I am thrilled and delighted that a second edition of Lyster's International Wildlife Law has been written and published, and I feel very privileged to have been asked to write this foreword.

When I first wrote International Wildlife Law in the early 1980s, it was the most comprehensive book on the subject available – indeed pretty much the only one available! It reflected the growing concern at the time for threatened species and their habitats, and the emerging body of regional and global agreements to protect them. However, so much has changed since the early 1980s. Then the word ‘biodiversity’, to describe the variety of species and genetic material within species, had scarcely been invented, and there was no Biodiversity Convention. That was only signed in 1992, at the Earth Summit in Rio de Janeiro. Climate change was a subject that a few visionaries were starting to express concern about, but was nothing like the headline issue it is today.

And it is only in the last twenty-five years that the concept of sustainable development has taken centre stage. In the early days, wildlife conservation was seen as a sensible and moral thing to do to prevent species extinction. But the deep and strong interdependence between people and wildlife – the idea that meeting human development aspirations and wildlife conservation are dependent on each other, that you cannot save wildlife without taking account of human needs – was nothing like as widely accepted as it is today.

Part IV examines four treaties which form the centrepiece of international wildlife law and are the most important agreements considered in this book. They were all concluded in the 1970s and, in contrast to the treaties discussed in earlier chapters, they are neither restricted to a few individual species nor to certain geographical regions. They are the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (generally known as “Ramsar”, the name of the Iranian town where it was signed), the Convention Concerning the Protection of the World Cultural and Natural Heritage (the “World Heritage Convention”), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), and the Convention on the Conservation of Migratory Species of Wild Animals (generally known as the “Bonn Convention” because it was signed in the West German capital city).

Each of the four has its limitations as a legal conservation instrument. Ramsar is limited to wetlands, the World Heritage Convention is concerned with a few select areas of “outstanding universal value”, CITES is restricted to the regulation of international trade, and the Bonn Convention covers only migratory species. Together, however, the four treaties comprise a powerful body of international law affecting the conservation of an immense number and variety of wild animals and plants. Ramsar's broad definition of wetlands includes a wide diversity of important wildlife habitats. CITES is vitally important for parrots, crocodiles, cacti, sea turtles, cats, rhinos and dozens of other groups of species whose survival is threatened, or potentially threatened, by international trade.

Background

Few species are as well covered by international law as the vicuna (Vicugna vicugna), a South American cameloid closely related to the llama and reputed to have the finest and most expensive wool in the world. Three international conventions have been concluded in the last fifteen years specifically to promote its conservation. They are the Convention for the Conservation of Vicuna (concluded in La Paz in October 1969 and hereinafter called the “La Paz Agreement”) to which Argentina, Bolivia, Chile, Peru and Ecuador are Parties, the Convention for the Conservation and Management of Vicuna (signed in Lima on 16 October 1979 and hereinafter called the “Lima Convention”) to which Bolivia, Chile, Ecuador and Peru are Parties, and the bilateral Agreement Between the Bolivian and Argentinian Governments for the Protection and Conservation of Vicuna (signed in Buenos Aires on 16 February 1981 and hereinafter called the “Buenos Aires Agreement”). In addition, vicuna are listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).

The extraordinary attention lavished on vicuna by lawmakers reflects the heated debate which has raged in recent years as to whether or not controlled exploitation of the species should be allowed.

The Contracting Parties,

RECALLING the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted under the Antarctic Treaty signed at Washington on 1 December 1959;

RECOGNIZING the general concern about the vulnerability of Antarctic seals to commercial exploitation and the consequent need for effective conservation measures;

RECOGNIZING that the stocks of Antarctic seals are an important living resource in the marine environment which requires an international agreement for its effective conservation;

RECOGNIZING that this resource should not be depleted by over-exploitation, and hence that any harvesting should be regulated so as not to exceed the levels of the optimum sustainable yield;

RECOGNIZING that in order to improve scientific knowledge and so place exploitation on a rational basis, every effort should be made both to encourage biological and other research on Antarctic seal populations and to gain information from such research and from the statistics of future sealing operations, so that further suitable regulations may be formulated;

NOTING that the Scientific Committee on Antarctic Research of the International Council of Scientific Unions (SCAR) is willing to carry out the tasks requested of it in this Convention;

DESIRING to promote and achieve the objectives of protection, scientific study and rational use of Antarctic seals, and to maintain a satisfactory balance within the ecological system,

HAVE AGREED as follows:

Article 1

SCOPE

1. This Convention applies to the seas south of 60° South Latitude, in respect of which the Contracting Parties affirm the provisions of Article IV of the Antarctic Treaty.

