The precautionary principle in the twenty-first century: A case study of noise pollution in the ocean

International Journal of Marine and Coastal Law

Volumn 22, Issue 1, 2007, Pages 61-87

  Gillespie, Alexander ^a  

^a UNIVERSITY OF WAIKATO   (New Zealand)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; INTERNATIONAL LAW; LAW OF THE SEA; NOISE POLLUTION; PRECAUTIONARY PRINCIPLE; TWENTY FIRST CENTURY;

EID: 34547963227     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180807781475227     Document Type: Article

References (235)

1. Report of the Scientific Committee of the International Whaling Commission (2004). Section 12.2.5.
2. Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. 2004 Report of the Second Meeting of the Parties to ACCOBAMS. (UNEP/CMS).
3. Resolution No. 5. Effects of Noise and of Vessels. Fourth Meeting of the Parties to the ASCOBANS Convention. (Esjberg, 2003).
4. IUCN. Third Conservation Congress (2004, Thailand). RESWCC3.068 Undersea noise pollution. Congress reference: CGR3.RES053.Rev.1. Paragraph 3.
5. In the process of investigating this problem, the NRC advocated a 'precautionary management' approach. National Research Council. (2005). Marine Mammal Populations and Ocean Noise: Determining When Noise Causes Biologically Significant Effects. (National Academies Press, Washington). 9.
6. Risk analysis is related to determining the probability of an adverse effect and the severity of that effect, and scientific uncertainty is part and parcel of this process. See Codex Alimentarius Commission. (2005). Procedure Manual. (FAO, 15th Ed.). Definitions, paragraphs 11
7. and 23. Risk analysis has many components, of which, in the context of the precautionary principle, risk management is the most important. Indeed, application of the precautionary principle is part of risk management, when scientific uncertainty precludes a full assessment of the risk. See Commission of the European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final. Annex III.
8. Also, Codex Alimentarius Commission. (2005). Procedure Manual. (FAO, 15th Ed.). Risk Assessment. For example, with the Biosafety Risk Assessment and Risk Management Protocol (the Cartegena Protocol), risk assessments for countries contemplating import restrictions on Living Modified Organisms (LMOs), are carried out in accordance with particular guidance, of which dealing with scientific uncertainty is a part. See the Biosafety Protocol Articles 15 and 16 and Annex III.
9. See Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 11.
10. Trail Smelter Arbitration Decision (United States v. Canada). 35 AJIL (1941). 648-736, at 716.
11. UNEP, Governing Council. (1989). Decision 15/27, May 25.
12. Santillo, D. (2002). 'TBT Antifoulants: A Tale of Ships, Snails and Imposex'. In Harremoes, P. (ed). The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings. (Earthscan, London). 147-160.
13. Gilbertson, M. (2002). 'Early Warnings of Chemical Contamination of the Great Lakes'. In Harremoes, supra note 10, 138-147.
14. Infante, P. (2002). 'Benzene: A Historical Perspective on the American and European Occupational Setting'. In Harremoes, supra note 10, 35-48.
15. Gee, D. (2002). 'Asbestos: From Magic to Malevolent Mineral'. In Harremoes, supra note 10, 49-63.
16. Krauss, M. (2002). 'MTBE in Petrol as a Substitute for Lead'. In Harremoes, supra note 10, 121-137.
17. Koppe, J. (2002). 'PCBs and the Precautionary Principle'. In Harremoes, supra note 10, 64-77. O'Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London, 1995). 18.
18. See FAO. (2004). State of the World's Fisheries and Aquaculture. (FAO, Rome).
19. MacGarvin, M. (2002). 'Fisheries: Taking Stock'. In Harremoes, supra note 10, 10-25.
20. Hilborn, R. (1995). 'The Development of Scientific Advice With Incomplete Information in the Context of the Precautionary Principle'. In FAO (ed). Precautionary Approach to Fisheries: Scientific Papers. (FAO, Rome, Fisheries Technical Paper 350/2). 77-98.
21. Commission of the European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final. 15.
22. MacGarvin, M. (1994). 'Precaution, Science and the Sin of Hubris'. In O'Riordan (ed). Supra note 15, 69, 73-74.
23. MacGarvin, ibid note 15, 69, 73-74.
24. Harremoes, supra note 10, 190-191.
25. O'Riordan, T. (ed). Interpreting the Precautionary Principle, supra note 15, 60-65.
26. Lovelock, J. (1994). 'Taking Care'. In O'Riordan, supra note 15, 108-116.
27. Harremoes, supra note 10, 186-187, 194-196.
28. Hunt, J. (1994). 'The Social Construction of Precaution'. In O'Riordan, supra note 15, 117.
29. Weston, A. (1987). 'Forms Of Gaian Ethics', Environmental Ethics, 9: 220.
30. Joseph, L. E. (1990). Gaia: The Growth of an Idea (Arkana, London). 153-172, 192, 204, 217.
31. Dryzek, J., 'Green Reason: Communicative Ethics for the Biosphere', in Gruen, L. and Jamieson, D. (1994), Reflecting on Nature: Readings on Environmental Philosophy (Oxford University Press, Oxford), 159, 164.
