Subject: Law
Topic: INTERNATIONAL ENVIRONMENTAL LAW
Language: English (U.S.)
Pages: 4
Instructions
You are a new attorney at the U.S. Department of State. The first work assignment that you have been given is to deal with a pressing matter related to the Migratory Bird Treaty between the U.S and Canada, formally referred to as the 1916 Convention for the Protection of Migratory Birds. The Convention was amended in 1995 by a Protocol (the 1995 Protocol), which replaced the 1916 Convention in its entirety. In other words, the 1995 Protocol contains all the currently legally applicable provisions and is in force. [A complete version of the 1995 Protocol, including the 1996 transmittal memorandum to the U.S. Senate, is attached below.] Last week, a group of university researchers, commercial wildlife dealers, and Native Alaskans visited the State Department to obtain permits for hunting and to collect bird eggs. Specifically, the university researchers would like to collect the eggs of migratory insectivorous birds in order to study the breeding patterns of various species. The commercial wildlife dealers would like to obtain permission to hunt waterfowl and to collect waterfowl eggs for sale to others. And the group of Native Alaskans, who are deemed to be indigenous inhabitants of Alaska, would like to engage in the hunting and collection of eggs of doves and wild pigeons for cultural and subsistence reasons. A few days later, a group of environmentalists visited the State Department in order to advocate for the strengthening of protection for migratory birds. Specifically, they would like to see the closed season for the hunting of migratory birds increased to 11 months of the year, ideally February 1 – December 31 of each year. The Secretary of State has asked for your analysis of the issues and options available for the federal government in light of the expressed desires and interests of the various groups. Among other things, the Secretary would like to know what the treaty allows the US to in response to the requests from the researchers, commercial wildlife dealers, and Native Alaskans. Furthermore, he is interested in your views of the potential issues and consequences that would arise if birds protected by the treaty are hunted illegally. Finally, the Secretary would also like to know whether and how it would be possible to respond to the request by the environmentalists. The Secretary has asked you to ignore any issues of state wildlife law. The Secretary also knows that the Department of State is not in the business of issuing permits for hunting of migratory birds or collection of eggs, but you have been asked to ignore that.

International Environmental Law

Legal Issue

The legal issue presented in this case is who has the right to hunt and collect bird eggs. The parties interested in the bird eggs include Native Alaskans who would like to engage in egg hunting and collection due to subsistence and cultural reasons. Another group, the university researchers, wants a license to collect the eggs of the migratory insectivorous birds to study the breeding patterns of the various bird species under study.

A group of commercial wildlife dealers also wants the permits because they want to hunt waterfowl and collect the waterfowl eggs for commercial purposes. The final group, the environmentalists, wants the State to lengthen the closed season for the hunting of the migratory birds. They are demanding that the closed season be increased to 11 months of the year to step up efforts geared towards the protection of the migratory birds.

Applicable Legal Rule

To determine who should be granted the permits, the Migratory Bird Treaty and the Parksville Protocol are the applicable legal rules that should be analyzed. The Migratory Bird Treaty refers to an environmental treaty signed by the United States and Canada in 1916. The treaty’s prerogative was to protect the species of birds that usually migrate between the United States and Canada.

The protection status was granted to the migratory birds due to their immense value to human beings. The birds are usually an incredible source of food for humans and other animals. Furthermore, the birds usually consume insects that could be extremely harmful to forests, and the livelihoods of individuals who depend on farming. These animals are in danger of extermination due to a lack of adequate protection during their nesting periods or while they migrate to and from their breeding grounds.

The Parksville Protocol was an amendment to the Migratory Bird Treaty. The protocol was signed in 1995 and includes an updated list of the migratory birds under the protection of the two governments. The protocol also included the provision of the protection of the birds’ habitats that are necessary for their breeding and nesting.

