Ocean noise, scientific uncertainty, and the paradox of the precautionary principle

Journal of International Wildlife Law and Policy

Volumn 10, Issue 3-4, 2007, Pages 233-242

  McCarthy, Elena ^a  

^a WOODS HOLE OCEANOGRAPHIC INSTITUTION   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL PROTECTION; MARINE MAMMAL; MARINE PARK; MARINE POLICY; NOISE POLLUTION; PRECAUTIONARY PRINCIPLE; SPECIES CONSERVATION;

NORTH AMERICA; UNITED STATES;

EID: 37549038649     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880290701769296     Document Type: Article

References (54)

1. Elena McCarthy, Marine Policy Center, Woods Hole Oceanographic InstitutionWoods Hole, Massachusetts 02543, USA. E-mail: emccarthyωhoi.edu
2. Joel Tickner et al., The Precautionary Principle in Action: A Handbook. pp. 2-3. (Lowell Center for Sustainable Production, University of Massachusetts, 1998).
3. Specifically, the precautionary principle was first used internationally in 1984 in the North Sea Conference, Patricia Birnie and Alan Boyd, International Law and the Environment, p 2nd ed., p. 116 (OxfordUniversity Press, 2002), 116. TheUnited States prefers the term "precautionary approach" rather than "precautionary principle" in the belief that "approach" offers greater flexibility and is potentially less restrictive than "principle." For background on the precautionary principle and the precautionary approach, see generally Freestone and E. Hey, The Precautionary Principle and International Law (Kline Law International, 1996); Interpreting the Precautionary Principle (Prescott, Inc., C. O'Riordan and Cameron, eds., 1994);
4. Harald Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law(Kluwer LawInternational, 1994);
5. Nollkaemper, The Legal Regime for TransboundaryWater Pollution (Dordrech, 1993);
6. John M. Macdonald, Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management. Ocean Development and International Law 26 (1995): 255-267;
7. R.C. Earll, Commonsense and the Precautionary Principle: An Environmentalist's Perspective. Marine Pollution Bulletin 24(1992): 182-6;
8. and R.D. Stebbing, Environmental Capacity and the Precautionary Principle. Marine Pollution Bulletin, 24 (1992): 287-95. 9 United Nations Conference on Environment and Development, Rio Declaration on Environment and Development. I.L.M. 31 (1992): 874-879. Since 1990, the precautionary approach has also been incorporated into several treaties or instruments that deal with marine pollution, international watercourses, air pollution, climate change, transboundary trade in hazardous waste, and endangered species. See Birnie and Boyle, International Law and the Environment, 2nd ed. for a list of these treaties and instruments. For a discussion on the precautionary principle in the Oslo and Paris Conventions, see Ellen Hey, The Precautionary Approach: Implications of the Revision of the Oslo and Paris Conventions. Marine Policy (July 1991): 244-254.
9. In regard to marine pollution, see the Helsinki Convention, the Paris Convention, London Dumping, among others. In regard to endangered species, there is guidance provided by the "Berne Criteria" which requires that any de-listing of endangered species be "approached with caution" and only with "positive scientific evidence that the...animal can withstand the exploitation resulting from the removal of the protection." Patricia Birnie and Alan Boyle, International Law and the Environment, 2nd ed., 166.
10. Concerning this burden of proof, see generally David Appell, The New Uncertainty Principle. Scientific American (January 2001): 18-19.
11. See also Margot Higgins, Conservation Lessons: Marine Mammal Act Shifts Burden of Proof. Environmental News Network, October 7, 2000, found on line at
12. Patricia Birnie and Alan Boyle, International Law and the Environment 2nd ed., 85.
13. Agenda 21 is "a comprehensive plan of action to be taken globally, nationally, and locally by organizations of the United Nations System, governments, and major groups in very area in which humans impact the environment." It was adopted by more than 178 governments at the UN Conference on Environment and Development in Rio de Janero in June, 1992. It consists of forty chapters covering a variety of issues including the environment, poverty, and development. For the text of Agenda 21 which addresses the use of precaution in protection of the seas, see "Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of their Living Resources," Agenda 21, ch. 17, para. 17.1, available at
14. Lettie Wenner, Transboundary Problems in International Law, in Environmental Politics in the InternationalArena (State University of NewYork Press, Sheldon Kamieniecki, ed. Sheldon Kamieniecki 1993), 166. The essence of the precautionary approach has been described by international legal scholar, David Freestone: "The precautionary approach then is innovative in that it changes the role of scientific data. It requires that once environmental damage is threatened action should be taken to control or abate possible environmental interference even though there may still be scientific uncertainty as to the effects of the activities."
15. David Freestone, The Road from Rio: International Environmental Law After the Earth Summit, Journal of Environmental Law 6 (1994): 211.
16. House Resources Committee, Subcommittee on Fisheries Conservation,Wildlife and Oceans, Oversight Hearing on the Marine Mammal Protection Act, 107th Cong., 1st Sess. 277-78 (Oct. 11, 2001).
17. November 20, 1999, "Statement on Low Frequency Active Sonars and Acoustic Pollution in the Mediterranean Sea." Available at .