32. Carley, M. and Christie, I. (1992), Managing Sustainable Development (Earthscan, London), 43-44.
33. See Gillespie, A. (2006). Air Pollution, Ozone Depletion and Climate Change in International Law. (Brill, London). Chapters 3 and 8.
34. IPCC (2001). Climate Change 2001: Impacts, Adaptation and Vulnerability. (Cambridge University Press, Cambridge). 7.
35. Pearce, F. (2003). 'Doomsday Scenario'. New Scientist. Nov 22. 40-43.
36. IPCC (1996). Climate Change 1995: Impacts, Adaptations and Mitigation. (Cambridge University Press, Cambridge). 4.
37. Alley, R. (2004). 'Abrupt Climate Change'. Scientific American. Nov. 40-48.
38. cf. Nielson, R. (2004). 'Not Quite The Day After Tomorrow'. New Scientist. Sep 11. 6.
39. Bunyard, P. (2004). 'Crossing the Threshold'. Ecologist. Feb. 55-58.
40. Streets, D. (2000). 'Exploring the Concept of Climate Surprise'. Global Environmental Change. 10:97-107.
41. Kates, R. (1996). 'Expecting the Unexpected'. Environment. 38(2): 6-7.
42. Doak, D.F. et al. (1993). 'The Keystone-Species Concept in Ecology and Conservation. Bioscience. 43: 219-224.
43. Stork, N.E. (1993). 'Extinction or Co-Extinction Rates?' Nature. 366: 307.
44. Ehrenfeld, D. (1978). The Arrogance of Humanism (Oxford University Press, Oxford). 195-197.
45. Wilson, E. O., 'The Little Things That Run the World', in Pierce, C. (1995) (ed), People, Penguins and Plastic Trees: Basic Issues in Environmental Ethics (Wadworth, London), 139-142.
46. Weizsacker, C., 'Competing Notions of Biodiversity', in Sachs, W. (1993) (ed), Global Ecology: A New Area of Political Conflict (Zed, London), 117, 126-27.
47. Leopold, A. (1953) Round River. (Oxford University Press, Oxford). 146-147. 25 Note, it is somewhat artificial to suggest that a country is for or against the principle. The more sound approach is to note that many countries utilise it in some areas of their environmental portfolios but not necessarily in others.
48. See Sunstein, C. (2005). Laws of Fear: Behind the Precautionary Principle. (Cambridge University Press, Cambridge). O'Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London).
49. Bodansky, D. 'The Precautionary Principle in US Environmental Law'. In O'Riordan, op. cit., 203-225.
50. Haigh, N. 'The Introduction of the Precautionary Principle into the UK'.
51. Also in O'Riordan, op. cit., 229-253.
52. The precautionary principle is an obligation imposed upon the European Community through Article 174 (2) of the Treaty establishing the European Community. See the consolidated versions of the Treaty on the European Union and the Treaty establishing the European Community. Official Journal C21E of 24 December 2006. Although the principle is adumbrated in the Treaty, it is not defined there, and it has fallen to the Court of Justice of the European Communities, and various policy declarations from the Community, to help flesh out the precautionary principle in its European context. See, for example, the European Commission's decision banning the export of beef from the United Kingdom to reduce the risk of BSE transmission (Judgements of 5 May 1998, cases C-157/96 and C-180/96). Commission of the European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final.
53. Also, Zwanenberg, P. (2002). 'Mad Cow Disease: 1980s to 2000: How Reassurances Undermined Precautions'. In Harremoes, supra note 10, 170-184.
54. See Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 261-284, 286.
55. Van Dyke, J. (2004). 'The Evolution and International Acceptance of the Precautionary Principle'. In Caron, D. (ed). Bringing New Law to Ocean Waters. (Nijhoff, London). 357, 360-364.
56. For example, the 1982 United Nations Convention on the Law of the Sea (LOSC), BH825.txt, states that nuclear-powered ships exercising innocent passage through territorial waters shall 'observe special precautionary measures established for such ships established by international agreements'. LOSC, Article 23. The LOSC also makes the monitoring of the risks or effects of pollution on the marine environment, and reporting thereof, a broad obligation on all State Parties to the Convention. This was buttressed by the obligation imposed upon them to assess the potential effects of any of these activities, where they have reasonable ground for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment. See Articles 204 to 206.
57. See Article 5.7 of The WTO Agreement on the Application of Sanitary and Phytosanitary Measures. Available at: http:/www.wto.org/english/tratop_e/sps_e/ spsagr-e.htm.
