US-Mexico Bird Migration Treaty (MIGRATE)



          CASE NUMBER:         117 
          CASE MNEMONIC:      MIGRATE
          CASE NAME:          Migration, Bird

A.        IDENTIFICATION
1.        The Issue
     Mexico and the United States signed an official Migratory Bird
Treaty in 1936.  The treaty formalized the trade policy and rights 
of the two nations regarding the birds.  For years, the only
questions addressed against the treaty concerned questions of
ownership of a particular state as opposed to the federal
government.  However, with the passage of the NAFTA and of the 
actions of certain environmental groups in the United States, a new

series of questions are now circulating.  Environmentalists and
wildlife supporters are worried that the serious habitat and 
endangered species problems on the border will be exacerbated by
NAFTA.
2.        Description
     The United States originally did not want to enter into a
treaty relationship with the other states and parties involved in
the migratory bird question.  In fact, a letter from the Department
of State written in 1920, under the auspices of Woodrow Wilson
states:

     In view of existing conditions, the time does not seem
     opportune to undertake the negotiation of a treaty for
     the protection of migratory birds with the Republic of
     Mexico...In the meantime, it appears that the matter of
     taking up the negotiations of treaties for the protection
     of migratory birds with any of the countries south of the
     United States should be held in abeyance until the
     department can secure the necessary information to
     determine with some degree of certainty the desirability
     and benefits to be derived there from.


     By the 1930s, views had changed about the situation of
migratory birds.  There was growing concern over the status of
endangered migratory birds, such as the spotted owl (see TIMOWL case).
  Birds that flew from Central or even South America to North
America faced many hunters.  Most of the hunters were not illegal
poachers or professional hunters, but rather peasants who were
simply trying to shoot their "Sunday meal."  Officials worried that
with over-hunting in different countries, the birds would rapidly
die out.  Because the majority of the territory the birds flew over
was North American, the United States and Mexico came to sign the
"Convenio para la proteccion de aves migratorias y de mamiferos
cinegetico" on February 7, 1936 in Mexico City.  This treaty is
still active today.
     Article I of the treaty allows both countries the utilization
of the birds for the "purposes of sport, food, commerce and
industry."  Article II then offers limitations to when and how the
birds may be hunted.  For example, "hunting seasons" were
introduced and it became illegal to hunt birds past a certain point
in the year.  Article III secures the trade industry of the birds,
stating, "The parties...agree...not to permit the transportation
over the Mexican American border of migratory birds, dead or alive,
their parts or products, without a permit of authorization provided
for that purpose by the government of each country."  Article IV
then states and names all bird species that are considered
migratory (see Species genera under the Environmental Filter.) 
Eight species are considered game birds, such as ducks and geese,
while 23 species are considered non-game birds, such as cranes and
rails.  The most important aspect of this article is the inclusion
of "Others" category in which other species may be added to the
list if both parties agree.  This actually happened in 1972 when
the (Crow) family was added to the list.
     Crows were considered vermin and nuisances earlier in this
century, because they ate growing corn (thus the need for the
scarecrow) and chicks and eggs of other birds.  Canada even had a
widespread movement to kill all the crows in the country.  Why
would the United States agree to limit the hunting of this
seemingly unwanted pest?  Crows were added to the list as strictly
a "political gesture," according to the same Frederick Post
article.  Mexico asked that the bird be included in the "other"
list in the Migratory Bird treaty, and thus, it was.  
     The Migratory Bird Treaty was tested early in its existence. 
Many individual states within the United States claimed ownership
of the birds through private ownership of land.  The idea was later
upheld through several cases in the United States Supreme Court
that "...the State, as sovereign power, holds the title to animals
or birds "ferae naturae" within its borders.  The same result is
reached where a Territory is concerned and the Federal Government
is the sovereign."
     However, the treaty's constitutionality was questioned in the
Supreme Court case Missouri v. Holland. In this case, the state of
Missouri utilized the concept of ownership of the birds to dissuade
the statute.  In the decision the court wrote:

     To put the claim of the State upon title is to lean upon
     a slender reed.  Wild birds are not in the possession of
     anyone; and possession is the beginning of ownership. 
     The whole foundation of the State's rights is the
     presence within their jurisdiction of birds that
     yesterday had not arrived, tomorrow may be in another
     state and in a week a thousand miles away.  If we are to
     be accurate we cannot put the case of the State upon
     higher ground than that the treaty deals with creatures
     that for the moment are within the State borders, that it
     must be carried out by officers of the United States
     within the same territory, and that but for the treaty
     the state would be free to regulate this subject
     itself.

