International treaties and the global protection of birds: Part II

Journal of Environmental Law

Volumn 11, Issue 2, 1999, Pages 279-300

  Bowman, M J ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

BIRD; ENVIRONMENTAL LEGISLATION; INTERNATIONAL AGREEMENT; NATURE CONSERVATION;

EID: 0033389146     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/11.2.281     Document Type: Article

References (142)

1. See e.g., the Western Hemisphere Convention, Article 7. Note also the wide definition of 'migratory birds' under Article 1 (5) as 'birds of those species, all or some of whose individual members may at any season cross any of the boundaries between the American countries' and cf the definition of migratory species in the Bonn Convention, text accompanying ns 13-17 infra.
2. 19 ILM 15. The Convention is often referred to as the CMS. For discussion, see S. Lyster, International Wildlife Law (1985), Ch 10. All references in this article to CMS debates, resolutions and recommendations can be found in the reports of the various meetings of the Conference of the Parties to the Convention (UNEP/CMS Secretariat, United Nations Premises in Bonn, Martin-Luther-King-Str 8, D-53175 Bonn, Germany). The Secretariat also publishes a CMS Bulletin.
3. Article 7.
4. Article 9.
5. Article 8. For the actual establishment of the Council by the Conference of the Parties, see Resolution 1(4), CMS/Conf 1(9), Annex I and, for later decisions concerning its activities, see Resolution 3(4), UNEP/ CMS/Conf 3(21), and Resolution 4(5), UNEP/CMS/Conf 4(16).
6. Article 8. For the actual establishment of the Council by the Conference of the Parties, see Resolution 1(4), CMS/Conf 1(9), Annex I and, for later decisions concerning its activities, see Resolution 3(4), UNEP/ CMS/Conf 3(21), and Resolution 4(5), UNEP/CMS/Conf 4(16).
7. Article 8. For the actual establishment of the Council by the Conference of the Parties, see Resolution 1(4), CMS/Conf 1(9), Annex I and, for later decisions concerning its activities, see Resolution 3(4), UNEP/ CMS/Conf 3(21), and Resolution 4(5), UNEP/CMS/Conf 4(16).
8. A handful of parties have not in fact made an appointment to the Council: Report of the Scientific Council, UNEP/CMS/Conf 4(16), para 53. Experts appointed by the Conference may, for financial reasons, not exceed eight: Rule 4, Rules of Procedure of the CMS Scientific Council, UNEP/CMS/Conf 5(18), Annex VII. Five such experts are currently appointed: Report of the 5th meeting of the Conference, UNEP/CMS/Conf 5(18), at 31. (Note that the report of the 5th meeting does not in fact bear this, or any other, document reference number. Conf 5(18) is the reference which would have been attributed on the basis of previous practice.)
9. A handful of parties have not in fact made an appointment to the Council: Report of the Scientific Council, UNEP/CMS/Conf 4(16), para 53. Experts appointed by the Conference may, for financial reasons, not exceed eight: Rule 4, Rules of Procedure of the CMS Scientific Council, UNEP/CMS/Conf 5(18), Annex VII. Five such experts are currently appointed: Report of the 5th meeting of the Conference, UNEP/CMS/Conf 5(18), at 31. (Note that the report of the 5th meeting does not in fact bear this, or any other, document reference number. Conf 5(18) is the reference which would have been attributed on the basis of previous practice.)
10. A handful of parties have not in fact made an appointment to the Council: Report of the Scientific Council, UNEP/CMS/Conf 4(16), para 53. Experts appointed by the Conference may, for financial reasons, not exceed eight: Rule 4, Rules of Procedure of the CMS Scientific Council, UNEP/CMS/Conf 5(18), Annex VII. Five such experts are currently appointed: Report of the 5th meeting of the Conference, UNEP/CMS/Conf 5(18), at 31. (Note that the report of the 5th meeting does not in fact bear this, or any other, document reference number. Conf 5(18) is the reference which would have been attributed on the basis of previous practice.)
11. Article 6(3). Note that by Resolution 4(1) the Conference established a format for (i) an initial comprehensive report by the parties on accession to the Convention and (ii) updating reports for each subsequent meeting of the Conference.
12. Resolution 1(1). For subsequent consideration of the position of the Standing Committee, see Resolution 2(5), UNEP/CMS/Conf 2(16) and Resolution 3(7).
