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International Regulation Of Undersea Noise

Published online by Cambridge University Press:  17 January 2008

Karen N Scott
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Abstract

In September 2002 seventeen whales were stranded off the coast of the CanaryIslands at a time when NATO was testing its active sonar system designed to detect silent enemy submarines.1 The suggestion has been made that the use of sonar caused these whales to strand. In fact, sonar is just one of a variety of anthropogenic undersea sounds which, scientific research increasingly suggests, impacts negatively on marine biodiversity. Pollution of an acoustic nature is currently omitted from traditional works on the protection of the marine environment and is as yet the subject of very little jurisprudential discussion.2 However the topic, which has received scientific attention for over 30 years, has recently been identified as acause for concern and consequently, for action, within the parameters of a number of global and regional environmental instruments.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 2 , April 2004 , pp. 287 - 323
Copyright
Copyright © British Institute of International and Comparative Law 2004

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93 There are currently forty-nine parties to the Convention.Google Scholar

94 A function which the IWC is already carrying out in the context of marine acoustic pollution. For example, a recent study on the status of cetaceans and their vulnerability to noise and other environmental threats in the Black Sea and Mediterranean regions completed under the auspices of ACCOBAMS 1996 was presented at the IWC Meeting in June 2003. See G Notarbartolo di Sciara (ed) Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, A Report to the ACCOBAMS Secretariat, Monaco, February 2002. Available online at <http://www.accobams.mc>..>Google Scholar

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97 See Art 1 of the Biodiversity Convention and Arts II to IV of the Bonn Convention.Google Scholar

98 Arts 4(a) and (b).Google Scholar

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100 Arts 7 and 8.Google Scholar

101 The language of Art 14(l)(a) clearly qualifies the general obligation in relation to environmental impact assessment. It is foreseeable that a party may not regard an environmental impact assessment of sonar deployment as ‘appropriate’ in the context of military security.Google Scholar

102 Art 11(2) and (3)(b).Google Scholar

103 Art III(4)(b) and (c).Google Scholar

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109 See Decisions 11/10 and IV/5 on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity.Google Scholar

110 Below.Google Scholar

111 Parties are encouraged to conclude agreements for the conservation of species listed in Appendix II of the Bonn Convention under Art IV. There are currently thirteen such agreements.Google Scholar

112 On which see below.Google Scholar

113 The Mediterranean and Black Seas provide the habitat for approximately twenty-one species of cetacean, many of which are vulnerable and known to strand. The seas of Northern Europe which for the purposes of this article comprise the North East Atlantic, English Channel, North Sea, Baltic Sea, and Arctic Ocean provide habitat for at least twenty-nine species of cetacean. The Southern Ocean provides habitat for approximately seventeen species of cetacean. For convenience, the term ‘pinniped’ will be used throughout this article although the scientific consensus now regards pinnipeds as belonging to three related families within the order Carnivora: Otariidae (‘eared’ seals), Obdobenidae (walrus), and Phocidae (‘true’ seals).Google Scholar

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120 Arts 18 and 19 UNCLOS.Google Scholar

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136 32 ILM (1993), 1072. In force 1998. Replaces the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo) and the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris). OSPAR applies to those parts of the Atlantic and Arctic Oceans and their dependent seas which lie north of 36° north latitude and between 42° west longitude and 51° east longitude (Art l(a)(i)). The Baltic and Mediterranean Seas are excluded from its remit (Art l (a) (i) (l) and (2)).Google Scholar

137 BNA 35:0401. In force 2000. Replaces 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area.Google Scholar

138 Although as noted above, 1992 OSPAR has jurisdiction over limited parts of the Arctic.Google Scholar

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141 Arts 4(1) and 2(a) of the Barcelona Convention; Arts 11(1) and V(2) of the Bucharest Convention; Arts 2(1) and l(d) of OSPAR 1992; Arts 3(1) and 2(1) of HELCOM 1992. With few firm conservation obligations, it should be noted that the fifth objective of the AEPS is the elimination of pollution which is undefined in the Strategy.Google Scholar

142 It should be noted that under HELCOM, obligations in respect of the offshore exploration and exploitation are broad enough to apply to noise. Regulation 2 of Annex VI stipulates that parties must use best available technology and best environmental practice to prevent and eliminate pollution from offshore activities. Pollution is defined in terms of substances or energy (Art 2(1)) and as argued above, these obligations are consequently of application to noise. Annex III of OSPAR, which also relates to the regulation of pollution from offshore sources, is expressed much more narrowly. Art 4 of the Annex seeks to restrict the discharge of substances in the maritime area.Google Scholar