     Thus, the Supreme Court struck down the idea of private
ownership of migratory birds.  Yet, this was to parallel a new
concern some 50 years later with the North American Free Trade
Agreement.  Instead of the issues being domestic versus federal
within the United States, it questions the situation of Mexico now.
     These migratory birds are important for several reasons.  One
reason is to help control pests.  Smaller migratory birds such as
the plover eat smaller insects and help farmers with their crops. 
(Of course, this also means such pest birds such as the crows also
can effect the crops.)  These birds are also things of natural
beauty.  Anyone who has seen a hawk soar knows the wonder of these
birds.  Finally, game birds such as ducks and geese help sustain
poor people and give them something to eat.  While this may seem to
contradict the idea of saving these birds, some "martyr" birds may
be necessary for human survival.
     The original agreement was meant to protect birds that flew
throughout the Americas.  As of this point in time, there is no
agreement about the protection of the birds from the NAFTA's impact
(see NAFTA case).
     NAFTA, while including such side agreements about the
Environment or Labor, has virtually ignored the agreement's impact
on wildlife.  The 2,000 mile border with Mexico is home to 460
endangered or rare species including the black vulture, several
species of hawks and the spotted owl.  In an ironic shadow of the
past, the Federal Government is now worried about wildlife
protection in Mexico -- where they have no right to intervene. 
Many wildlife groups are advocating the creation of an
international governing body to secure the use of natural resources
(including wildlife) on the border.  There has been no report, as
to whether the Mexican government will agree to another clause or
side agreement in the NAFTA.
     Marla Cone maintains that although environmental groups and
the Clinton Administration have hammered out side agreements with
Mexico that would aid in the clean-up of border sewage and toxic
pollution, the agreement's impact on wildlife and its habitat has
virtually been ignored.  The 2,000-mile border with Mexico is home
to 460 endangered or rare species and eight large U.S. wildlife
refugees, such as the black vulture, various hawks, and the spotted
owl.  According to an analysis by the Fish and Wildlife Service,
increased development after the lifting of trade barriers will
cause direct or indirect impacts on most, if not all of the
wildlife.  Federal officials are also concerned about the impact
on wildlife in Mexico, because protection is less assured, yet
where  U.S. officials have no right to interfere.
     The migratory birds are important for many reasons, some of  
which there is little space to elaborate upon.  One of the main   
reasons is to help control the pest population.  Smaller migratory
birds such as the plover eat insects and aid farmers with their
crops.  Game birds such as ducks and geese help sustain the food
supply to needy persons.  Most environmental groups argue on the
side of the natural beauty of the birds.  For example, the hawk and
the jaguar are beautiful species that simply demand protection from
the human population who enjoy watching them.  Finally, if no steps
are made to protect the migratory birds, it could affect the
migration patterns of the birds worldwide.
     While new environmental inspectors fan out across Mexico,
their work continues to be hampered by issues of uncertain
resources, political considerations, and occasionally some
corruption.  Strategies to limit the use of hazardous materials or
otherwise prevent pollution remain infrequent; and public
disclosure  of information about companies' environmental practices
is unimaginable.  As officials evoke images of a vast consumer
market with boundless opportunities for investment, Mexico's lack
of basic environmental services is glaring.  Tim Golden reports
that Government figures show that in the valley of Mexico, home to
some 16 million people, almost nine-tenths of the waste water goes
untreated.  He further notes that for some 60,000 industrial
companies, there is only one toxic-waste landfill.  There are no
commercial incinerators for toxic wastes either.  Thus, wastes and
pollution have led to unsound ecological areas that filter the
controversy surrounding the NAFTA and the border.
     The water's edge on the border between Mexico and the United 
States most effectively tells the story of how the birds have died
in droves.  Mixed in among the detritus of everyday consumption
strewn along the Silva reservoir's shore are bills, bones, and
feathers of more than 25,000 North American migratory birds that
have perished since mid-December of 1994 at their winter home. 
Thus, as Howard LaFranchi reports, there will be no more
green-billed teals or northern pintail ducks floating on most of
the steel-gray reservoirs near the border.  Environmental
attention has been drawn to the complete impunity with which Leon,
surrounding towns, and local industries have fouled the waters.
     In Leon, some four hours north of Mexico City, more than 500 
leather and related factories operate.  LaFranchi notes that Leon's
leather industry alone uses many various chemicals to prepare
approximately 15,000 hides processed everyday.  However, the city
and plants still neglect treating any of their waste water.  The
city has scheduled its first water treatment plants -- one for
household waste water, one for industry -- in February of 1996.  In
the meantime, waste pours into local streams and rivers.  The
debate over the investigation and the causes of the birds' demise
will likely continue.
     Most environmentalists and residents around the reservoirs
blame the leather and chemical plants, while the National Water
Commission or the CNA continues to conduct studies that cover up
the chemical-waste problem.  However, there remains little debate
on the fact that the investigation into the causes behind the
transgressions has been stalled by economic and political
interests.  
     In this era of heightened environmental concerns, the tragedy
of the birds, on a backdrop of slow investigation and protection,
has also taken international overtones.  The twenty-one species of
birds, many of which remain on the U.S. endangered lists, will not
be returning north.  Homero Aridjis, president of the prominent
Mexico City environmental organization, Grupo de los Cien (Group of
100), confirms that this should be a "lesson for our northern
neighbors that it is not good enough to protect the birds in the
United States or Canada.  If they spend the winter in other
countries, they may never come back."
     One polluter, the Medina Torres shoe-sole factory, lies     
upstream form the Silva Reservoir.  The factory is owned by the
family of Guanajunto Gov. Carlos Medina Placencia and received a
citation two years ago for its direct discharge of chemical wastes.

