Two major adjustments are needed, however. The Treaty Act makes no specific reference to exceptions for Eskimos or "indigenous inhabitants," and current regulations for "subsistence use in Alaska" parallels directives only from the 1916 convention.¹⁸ Thus, a major task will be to establish carefully and completely the conditions allowing takings by "indigenous inhabitants." The second matter which must be dealt with is habitat protection. Although both conventions couch undertakings in this regard in non-mandatory language,¹⁹ there will be strong pressures to maximize such protection. Opponents may argue that this would be legislating domestic land use controls by use of the treaty power, but it is now widely realized that wildlife cannot be protected in vacuo without parallel protection of the habitat.

A Joint Declaration signed at the same time as the Russian convention obligates the parties to consider expanding it to other nations and to begin procedures to accomplish this goal. As it has taken 60 years for the United States to establish different migratory bird conventions with four nations, the interest of consistency, as least, would be well served by multilateral agreements. [7 ELR 10029] Furthermore, it is clear that other nations are vitally interested in wildlife protection.²⁰ Negotiations, particularly in different languages with different meanings attached to words, can be protracted and difficult,²¹ however, and once the agreements are completed, nations will not necessarily pursue their obligations with equal zeal. Nevertheless, as the Russian migratory bird treaty indicates, international agreements for the protection of wildlife are being concluded in increasing numbers, and this in itself is a substantial mark of accomplishment.²²

1. The Convention Between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, ELR 40318, was signed in Moscow on November 19, 1976, by Russell E. Train, Administrator of the Environmental Protection Agency, and E. U. Curtis Bohlen, Deputy Assistant Secretary for Fish and Wildlife and Parks, for the United States, and Boris Runov, Deputy Minister of Agriculture, for Russia.

2. An Agreement on Cooperation in the Field of %environmental Protection Between the United States of America and the Union of Soviet Socialist Republics, ELR 40327, was signed in Moscow on May 23, 1972, by Richard M. Nixon and N. V. Podgorny.

3. The Convention between the United States and Great Britain for the protection of migratory birds in the United States and Canada, 39 Stat. 1702, was signed in Washington on August 16, 1916.

4. The Convention between the United States and Mexico for the protection of migratory birds and game mammals, 50 Stat. 1311, was signed in Mexico City on February 7, 1936.

5. The Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction, and their Environment, ELR 40344, was signed in Tokyo on March 4, 1972.

6. In Missouri v. Holland, 262 U.S. 416 (1920), which was the first important decision on the treaty power and which was based on the 1916 migratory bird convention, Justice Holmes, writing for the majority, emphasized the importance of migratory birds as a valuable food resource.

7. The restrictions on hunting methods have been set out in regulations issued by the Fish and Wildlife Service. 50 C.F.R. § 20.21 (1975).

8. The Marine Mammal Protection Act has a somewhat similar requirement. Its goal is to obtain "an optimum sustainable population keeping in mind the optimum carrying capacity of the habitat." 16 U.S.C. § 1361, ELR 41815. See Gaines & Schmidt, Wildlife Population Management Under the Marine Mammal Protection Act of 1972, 6 ELR 50096, 50101-08 (1976). The National Marine Fisheries Service has proposed a new definition for "optimum sustainable population" under the MMPA. 41 Fed. Reg. 44049 (Oct. 6, 1976), 6 ELR 10260 (Nov. 1976).

9. 16 U.S.C. § 1371(b), ELR 41817.

10. 16 U.S.C. § 1539(e), ELR 41830.

11. The Lacey Act restricts the importation of injurious wildlife. 18 U.S.C. §§ 42-44.The Department of Agriculture restricts importation of plants injurious to agriculture. 7 U.S.C. §§ 151 et seq. Provisions in Article VI(b) and (c) of the Japanese convention seek restrictions on the importation of live animals and plants which could threaten the preservation of migratory birds or "disturb the ecological balance of unique island environments."

12. 16 U.S.C. § 1361, ELR 41815.

13. Art. II, Agreement on the Conservation of Polar Bears, Oslo, November 15, 1973, S. Doc. Exec. I, 94th Cong., 1st Sess. (1975), ELR 40317.

14. 16 U.S.C. § 1536, ELR 41828.

15. Habitat protection obligations will be an additional consideration for federal activities on public lands and other federal projects. For example, in the most recent suit on the Garrison Diversion project, a massive irrigation project in North Dakota, the complaint includes an allegation that the 1916 convention and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., are violated by the project's proposed destruction of migratory bird habitat and nesting grounds. See Comment, Garrison Diversion Faces New Challenges, 6 ELR 10179 (Aug. 1976); National Audubon Society v. Kleppe, No. 76-0943, digested, ELR 65351 (D.D.C., filed May 27, 1976).

16. 16 U.S.C. §§ 703-711.

17. Migratory bird hunting is regulated by 50 C.F.R. pt. 20 (1975). Regulations for the seasons in the different flyways and for different birds are revised each year. A list of migratory birds is found at 50 C.F.R. § 10.13 (1975), but the Fish and Wildlife Service regulations state that this is "for reference purposes only." The regulations define "migratory birds" to mean all birds "included in the terms of the conventions between the United States and any foreign country for the protection of migratory birds." 50 C.F.R. § 10.12. Thus, the Russian treaty's unique "open triangle" approach of defining migratory birds causes no problem.

18. 50 C.F.R. § 20.132 (1975). The 1916 convention language refers to "Eskimos and Indians" so it is not clear why the regulations were restricted to Alaska. Presumably, this will be adjusted.

19. Article VI of the Japanese convention says that the two countries "shall endeavor to take appropriate measures…." The obligation imposed in Article IV of the Russian convention is mitigated by the words "to the extent possible."

20. See, e.g., Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 56 Stat. 1354 (1940), ELR 40346; Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973), ELR 40336; Agreement on the Conservation of Polar Bears, note 13, supra. For an illuminating discussion of the Western Hemisphere convention see Guilbert, Wilderness Preservation I: A Recent Case and a Not-So-Recent Treaty, 3 ELR 50023, and Wilderness Preservation II: Bringing the Convention into Court, 3 ELR 50044 (1973).

21. The Russian migratory bird convention was anticipated more than three years before it was actually accomplished. See Comment, Recent Federal and International Measures to Protect Wildlife, 3 ELR 10040, 10042 (1973).

22. The 1936 Mexican convention was recently amended by adding a number of seabird species resident in the Gulf of California. See Anderson, Mendoza & Keith, Seabirds in the Gulf of California: A Vulnerable, International Resource, 16 Nat. Res. J. 483 (1976).