Final examination, Winter 2002

POL 122, Prof. Wandesforde-Smith

Question #4.

    Current international law is the result of decades of development and progress, especially in the realm of treaties involving the protection of bird species. After the Stockholm Conference in 1971, international law took an enormous step forward in effective bird protection. Unfortunately, there are still many more steps to be taken before a system of maintaining the world’s resources can be implemented, as demonstrated by bird protection regimes. Problems of limited applicability, escape clauses, and non-compliance make current international law rather inadequate for sustainable use of global resources.

    Two of the earliest conservation efforts for bird species were the Convention for the Preservation of Wild Animals, Birds, and Fish of Africa and the Protection of Birds Useful for Agriculture, in 1900 and 1920, respectfully. The African convention was limited to just African species on nature preserves that were deemed useful to man. The Agriculture treaty was only ratified by European nations and again, protected bird species that were useful. It actually encourage destruction of species determined harmful to human interests. Both treaties were limited in applicability, as they spoke to a limited region and specific species. And although these treaties are out of date, more recent treaties also suffer the same trouble.

    Looking at the modern era of treaties, or those created after the 1971 Stockholm Convention, limited applicability comes up again with the Convention of the Conservation of European Wildlife of 1979. Also known as the Berne Convention, the agreements created expand illegitimate jurisdiction over non-European species. Additionally, this is a regional treaty for nations of the European continent.

   The 1950 International Convention for Protection of Birds faced difficulties with too many exceptions. While birds were protected during periods when they were most vulnerable, such as nesting and migration, there were numerous exceptions for states and private interests. Exemptions for science and education were extensive. Some states were even able to ratify with treaty under limited obligations. In 1973, the Convention on Trade in Endangered Species (CITES) also faced the dilemma of exceptions, particularly with captivity-bred animals.

    CITES faces another question of how to deal with non-compliance. Numerous nations disregard rules for bird transportation conditions, which must be precise to ensure no harm to the birds. Pressure for compliance with bird welfare is low because it’s often difficult to ascertain at which point, and in which nation, the birds suffered harsh conditions. Even the work of nongovernmental organizations has yet to produce higher levels of compliance with transportation guidelines.

    But one problem that has not carried over from first generation treaties to present treaties is treaty-fossilization. If a treaty lacks an infrastructure, means for enforcement, or is no longer relevant to current ecological needs, it simply becomes unusable. The 1930 Western Hemisphere Convention is still technically in effect but had no infrastructure to implement treaty provisions. But at the Stockholm Conference, some forty years later, these issues were identified and guidelines were created to ensure organized, progressive treaties. One might argue that the Ramsar Wetland conference created vague obligations of states, but it is no where near as weak as pre-Stockholm Conference agreements.

   It’s difficult to pass judgement on treaties recently ratified. It will take several years to understand a treaty’s full impact. For example, the Protocol to the Antarctic Treaty on Environmental Protection of 1991 or the Law of the Non-Navigable Uses of International Watercourses of 1997 appear to have the complete infrastructure and promising results, but it’s too early to make a complete evaluation. The international system has come a long way in the past one hundred years but still has to overcome remaining problems in order to adequately protect the world’s resources

Question #5.        

   In Bowman’s article on the history of international treaties concerning the protection of birds, he presents the concepts of "adaptive fitness" and "ultimate fossilization," two possible fates for treaty regimes. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has been adopted but has yet to be ratified by the global community. None the less, the ITPGRFA already shows adaptive qualities because of its developed infrastructure and ability for textual language to be altered without faltering from it’s core purpose: to maintain internationally accessible plant genetic resource facilities in order to promote biodiversity.

   According to Bowman, if a treaty is not flexible as to keep up with modern demands and ecological situations, nor rigorous enough to enforce real constraint on states’ actions, it is destined for ultimate fossilization. This means that the international agreement will simply not apply any more. The other end of the spectrum presents treaties exhibiting adaptive fitness. These types of treaties have well-developed infrastructures and can apply to any environmental condition arising under its jurisdiction.