According to CNA officials, a fine was assessed but "put off"
following an agreement by the company to develop water-treatment
facilities.  The treatment did not take place, and last January
a new fine was assessed.  "That one won't be paid, either," says a
local journalist.  "These companies are untouchable".  The
leather industry directly and indirectly supports the economic
welfare of many local residents of this and other nearby
reservoirs, thus, there has been slow reaction to the increasing
pollution over the past few years.  However, environmentalists seem
to be drawing more volunteers as people realize that if the ducks
are dying, they are increasingly affected as well.
     As more residents report skin rashes and boils, the CNA has  
begun to hesitantly acknowledge that more than ducks are truly    
affected.  "The waters are undoubtedly contaminated, we don't deny
that," says CNA spokesman Jose Carmen Guerrero.  He notes that
agencies like his are doing what they can to remedy the problem,
but adds, "We have to remember Mexico is not a first-world
country".  The main points; however, he failed to address.  The
problems call for more than simple remedies, but long-term policies
and organizations that maintain and enforce their own
water-pollution laws.  This concern will likely pose the strongest
threat to NAFTA, unless the environmental arm under the NAFTA is
brought down on Leon and other area polluters.
     The North American Commission for Environmental Cooperation, 
based in Montreal, Canada, formed a year ago to address cases like 
this one involving the NAFTA countries.  The Mexican executive
director, Victor Lichtinger, notes that local citizens must file a
complaint before the commission can investigate, but the new and
relatively unknown agency has yet to hear from anyone about the
Silva Reservoir.  However, U.S. environmental  organizations and
the U.S. Fish and Wildlife Service (FWS) have already taken an
interest in this area's problems and other similar tragedies.  Some
of the dead birds actually carried FWS bands identifying them as
members of an endangered species.  Most maintain that the real
answer lies in raising local awareness about the environment. 
Setting off firecrackers to chase away healthy ducks or helping to
care for the sick ducks may just be the first step.
     Many are concerned that the NAFTA will likely increase the   
human use and development of natural resources and cause the      
fragmentation of key habitats.  New bridges and highways have     
already been constructed along the border which harm the  areas'
unique, endangered animals such as ocelots, jaguars, three rare
species of wildcats, as well as an inland lagoon where thousands of
migratory birds from the United States winter.  Illegal trade of
reptile skins, parrots, and other wildlife is rampant (see PARROT
and REPTILE cases).
     However, according to the Fish and Wildlife Service report,
the agency is stretched to thin to do its job.  For example, only
one federal wildlife inspector is based in Laredo and San Diego,which 
are busy ports of entry.  There problems or concerns lead to arguments 
expressed in regards to the NAFTA.
     The nation's major environmental groups are split on the trade
impact, with those opposing it mainly due to reasons mentioned
before.  The U.S. Fish and Wildlife Service officials emphasize
that they are not opposed to the trade agreement.  They simply
argue for more money and personnel to enforce established U.S.
environmental laws, train Mexican counterparts, help ailing species
recover, and manage the millions of acres of refugees. 