Application

On the matter of the Alaskan Natives gaining permits, the Parksville Protocol has established procedures detailing the legality of the issue. Paragraph 4(b) of Article II of the Parksville Protocol is concerned with subsistence hunting in Alaska by the ‘indigenous inhabitants of Alaska.’ The term ‘indigenous inhabitants of Alaska’ refers to Alaska natives and permanent non-native residents who have demonstrated legitimate hunting needs in the designated hunting areas. The subsistence harvest areas refer to the traditional and customary hunting areas or villages where there is a customary and traditional pattern of the harvest of the migratory birds.

Based on this provision, the United States has been given the right to create a subsistence harvest of the migratory birds, their eggs, and their down regardless of the season. However, the Native Alaskans who deal in the subsistence harvesting of the birds are not allowed to sell any of the items except the non-edible by-products from the birds that are incorporated into authentic and traditional articles of handicraft. Furthermore, the harvest of such items needs to be consistent with traditional and customary uses for the indigenous people’s nutritional needs. The Protocol strictly prohibits the taking or harvesting of birds for commercial purposes.

Management bodies have been established to determine and create meaningful roles for indigenous inhabitants in the conservation of the birds they harvest. These bodies make the conservation of the migratory birds more effective and efficient in the designated harvest areas without necessarily diminishing the authority of other conservatory parties including the FWS and the DOI.

A university research team is also looking for permits to collect the eggs of migratory insectivorous birds to study their breeding patterns. According to Article II part 3 of the amended Protocol, the taking of migratory birds for scientific and educational purposes is allowed at any time of the year. The allowance is only granted as long as the educational purposes are consistent with the conservation principles of the agreement. Furthermore, Article V of the Convention stipulates that the taking of the nests or the eggs of the migratory insectivorous birds be prohibited unless it is for educational or scientific purposes that are consistent with the objectives of the Convention.

A group of commercial wildlife dealers would also like permits to hunt waterfowl, collect their eggs, and then sell the merchandise to others. The Convention stipulates that migratory birds, their eggs, or their nests, shall not be sold for commercial purposes. This means that it is illegal to hunt the migratory birds at any time of the ear solely for commercial purposes. Thus, the group of commercial wildlife dealers will not be given the permits they seek to hunt the migratory birds.

The final group, the environmentalists, wants the closed season for the hunting of migratory birds to increase to 11 months of the year specifically from February 1 to December 31. They are advocating for this change in policy because they believe that a longer closed hunting season will boost the population of the migratory birds as well as discourage the hunters from hunting the birds, as the open season will be too short.

The amended Protocol has established a closed season between March 10 and September 1 on migratory game birds. The policy makers believe that the length of the closing season is appropriate, as it will help maintain sustainable populations of the migratory birds. Allowing an open season of only one month may lead to overpopulation of the birds and the destruction of the habitats. Furthermore, the closed season for migratory insectivorous birds is throughout the year so there is no reason to worry about extermination of such species.

Conclusion

The amended Protocol is clear on the issue of the Native Alaskans being granted permission to harvest the birds. In this scenario, they will be granted the permit to hunt and collect the eggs of the doves and wild pigeons because they are doing so for subsistence and cultural reasons. However, the permit does not give the native inhabitants the right to sell the birds or any of the by-products unless they are made into traditional handicrafts. Harvesting by the Alaskan Natives is simply for food and subsistence/ nutritional uses.

The university researchers will also be granted a permit to take the eggs of the insectivorous migratory birds for their research purposes. The Protocol allows the eggs to be taken for educational and scientific purposes that are in line with the tenets of the Convention. In this scenario, the researchers seek to take the eggs for educational purposes so that they can be able to establish the breeding patterns of the insectivorous birds. Knowledge of the breeding habits will go a long way in buffering the conservation efforts that are geared towards the protection of such birds. Thus, the educational purpose of the research is in line with the objectives of the Convention.

The group of commercial wildlife dealers should not be granted the permit to hunt waterfowls. Waterfowls are classified as migratory game birds and under the articles of the Convention, it is forbidden to hunt migratory birds and then sell them, their eggs, their down, or their nests to others. This is in a bid to ensure the protection of incubating birds as well as to restore the depleted populations of the migratory birds. The commercial wildlife dealers would be harvesting the birds for purposes that contravene the objectives of the amended Convention.