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India is home to 8% of the known world biodiversity, making it a prominent stakeholder in the conservation of global flora and fauna. Recently, a Conference of Parties (COP-13) under the Convention on the Conservation of Migratory Species of Wild Animals (CMS) was held in Gandhinagar, Gujarat. The theme was “Migratory species connect the planet and we welcome them home”. Critically endangered species like Great Indian Bustard, Bengal Florican and the endangered Asian Elephants were included along with 7 other species to the wildlife list in the COP13.
Reports from 129 nations were discussed for adoption of dedicated action for protection of 12 species including Gangetic River Dolphin, Gabon, Giraffe including plans to minimize impact of light pollution, plastic pollution, energy and other infrastructure on migrating species.
With addition of 6-10 new entrants, the list of migratory species of India compiled by the Zoological Survey of India (ZSI) now shows a total of 457 species of migratory fauna, 83% of which are birds. Having more than 450 species out of the 650 species listed under the CMS, India plays a pivotal role in their protection and conservation.
What is CMS?
The CMS or the ‘Bonn Convention’ is an environmental treaty of United Nations which provides for conservation and sustainable use of migratory species and their habitats. It aims to conserve terrestrial, aquatic and avian migratory species throughout their range. With 129 nations as party to the Convention, it can be said that the CMS brings together the states through which the migratory species pass and their range states.
The CMS is the only International Convention specializing in conservation of migratory species, their migration routes and their habitats. It complements and cooperates with other international organizations, NGOs and lays the legal foundation of internationally coordinated conservation measures.
Migratory species travel thousands of kilometers from one habitat to another during different times of year due to seasonal limitations in food, sunlight and temperature of their native place. Migratory species of wild animals comprise only a fraction of biodiversity but are very significant. They form very intricate inter-relationship with other plants and animals and are an important genetic resource of the world. They indicate linkage between the ecosystems and various ecological changes. These species are highly vulnerable to wide range of threats such as habitat shrinkage in breeding areas, excessive hunting, habitat degradation, introduction of alien species etc.
Due to the worldwide concern over these threats and in order to protect the migratory species throughout their range countries, The Convention on Conservation of Migratory Species (CMS) was adopted in 1979 and entered into force in November, 1983 under the aegis of United Nations Environment Programme (UNEP). The convention was signed with the view that the wild animals must be conserved for the benefit of mankind and the man holds obligation to ensure the conservation of legacy and protection of species passing through or living within their national boundaries.
Principles of the CMS
The fundamental principle as under Article II of the Convention is for the parties to acknowledge the importance of migratory species and conservation of habitats. The Convention lists the migratory species under the threat of extinction in Appendix I.The CMS parties strive towards strictly protecting these species, conserving their habitats and mitigating the threats and obstacles to their migration or controlling other factors that may further endanger their existence.
Migratory species in need of conservation or the species which would significantly benefit from International cooperation are listed in Appendix II of Convention. The Convention encourages the Range States to conclude regional or global agreements and take action whenever possible and appropriate. CMS along with its daughter agreements determine policies and plans and provide guidance on specific issues through their decisions, plans, resolutions and guidelines. Agreements may range from legally binding treaties to non-legally binding MoUs adapted to the requirements of particular parties and regions.
The Conference of Parties (COP) under Article VII of Convention is the decision making organ of the CMS. It is composed of all state parties to the Convention as well as the observers that wish to participate. This organ establishes and reviews the financial regulations of this Convention. The meetings are held once every three years. At each of its meeting, the conference of parties shall review the implementation of this convention and make provisions and recommendations for improving the conservation status of migratory species in their respective States.
India and CMS
India has been a party of CMS since 1983. India provides temporary shelter to 457 migratory species. Indian subcontinent is part of three bird flyway networks- the Central Asian flyway, the East Asian flyway and the East Asian-Australasian flyway. The Central Asian flyway (CAF) is most significant; it covers 279 populations of 182 migratory water bird species, including 29 globally threatened species.
India has launched the National Action Plan for conservation of migratory species under the CAF. India has also signed a non-legally binding MoU with CMS on conservation and management of Siberian Cranes (1998), Marine Turtles (2007), Dugongs (2008) and Raptors (2017).
India’s National Wildlife Action Plan (2017-2031) spells out the future road map for wildlife conservation by management of tourism, control of poaching and illegal trade. The Wildlife Protection Act, 1972 is a monumental step for protection of animal and plant species from illegal poaching and trade and their protection from capturing, poisoning, snaring etc.
Implementation of International Conventions in India
In India, an International treaty has to be ratified by the parliament in order to be enforceable. Parliament by making a law may prohibit the executive to enter into a particular treaty or direct it to enter into one. Article 51(c) of the Indian Constitution mandates the state to foster respect for international law and treaty obligations. However, it is merely a directive principle and not enforceable. This article when read with Part III of the Constitution, facilitates the judiciary in developing human rights and environmental jurisprudence in India. By virtue of Article 253, the Parliament can enact laws to implement international obligations, notwithstanding the constitutional distribution of powers. As there is no law made in this regard, it is the executive that ratifies international treaties on behalf of the State.
The Apex court has the power to analyze the legal status of International obligation in respect of the constitution. For instance, The Vienna Convention on the Law of Treaties which regulates all aspects of treaty making between states has not been ratified by the Indian parliament yet, but the Supreme Court has recognized its customary status. In the case of Maganbhai Ishwarbhai Patel vs. Union of India [1969 SCR (3) 254], the apex court held that once a treaty was concluded by the Government in exercise of its sovereign powers, then the Legislature, Executive and Judiciary are under the duty to help implement it if it was within the constitutional framework.
The CMS was enacted with a view to protect the migratory species from threats like loss of breeding ground, loss of habitat etc.The first ever report on Status of Migratory species which was presented at the COP 13 at Gandhinagar, this January 2020 showed a declining trend of migratory species.
This declining trend could be attributed to the fact that there is lack of pro-active steps of the various State towards conservation of migratory species despite their obligations under CMS. Another leading factor is the fast-paced technology driven life style of today’s generation which is increasingly contributing to the risks and vulnerabilities that the migratory species face. Mankind is responsible for wiping out over 60% of all wild mammals and half of the existing flora, making many experts predict a beginning of sixth mass extinction. While a number of new measures have been sought to be adopted and a more holistic analysis of the declining trend is sought to be done, it still remains to be seen whether the measures would actually be effective.
Author: Sweksha from Law Centre-II, Faculty of Law, University of Delhi.
Editor: Anna Jose Kallivayalil from NLU, Delhi.