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M.J. Bowman, International Treaties and the Global Protection of Birds: Part I. 11 JOURNAL OF ENVIRONMENTAL LAW 87 (1999).

M.J. Bowman, International Treaties and the Global Protection of Birds: Part II. 11 JOURNAL OF ENVIRONMENTAL LAW 281 (1999).

Learning What Works in International Law: Towards Adaptive Fitness

Michael Bowman states that the protection of birds was one of the first environmental issues that the international community pursued and that the lessons learned from these agreements can be applied to international environmental legislation in general. He explains that in the last hundred years many lessons have been learned dealing with the structures and mechanisms of international treaties. In particular, he notes these structures and mechanisms are necessary in order for international treaties to demonstrate "adaptable fitness." While changes occur in the international community, these mechanisms must be flexible in adapting to contemporary ecological concerns. He explains that if this adaptation does not occur and the structures are not flexible, it will result in what he calls "ultimate fossilization." Treaties that do not make the necessary changes will become outdated and ineffective. He also explains that treaties must have "rigor" which allows them to put constraint on governmental action.

      Bowman pushes for continuous development in international treaties. He also argues that, although non-binding instruments have their advantages, formal, legal instruments must be effectively implemented. He explains that binding force under international law has proven to be, and continues to remain, inescapable. Bowman also believes that the perception of the international community as a group of sovereign states has worked against the effectiveness of protective measures. He explains competing interests have caused governments to be reluctant to negotiate conservation treaties. Where politics are involved, it becomes more difficult to come to an agreement. He also adds that even when they are participating, sovereign states do so with less rigor, insufficient technical support and with mechanisms of insufficient force. He does point out exceptions such as the Netherlands in the Ramsar Convention and Germany in the Bonn Convention, but he maintains that the majority of governments take a much more cautious stance in participation. Instead, he argues, NGOs have played an increasingly large role in negotiations.

     Bowman explains that the first and second generation conservation treaties are still in force and have had an effect on the development of national strategies. However, they have not been extremely influential because of "structural deficiency." They lack effective administrative machinery, according to Bowman. This machinery is used to monitor, implement and adapt to changes in the obligations under the treaty. He argues that these early treaties now exist mainly on paper because they have little practical impact on current policies. For this reason, he refers to them as "sleeping treaties." Bowman argues that more effective, powerful treaties came about after the late 1960s, when the seriousness of environmental problems became increasingly apparent. Overall, Bowman contends that later treaties have been effective because of a number of factors including: reporting obligations, the holding of regular meetings to monitor progress, the participation of NGOs, the establishment of a permanent secretariat and appropriate funding mechanisms. For his example, he offers the Bonn Convention.

     Bowman states that the 1979 Bonn Convention of Migratory Species of Wild Animals has probably the greatest potential for effective and comprehensive protection of bird species for the long term. He argues that from the beginning it has had the necessary institutional mechanism for maximizing the effective implementation of the convention. The establishment of regular meetings for the Conference of the Parties, rules of procedure, participation of non-party states and organizations, setting up a permanent Secretariat provided by UNEP, and the forming of a Scientific Council for technical advice have all contributed to the treaty's strength. The treaty also has had its weaknesses, especially in the limited participation of some states, such as Canada, Mexico and the United States. Implementation has been hindered by a lack of resources and poor compliance with financial/reporting obligations. More specialized "agreements," which are designed to establish the machinery for the performance of the treaty and monitor its effectiveness, have been slow to advance as well. Still, progress has been made.

These agreements deal with specific groups of migratory species, and have been helpful in making the Convention more detailed and particularized. For example, Bowman uses the Agreement on the Conservation of African-Eurasian Migratory Waterbirds as an example of a successful agreement under the Convention. This particular agreement has set up a Meeting of the Parties, a Technical Committee and a Secretariat, with supporting financial provisions. Another strength is its detailed application and prioritizing conservation measures through an Action Plan. This is significant, according to Bowman, because this plan is reviewed at each ordinary session of the Meeting of the Parties. It provides for the "evolution of yet a further tier of conservation norms." The Action Plan contributes to adaptive fitness because it accounts for changes in the treaty's list of species and in environmental law in general. Action Plans also help because they identify individual responsibilities for states and organizations. Under these smaller agreements of the Convention, the conservation status of the species are constantly under review and can receive more special attention. So, while Bowman states that overall progress has been slow with the Bonn Convention, he also maintains that the mechanisms are in place for long term effectiveness.

The International Treaty on Plant Genetic Resources for Food and Agriculture exhibits the potential for adaptive fitness. Although the treaty has not been ratified and its effects cannot yet be assessed, it has already shown it can adapt to changing times. The treaty originated as the International Undertaking in 1983, a non-binding agreement on plant genetic resources. As the need for a legally-binding agreement became apparent, the parties involved began work on its modification. Stricter rules were needed regarding access to genetic resources. It was necessary to make the International Undertaking law because allowing free access to these resources requires the participation of all involved, with consequences for those who do not meet the terms of the treaty.

