the Supreme Court held that the Act for the Preservation of Antiquities, 77/ the basic statutory authority for the establishment of national monuments, authorized the protection not only of important archaeological sites, but also of areas inhabited by rare forms of wildlife (in that case, the endangered Devil's Hole pupfish). Thus, it is possible that some national monuments may qualify as "living species" nature monuments under the Convention. So also may a few national wildlife refuges, such as the Hawaiian Islands National Refuge, home of the endangered Hawaiian monk seal and generally off limits to all persons other than scientists conducting government approved research projects. In summary, it is unclear, apart from our national parks and possibly a few unique national monuments or wildlife refuges, whether the United States has yet established the four categories of areas contemplated by the Convention. If it has not, it is not alone, for most of the other signatory nations have likewise apparently ignored its requirements.78/ The second far-reaching aspect of the Convention is its requirement that the parties adopt or at least propose suitable laws and regulations for 78/ Interna Savini, Report on International and National Legislation investigation by properly accredited Arguably, the above language provides a basis, wholly independent of any Commerce Clause or Property Clause power, for federal regulation of all forms of wildlife, including "resident" wildlife traditionally managed by the states. If so, the recurrent legal clashes concerning state and federal authority over wildlife have, at least since 1940, been unnecessary.80/ On the other hand, the phrase "suitable laws and regulations" in the language quoted might be interpreted so as not to affect the otherwise applicable distribution of authority between the states and the federal government. A middle ground also seems possi ble. The preamble to the Convention recites a purpose "to protect and preserve in their natural habitat representatives of all species and genera . . . in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control." Thus, "suitable" laws and regulations might mean those designed to accomplish that limited purpose. In fact, the Endangered Species Act of 1973, which does preempt the states from their authority to regulate the taking of resident endangered and threatened species, recites the Convention as one of its sources of authority. 81/ Whether the Convention would also authorize more sweeping federal regulation, not limited to wildlife in danger of extinction, is as yet untested. The final noteworthy aspect of the Convention is its regulation of international trade in protected species. Article VIII of the Convention provides for the 79/ 80/ 81/ Article V. See Chapter Two supra. 16 U.S.C. $1531(a) (4) (C) (Supp. IV 1974). listing in an Annex of species whose protection "is declared to be of special urgency and importance."82/ Article IX then requires that protected species not be exported or imported without a certificate of lawful exportation from the country of origin. Although this form of regulation was substantially improved and broadened in 1973 by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 83/ the authority conferred by the 1940 Convention may nonetheless still be important. Thus, for example, at least seven Central and South American nations which are parties to the 1940 Convention had not yet ratified the 1973 Convention as of August, 1976. In very recent years, the protection of wildlife has been subsumed within international agreements directed more broadly at a variety of environmental concerns. Here too, there exists a parallel of sorts with recent domestic environmental legislation. Principal among these are the Declaration of the United Nations Conference on the Human Environment84/ and the Convention Concerning the Protection of the World Cultural and Natural Heritage.85/ The former, also known simply as the Stockholm Declaration, is a non-binding statement of general environmental principles subsequently approved by the United Nations General Assembly.86/ 82/ The list of species included in the Annex can be found at T.S. No. 981, pp. 27-77. It includes some, but not all species listed as endangered pursuant to the Endangered Species Act of 1973. 83/ March 3, 1973, 68 Dept. of State Bull. 619 (May 14, 1973), 84/ June 16, 1972, 67 Dept. of State Bull. 116 (1972), 11 Int'l Leg. Mats 1416-69 (1972). 85/ Nov. 23, 1972, T.I.A.S. No. 8226. 86/ U.N. Doc. A/PV.2112, at 6 (Dec. 15, 1972). The Stockholm Among these principles is one recognizing a "special responsibility to safeguard and wisely manage" wildlife and its habitat. More general are principles stating the importance of preserving "representative samples of natural ecosystems" and of "preserving vital renewable resources." Imposing on nations the duty to consider the environmental impacts of their activities are further principles stating the obligation of states "to ensure that activities within their jurisdiction or control do not cause damage to the environment of other nations," and to "take all possible steps to prevent pollution of the seas by substances that are liable . . . to harm living resources or marine life." The Convention Concerning the Protection of the World Cultural and Natural Heritage has as its object the preservation of both cultural monuments and natural areas having "universal value."87/ Among the natural areas included are "precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation." The designation of such areas is the responsibility of the nations in which they occur, as is the promulgation of protective regulations. The Convention also establishes a World Heritage Committee, with the power to grant international assistance to countries designating such areas. While the Convention is of limited utility for wildlife because of its failure to specify protective standards, it does offer a much needed mechanism for providing financial assistance to the less developed countries for wildlife protection purposes. laration on the Human Environment, 14 Harv. Int'l L. J. 87/ The Convention and its background are discussed in Meyer, D. The Assertion of Congressional Authority in International Regulation of Wildlife In recent years, Congress has asserted for itself an ever larger role in the development of international wildlife conservation policies. This chapter has already considered how the Pelly Amendment to the Fishermen's Protective Act and the Marine Mammal Protection Act seek to achieve that. The latter Act seeks to establish a whole international program of marine mammal protection around its policies. Only two of the ways it seeks to do this have thus far been considered. In addition to the two provisions already considered, the Marine Mammal Protection Act directs the Secretaries of Commerce and the Interior, through the Secretary of State, to initiate negotiations for new bilateral or multilateral agreements respecting three subjects: (1) marine mammal protection and conservation generally; 88/ (2) commercial fishing operations which are unduly harmful to marine mammals; 89/ and (3) the protection of specific ocean and land regions which are of special significance to the health and stability of marine mammals.90/ Though such efforts have begun, there have been few tangible results thus far.91/ Similarly, though the Act directed that an "international ministerial meeting on marine mammals" be convened before July 1, 1973,92/ it has yet to occur. Trauvaux Preparatoires for the UNESCO World Heritage Convention, 2 Earth L. J. 45 (1976). 16 U.S.C. $1378(a)(1) (Supp. IV 1974). 88/ 89/ Id. $1378(a)(2). 91/ 92/ For details as to the efforts undertaken thus far, see the annual reports of the Secretary of Commerce concerning the Administration of the Marine Mammal Protection Act of 1972. 16 U.S.C. §1378(a) (5) (Supp. IV 1974). |