Background

The first international agreement to conserve African wildlife was signed in London on 19 May 1900. It was called the Convention for the Preservation of Wild Animals, Birds and Fish in Africa. It was signed by the colonial powers then governing much of Africa – France, Germany, Great Britain, Italy, Portugal and Spain – and its objective was “to prevent the uncontrolled massacre and to ensure the conservation of diverse wild animal species in their African possessions which are useful to man or inoffensive.” As long ago as 1900 the teeming herds of African wild animals were starting to diminish, and the primary goal of the Convention was to preserve a good supply of game for trophy hunters, ivory traders and skin dealers.

The 1900 Convention prohibited the killing of all specimens of species listed in Table 1 of the Convention and “all other animals which each local government judges necessary to protect, either because of their usefulness or because of their rarity and danger of disappearance.” Table 1 was divided into Series A (“useful animals”) and Series B (“animals that are rare and in danger of disappearance”). Series A contained the secretary bird and all vultures, owls and oxpeckers. Series B consisted of “giraffe, gorillas, chimpanzee, mountain zebra, wild asses, white tailed gnu and pygmy hippopotamus.”

Introduction

The origins of the Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”) can be traced back to the Antarctic Treaty, which was signed in 1959, came into force in June 1961 and established the legal framework for dealing with a wide variety of issues involving Antarctica. The Antarctic Treaty applies to the entire area south of 60° South latitude except for the high seas and is a kind of self-denying ordinance under which the twelve “Consultative Parties” agreed to use Antarctica for peaceful purposes only, to prohibit the disposal of nuclear waste there, to freeze the legal status quo with respect to territorial claims and to promote free scientific research in the continent. The twelve Consultative Parties are Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, U.K., U.S.A., and U.S.S.R. They have since been joined by Brazil, Poland, the Federal Republic of Germany and India.

The Antarctic Treaty does not address the exploitation, ownership or management of living or non-living resources, although it does authorise the Consultative Parties to recommend measures with respect to the “preservation and conservation of living resources in Antarctica”. Pursuant to this authority, the Consultative Parties adopted several conservation measures in the early 1960s, and when Japan and the U.S.S.R. began fishing for krill (Euphausia superba) in the late 1960s and early 1970s the Consultative Parties decided to take it upon themselves to develop a legal regime to control the emerging fishery.

The Governments whose duly authorized representatives have subscribed hereto,

RECOGNIZING the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks;

CONSIDERING that the history of whaling has seen over-fishing of one area after another and of one species of whale after another to such a degree that it is essential to protect all species of whales from further over-fishing;

RECOGNIZING that the whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the numbers of whales which may be captured without endangering these natural resources;

RECOGNIZING that it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress;

RECOGNIZING that in the course of achieving these objectives, whaling operations should be confined to those species best able to sustain exploitation in order to give an interval for recovery to certain species of whales now depleted in numbers;

DESIRING to establish a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks on the basis of the principles embodied in the provisions of the International Agreement for the Regulation of Whaling signed in London on 8 June 1937, and the protocols to that Agreement signed in London on 24 June 1938, and 26 November 1945; and

HAVING decided to conclude a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry;

HAVE AGREED as follows:

Article I

1. This Convention includes the Schedule attached thereto which forms an integral part thereof.

Background

In December 1938 the Eighth International Conference of American States met in Lima and recommended to the Pan American Union that it should establish a committee of experts to study problems relating to nature and wildlife in the American republics and should prepare a draft convention for their protection. The recommendation was adopted, and the committee of experts drew up the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (the “Western Hemisphere Convention”). The Western Hemisphere Convention was opened for signature to Member States of the Pan American Union (now called the Organization of American States, hereinafter referred to as the “OAS”) on 12 October 1940 and entered into force on 30 April 1942. At the time of writing, it has been signed by twenty one Member States of OAS and ratified by eighteen of them.