    The ITPGRFA qualifies as the later type of treaty because of a complete infrastructure, continuous conferences, and sanctions for treaty violation. The ITPGRFA grew out of the Commission on Genetic Resources for Food and Agriculture (CGRFA) which itself has deep roots in the Convention on Biological Diversity of the United Nations. The CGRFA has three components to ensure it meets the current environmental concerns. The secretariat, José Esquinas-Alcazar, is in charge of maintaining the treaty during non-conference times and ensures day to day business is addressed. Secondly, the subsidiary bodies, consisting of intergovernmental organizations and nongovernmental organizations, report scientific data and information, and act as watch dogs to ensure treaty adherence. Should one of these groups come across a non-complying state, they can enforce sanctions for the violation. For the ITPGRFA, this is a monetary punishment, requiring the infringing party to pay additional royalties for upkeep of research and storage facilities.

    Finally, there is an amendment process that helps keep the treaty current. States can introduce provisions to change the text, and if adopted by the governing body and approved by a consensus, or majority of ratifying states, the amendment goes into effect.

    This treaty could shift dramatically with Australia, Canada, Japan, and the United States threatening not to ratify the treaty until the intellectual property right standards are changed. But where the treaty stands as of March 2002, it would certainly be considered to have adaptive fitness.

    So although the ITPGRFA has yet to be put into force but it already shows potential for adaptive fitness. The ITPGRFA has an established infrastructure, held ongoing conferences of the parties, and undergone many revisions without changing the core values. Despite conflicts among specialized interests, the treaty has maintained its flexibility and rigor, evading a future of fossilization.

Question #6.        

   As Michael Bowman’s thesis states, international environmental law will never be able to achieve spectacular results. I agree with his thesis because all states are regarded as equal and sovereign in the international system, economic and political agendas compete with environmental agendas, and treaty regimes falter in effectiveness after implementation.

   Bowman describes treaties able to create spectacular results as a complete reversal or elimination of environmental destruction and species extinction from current environmental trends. He believes treaties are capable of only limiting damage to environmental resources. And while treaties are still important, they come no where near ending ecosystem degradation.

    International governmental organizations, nongovernmental organizations, and other sovereign states cannot directly force a nation to comply, or ratify, a treaty. Certainly these groups can create situations where a non-ratifying nation would benefit from signing to avoid trade sanctions, loss of leadership credibility, or to satisfy domestic interest groups. But the international system is anarchic with each nation acting as an independent, sovereign, as the Treaty of Westphalia established in 1648.

    Environmental concerns are stepping onto the main stage of global concerns, but economic and political agendas still have the leading role. National leaders and politicians must weigh policy decisions without ignoring non-environmental domestic interest groups, like the oil, lumber and farmers industries. Until conservation and protection of natural resources and lands becomes a primary concern for all industries, it’s unlikely a turn-around to spectacular results will occur.

    Another issue with global compliance is different parts of the world face different problems. A nation with ocean borders may have strong environmental policies to protect coastline ecosystems, but a land-locked nation may find little incentive to comply with such a treaty.

    Although there is no policing power forcing a turn around, a legitimate regulating body does exist for states that have ratified international agreements. Fines, sanctions, and other punishments are deterrents for violating treaty provisions. But enforcing the provisions is often problematic because if there is no person or group to report a violation to the overseeing body, there is no way to know. A treaty must have a well-established infrastructure to monitor and report any violations. This is often laid out in the written treaty text but the actual effectiveness of the treaty in action doesn’t always work as well as planned.

    This is one of the problems for the International Treaty on Plant Genetic Resources for Food and Agriculture. For example, the treaty has established rules against intellectual copyright infringement for certain plant varieties. Though the treaty has yet to be ratified, the Australian government has so far agreed to report any patent infringement to the Commission on Genetic Resources for Food and Agriculture. However, there are at least two instances where the Australian government has granted patents to plant varieties already claimed by other nations.

    As long as states have sovereign rights, achieving spectacular results on the global scale is not possible. Even if there is a legitimate source of police power to enforce sanctions for noncompliance, this only applies to states that have ratified the treaty. And because a nation cannot be forced to comply with a treaty, there will always be nations who disregard environmental causes. Thus, damage limitation will be the extent of environmental treaties in international law.