143 30 ILM (1991) 1461. In force 1998.Google Scholar

144 Art 2.Google Scholar

145 Art l ( b ) of the Environmental Protocol.Google Scholar

146 The CEP was established under Art 11 of the 1991 Environmental Protocol. See Report of the Committee for Environmental Protection's Third Meeting (CEP III), The Hague, Netherlands, 2000, at paras 42–3; Report of the Committee for Environmental Protection's Fifth Meeting (CEP V), Warsaw, Poland, 2002, paras 25–8; Report of the Committee for Environmental Protection's Sixth Meeting (CEP VI), Madrid, 2003, at paras 56–8. An information and working paper submitted by the Scientific Committee on Antarctic Research (SCAR) to the 2002 CEP Meeting noted that although disturbance of cetaceans has been documented on occasion, acoustic scientific investigation is vital to the understanding of the Antarctic environment. Consequently, the organization regarded a ban on seismic surveys or scientific echo-sounders in Antarctic waters as unjustifiable. However, SCAR recommended that all surveys should be examined on a case by case basis and that in all instances, mitigation strategies such as the use of minimum source levels, soft starts and special measures in biologically sensitive areas should be implemented. See further SCAR ‘Marine Acoustic Technology and the Environment’ WP-023; SCAR Impacts of Marine Acoustic Technology on the Antarctic Environment (July 2002), 25IP024/E both presented at the XXV ATCM (2002); Spain ‘Anthropogenic Acoustic Noises and Discharges and their Impact on Marine Mammal Populations’ WP-034-E; SCAR ‘Acoustic Technology and the Marine Ecosystem’ IP-077-SCAR and; ASOC ‘Marine Acoustic Technology and the Antarctic Environment’ IP-073-ASOC all presented at the XXVI ATCM (2003).Google Scholar

147 Art 8.Google Scholar

148 But see the Guidelines for Environmental Impact Assessment in Antarctica available on the CEP website at <http://www.cep.aq/>..>Google Scholar

149 As noted by SCAR in WP-023 (2002).Google Scholar

150 After being made publicly available and passed to the CEP. See Arts 3(3) and (4) of Annex I.Google Scholar

151 Art 4, Annex I. It should be noted that although subject to a 50-year moratorium under Art 7 of the Environmental Protocol, the commercial exploitation of oil and gas in and off Antarctica remains a possibility (see Art 25(2) of the Protocol). Conscious of the potential negative impact of such a development, the parties to the Protocol agreed that the conclusion of a binding minerals regime must precede any such exploitation (Art 25(5)(a)). Plainly, any such instrument must address the discharge of undersea noise as well as the discharge of other substances. It is notable that the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) ((1988) 27 ILM 868, not in force) is drafted in terms broad enough to embrace noise (see Arts 4 and 13).Google Scholar

152 In common with most regional seas conventions, the Barcelona Convention incorporates a sovereign immunity provision (Art 3(5)) which arguably might prevent its provisions from applying to the deployment of military sonar.Google Scholar

153 Art 7(1). Where the impact of noise is transboundary in nature such an assessment will in fact be required by the 1991 Espoo Convention on Envir onmental Impact Assessment in a Transboundary Context (30 ILM (1991) 802, in force 1997) which applies to maritime as well as terrestrial areas (see Art l(Viii)) and has been ratified by all HELCOM parties save Russia. In particular, Appendix I activities, which include the construction of ports and the development of offshore activities, must be assessed under the Convention. Moreover, those parties which are also Member States of the EU are subject to European EIA regulation (see Council Directive 85/337/EC as amended by Council Directive 97/1 I/EC of 3 Mar 1997). It should be noted that both the Espoo Convention and EU regulations are of course applicable to the seas of Europe beyond the Baltic.Google Scholar