13. Information supplied by the CMS Secretariat. There are also seven signatories to the Convention.
14. At the fourth meeting of the Conference in 1994, it was reported by the Chairman of the Standing Committee that 'the United States had said that it still had concerns about CMS and was not prepared to accede at the present time': Report of the Standing Committee, UNEP/CMS/Conf 4(16), para 49. Note, however, that the non-participation of these states in the CMS does not mean that no international protection exists for migratory species in the Americas; see the section headed 'Migratory Bird Protection outside the Framework of the CMS', infra.
15. At the fourth meeting of the Conference in 1994, it was reported by the Chairman of the Standing Committee that 'the United States had said that it still had concerns about CMS and was not prepared to accede at the present time': Report of the Standing Committee, UNEP/CMS/Conf 4(16), para 49. Note, however, that the non-participation of these states in the CMS does not mean that no international protection exists for migratory species in the Americas; see the section headed 'Migratory Bird Protection outside the Framework of the CMS', infra.
16. For example, the first meeting was attended by all 19 parties, together with 44 non-party states and 33 IGO or NGO observers: UNEP/CMS/Conf 1(9). paras 4-8, 19. However, the second meeting, which seems to have seen the Convention at its lowest ebb, was attended by only 14 (of 27) parties, plus 12 non-party states and 15 organisations: UNEP/CMS/Conf 2(16), paras 4-8, 17. The fifth meeting, held in April 1997, was attended by 43 out of 50 parties, 38 observer states and 22 IGO/NGO observers: UNEP/CMS/Conf 5(18), paras 2-4.
17. For example, the first meeting was attended by all 19 parties, together with 44 non-party states and 33 IGO or NGO observers: UNEP/CMS/Conf 1(9). paras 4-8, 19. However, the second meeting, which seems to have seen the Convention at its lowest ebb, was attended by only 14 (of 27) parties, plus 12 non-party states and 15 organisations: UNEP/CMS/Conf 2(16), paras 4-8, 17. The fifth meeting, held in April 1997, was attended by 43 out of 50 parties, 38 observer states and 22 IGO/NGO observers: UNEP/CMS/Conf 5(18), paras 2-4.
18. For example, the first meeting was attended by all 19 parties, together with 44 non-party states and 33 IGO or NGO observers: UNEP/CMS/Conf 1(9). paras 4-8, 19. However, the second meeting, which seems to have seen the Convention at its lowest ebb, was attended by only 14 (of 27) parties, plus 12 non-party states and 15 organisations: UNEP/CMS/Conf 2(16), paras 4-8, 17. The fifth meeting, held in April 1997, was attended by 43 out of 50 parties, 38 observer states and 22 IGO/NGO observers: UNEP/CMS/Conf 5(18), paras 2-4.
19. For a candid recognition of these failings, see the opening address to the second meeting of the Conference by the Acting Assistant Executive Director of UNEP: UNEP/CMS/Conf 2(16), paras 9-10. Many of these problems have still not been satisfactorily dealt with, though attempts have been made to tackle some of them, particularly through the Strategy for the Future Development of the Convention: see Resolution 4(4) and, for the Report of the Working Group which devised it, UNEP/CMS/Conf 4(16) at 60. For the latest version, see Resolution 5(4).
20. For a candid recognition of these failings, see the opening address to the second meeting of the Conference by the Acting Assistant Executive Director of UNEP: UNEP/CMS/Conf 2(16), paras 9-10. Many of these problems have still not been satisfactorily dealt with, though attempts have been made to tackle some of them, particularly through the Strategy for the Future Development of the Convention: see Resolution 4(4) and, for the Report of the Working Group which devised it, UNEP/CMS/Conf 4(16) at 60. For the latest version, see Resolution 5(4).
21. Article 2(1), (2).
22. Article 1(1)(a) (emphasis added).
23. 15 Op cit, n a at 281. He cites the mountain gorilla, which is listed on Appendix I, as an example. Note, however, that in response to a suggestion at the 1994 Meeting of the Conference that the Asian elephant, might be listed in the Appendices, one (unidentified) representative observed that 'the Asian elephant was not truly migratory but tended to "oscillate" across borders': Report of the Fourth Meeting of the Conference of the Parties, UNEP/CMS/Conf 4(16), para 105.
24. Resolution 2(2), UNEP/CMS/Conf 2(16).
25. Article 4(4). For discussion see below.
26. Article 3(1). Article 1(1)(e) states that a migratory species is endangered if it is in danger of extinction throughout all or a significant proportion of its range. Note that in Resolution 2(2), the Conference of the Parties declared that this term equated with the category 'endangered' as defined in the threatened species categorisation of IUCN. In Resolution 5(3), however, a modified definition was adopted in order to preserve compatibility with IUCN's system of categorisation, 'whilst still keeping within the definition given' in Article 1(1)(e).