58. WSSD. Plan of Implementation. A/CONF.199/LI. Paragraphs 22 and 103 (f).
59. CBD. UNCED.1992. UNEP.Bio.Div/CONF.L2.1992. Preamble.
60. Agenda 21. A/CONF. 187/26 (Vol III) 1992. August 14. Chapter 17. Paragraph 1.
61. Chapter 19 of Agenda 21, Paragraph 14 (a), recommended, with regard to risk assessment, the 'taking into account [of a] precautionary approach'. Likewise, with risk reduction issues, 'precautionary measures' should be employed.
62. Chapter 19. Paragraphs 48 and 60 (d).
63. Agenda 21. Chapter 19. Paragraph 32. This was particularly notable with radioactive waste, where a standing Convention (the 1972 London Convention) was advised to 'take into account' and make 'appropriate usage of the precautionary principle when dealing with lowlevel radioactive wastes.
64. Chapter 19. Paragraph 22 (5)(b) and (c).
65. Stockholm Convention on Persistent Organic Pollutants 2001. Preamble. Available at 〈http://www.pops.int/〉
66. Stockholm Convention on Persistent Organic Pollutants. Article 1.
67. 1996 Protocol To The Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, 1972. Available from the International Maritime Organization.. The preamble to the Protocol especially notes 'the evolution towards approaches based on precaution and prevention'.
68. 996 UNTS 245.
69. Also, 91 ILM (1972) 963 UNTS. With regard to subsequent resolutions,
70. see, for example, Resolution VIII/14. New Guidelines for Management Planning of Ramsar Sites. Chapter IV.
71. Also, see Resolution VIII/1. Guidelines on the Allocation and Management of Water.
72. Convention on migratory Species of Wild Animals, 19 ILM (1980) 15. Resolution 7.5. Wind Turbines and Migratory Species. (COP 7, 2002, Bonn).
73. Resolution 4.4. Strategy for the Future Development of the Convention. Annex. Point 16. (COP 4, 1994, Nairobi).
74. Resolution 4.7. Wind Turbines and Bat Populations. Report of the Fourth Session of the MOP to EUROBATS, 2003. Available from the Secretariat, at http://www.eurobats.Org/.50.
75. Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS) (1995) UKTS, no. 52. MOP 3 (2000). Incidental Take of Small Cetaceans.
76. Agreement on the Conservation of Cetaceans of the Black Sea Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS) (1997). 777. Article II4.
77. AEWA. This is reprinted in Austen, A. (ed.) Basic Legal Documents on International Animal Welfare and Wildlife Conservation. (Kluwer, The Netherlands) 617, Article II.2.
78. ACAP. Preamble, available from 〈http:/www.acap.aq/〉
79. ACAP. Article II (2).
80. United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: Agreement for the Implementation of the Provisions of the United Nations Convention of The Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 35 ILM (1996), 1542. 34 Article 6.1, 6. (3) (d).
81. The 1990 Hague Declaration. Ministerial Declaration of the Third International Conference on the Protection of the North Sea, The Hague, 8 March 1990. Also, the Esjberg Declaration, 1995. Paragraphs 1, 16, 54 and 58.
82. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, Gland). 5-6.
83. Cameron, J. (1998). 'The Status of the Precautionary Principle in International Law'. In O'Riordan, supra note 15, 263-283.
84. Notably Sir Geoffrey Palmer, and Judges Korma and Weeramantry were all in support of this point. Sir Geoffrey argued that the norm involved in the precautionary principle may now [in 1995] be a principle of customary international law relating to the environment, and Judge Weeramantry suggested that the core of the principle was 'sufficiently well established in international law for the Court to act upon it'. See International Court of Justice. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. Paragraphs 89 and 91. Also, Dissenting judgement of Judge Weeramantry, at 352.
85. In particular, Judge Weeramantry named the precautionary principle, as well as a separate 'principle that the burden of proving safety lies upon the author of the act complained of,' as part of a set of general principles of international environmental law. International Court of Justice. Legality of the Threat of Use of Nuclear Weapons. ICJ Reports (1996). 226.
86. 1997, 25 September, General List, No. 92. Also reprinted in 37 ILM (1998). 162.
87. See paragraph 97.
88. See paragraph 113.
89. International Tribunal For The Law Of The Sea. Ibid.
90. International Tribunal For The Law Of The Sea. Ibid.
91. International Tribunal For The Law Of The Sea. Ibid.
92. Although Ad-Hoc Judge Shearer noted the difficulties of applying the precautionary principle to fisheries management, and he cast doubt on the overall utility of the principle as a 'mandate for action', the precautionary approach still, clearly, had merit and was, in his opinion, utilised by the Tribunal in the provisional judgement. See also the comments from Judge Lain (at paragraph 16) and Judge Treves at paragraph 9. For further comment, see Van Dyke. Supra note.........372.
