PRAGMATIC MIGRATORY BIRD TREATY ACT: PROTECTING "PROPERTY", THE

Boston College Environmental Affairs Law Review, 2004 by Lee, Hye-Jong Linda

Romantic love for wilderness that developed during the eighteenth and nineteenth centuries provides an understanding of the aesthetic purposes wildlife served.137 City dwellers increasingly began to value their relationship with the natural world:

[t]housands of tired, nerve-shaken, over-civilized people are beginning to find out that . . . wildness is a necessity. . . . Awakening from the stupefying effects of the vice of overindustry and the deadly apathy of luxury, they are trying as best as they can to mix and enrich their little ongoings with those of Nature, and to get rid of rust and disease.138

Writers like Jack London and Maximilian Foster glorified the invigorating savagery of wild animals, and wilderness was seen as a commodity in which humans could regain their "lost vitality."139

Ralph Waldo Emerson, on the other hand, saw unspoiled nature as a "conduit through which humans could establish contact with higher reality."140 Like Emerson, Henry David Thoreau expressed interest in the spiritual gains that wildlife provided, and recorded the wild animals he encountered in the hopes that it would yield spiritual knowledge.141 In Waiden, Thoreau wrote that contact with wildlife was "to make my life more rich and eventful."142 Both Emerson and Thoreau believed that nature was "emblematic of the spiritual world," and found an aesthetic use for them.143 Hence, even the aesthetic values of wildlife are often based on a human-centered interest in how it can enrich our spiritual health.144

Beyond their traditional values as food sources, sport, and aesthetic symbols of wildlife, the conventions also recognized the scientific value of migratory birds.145 Article VI of the Canadian Convention states that the prohibition against taking migratory birds does not apply to takings that may be scientifically justified.146 More specifically, the Canadian Convention provides that "the shipment or export of migratory birds or their eggs from any State or Province . . . shall be prohibited except for scientific . . . purposes."147 The Mexican, Japanese, and Russian Conventions adopted similar exemptions for scientific research.148 For example, the Mexican Convention requires "[t]he establishment of closed seasons, which will prohibit in certain periods of the year the taking of migratory birds, their nests or eggs, as well as their transportation or sale, alive or dead, [and] their products or parts, except when proceeding . . . for scientific purposes."149 Likewise, the Japanese Convention provided that "[t]he taking of the migratory birds or their eggs shall be prohibited . . . [but] [exceptions to the prohibition of taking may be permitted in accordance with the laws and regulations of the respective Contracting Parties ... [f]or scientific . . . purposes not inconsistent with the objectives of this Convention."150 Using similar language, the Russian Convention declared that an "[e]xception to these prohibitions [of taking migratory birds] may be made on the basis of laws, decrees or regulations of the respective Contracting Parties . . . for scientific . . . purposes."151 Indeed, the Mexican Convention expanded the exemption to include museum uses,152 and the Japanese Convention broadly provided for "other specific purposes not inconsistent with the objectives of this Convention,"153 as did the Russian Convention.154