27. That is, those who exercise jurisdiction over any part of the range of such species, or whose vessels are engaged outside the limits of national jurisdiction in the taking of such species: Article 1(1)(h). Note that Resolution 3(1), para 3 suggests that a state should be considered a 'Range State' when 'a significant proportion of a geographically separate population of that species occasionally occurs in its territory'.
28. Article 3(5).
29. Article 1(1)(i).
30. Article 3(4). On the question of exotic species, see the discussion concerning the North American ruddy and white-headed ducks under the Berne Convention, in Part I of this article.
31. CMS/Conf 1(4) (Rev 1), Proceedings of the First Meeting of the Conference of the Parties, Vol I at 123.
32. Resolution 3(2), UNEP/CMS/Conf 3(21).
33. Resolution 4(2), UNEP/CMS/Conf 4(16). For species identified at the Fifth Meeting for the purposes of this procedure,
34. see Resolution 5(1), UNEP/CMS/Conf 5(18).
35. See the discussion of Appendix II species, immediately following.
36. Article 4(1).
37. Article 4(2). Note further that Resolution 3(1), paras 5 and 7, urges the parties positively to consider whether existing or newly listed Appendix I species should also be listed in Appendix II.
38. See generally, Articles 5(4) and (5). Note also Resolutions 2(6), 2(7), 3(5), 4(3) and 5(2).
39. UKTS 9(1994), Cm 2472.
40. Text available from the Bonn Convention Secretariat, or from the interim Secretariat for the African-Eurasian Waterbird Agreement, c/o Ministry of Agriculture, Nature Management and Fisheries, Directorate for Nature Conservation, Division of International Affairs, PO Box 20401, NL-2500 EK, Hague, Netherlands.
41. Resolution 1(6), para 1(c). The Palaearctic is one of six biogeographical realms into which the world is divided, and includes Europe, Africa north of the Sahara and all but the south-eastern portion of Asia. The other realms are the Nearctic, Neotropical, Ethiopian, Oriental and Australian: see e.g., M. Brooke and T. Birkhead (eds), Cambridge Encyclopaedia of Ornithology (1991), Ch 6.
42. For an indication of the expansion of the intended scope of the Agreement by the time of the second meeting of the Conference, for example, see Report of Committee I, UNEP/CMS/Conf 2(16), para 27.
43. The Agreement Area includes Kazakhstan, Turkmenistan and Uzbekistan, but excludes Kyrgyzstan and Tajikistan.
44. Significantly, for example, Canada was not a signatory. By 1.2.99, the Agreement itself had attracted 16 signatories, of which seven had subsequently ratified (France, Germany, Guinea, Netherlands, Romania, Sweden, Switzerland). It requires the ratifications of seven African and seven Eurasian states for entry into force. Attempts are being made to secure these numbers by the time of the Sixth Meeting of the Conference of the Parties to the CMS, scheduled for November 1909: see CMS Bulletin, 8, November 1998, at 4.
45. Article 2(2). The principle is not referred to in the Bonn Convention itself, the emphasis of which is rather different. Article 3(2), for example, provides that a species may only be listed in Appendix I if 'reliable evidence, including the best scientific evidence available, indicates that the species is endangered.' It may be, however, that during the current decade the original emphasis has shifted. Indeed, it has been noted that the incorporation of the precautionary principle within AEWA has a potential impact on the CMS itself: see the Report of the Fifth Meeting of the Scientific Council, UNEP/CMS/Conf 4(16), paras 17-23. In any event, the approach of the CMS to the question of delisting might be thought always to have had a more precautionary flavour: see Article 3(3) and Resolution 3(1), especially para 1(b). The Report of the Scientific Council to the Third Meeting of the Conference in 1991, for example, indicated that the Council 'was unable to support Norway's proposal to delete five species from Appendix I due to the need to follow a precautionary approach with regard to Appendix I species'.
46. Articles 5-8.
47. There are six categories in all, viz Column A, Categories 1-3, Column B, Categories 1-2 and Column C, Category 1. These are distinguished primarily by size of population, moderated by other factors indicative of vulnerability. such as evidence of long-term decline, dependence on threatened habitat, concentration within a small number of sites etc.
48. On this point, compare the list of species in Annex 2 to the Agreement with the list of species (and populations) in Table 1 of the Action Plan. It is stated in Article 4 of the Agreement that the Action Plan 'specifies actions which the Parties shall undertake in relation to priority species and issues . . .'
49. Action Plan, heading 2(2). Note that CMS Recommendation 5(1) urges the parties to support for this purpose the implementation of the action plans prepared by the Council of Europe and RSPB, and considered above in the context of the discussion of the Berne Convention: see text accompanying ns 154-6 ((1999) 11 JEL 115), Part I of this article.