154 Art 4(3)(a) Barcelona Convention 1995; Art 2(2)(a) OSPAR 1992; Art 3(2) HELCOM 1992. Since 1997 the parties to the AEPS 1991 have regarded the principles of precaution and EIA as central to the protection of biodiversity and prevention of pollution in the Arctic (see the Co-operative Strategy for the Conservation of Biological Diversity in the Arctic Region (1997) text available online at <http://www.arctic-council.org/index.html>). Although lacking an express endorsement in the manner of the regional seas conventions, the nature of the 1991 Environmental Protocol is clearly precautionary and this is best illustrated by Art 3(2) of the Protocol.).+Although+lacking+an+express+endorsement+in+the+manner+of+the+regional+seas+conventions,+the+nature+of+the+1991+Environmental+Protocol+is+clearly+precautionary+and+this+is+best+illustrated+by+Art+3(2)+of+the+Protocol.>Google Scholar

155 Art 10 of the Barcelona Convention; Art XIII of the 1992 Bucharest Convention; Annex V of 1992 OSPAR; Art 15 of 1992 HELCOM.Google Scholar

156 (1995) 6 Yearbook of International Environmental Law 887. In force 1999. Hereinafter cited as the SPA Protocol. This protocol replaces the 1982 Protocol Concerning Mediterranean Specially Protected Areas. Again geographic coverage of the region is comprehensive although the current omission of Greece, Libya, and Turkey from among its parties results in diminished protection for the Eastern Mediterranean.Google Scholar

157 Art 3(5).Google Scholar

158 Annex II of the Environmental Protocol incorporates and updates the 1964 Agreed Measures for the Conservation of Antarctic Flora and Fauna.Google Scholar

159 Art 3(1), Annex II. Authorization may be given in order to provide for unavoidable consequences of scientific activities or for the construction and operation of scientific support facilities (Art 3(2)(c), Annex II).Google Scholar

160 Art l(g), Annex II.Google Scholar

161 Art l(h), Annex II.Google Scholar

162 See WP-026 presented at the V CEP Meeting in Poland in 2002.Google Scholar

163 19 ILM (1980) 837. In force 1982. Arts 1(1), 11(1) and 1(2). Art V I provides that nothing in CCAMLR shall derogate from the rights and obligations of contracting parties under the ICRW 1946 and the Antarctic Seals Convention 1972. This provision does not however, necessarily exclude seals and whales from the remit of CCAMLR which, it is suggested, may adopt conservation measures in respect of those species to the extent that they are not provided for under the above instruments.Google Scholar

164 Art 11(3).Google Scholar

165 The types of conservation measures which may be implemented by the Commission (established under Art VII of CCAMLR) are relatively broadly defined under Art IX.Google Scholar

166 Art II(3)(b). Recently the CCAMLR Commission has promulgated conservation measures relating to harvesting equipment with the a im of reducing the by-catch of seabirds and marine mammals. See Conservation Measures 25–02 (2002): Minimization of the Incidental Mortality of Seabirds in the Course of Longline Fishing or Longline Fishing Research in the Convention Area and Conservation Measure 25–03 (1999): Minimization of the Incidental Mortality of Seabirds and Marine Mammals in the Course of Trawl Fishing in the Convention Area.Google Scholar

167 Annex V was incorporated into the Protocol through Recommendation XVI-10 of 1991. See the Final Report of the Sixteenth Antarctic Treaty Consultative Meeting, Bonn, Germany, 1991. In force May 2002.Google Scholar

168 Art II, Annex V.Google Scholar

169 Art 4(2), Annex V, OSPAR 1992, stipulates that the OSPAR Commission must bring issues which relate to the management of maritime traffic to the IMO with a view to their being dealt with in the context of PSSA designation. HELCOM Recommendation 15/5 (as updated by HELCOM HOD 11/2003) notes that it is intended that the IMO PSSA guidelines will ultimately be incorporated into the Baltic Sea Protected Areas (BSPAs) guidelines.Google Scholar

170 Art 5 Mediterranean SPA Protocol; HELCOM Recommendation 15/5 as updated by HELCOM HOD 11/2003 which establishes a system of Baltic Sea Protected Areas (BSPAs). It should also be noted that a network of protected areas (known as Protected Areas Network or PAN) within the Arctic is in the process of being created, although currently only 2 per cent of the Arctic maritime environment is protected. A Strategy and Action Plan for the creation of a Protected Areas Network was endorsed in 1996. See <http://www.arcticcouncil.org/index.html>).).>Google Scholar

171 Arts 5, 8 and Annex I of the SPA Protocol.Google Scholar

172 Arts 6(c), (f), (e) and (h). Emphasis added.Google Scholar

173 UKTS 56 (1982), Cmnd 8738. In force 1982.Google Scholar

174 Council Directive 92/43/EEC [1992] OJ L206/7.Google Scholar

175 Art 1 of the Bern Convention; Art 2(1) of the Habitats Directive. On their conservation obligations in respect of individual species see below.Google Scholar