93. International Tribunal For The Law Of The Sea. 27 August 1999, List of cases: Nos. 3 and 4. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraph 77.
94. EC Measures Concerning Meat and Meat Products (Hormones) Complaint by the United States. Report of the Panel. WT/DS26/R/USA. 18 August 1997. Paragraph 8.157.
95. Appellate Body. EC Measures Concerning Meat And Meat Products (Hormones). AB-1997-4. Report of the Appellate Body. WT/DS26/AB/R. Paragraph 124-25. In particular, see Article 5.7, as well as the sixth paragraph of the preamble and Article 3.3 of the SPS Agreement. Paragraph 6 of the Preamble embraces precaution by encouraging harmonization of national SPS measures with international standards without requiring Members to change the appropriate levels of health protection as determined by each Member in accordance with its sovereign rights to do so. Article 3.3 of the SPS Agreement involves a precautionary approach because it explicitly permits Members to adopt SPS measures which are more stringent than measures based on the relevant international standards.
96. Cooney, supra note 49, 23. Although, in fairness, global forestry policy lacks even the most basic conservation objectives, let alone more specific tools, such as the precautionary principle.
97. International Code of Conduct on the Distribution and Use of Pesticides, adopted by the 123rd Session of the FAO Council in November 2002 FAO Council Resolution 1/123 (2003). Although the need to 'take all precautions... to protect workers, children, etc' is mentioned, the precautionary principle/approach is not.
98. The 1988 Rotterdam Convention on the Prior Informed Consent Procedure For Certain Hazardous Chemicals and Pesticides in International Trade. Available at 〈http:/www.pic.int/〉. The Rotterdam Convention only considers 'precautionary measures' with regard to information exchange between Parties.
99. Although precaution is noted with regard to one of the possible Annex listings, of which the Committee is obliged to give, inter alia, 'consideration of precaution and prevention'. Article 9 (9). Annex C. Section B.
100. The 2000 Cartagena Protocol on Biosafey The Parties to the Protocol established a process to help develop guidance and a framework for a common approach to risk assessment and risk management. Originally conceived as part of the medium-term programme of work for the Parties (Decision BS-I/12), 2004, at the second meeting of the Parties, risk assessment and risk management were directly considered. Decision BS-II/9 (2005). Risk Assessment and Risk Management. In this latter instance, in addition to hosting a series of workshops on capacity-building and exchange of experiences with risk assessment and risk management of LMOs, an Ad-Hoc Technical Expert Group on Risk Assessment was established. This AdHoc Group was tasked with further consideration of the nature and scope of existing approaches to risk assessment, to evaluate such approaches, and to identify any gaps and capacity-building needs. See the Terms of Reference for the Ad-Hoc Technical Expert Group on Risk Assessment.
101. That is, as was recently decided by the Panel at the WTO, although their SPS Agreement allows a type of precautionary approach, this approach must follow certain requirements (which the Europeans did not follow). See measures Affecting te Approval and Marketing of Biotech Products. WT/DS291/INTERIM.7 Feb, 2006.
102. The weak approach is supported by an optimistic assumption that environmental resources are not capable of exhaustion, and if they are, that suitable replacements can be found. In such a setting, the role of precaution is mostly as a spur to innovation and managerial adaptation. This is especially so where the threat of irreversible damage is palpable and the benefits of intervention are clear. This version 'pushes the burden of proof out a bit, into the anticipation of possible harm or expected proof of harm'. Conversely, the strong version of the principle encompasses a pessimistic world view, whereby precaution is necessary because the ecology is not believed to be robust, and requires much greater intervention than has been achieved in the past. For a some critique of the principle, and the need to have 'limits' upon it, see Sunstein, C. (2005). Laws of Fear: Behind the Precautionary Principle. (Cambridge University Press, Cambridge).
103. Sunstein, C. (2002). Risk and Reason: Safety, Law and the Environment. (Cambridge University Press, Cambridge).
104. O'Riordan, supra note 15, 19-20.
105. Stone, C. (2001). 'Is There a Precautionary Principle?' 31 Environmental Law Reporter. 10790.
106. Cameron, J. (1995). 'The Status of the Precautionary Principle in International Law'. In Freestone, D. and Hey, E. (eds). The Precautionary Principle and International Law. (Kluwer, the Netherlands). 29, 44-45.
107. Whereas Ireland contended that it applied, and was part of customary international environmental law, the UK did not disagree, but argued that its practice in relation to the MOX reprocessing plant was entirely consistent with the precautionary principle. See the MOX Plant Case (Ireland v. UK). (ITLOS 2001). 41 ILM (2002). 405. See the Memorial of Ireland, at paragraphs 6.25 and 6.26. See also the Rejoinder from the UK, at paragraph 8.34.