50. The starting point for the resolution of such conflicts is, of course, Article 30 of the Vienna Convention on the Law of Treaties, but the principles there established provide only limited guidance as to the way in which conflicts between treaty obligations (and entitlements) are affected by issues of hierarchy and intention. The argument is too complex to pursue in detail here, but, relying on the wording of Articles 3(2)(a), 4(1) and 11(1) of the Agreement, it may be possible to argue that the Action Plan cannot be intended to conflict with the Convention itself, and that the additional exceptions it contains cannot apply to Bonn Appendix I species, but only to other column A and to column B populations.
51. For discussion of these issues, see 'Review of Implementation of the Convention', UNEP/CMS/Conf 4(16), paras 67-72.
52. As of 1 February 1999, CMS parties in the Asia and Oceania regions were India, Israel, Pakistan, Sri Lanka, Saudi Arabia, Australia, Philippines and Uzbekistan. In the Americas, only Chile, Panama, Peru, Uruguay, Argentina and Paraguay were parties.
53. See ns 32-5 ((1999) 11 JEL 92-3), and accompanying text, Part I of this article.
54. It is to be noted that in the original text, even as corrected to allow for minor errors, the wording of Article 4(4) provided for the conclusion of 'AGREEMENTS' (i.e. the word was printed in upper case, as in Article 4(3)): see the text as printed in both Volumes I and II of the Proceedings of the First Meeting of the Conference of the Parties. Yet the depositary appears already to have identified this as an error, and Resolution 2(6) records its intention to bring the wording 'into conformity with the negotiating documents by writing the word "agreements" in lower case letters'. Texts currently circulated do incorporate this correction.
55. It is difficult to understand how an agreement under Article 4(4) could be a preliminary to the conclusion of an AGREEMENT under Article 4(3) if the two provisions are intended to relate to different kinds of species. Perhaps the answer is that the category of species whose members 'periodically' cross-national boundaries is simply a wider one, embracing all those whose members do so 'cyclically and predictably' but not being so limited.
56. See Resolution 4(3), UNEP/CMS/Conf 4(16); Resolution 5(2), UNEP/CMS/Conf 5(18).
57. See Resolution 4(3), UNEP/CMS/Conf 4(16); Resolution 5(2), UNEP/CMS/Conf 5(18).
58. 1991 Bundesgesetzblatt, Teil II, 1308.
59. Misc a (1993), Cm 2119. Note also the later 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (text available from CMS Secretariat).
60. Texts available from CMS Secretariat.
61. The term 'memorandum of understanding' may in fact be applied either to a formal treaty or to an informal arrangement: see generally A. Aust, 'The Theory and Practice of Informal International Instruments' (1986) 35 ICLQ 787.
62. A.W. Diamond et al, Save the Birds (rev edn, 1989) at 94-5; CMS Bulletin, 7, December 1997, Special Supplement.
63. A.W. Diamond et al, Save the Birds (rev edn, 1989) at 94-5; CMS Bulletin, 7, December 1997, Special Supplement.
64. CMS Bulletin, 5, June 1996, at 5. See also the Report of the Fifth Meeting of the Scientific Council, UNEP/ CMS/Conf 4(16), Annex V, paras 84-7. The eastern Asian population is not covered by the Agreement and is clearly more secure. It was only identified in 1983, when 800 birds were discovered wintering at Lake Poyang. By 1985, the population was estimated to have increased to 1350 birds: see Diamond et al, ibid.
65. CMS Bulletin, 5, June 1996, at 5. See also the Report of the Fifth Meeting of the Scientific Council, UNEP/ CMS/Conf 4(16), Annex V, paras 84-7. The eastern Asian population is not covered by the Agreement and is clearly more secure. It was only identified in 1983, when 800 birds were discovered wintering at Lake Poyang. By 1985, the population was estimated to have increased to 1350 birds: see Diamond et al, ibid.
66. CMS Bulletin, 5, June 1996, at 5. See also the Report of the Fifth Meeting of the Scientific Council, UNEP/ CMS/Conf 4(16), Annex V, paras 84-7. The eastern Asian population is not covered by the Agreement and is clearly more secure. It was only identified in 1983, when 800 birds were discovered wintering at Lake Poyang. By 1985, the population was estimated to have increased to 1350 birds: see Diamond et al, ibid.
67. Diamond et al, ibid at 254.
68. CMS Bulletin, loc cit, n 53. For updated information on this project, see CMS Bulletin, 7, December 1997, at 6-8 and Special Supplement, and 8, November 1998, at 6.
