International Environmental Law case

You are a new attorney at the U.S. Department of State. The first work assignment that you have been given is to deal with a pressing matter related to the Migratory Bird Treaty between the U.S and Canada, formally referred to as the 1916 Convention for the Protection of Migratory Birds. The Convention was amended in 1995 by a Protocol (the 1995 Protocol), which replaced the 1916 Convention in its entirety. In other words, the 1995 Protocol contains all the currently legally applicable provisions and is in force. [A complete version of the 1995 Protocol, including the 1996 transmittal memorandum to the U.S. Senate, is attached below.]

Last week, a group of university researchers, commercial wildlife dealers, and Native Alaskans visited the State Department to obtain permits for hunting and to collect bird eggs. Specifically, the university researchers would like to collect the eggs of migratory insectivorous birds in order to study the breeding patterns of various species. The commercial wildlife dealers would like to obtain permission to hunt waterfowl and to collect waterfowl eggs for sale to others. And the group of Native Alaskans, who are deemed to be indigenous inhabitants of Alaska, would like to engage in the hunting and collection of eggs of doves and wild pigeons for cultural and subsistence reasons.

A few days later, a group of environmentalists visited the State Department in order to advocate for the strengthening of protection for migratory birds. Specifically, they would like to see the closed season for the hunting of migratory birds increased to 11 months of the year, ideally February 1 – December 31 of each year.

The Secretary of State has asked for your analysis of the issues and options available for the federal government in light of the expressed desires and interests of the various groups. Among other things, the Secretary would like to know what the treaty allows the US to in response to the requests from the researchers, commercial wildlife dealers, and Native Alaskans. Furthermore, he is interested in your views of the potential issues and consequences that would arise if birds protected by the treaty are hunted illegally. Finally, the Secretary would also like to know whether and how it would be possible to respond to the request by the environmentalists.

The Secretary has asked you to ignore any issues of state wildlife law. The Secretary also knows that the Department of State is not in the business of issuing permits for hunting of migratory birds or collection of eggs, but you have been asked to ignore that.