108. Consistent with international treaty interpretation in general, the ICJ agreed that general rules (such as the precautionary principle) cannot override specifically agreed rules which were designed to address particular issues. A very similar conclusion was reached at the Panel and Appeal levels by the World Trade Organisation, in that a generic precautionary principle could not be taken to pre-empt a specific treaty obligation which had already incorporated and given a specific meaning on how to deal with the issue at hand.
109. Appellate Body. EC Measures Concerning Meat And Meat Products (Hormones). AB-1997-4. Report of the Appellate Body. WT/DS26/AB/R. Paragraph 122-23.
110. See footnote 67, Par. 7.98 and 7.89.
111. International Court of Justice. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. Paragraph 34.
112. 1997, 25 September, General List, No. 92.
113. Also reprinted in 37 ILM (1998). 162.
114. Southern Bluefin Tuna Case: Australia and New Zealand v. Japan. Award on Jurisdiction and Admissibility. August 4, 2000. Rendered by the Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea. Paragraph 34.
115. Southern Bluefin Tuna Case: Australia and New Zealand v. Japan. Award on Jurisdiction and Admissibility. August 4, 2000. Rendered by the Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea. Paragraphs 31 and 33.
116. See the MOX Plant Case (Ireland v. UK). (ITLOS 2001). 41 ILM (2002). 405. See the Memorial of Ireland, at paragraphs 6.25 and 6.26. See also the Rejoinder from the UK, at paragraph 8.34.
117. See Birnie, P and Boyle, A. (2002). International Law and the Environment. (Oxford University Press, Oxford). 118-121.
118. Nolkaemper, A. (1995). 'What You Risk Reveals What You Value: And Other Dilemmas Encountered in the Legal Assault on Risks'. In Freestone, supra note 68.
119. O'Riordan, supra note 5.
120. However, (at least) one does. The one example I have been able to locate is the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement of Hazardous Wastes within Africa (1991) BH984.txt. This stipulates that the risk 'may cause harm to humans or the environment' without any specification of a minimum level of risk. See Article 3 (f).
121. See UNEP. (1996). Final Report of the Expert Group Workshop on International Environmental Law Aiming at Sustainable Development. UNEP/IEL/WS/3/2.
122. International Tribunal for The Law Of The Sea. 27 August 1999, List of cases: Nos. 3 and 4. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraph 77.
123. The 1987 London Declaration. Second International Conference on the Protection of the North Sea, London, 24-25 November 1987. Paragraph 7. This declaration and others relating to the International Conferences for the Protection of the North Sea can be found at 〈http://seas-at-risk.org/ 12_archive〉.
124. The 1987 London Declaration, ibid, Paragraph XV (ii).
125. Commission of the European Communities. Communication from the Commission on the Precautionary Principle. COM(2000) 1 final. 2.
126. Trouwborst, A. (2002). The Evolution and Status of the Precautionary Principle in International Law. (Kluwer, Netherlands). 286.
127. See Bodansky, D. (2004). 'Deconstructing the Precautionary Principle'. In Caron, D. (ed). Bringing New Law to Ocean Waters. (Nijhoff, the Netherlands). 381, 387-388.
128. Hickey, J. (1995). 'Refining the Precautionary Principle in International Environmental Law'. 14 Virginia Journal of Environmental Law. 423, 449-450.
129. Cooney, R. (2004). The Precautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, Gland). 9.
130. Foster, K. (2000). 'Science and the Precautionary Principle'. Science. 288 (5468). 979-981.
131. The 1987 London Declaration. Second International Conference on the Protection of the North Sea, London, 24-25 November 1987. Paragraph VII.
132. The 1987 London Declaration. Ibid, Paragraph XVI.
133. 1996 London Convention Protocol. Article 3.
134. This interpretation has been confirmed in the case of growth hormones by the WTO's Appellate Body, which rejected the Panel's initial interpretation that the risk assessment had to be quantitative and had to establish a minimum degree of risk. EC Measures Concerning Meat and Meat Products (Hormones) Complaint by the United States. Report of the Panel. WT/DS26/R/USA. 18 August 1997. Paragraph 8.161-162.
135. Commission of the European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final. 3-4.
136. EC Measures Concerning Meat and Meat Products (Hormones) Complaint by the United States. Report of the Panel. WT/DS26/R/USA. 18 August 1997. Paragraph 8.161-162.
137. Article 6. Annex II to the Straddling Stocks Agreement.
138. See FAO. (1995). A Precautionary Approach to Fisheries. (FAO, Rome, Fisheries Technical Paper No 350/1; 2-3).
139. Hunt, J. (1994). 'The Social Construction of Precaution'. In O'Riordan, T. (ed). Interpreting the Precautionary Principle. (Earthscan, London). 117. Cooney, supra note 49, 7-8.
140. International Court of Justice. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. Paragraphs 63 and 68. Note that the Court did not address the merits of this point.