69. CMS Bulletin, loc cit, n 53. For updated information on this project, see CMS Bulletin, 7, December 1997, at 6-8 and Special Supplement, and 8, November 1998, at 6.
70. B. Heredia, L. Rose and M. Painter (eds), Globally Threatened Birds in Europe: Action Plans (1996) at 273, where it is stated that this represents a downward revision of a 1990 estimate of 400.
71. For recent developments, see CMS Bulletin, 8, November 1998, which also records progress regarding draft agreements or memoranda concerning ruddy-headed geese, Andean flamingos and southern hemisphere albatrosses.
72. Diamond et al, op cit n 52, at 254-5.
73. Recommendation 4(4). For further progress regarding this matter, see UNEP/CMS/Conf 5(18), paras 102-5, and Recommendation 5(4).
74. See the Report of the Fifth Meeting of the Scientific Council, UNEP/CMS/Conf 4(16), Annex V, at 113-4.
75. Recommendation 4(3), para 4. Note also Recommendation 5(2), para 4.
76. Recommendation 4(1). Note also the recently adopted Recommendation 5(1), concerning the development of an action plan for the Great Cormorant in the African-Eurasian region. For further discussion, see R. Wynde and R. Hume, 'Cormorants: Black Plague or Black Beauty?' Birds, Winter 1997, at 33.
77. See the Report of the Sessional Committee I, UNEP/CMS/Conf 4(16), at 50-1, and the preamble to Recommendation 4(1).
78. Considerations of space preclude detailed analysis. For a fuller discussion see Lyster, op cit, n 2 at 74-87.
79. See also, C. de Klemm, Migratory Species in International Instruments: An Overview, IUCN Environmental Policy & Law, Occasional Paper 2 (1986).
80. 39 Stat 1702, USTS 628.
81. Op cit, n 2 at 77.
82. See the text accompanying ns 15-23 ((1999) 11 JEL 90-1), Part I of this article.
83. 178 LNTS 309: USTS 912.
84. See the discussion of the Ramsar Convention in Part I ((1999) 11 JEL), of this article.
85. 837 UNTS 125.
86. Migratory Bird Treaty Act 16 USC 703-711 (1976 and Suppt 1981).
87. See e.g., Missouri v Holland, 64 Ed 641 (1920); US v FMC 572 F 2d 902 (1978); US v Corbin Farm Service 444 F Supp 510 (1978).
88. For discussion of these treaties, and information on the species protected, see Lyster, op cit, n 2, at 74-87; de Klemm, op cit, n 64 at 127-74. As to the agreement between China and Australia,
89. see Ramsar PLEN C.5(2) at 9. See further the Australian national report to the fifth meeting of the Conference of the Parties to the Ramsar Convention, where reference is made not only to this agreement but to preliminary negotiations for similar agreements with Indonesia and Papua New Guinea:
90. see Proceedings, Vol III at 17-45 and especially at 44.
91. 'The Problem of Migratory Series in International Law', (1994) Green Globe YB 67, at 69.
92. See generally, D. Brubaker, Marine Pollution and International Law (1993) or, for a briefer account, R.R. Churchill and A.V. Lowe, The Law of the Sea (and edn, 1988), Ch 15.
93. See generally, D. Brubaker, Marine Pollution and International Law (1993) or, for a briefer account, R.R. Churchill and A.V. Lowe, The Law of the Sea (and edn, 1988), Ch 15.
94. Notably the conventions concerning the Mediterranean, Caribbean and East African region: for discussion of the significance of these instruments in the context of biodiversity conservation see R.R. Churchill, 'The Contribution of Existing Agreements for the Conservation of Terrestrial Species and Habitats to the Maintenance of Biodiversity' and D. Freestone, 'The Conservation of Marine Ecosystems under International Law' in M.J. Bowman and C.J. Redgwell (eds), International Law and the Conservation of Biological Diversity (1996).
95. Notably the conventions concerning the Mediterranean, Caribbean and East African region: for discussion of the significance of these instruments in the context of biodiversity conservation see R.R. Churchill, 'The Contribution of Existing Agreements for the Conservation of Terrestrial Species and Habitats to the Maintenance of Biodiversity' and D. Freestone, 'The Conservation of Marine Ecosystems under International Law' in M.J. Bowman and C.J. Redgwell (eds), International Law and the Conservation of Biological Diversity (1996).
96. Misc 15 (1991), Cm 1645; 30 ILM 802. For discussion, see P. Sands, Principles of International Environmental Law, Vol I (1995), Ch 15, esp at 588-91; A. Garcia-Ureta, 'A Comment on Some Provisions of the United Nations Convention on Environmental Impact Assessment in a Transboundary Context', (1993) 1 Env Liability 101.