The Western Hemisphere Convention was a visionary instrument, well ahead of its time in terms of the concepts it espouses. The protection of species from man-induced extinction, the establishment of protected areas, the regulation of international trade in wildlife, special measures for migratory birds and the need for international cooperation are all elements of wildlife conservation which are covered by the Convention – many of them for the first time by an international treaty – and which have reappeared time and again in other conventions concluded since 1940.

Background

The history of man's depletion of one species of great whale after another is perhaps the most infamous example of human mismanagement of the earth's natural resources. As early as the thirteenth century, Basque whalers had so over-exploited right whales (Balaena glacialis) in the Bay of Biscay that they were forced to look further afield for their prey. Since then, the whaling industry has proceeded in a series of booms and slumps as the discovery of new whaling techniques and new whaling grounds has been invariably followed by rapid depletion of one population after another. Great whales and whalers now survive in numbers which are a small fraction of their former abundance, and the commercial whaling industry, which once employed over 70,000 people in the U.S.A. alone, is almost dead.

Since so many whales occur beyond the boundaries of national jurisdiction, the need for international cooperation in preventing their over-exploitation is self-evident. Rather surprisingly, it was not until 1931 that the first whaling treaty, the Convention for the Regulation of Whaling, was concluded. The 1931 Convention went some way towards controlling the worst whaling practices, but it only scratched the surface of the real problem.

THE GOVERNMENTS of Canada, Denmark, Norway, the Union of Soviet Socialist Republics, and the United States of America,

RECOGNIZING the special responsibilities and special interests of the States of the Arctic Region in relation to the protection of the fauna and flora of the Arctic Region;

RECOGNIZING that the polar bear is a significant resource of the Arctic Region which requires additional protection;

HAVING DECIDED that such protection should be achieved through co-ordinated national measures taken by the States of the Arctic Region;

DESIRING to take immediate action to bring further conservation and management measures into effect;

HAVE AGREED as follows:

Article I

1. The taking of polar bears shall be prohibited except as provided in Article III.

2. For the purposes of this Agreement, the term “taking” includes hunting, killing and capturing.

Article II

Each Contracting Party shall 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.

Article III

1. Subject to the provisions of Articles II and IV, any Contracting Party may allow the taking of polar bears when such taking is carried out:

1. a) for bona fide scientific purposes; or

2. b) by that Party for conservation purposes; or

3. c) to prevent serious disturbance of the management of other living resources, subject to forfeiture to that Party of the skins and other items of value resulting from such taking; or

4. […]

Introduction

There are two kinds of international law: private and public. Private international law is concerned, primarily on the plane of relations between individuals, with the resolution of conflicts between the laws of different States. It is not relevant for the purposes of this book and will not be considered any further. Public international law is the system governing relations between States and covers every aspect of inter-State relations such as jurisdiction, claims to territory, use of the sea and State responsibility, to name but a few. Public international law can be subdivided into treaty law – in which the obligations of States are enshrined in and derived from a written agreement, usually known as a treaty or convention – and customary law, which embraces all international law not specifically included in treaties. Since this book is concerned exclusively with treaties and conventions which protect wildlife, this chapter is limited to a description of some of the principal aspects of the law relating to treaties.

Nature of treaties

Most States have a supreme law-making body – a Parliament, a Soviet, a National Assembly or similar organisation – to adopt laws for their citizens. The international community, however, has no legislature capable of formulating laws binding on individual States or their peoples without their individual consent.

Seals

Sealing is one of the oldest forms of commercial exploitation of wildlife. Starting in the late eighteenth century, commercial sealing expanded steadily during the course of the nineteenth century, reaching a peak about 1890. By the early 1900s, so many seal populations had been depleted – some were on the verge of extinction – that the need for controls on their exploitation had become imperative. Since many seals either occurred outside areas of national jurisdiction or migrated from one State's jurisdiction to another, international cooperation was vital if controls were to be successful. A number of sealing treaties have been concluded since the turn of the century, and this chapter examines four which are now in force. They are the Interim Convention on the Conservation of North Pacific Fur Seals, the Convention for the Conservation of Antarctic Seals, the Agreement on Measures to Regulate Sealing and to Protect Seal Stocks in the Northeastern Part of the Atlantic Ocean and the Agreement on Sealing and the Conservation of Seal Stocks in the Northwest Atlantic.

These four treaties are concerned exclusively with seals, but it should be emphasised that they are not the only treaties governing the conservation and exploitation of seals. There are several more which are considered elsewhere in this book because they cover other species as well as seals.