141. Dissenting judgement of Judge Weeramantry, at 348.
142. International Court of Justice. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case. 342.
143. 1996 Protocol To The Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter, 1972.
144. Convention on International Trade in Endangered Species of Wild Flora and Fauna. 12 ILM (1973) 1055.
145. Conference Resolution 9.24 (1994) of the CITES Conference.
146. Cooney, supra note 49, 13.
147. Bodansky, D. (1991). 'Scientific Uncertainty and the Precautionary Principle'. Environment. 33:4.
148. International Tribunal for the Law of the Sea. 27 August 1999, List of cases: Nos. 3 and 4. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan). Requests for provisional measures. Order. Paragraphs 79 and 80.
149. Freestone, D. & Hey, E. (1995). supra note 68, 13.
150. Cooney, supra note 49, 5.
151. FAO. (1995). Code of Conduct for Responsible Fisheries. (FAO, Rome). Article 6(5).
152. Likewise, in the Biosafety Protocol it was agreed that lack of scientific certainty on the extent of the potential adverse effects of a living modified organism on the conservation and sustmnable use of biological diversity... shall not prevent that Party from taking a decision. Biosafety Protocol. Article 6.2. and 10 (6).
153. Accordingly, since it is only a temporary step, the subsequent decisions that a country may adopt should not be guessed at. Indeed, once all the evidence of a given risk is available, a State Party may still choose to accept the risk, and proceed as planned, as such a choice is ultimately a political one, in which the values and ideology of the country at hand will come into play. The exception to the above situation is where the agreements in question have developed, in advance, particular approaches that must be followed (that is, there is no discretion on how to act when faced with scientific uncertainty). This approach is most common in international fisheries agreements, where it is agreed in advance that if stocks fall below a certain reference point, then certain actions must follow so as to either initiate stock recovery, or return to the target levels. This approach requires precautionary or limit reference points to be defined (e.g., for spawning biomass and fishing capacity) and nondiscretionary action must be decided in advance and taken if and when these limits are reached. The FAO and a number of other international organisations, such as the Commission on the Conservation of Antarctic Marine Living Resources and the International Whaling Commission, have spent a large amount of effort developing such reference points for various stocks, from which management decisions can be directed in times of uncertainty. Commission of the European Communities. Communication from the Commission on the precautionary principle. COM(2000) 1 final. 3,15.
154. Bodansky, supra note 97, 381, 384.
155. Caddy, J. (1998). A Short Review of Precautionary Reference Points and Some Proposals for Their Use in DataPoor Situations. (FAO, Rome. Fisheries Technical Paper No. 379).
156. Cooney, supra note 49, 21. Marr, S. (2003).
157. The Precautionary Principle in the Law of the Sea. (Nijhoff, Netherlands). 26-27. O'Riordan, supra note 15, 17-18.
158. Annex III. Section 8 (f)
159. Appellate Body Report, Japan-Measures Affecting Agricultural Products, WT/DS76/AB/R. Thus, a Member may provisionally adopt a SPS measure if this measure is (1) imposed in respect of a situation where relevant scientific information is (2) insufficient but the position is nevertheless adopted, 'on the basis of available pertinent information.' Such a provisional measure may not be maintained unless the Member which adopted the measure (3) seeks to obtain the additional information necessary for a more objective risk assessment and (4) reviews the... measure accordingly within a reasonable period of time. Whenever one of these four requirements is not met, the measure at issue is inconsistent with Art 5.7 of the SPS Agreement. As to what constitutes a 'reasonable period of time' to review the measure, the Appellate Body suggested that this has to be established on a case-by-case basis and depends on the specific circumstances of each case, including the difficulty of obtaining the additional information necessary for the review and the characteristics of the provisional SPS measure. Japan's varietal testing requirement could not be defended under Article 5.7 of the SPS Agreement because Japan had not sought to obtain the additional information necessary for a more objective risk assessment and had not reviewed its testing requirement within a reasonable period of time as required by Article 5.7.
160. Commission of the European Communities. Communication from the Commission on the Precautionary Principle. COM(2000) 1 final. 16.
161. The Precautionary Principle Project. (2005). Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management. (IUCN, Geneva). Principle 2.
162. Sunstein, C. (2002). Risk and Reason: Safety, Law and the Environment. (Cambridge University Press, Cambridge). 291-295.
163. National Research Council. (1996). Understanding Risk: Informing Decisions in a Democratic Society. (National Academies Press, Washington). 5. Commission of the European Communities. Communication from the Commission on the precautionary principle.