97. Misc 15 (1991), Cm 1645; 30 ILM 802. For discussion, see P. Sands, Principles of International Environmental Law, Vol I (1995), Ch 15, esp at 588-91; A. Garcia-Ureta, 'A Comment on Some Provisions of the United Nations Convention on Environmental Impact Assessment in a Transboundary Context', (1993) 1 Env Liability 101.
98. Misc 5 (1993), Cm 2141; 31 ILM 1312. For discussion, see generally A. Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (1993).
99. UN Doc A/Res/51/229. For contrasting assessments of the convention, see M. Fitzmaurice, 'The Convention on the Law of Non-Navigational Uses of International Watercourses', (1997) 10 Leiden JIL 501; A. Tanzi, 'The UN Convention on International Watercourses as a Framework for the Avoidance and Settlement of Waterlaw Disputes', (1998) 11 Leiden JIL 441.
100. UN Doc A/Res/51/229. For contrasting assessments of the convention, see M. Fitzmaurice, 'The Convention on the Law of Non-Navigational Uses of International Watercourses', (1997) 10 Leiden JIL 501; A. Tanzi, 'The UN Convention on International Watercourses as a Framework for the Avoidance and Settlement of Waterlaw Disputes', (1998) 11 Leiden JIL 441.
101. UNJYB 89. For discussion, see Lyster, op cit, n 2, Ch 11; T.A. Atherton and T.C. Atherton, 'The Power and the Glory: National Sovereignty and the World Heritage Convention', (1995) 69 Austr LJ 631.
102. UNJYB 89. For discussion, see Lyster, op cit, n 2, Ch 11; T.A. Atherton and T.C. Atherton, 'The Power and the Glory: National Sovereignty and the World Heritage Convention', (1995) 69 Austr LJ 631.
103. Despite this point, many World Heritage sites are in fact of considerable importance to birds. Notable examples from various parts of the globe include the Great Barrier Reef (Australia), the Danube Delta (Romania), the Bane d'Arguin (Mauritania), La Amistad National Park (Panama) and the Djoudj Bird Sanctuary (Senegal), some of which are also listed as Ramsar sites. For information on these and other World Heritage sites, see M. Swadling (ed), Masterworks of Man and Nature: Preserving our World Heritage (1992).
104. For helpful overviews of these treaties, sec D.R. Rothwell, 'The Antarctic Treaty: 1961-1991 and Beyond', (1992) 14 Syd LR 62;
105. C.J. Redgwell, 'The Protection of the Antarctic Environment and the Ecosystem Approach' in Bowman and Redgwell, op cit, n 76. For more detailed consideration,
106. see F. Francioni and T. Scovazzi, International Law for Antarctica, 2nd edn (1996).
107. Misc 6 (1992), Cm 1960; 30 ILM 1461. For discussion, see C.J. Redgwell, 'Environmental Protection in Antarctica: The 1991 Protocol', (1994) 43 ICLQ 599; L. Pineschi, The Madrid Protocol on the Protection of the Antarctic Environment and its Effectiveness' in Francioni and Scovazzi, op cit, 82.
108. Misc 6 (1992), Cm 1960; 30 ILM 1461. For discussion, see C.J. Redgwell, 'Environmental Protection in Antarctica: The 1991 Protocol', (1994) 43 ICLQ 599; L. Pineschi, The Madrid Protocol on the Protection of the Antarctic Environment and its Effectiveness' in Francioni and Scovazzi, op cit, 82.
109. Protection for Antarctic wildlife had previously been afforded by the Agreed Measures for the Conservation of Antarctic Fauna and Flora 1964, 17 UST 996, as modified at 24 UST 1802.
110. UKTS 48 (1982), Cmnd 8714; 19 ILM 841. For discussion, see Lyster, op cit, n 2, Ch 9;
111. M. Howard, 'The Convention on the Conservation of Antarctic Marine Living Resources: A Five Year Review', (1989) 38 ICLQ 104;
112. F. Orrego Vicuna, 'The Regime of Antarctic Marine Living Resources' in Francioni and Scovazzi, op cit, n 82.
113. Lyster, ibid at 163.
114. Article 1(2).
115. See Lyster, loc cit, n 85.
116. See generally, R.L. Peters and T.E. Lovejoy (eds), Global Warming and Biological Diversity (1992) and, with reference to birds in particular, J.F. Burton, Birds and Climate Change (1995).
117. See generally, R.L. Peters and T.E. Lovejoy (eds), Global Warming and Biological Diversity (1992) and, with reference to birds in particular, J.F. Burton, Birds and Climate Change (1995).