176 Under Art 4(1) of the Bern Convention parties must take appropriate measures to protect the habitats of species listed in Appendix II (which includes all species of cetacean not listed in Appendix I, below). See also Arts 3–5 of the EC Habitats Directive where parties must protect inter alia the habitats of species listed in Annex II, which include two species of cetacean and five species of pinniped.Google Scholar

177 Arts 4(2) and 4(3).Google Scholar

178 Art 6(1).Google Scholar

179 Art 6(2).Google Scholar

180 Art 2(2) Conservation status is defined in Art l (i) as the ‘sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2’.Google Scholar

181 For further detail on Art 6 of the Habitats Directive see Managing Natura 2000 Sites: The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC available online at <http://europa.eu.int/comm/environment/nature/art6en.pdf>..>Google Scholar

182 See Coffey, C (ed) Implementing the Habitats Directive in Marine and Coastal Areas: Proceedings of a Seminar Held at Morecambe Bay, England, 22–24 June 1997 available online at <http://europa.eu.int/comm/dgll/nature/home.htm>..>Google Scholar

183 Art 11(2).Google Scholar

184 Art ll(3)(a).Google Scholar

185 Art 12(2).Google Scholar

186 Art 6(c).Google Scholar

187 Art 1(1).Google Scholar

188 It should be noted that in Resolution No 1 adopted by the Standing Committee in 1989 ‘deliberate damage to or destruction of breeding or nesting sites’ in Art 6(b) has been interpreted so as to include ‘any act committed without the intention to cause damage or destruction but in the knowledge that such would probably be the consequences of the act’. A broader interpretation of Art 6(c) is therefore consistent with this interpretation of Art 6(b). Moreover, under Art 8 parties must also prevent the serious disturbance of populations of all species listed in Appendix III, which includes all species of cetacean not listed in Appendix II.Google Scholar

189 Art 12(l)(b).Google Scholar

190 Art 3(5), Annex II. Art 3(4), Annex II stipulates that any species of native mammals, birds, and plants may be listed in Appendix A.Google Scholar

191 Appendix A lists all species of fur seals (Arctocephalus) and the Ross Seal (Ommatopocarossi).Google Scholar

192 ATCM Resolution 1 (2002) reproduced in Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Warsaw, Poland, 2002.Google Scholar

193 Ibid. It should also be noted that a UK proposal to give special consideration to the inclusion of marine biodiversity within the list of ASPSs was acceded to. See Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Warsaw, Poland, 2002, para. 64.

194 (1995) UKTS No 52. In force 1994.Google Scholar

195 36 ILM (1997) 777. In force 2001.Google Scholar

196 1999 Agreement Relative to the Creation of a Mediterranean Sanctuary for Marine Mammals. Text available online at the Tethys Research Institute at <http://www.tethys.org/sanctuary_text.htm>..>Google Scholar

197 ACCOBAMS, Art 11(1), the Ligurian Sanctuary Agreement, Art 2(2) and ASCOBANS, Art 2(1). Small cetaceans under ASCOBANS are defined as any species, subspecies or population of toothed whales Odontoceti, except the sperm whale (Physeter macrocepalus) (Art 1.2(a) ASCOBANS).Google Scholar

198 Arts 2(1) and 2(2).Google Scholar

199 Annex, Art l(d). Emphasis added.Google Scholar

200 Established under Art 5 of ASCOBANS.Google Scholar

201 MOP2: Resolution on Further Implementation of ASCOBANS (Bonn 1997).Google Scholar

202 The ASCOBANS MOP is established under Art 6 of the Convention. MOP3: Resolution No 4 on Disturbance (Bristol 2000) was repealed by MOP4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003).Google Scholar

203 MOP4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003).Google Scholar

204 Art II(3)(b) and Annex II.Google Scholar

205 Established under Art VII of the Convention with the function of providing advice to the Meeting of the Parties (established under Art III) and conducting scientific research.Google Scholar

206 Notarbartolo di Sciara et al ‘Overview of Known or Presumed Impacts on Different Species of Cetaceans in the Mediterranean and Black Seas’ in id (ed) n 94, s 17 at 4. In this report four chapters are devoted to the impact of noise in the Mediterranean and Black Seas. Particular attention is paid to noise resulting from vessel traffic and whale-watching activities.Google Scholar