164. COM(2000) 1 final. 3-4, 19.
165. Harremoes, supra note 10, 196-200.
166. Whilst the search for what is 'equity' is a topic without end, in international environmental law, the explicit assumptions are that the special needs of developing countries, and of least-developed countries in particular, should be taken into consideration. In addition, as sustainable development retains a strong element of 'development,' it is important that attempts are made to mitigate poverty, and that those who bear the costs should not do so in a disproportionate manner (unless they created the problem at hand), and that the costs should be borne more by those who can afford to shoulder them, than those who are not so well equipped. Otherwise, existing distributional inequities may be exacerbated. Precautionary Principle Project, supra note 111, Principle 11.
167. Cooney, supra note 49, 28-29.
168. O'Riordan, supra note 15, 17-18.
169. Trouwborst, supra note 85, 286.
170. O'Riordan, supra note 15 25-26. The Precautionary Principle Project, supra note 111 Principle 7.
171. Trouwborst, supra note 66, 15. The Precautionary Principle Project supra note 111, Principle 10.
172. Commission of the European Communities, supra note 86, 3-4, 17.
173. Cooney, supra note 49, 30-31, 36.
174. Commission of the European Communities, supra note 86, 3-4, 18.
175. Hecht, J. (2005). 'Quest for Oil Could Injure Marine Life'. New Scientist. Aug 20. 14.
176. Anon. (2004). 'Boats Drown Out Orcas' Cries.' New Scientist. May 1.19.
177. Edwards, R. (2003). 'Sonar Kills Whales.' New Scientist. Oct 11.10.
178. Anon. (2003). 'Sonar.' Sci. Am. Dec. 21. 14.
179. Jones, N. (2003). 'Is Undersea Noise Harming Whales?' New Scientist. Feb 22. 8.
180. Doleman, S. (2002). 'Noise Sources in the Cetacean Environment.' SC/54/E7 (unpublished report to the Scientific Committee of the IWC, 2002).
181. Anon. (2002). 'Not So Pacific Ocean.' New Scientist. March 30. 23.
182. Hecht, J. (2001). 'Navy Accepts Blame For Whale Deaths.' New Scientist. Jan 12. 15.
183. Marks, P. (2000). 'Cracking Up: Is the Din in the Arctic a Headache for Beluga Whales?' New Scientist. September 30. 12.
184. Hrynyshyn, J. (2001). 'Going Round the Bend.' New Scientist. Dec 15.17.
185. Holmes, B. (1997). 'Noises Off.' New Scientist. March 22. 24-27.
186. Anon. (2005). 'Sonar Lawsuit'. New Scientist. Oct 29.4.
187. In particular, the IMO's Guidelines for the Designation of Special Areas
188. In 2003, Spain placed the issue of noise pollution and its effect upon marine mammals on the table at the XXVIth ATCM meeting. The issue forwarded to SCAR, the regime's scientific body, for examination. See Final Report of the XXVIth ATCM (Madrid, 2003). 20.
189. At the Sixth meeting of UNICPOLOS, a group of NGOs drew attention to anthropogenic underwater noise as a largely unregulated form of pollution, and suggested using the LOS Convention as a legal basis for action to regulate this type of pollution, organizing a multinational task force to develop international agreements to regulate noise levels, and applying the precautionary principle to significantly reduce, mitigate or cease activities resulting in the production of intense underwater noise until effective guidelines were developed. See Report of the UNICPOLOS at its Sixth Meeting. A/59/122. (2005, July 7). Paragraph 45.
190. It was not until 2004 that a mini symposium was held on the problem of noise pollution. A dedicated workshop on the overall topic was scheduled for 2006. Scientific Committee Report (2004) IWC/56/Rep 1. 42-45.
191. For other discussions of this topic, see Report of the Scientific Committee. IWC/57/Rep 1. 44-45.
192. IWC 54th Report. (2002). 9.
193. Also, see the Report of the Scientific Committee (2003) IWC/55/Rep 1. 39.
194. Resolution 2004-1. Resolution on the Western North Pacific Gray Whale. IWC 56th Report (2005). 66.
195. Resolution 2005-3. Resolution on the Western North Pacific Gray Whale. IWC/57/25.
196. See also Graham-Rowe, D. (2005). 'Oil Plans Threaten Whales' Existence.' New Scientist. Feb 16.
197. H.Gordon, D. (2002). 'Suckered At Sakhalin.' Ecologist. 32(1): 32-35.
198. Weller, D. (2002). 'Influence of Seismic Surveys on Western Gray Whales off Sakhalin Island, Russia.' SC/54/BRG14.
199. Report of the Scientific Committee (2005). IWC/55/Rep 1. 29. The IUCN report is discussed in detail in the Report on Secretariat Activities With Respect to Western North Pacific Gray Whales.
200. See document IWC/5710. (2005) 1, 4-6.
201. In particular, parties and non-parties were urged to take special care and, if appropriate, to avoid any use of man-made noise in habitats of vulnerable species and in areas where marine mammals or endangered species may be concentrated'. See Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. (2004) Report of the Second Meeting of the Parties to ACCOBAMS. (UNEP/CMS).