118. Mise O (1993), Cm 2137; 31 ILM 848. For discussion, see D. Bodansky, 'The United Nations Framework Convention on Climate Change: A Commentary', (1993) 18 Yale JIL 451; J. Barrett, 'The Negotiation and Drafting of the Climate Change Convention' in R.R. Churchill and D. Freestone (eds), International Law and Global Climate Change (1991). For later developments, note the 1997 Kyoto Protocol to the Convention, UN Doc FCCC/CP/1997/L 7/Add 1; P.G.G. Davies, 'Global Warming and the Kyoto Protocol', (1998) 47 ICLQ 446.
119. Mise O (1993), Cm 2137; 31 ILM 848. For discussion, see D. Bodansky, 'The United Nations Framework Convention on Climate Change: A Commentary', (1993) 18 Yale JIL 451; J. Barrett, 'The Negotiation and Drafting of the Climate Change Convention' in R.R. Churchill and D. Freestone (eds), International Law and Global Climate Change (1991). For later developments, note the 1997 Kyoto Protocol to the Convention, UN Doc FCCC/CP/1997/L 7/Add 1; P.G.G. Davies, 'Global Warming and the Kyoto Protocol', (1998) 47 ICLQ 446.
120. Mise O (1993), Cm 2137; 31 ILM 848. For discussion, see D. Bodansky, 'The United Nations Framework Convention on Climate Change: A Commentary', (1993) 18 Yale JIL 451; J. Barrett, 'The Negotiation and Drafting of the Climate Change Convention' in R.R. Churchill and D. Freestone (eds), International Law and Global Climate Change (1991). For later developments, note the 1997 Kyoto Protocol to the Convention, UN Doc FCCC/CP/1997/L 7/Add 1; P.G.G. Davies, 'Global Warming and the Kyoto Protocol', (1998) 47 ICLQ 446.
121. See M.J. Bowman, 'Global Warming and the International Legal Protection of Wildlife' in Churchill and Freestone, op cit, n 90.
122. Ibid. There are signs that this issue is now beginning to be taken on board in some quarters: see, for example, CMS Recommendation 5(5), calling for a review of scientific work on this topic and an assessment of its relevance regarding the aims of the Bonn Convention. Note also that a sum of FFr40,000 was set aside under the Berne Convention budget for 1996 to enable a consultant to prepare a report on the long-term implications of global change (including climatic change) for the survival of certain European plant species: see Element 8(9), 'Berne Convention Programme of Activities and Budget for 1996', Doc T-PVS (96) 23, Appendix 8. It appears, however, that this matter was subsequently deferred: see Report of the Meeting of the Bureau, Doc T-PVS (96) 32, at 6.
123. Ibid. There are signs that this issue is now beginning to be taken on board in some quarters: see, for example, CMS Recommendation 5(5), calling for a review of scientific work on this topic and an assessment of its relevance regarding the aims of the Bonn Convention. Note also that a sum of FFr40,000 was set aside under the Berne Convention budget for 1996 to enable a consultant to prepare a report on the long-term implications of global change (including climatic change) for the survival of certain European plant species: see Element 8(9), 'Berne Convention Programme of Activities and Budget for 1996', Doc T-PVS (96) 23, Appendix 8. It appears, however, that this matter was subsequently deferred: see Report of the Meeting of the Bureau, Doc T-PVS (96) 32, at 6.
124. Misc 3 (1993), Cm 2127; 31 ILM 818. For discussion, see F. Burhenne-Guilmin and S. Casey-Lefkowitz, 'The Convention on Biological Diversity: A Hard Won Global Achievement', (1992) 3 Yr Bk of Int Environmental Law 43; Bowman and Redgwell, op cit, n 76; F. McConnell, The Biodiversity Convention: A Negotiating History (1996).
125. Misc 3 (1993), Cm 2127; 31 ILM 818. For discussion, see F. Burhenne-Guilmin and S. Casey-Lefkowitz, 'The Convention on Biological Diversity: A Hard Won Global Achievement', (1992) 3 Yr Bk of Int Environmental Law 43; Bowman and Redgwell, op cit, n 76; F. McConnell, The Biodiversity Convention: A Negotiating History (1996).
126. Misc 3 (1993), Cm 2127; 31 ILM 818. For discussion, see F. Burhenne-Guilmin and S. Casey-Lefkowitz, 'The Convention on Biological Diversity: A Hard Won Global Achievement', (1992) 3 Yr Bk of Int Environmental Law 43; Bowman and Redgwell, op cit, n 76; F. McConnell, The Biodiversity Convention: A Negotiating History (1996).