Under the treaty, states that do not allow access to plant genetic resources are ordered to pay royalties to the financial mechanism. Bowman points out that conferences and meetings are necessary to keep the treaty up to date. The International Treaty on Plant Genetic Resources for Food and Agriculture has held a number of Working, Technical and Contact Group meetings over the years. The Commission on Plant Genetic Resources for Food and Agriculture has met regularly, every two years, and has held numerous Extraordinary and Inter-sessional meetings. Moreover, once implemented, the Conference of the Parties will meet every two years, with additional meetings as necessary. However, the treaty does have its weakness, pointing to Bowman's statement regarding states' individual interests. Like in the Bonn Convention, major states are not participating, which Bowman explains can damage the overall effectiveness of a treaty, especially because this agreement calls for the sharing of all states' plant genetic resources. The major dispute in the negotiations over intellectual property rights has kept Japan, Australia, Canada, The United States, and New Zealand from providing their complete support for the agreement. As wealthy nations, they have technologies that could be extremely helpful for the treaty and in the implementation of its goals. The "competing interests" of these nations, as Bowman calls them, have prevented them from adopting the treaty. Again, the success of the treaty in being adaptive cannot yet be assessed. It has its strengths and weaknesses and, like Bowman says about the Bonn Convention, only time will tell if it will display "adaptive fitness."

Roles in Making International Law and in Making it Work: The Vital Importance of NGOs

Nongovernmental organizations (NGOs) play a key role in environmental concerns, and according to Bowman, they are of vital importance in creating and carrying-out international law. NGOs undertake many diverse roles that can include everything from bring attention to environmental problems to enforcing treaties. More specifically, NGOs often undertake preliminary drafting of treaties, which then must be supported by research and scientific data - another task of NGOs. Additionally, an NGO may provide framework for establishing a secretariat. These tasks are related to the development of a treaty. After one has been implemented, NGOs will monitor the treaty after it has been ratified to ensure effectiveness. In cases of violation of treaty regulations, NGOs will expose the guilty parties, even taking part in litigation about these violations. The end result, hopefully, is a reduced number of infringement cases in the future.

In regards to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), NGOs have played a very important part. Although the treaty has yet to be ratified, NGOs like the ETC Group and Genetic Resources Action International (GRAIN), were key in drafting and development stages. The ETC Group and GRAIN acted as sources of scientific data, political policy opinion, and even a mean of the opposition reaching the Committee on Genetic Resources for Food and Agriculture (CGRFA).

For the ITPGRFA, international governmental organizations (IGOs) have played the most prominent role in the drafting of the treaty, bringing it from the stage of the International Undertaking to the current adopted form. The United Nations Committee on Biological Diversity (CBD) was the base from which numerous other organizations, like the CGRFA, grew from. The CBD itself was rooted the United Nations Environment Programme. However, attention brought to the needs of creating internationally accessible resources to plant genetic resources was certainly the work of NGOs so while the IGOs are prominent, they are not necessarily the most important.

Sovereign states have aided the drafting of the ITPGRFA and directed its development in creating amendments and provisions. But numerous states, like Australia, Canada and the United States act as barriers that must be overcome to achieve treaty ratification.
The role NGOs play now is without a doubt invaluable, and Bowman believes this role will expand even further. He states they will gain more legitimacy and eventually create major changes to the entire environmental process. This is based on various treaty regimes dealing with protection and conservation of bird populations. Specifically, he cites the fourth meeting of the Conference of the Parties to the Bonn Convention and the fifth meeting of the parties of the RAMSAR convention. At the Bonn Convention, NGOs were recognized for their contributions to the convention. It was also concluded that NGOs should be more fully incorporated in future conventions. This was done through an adopted recommendation that stated parties should share and consult with NGOs and provide information. More over, the recommendation asked that NGOs be part of the briefing sessions to raise their level of involvement.

The RAMSAR convention on wetland conservation also concluded that NGOs increasingly important players in the international realm and adopted a recommendation for national committee party members to have input from the NGOs, especially to provide direction on the domestic level. This recommendation was, itself, drafted by Birdlife International, and NGO.
No other group has to taken on so many diverse roles and responsibilities as NGOs. It seems that NGOs play the necessary role of being the outsider looking into the problems of IGOs, having different perspective and capabilities. And NGOs also act the way sovereign states should, would, or claim to act, after ratifying a treaty regime. Because of this, Bowman is correct in asserting the NGO will gain official recognition and influence a greater overall change in the international legal process.

Effectiveness in International Law: Spectacular Results vs. Damage Limitation

Treaties seem to work in two different realms: in theory and in reality. In theory, treaties would be able to achieve what Bowman calls "spectacular results." But in reality, the treaties provide only for "damage limitation." Bowman considers a treaty to have spectacular results when the trends environmental destruction and species extinction is totally reversed or eliminated. Damage limitation, on the other hand, is a more moderate solution. As the name says, a treaty can moderate levels of degradation and extinction.

None the less, Bowman feels treaties are still worthwhile for of three reasons. First, treaties provide a means of encouraging international cooperation. Second, they develop public awareness, bringing attention to cases of extreme violations of treaty provisions and creating political pressure. Third, treaties create a means of measuring adherence for policing role of conservation groups. Also, Bowman points out no government can completely disregard accusations of violating international legal obligations.

The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has yet to be ratified, so its effectiveness has yet to be measured. But if this treaty were to be ratified, it would definitely classify as a damage limitation treaty. There are so many exceptions for groups and states, along with provisions for maintaining status quo with certain storage and access systems. If during the ratification process nations demands are met, primarily on the topics of on intellectual property rights, farmers rights, and access, the treaty will do little more than restrain the destruction of current plant genetic resources available for international use.

03/27/2003

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