202. Resolution No. 5. Effects of Noise and of Vessels. Fourth Meeting of the Parties to the ASCOBANS Convention. (Esjberg, 2003).
203. United States Commission on Ocean Policy. (2005). Ocean Blueprint for the 21st Century (National Technical Information Service, Washington). 315-316.
204. The International Council for the Exploration of the Sea (ICES) (2005) Report of the Ad Hoc Group on the Impact of Sonar on Cetaceans. ICES CM 2005/ACE:06. At page 47.
205. See ICES Advisory Committee on Ecosystems, n. 1 above, at 47-49.
206. See the Report of the Scientific Committee of the International Whaling Commission, (2004) IWC/56/Rep I. Section 12.2.5.
207. See Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. Report of the Second Meeting of the Parties to ACCOBAMS (UNEP/CMS).
208. See Section 3 of Resolution No. 5. Effects of Noise and of Vessels. Proceedings of the Fourth Meeting of the Parties to the ASCOBANS Convention. (Esjberg, 2003).
209. National Research Council. (2000). Marine Mammals and Low Frequency Sounds (NRC Washington) 5-7.
210. The 2003 report went on to list 16 areas where research needs required addressing. See National Research Council. (2003). Potential Impacts of Ambient Noise in the Oceza on Marine Mammals. (NRC, Washington). 7-11.
211. The 2005 Report added the need for further research in its area (biologically significant impacts), data coordination, standardization, analysis, and focus. National Research Council. (2005). Marine Mammal Populations and Ocean Noise. (NRC, Washington). 4-11.
212. ICES Advisory Committee on Ecosystems (2005). Supra note 127, 10-12.
213. See Jepson, P. (2003). 'Gas Bubble Lesions in Stranded Cetaceans'. Nature. 425: 575-576.
214. See Fernandez, A. et al. (2005). 'Gas and Fat Embolic Syndrome: Involving a Mass Stranding of Beaked Whales Exposed to Anthropogenic Sonar Signals'. Veterinary Pathology. 42 (4): 446-457.
215. Report of the Scientific Committee of the International Whaling Commission (2004). Supra note 125, Section 12.2.5.
216. Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. Supra note 129.
217. ICES Advisory Committee on Ecosystems (2005). Supra note 127. p2, 3, 13-15, 39.
218. National Research Council. (2000). Supra note 131, 1-5, 5-7.
219. National Research Council. (2000). Supra note 131.
220. IUCN. Third Conservation Congress (2004, Thailand). RESWCC3.068 Undersea Noise pollution. Congress reference: CGR3.RES053.Rev.1. Paragraph 5.
221. Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. 2004 Report of the Second Meeting of the Parties to ACCOBAMS. (UNEP/CMS). European Parliament Resolution on the Environmental Effects of High-Intensity Active Naval Sonars. B6-0089/2004. Paragraph 7.
222. See Gillespie, A. 'Establishing Reliable Foundations for the International Scientific Investigation of noise Pollution', 15(2) Reviev of European Community and International Environmental Law (2006), 211.
223. ICES Advisory Committee on Ecosystems (2005). Supra note 127, 47.
224. Report of the Scientific Committee of the International Whaling Commission (2004). Supra note 126, Section 12.2.5.
225. National Research Council. (2000). Supra note 131 4, 7.
226. National Research Council. (2003). Potential Impacts. Supra note 132, 7, 11.
227. The European Parliament called upon the European Commission to conduct a study of the potential impact on the marine environment of the deployment of high-intensity active naval sonars and to provide an assessment, on the basis of information from the Member States, of the impact of current practices in European waters. European Parliament. Supra note 145, Paragraph 5.
228. The UNGA called for, inter alia, 'further studies and consideration of the impacts of ocean noise on marine living resources'. UNGA. A/RES/60/30. Oceans and the Law of the Sea. Paragraph 84.
229. Resolution 2.16. Assessment And Impact Assessment Of Man-Made Noise. Supra note 129.
230. IUCN. Supra note 144. Statement, attached to the end of the resolution.
231. Report of the Scientific Committee of the International Whaling Commission (2004). Supra note 128, Section 12.2.5. European Parliament Resolution on the Environmental Effects of High-Intensity Active Naval Sonars. B6-0089/2004. Paragraph 1.
232. Report of the Scientific Committee of the International Whaling Commission (2004). Supra note 128, Section 12.2.5.
233. IUCN. Third Conservation Congress (2004, Thailand), supra note 144 Paragraph 5.
234. For a detailed analysis of the methods used by a number of navies in this area, see the ICES Advisory Committee on Ecosystems (2005). supra note 127, Section 5.6.
235. Resolution No. 5. Effects of Noise and of Vessels. Fourth Meeting of the Parties to the ASCOBANS Convention. (Esjberg, 2003).