127. See Article 22(1).
128. For example, the relationship between the Berne Convention and the Biodiversity Convention was discussed at the thirteenth meeting of the Standing Committee of the former: see Doc T-PVS (93) 48, at 9. This resulted in the holding of a symposium in Monaco in 1994 entitled 'The United Nations Conference on Environment and Development (UNCED), the Convention on Biological Diversity and the Berne Convention: the Next Steps', (Council of Europe, Environmental Encounters Series, 22, 1995.) In addition, the recently adopted 'Pan-European Biological and Landscape Diversity Strategy', (Council of Europe, Nature and Environment Series, 74, 1996) is seen as 'a European response to support implementation of the Convention on Biological Diversity': ibid at 9.
129. In this context the emerging general themes and principles of international environmental law, including the concepts of sustainable utilisation and development, inter- and intra-generational equity, environmental impact assessment and the precautionary principle are of particular significance.
130. Undeniably, intergovernmental organisations play a vital role in the development of international law in general, and that relating to the environment in particular, but their personality can be regarded as derivative from that of states themselves. Plainly, individual human beings also enjoy a measure of international personality, but their involvement in the environmental field has been relatively limited. Nevertheless, it may be destined to increase, if only through the recognition of the human right to a decent environment, as to which, see A.E. Boyle and M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (1996).
131. IUCN, though note the points made under n 7 ((1999) 11 JEL 89), Part I of this article.
132. Note that the Council of Europe's European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations 1986, ETS 124, is concerned with recognition at the domestic level. For consideration of the role of NGOs on the international plane, see P. Sands, 'The Environment, Community and International Law' (1989) 30 Harv ILJ 393; J. Cameron, 'Compliance, Citizens and NGOs' in J. Cameron, J. Werksman and P. Roderick (eds), Improving Compliance with International Environmental Law (1996); D.G. Victor, K. Raustiala and E.B. Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments - Theory and Practice (1998), passim.
133. Note that the Council of Europe's European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations 1986, ETS 124, is concerned with recognition at the domestic level. For consideration of the role of NGOs on the international plane, see P. Sands, 'The Environment, Community and International Law' (1989) 30 Harv ILJ 393; J. Cameron, 'Compliance, Citizens and NGOs' in J. Cameron, J. Werksman and P. Roderick (eds), Improving Compliance with International Environmental Law (1996); D.G. Victor, K. Raustiala and E.B. Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments - Theory and Practice (1998), passim.
134. Note that the Council of Europe's European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations 1986, ETS 124, is concerned with recognition at the domestic level. For consideration of the role of NGOs on the international plane, see P. Sands, 'The Environment, Community and International Law' (1989) 30 Harv ILJ 393; J. Cameron, 'Compliance, Citizens and NGOs' in J. Cameron, J. Werksman and P. Roderick (eds), Improving Compliance with International Environmental Law (1996); D.G. Victor, K. Raustiala and E.B. Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments - Theory and Practice (1998), passim.
135. A recent review of the effectiveness of CITES, for example, observed that 'A few parties, both importing and exporting states, believe that the Convention is becoming too protectionist in regard to large charismatic species, because of the influence of certain NGOs at meetings of the Conference of the Parties. These organisations were said to be driven more by fund-raising concerns than conservation needs, and over-influential with certain Parties at meetings of the Conference of the Parties to the detriment of nature conservation': Environmental Resources Management, Study on How to Improve the Effectiveness of CITES (1996), at 21.
136. Changes in voting procedures, particularly those involving the increased use of secret ballots, may well constitute an attempt to limit the influence of NGOs. For discussion of recent developments to this effect under the Whaling Convention, see K. Simpson, 'The 50th Annual Meeting of the International Whaling Commission', (1998) 1 J Int Wildlife Law and Policy 279 at 281.
137. For a recent example, see the foreword to Heredia, Rose and Painter (eds), op cit, n 56, by J.P. Ribaut, Head of the Council of Europe's Environment, Conservation and Management Division. The ERM review of CITES, loc cit, n 100, observed that the view expressed in that extract 'should be balanced with a view expressed by most Parties that both conservation and trade organisations generally play a very valuable role under the convention'.
138. Recommendation 4(6).
139. See the preamble to the Convention, fourteenth recital.
140. Ramsar Recommendation REC C.5(6).
141. See Ramsar WG C.5(1) (Rev), at 4. The delegations offering to sponsor the recommendation were Malta and Sweden. For the approval of the measure in plenary session, following minor amendments, see PLEN C.5(9), at 5.
142. Ramsar Recommendation REC C.5(7).