207 MOP 1, Resolution 1.11. As would be expected these guidelines seek to minimize acoustic and other forms of disturbance to cetaceans.Google Scholar

208 Arts 1(c) and 7(a) of the Agreement. The analysis of ‘deliberate disturbance’ in the context of the Bern Convention is equally applicable in the interpretation of ‘intentional disturbance’ under the Ligurian Sanctuary Agreement. See n 187 and accompanying text.Google Scholar

209 See the Report of the Fifth Meeting of National Focal Points for SPAs (Valencia, 23–26 April 2001) UNEP(DEC)/MED WG.177/9 (29 May 2001) 11–12. See also Raga Project of the Establishment of a Mediterranean and Black Sea Regional Cetacean Stranding Network MOP l/inf.7 rev 1 submitted to the First Meeting of the Parties, ACCOBAMS, Monaco, 28/02/2002–2/03/2002.Google Scholar

210 Ibid.

211 Art 16 of the Ligurian Sea Sanctuary Agreement obliges the parties to prepare a proposal for inclusion within the SPAMI list as soon as the SPA Protocol enters into force.Google Scholar

212 MOP4: Resolution No 4 on Extension of the ASCOBANS Agreement Area (Esbjerg 2003).Google Scholar

213 This mechanism was first adopted in 1984 and procedures for its implementation were provisionally adopted in 1993. See Secretariat Memorandum, Opening and Closing of Files and Follow Up to Recommendations, Document T-PVS (93) 48. The Standing Committee is authorized to adopt conservation recommendations under Art 14 of the Bern Convention.Google Scholar

214 See the Report on Specific Sites, Caretta caretta in Laganas Bay, Zakynthos (Greece), 1998 T-PVS (98) 43.Google Scholar

215 Ibid.

216 Section 4, A Wildlife and Countryside Act 1981 (as inserted by the 2000 Countryside and Rights of Way Act). This provision also applies to basking sharks (Cetorhinus maximus).Google Scholar

217 See the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (SI 2001 No 1754). JNCC Guidelines for Minimising Acoustic Disturbance to Marine Mammals from Seismic Surveys are available online at <http://www.jncc.gov.uk/marine/seismic_survey> and include recommendations on the planning and implementation stage, the need for marine mammal observers, the use of soft starts and the operation of surveys with lowest practicable noise levels.+and+include+recommendations+on+the+planning+and+implementation+stage,+the+need+for+marine+mammal+observers,+the+use+of+soft+starts+and+the+operation+of+surveys+with+lowest+practicable+noise+levels.>Google Scholar

218 See s 238 Environment Protection and Biodiversity Conservation Act 1999 and the Petroleum (Submerged Lands) (Management of Environment) Regulations 1999 (Statutory Rules 1999 No 228) made under the Petroleum (Submerged Lands) Act 1967.Google Scholar

219 §105(5)(A)MMPA1972, 16USC§ 1731(101(5)(S)). The decision of the NMFS is reported in 67 Fed Reg 46712.Google Scholar

220 Natural Resources Defense Council et al v Donald L. Evans et al (2003) 279 F Supp 2d 1129. See also Natural Resources Defense Council et al v Donald L. Evans et al (2002) 232 F Supp 2d 1003. It should also be noted that a petition demanding a moratorium on the use of NATO high-intensity active sonar was presented to NATO in Oct 2003 by members of the European Parliament acting together with a number of non-governmental organizations (text of petition on file with author).Google Scholar

221 See Weiss, E ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’ (1993) 81 Georgetown Law Journal 675–710, at 697–702.Google Scholar

222 See the dissent of Judge Weeramantry in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) (1995) ICJ Reports 288, 342–4.Google Scholar

223 Above n 57 and accompanying text.Google Scholar

224 The UK regulatory guidelines were recently commended by the ASCOBANS Meeting of the Parties in 2003 and it was noted that Belgium had also adopted legislation providing for similar guidelines. (See MOP 4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003)).Google Scholar

225 The concept of the ecological footprint was developed by William E Rees. See Rees, ‘Ecological Footprint, Concept of’ in Encyclopaedia of Biodiversity, Volume 2 (San DiegoCalifornia Academic Press 2001) 229–44.CrossRefGoogle Scholar