     Environmental groups also advocated the creation of a special
international body to protect natural resources, which was actually
outlined by the NAFTA companion accords as the Commission for
Environmental Cooperation.  The National Audubon Society supports
the NAFTA and its side agreement /on the environment because in
their sincere judgement the environment and wildlife are actually
better served with the treaty than without it.  The National
Wildlife Federation was the first major environmental group to urge
the Congressional passage of the treaty and is now working hard to
ensure that the measure lives up to its promise.  Other groups,
such as the Sierra Club, Green Peace, and animal rights groups
continue to oppose the NAFTA.
     Anti-NAFTA forces clearly lost the vote but won their point:
"Free trade is a faltering ideological beacon both for U.S. trade
policy and world trade rules.  Economic integration raises a host
of social and economic management issues outside the purview of
'free trade'".  The passions stirred up by NAFTA will generate
a ripe ideological climate of controversy in which to offer
proposals for new trade rules and institutions. Most would concur
that the broader agenda should not be to curtail trade, but to
locate it within credible strategies of ecologically sustainable
development on both sides of the border.
     Nine months after the North American Free Trade Agreement took
effect, a side accord intended to safeguard the environment has
shown virtually no results.  Two new agencies dealing with the
Mexican border lack general managers and no cleanup projects are
even close to starting.  Some environmental groups say the delays
confirm their worst fears that increased commerce under the
agreement will further damage the earth, water, and air in Mexico
and on the United States side of the border. "There has been very
little progress," notes Carl Pope, executive director of the Sierra
Club.  He further maintains that "during the debate, we kept saying
that unless trade is contingent on progress, progress won't
occur".
3.        Related Cases 
       Keyword Clusters
     (1): Trade Product            = BIRD
     (2): Bio-geography            = TEMPerate
     (3): Environmental Problem    = Species Loss Air [SPLA]
4.   Draft Author:  Stephanie L. Turner and E. Amber Ammons
B.   LEGAL Cluster
5.   Discourse and Status:  AGReement and COMPlete
6.   Forum and Scope: NAFTA and BILATeral                    
7.   Decision Breadth: 2 USA and MEXICO
8.   Legal Standing:  TREATY
C.   GEOGRAPHIC Clusters 
9.   Geographic Locations
     a.   Geographic Domain:  North America [NAMER]
     b.   Geographic Site:    Eastern North America [ENAMER]
     c.   Geographic Impact:  MEXICO and USA   
10.  Sub-National Factors: YES
11.  Type of Habitat:  TEMPerate
D.   TRADE Clusters 
12.       Type of Measure:  Regulatory Standard [REGSTD]
     This treaty appropriates regulatory standards only because
there is no ban on imported and exported goods.  There are
limitations on trade, and permits are mandatory when trading birds
or bird products.  The treaty also outlines the rules regarding
contraband material that is illegally brought into the
participating countries.  The treaty also specifies which species
are affected by the agreement.
13.  Direct vs. Indirect:  INDirect
     Principally, the impact of the agreement will fall under the
auspices of the environmental side accord of the trade initiative. 
The threat of extinction among some species of birds, for example,
reflects low pollution standards or water treatment.  NAFTA itself
has little to do with the birds; however, the environment and trade
combined will directly shape what happens in terms of the birds'
maintenance and life-expectancy.
14.  Relation of Measure to Environmental Impact: YES
     A.  Directly Related:    NO  
     b.  Indirectly Related:  YES  BIRD
     c.  Not Related:         NO
     d.  Process Related:     YES  Species Loss Air [SPLA]
15.       Trade Product Identification:  BIRD
16.       Economic Data
17.       Impact of Measure on Trade Competitiveness:  LOW
18.       Industrial Sector:  FOOD
19.       Exporters and Importers:  MEXICO and USA
E.        ENVIRONMENT Clusters
20.       Environmental Problem Type:  Species Loss Air [SPLA]
21.       Name, Type, and Diversity of Species 
     Name :         30 different bird species, including
          Familia Anatidae (Ducks and Geese), Familia Gruidae
          (Cranes), Familia Rallidae (Rails), Familia Charadriidae
          (Plovers), Familia Scolapacidae (Snipes and Sandpipers),
          Familia Corvidae (Crows).
     Type:          Animals/Bird
     Diversity:     1,611 bird species per
                    10,000 km/sq (USA and
                    Mexico) 
22.       Resource Impact and Effect:  HIGH and REGULatory
23.       Urgency and Lifetime: MEDium and about 5 years          
24.       Substitutes:  LIKE products
F.        OTHER Factors      
25.       Culture:  NO
26.       Trans-border:  YES     
27.       Rights:  NO  
28.       Relevant Literature 
Berle, Peter A.  "Better NAFTA Than Not."  Audubon 95/6.
     November, 1993. 8.
Benanti, Mary.  "Forest Service to Develop Plan for the Mexican 
     Spotted Owl." Gannett News Service. 14 April 1992. Gannett
     Company, Inc. 1992.
Cone, Marla.  "NAFTA Imperils Border Wildlife, Officials Warn."
     The Los Angeles Times.  September 28, 1993.  A3:4.
"Convenio para la proteccion de aves migratorios y de mamiferos
     cingeticos" ("Treaty for the Protection of Migratory
     Birds and Hunted Mammals").  Signed in Mexico City. 7
     February 1936.
Daly, Herman E.  "The Perils of Free Trade: Economists Routinely
     Ignore its Hidden Costs to the Environment and the
     Community."  Scientific American.  November, 1993.
Department of the Interior.  "Application of Section Four,
     Administrative Procedures Regulations Closing Private
     Lands under the Authority of the Migratory Bird Act." 
     M-34864. February 18, 1947.
Gilford, Jim.  "Crows are Finally Starting to Get Respect from
     the Public."  The Frederick Post.  February 3, 1994. 
     C5:1.
Golden, Tim.  "A History of Pollution in Mexico Casts Clods Over  
     Trade Accord."  The New York Times.  August 16, 1993.
     A1:4.
Grimek, Bernhard, ed. Grzimek's Animal Life Encyclopedia.  New 
     York:  Van Nostrand Reinhold Co., 1975.
"In Wake of NAFTA Victory, NWF Keeps Trade Reform Issue on Front
     Burner."  National Wildlife Federation 32/2.  February
     1994, 29.
LaFranchi, Howard.  "Migratory Birds Die in Droves: Can NAFTA
     Come to the Rescue?"  The Christian Science Monitor. 
     January 17, 1995. 1:1.
Myerson, Allen R.  "Trade Pact Side Deal Bears Little: Mexico,
     U.S. Contest Environmental Pact."  The New York Times. 
     October 17, 1994.  D1:6-7.
Noah, Timothy.  "Cleaning Up:  Environmental Companies Stand to
     Make a Bundle from the Trade Pact."  The Wall Street
     Journal.  October 28, 1994.  R8:3.
Tiemann, Mary.  "North American Free Trade Agreement: 
     Environmental Provisions and Issues."  Congressional
     Research Service: The Library of Congress.  August 23,
     1993.
Zarsky, Lyuba.  "Nafta's Repercussions: Is Green Trade Possible?"
     Environment 36/2.  March, 1994, 2-3.

        


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