18. Ibid.
19. From a speech, "Interpreting Research Results: Government Regulation Of Anthropogenic Noise Sources," by Naomi Rose of the Humane Society of the United States at the Acoustic Society of America meeting in Ft. Lauderdale, Florida on 5 December 2001. Text of speech is also available via the MARMAM listserver at MARMAM_evvm.uvic.ca on the December 10, 2001 postings.
20. Natural Resources Defense Council, Sounding the Depths II: The Rising Toll of Sonar, Shipping and Industrial Ocean Noise on Marine Life, p. 45. (NRDC, 2005).
21. Report of the IWC Scientific Committee, See IWC/56/4, "Report of the IWC Scientific Committee" available at
22. Ibid.
23. The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area of November 24, 1996 (ACCOBAMS). Text of agreement available at
24. See also, Robin Churchill, Sustaining Cetaceans: A Preliminary Evaluation of the Ascobans and Accobams Agreements, in International Lawand Sustainable Development: Past Achievements and Future Challenges, pp. 225-252 (Oxford University Press, Alan Boyle, ed., 1999). The text of the OSPAR Convention is found at www.ospar.org. See art. 2(2)(a).
25. See also 1992 OSPAR Convention, Annex V, art. 3 para. (b)(ii).
26. Emily A. Gardner, The Precautionary Principle as Applied to Marine Acoustic Activities, Emerging Issues in National Ocean and Coastal Policy (Nov. 1998): 9-14.
27. Ibid., 11.
28. Ibid., 12.
29. An expert panel of marine biologists and acousticians met in September 1998 at NMFS headquarters in Silver Spring, Maryland, to establish criteria for thresholds of physical harm and disturbance of marine mammals. See Emily Gardner, The Precautionary Principle as Applied to Marine Acoustic Activities, p. 14;
30. and also Ocean Studies Board, Marine Mammals and Low-Frequency Sound: Progress since 1994, pp. 65-71 (National Academy Press, 2000).
31. Specifically, Gardner supports the use of a 120 dB criterion, which has been proposed as the received level above which behavioral disruption of marine mammals was thought to occur.
32. For a discussion of the difficulties inherent in developing policy in the face of scientific uncertainty, see D. Hiep Truong, How Does an Administrative Agency Distinguish Valid Science from Junk Science? Akron Law Review 33 (2000): 365.
33. See generally Sue Mayer and Mark Simmonds, Science and Precaution in Cetacean Conservation, in The Conservation of Whales and Dolphins, 391 (Mark P. Simmonds and Judith D. Hutchinson, eds., 1996).
34. Office of Protected Resources, NOAA, The Effects of Manmade Noise on Marine Mammals, Marine Mammal Protection Act Bulletin, Issue 19/20, 2nd/3rd quarter 2000, 9.
35. Ocean Studies Board, Low-Frequency Sound and Marine Mammals: Current Knowledge and Research Needs, p. 5 (National Academy Press, 1994).
36. P. Birnie and A. E. Boyle, International Law and the Environment 2nd ed., p. 115.
37. Ibid., 500-516.
38. Natural Resources Defense Council, Sounding the Depths II: The Rising Toll of Sonar, Shipping and Industrial Ocean Noise on Marine Life, p. 53.
39. P. Birnie and A.E. Boyle, International Law and the Environment 2nd ed., p. 117.
40. For specific examples of this, see Mike Carlowicz and Andrea Baird, Caught in theMiddle of the Marine Mammal Protection Act, Oceanus, April 6, 2006,
41. and Peter L. Tyack, Let's Have Less Public Relations and More Ecology Oceanus, 32 (1): 103-108.
42. For a discussion concerning levels of harm, see John Moffet, Legislative Options for Implementing the Precautionary Principle, Journal of Environmental Lawand Practice 7 (1997): 157-160. Birnie discusses the different thresholds of harm: Rio Principle 15 and the Climate Change Convention require a risk of 'serious or irreversible harm' before the principle applies, while treaties on the marine environment do not. In some cases the principle involves a reversal of the burden of proof, in others it merely lowers the standard of proof, but to what level remains uncertain.
43. See P. Birnie and Boyd, International Law and the Environment 2nd ed., p. 119.
44. See European Commission, Communication on the Precautionary Principle COM, 2000, 1, 3.
45. P. Birnie and A.E. Boyle, International Law and the Environment 2nd ed., p. 118.
46. Patricia Birnie claims that the consequences of applying the precautionary approach vary widely. Principle 15 of the Rio Declaration requires a consideration of scientific uncertainty in identifying whether a risk exists, yet it does not provide guidance on how to control the risk or what level of risk is acceptable. No general principle exists for determining what standards to adopt.
47. Emphasis in the original. From the European Commision's Communication on the use of the precautionary principle, February 2000. See announcement at
48. John Moffet, Legislative Options for Implementing the Precautionary Principle, Journal of Environmental Law and Practice 7 (1997): 157-160.
49. Birnie and Boyd also emphasize that "the concept of precaution appears to mean different things in different contexts." They claim that application of a precautionary approach may imply that when faced with uncertainty, one must be more cautious in identifying risks, or it might mean that one must be more cautious in taking measures to deal with those risks. Birnie and Boyd, International Law and the Environment 2nd ed., p. 116.
50. Alan E. Boyle, Protecting the Marine Environment: Some Problems in Developments of the Law of the Sea, Marine Policy (Mar. 1992): 79-85.
51. R.B. Clark, Marine Pollution, 4th ed. (Clarendon Press, 1997), 10. Three challenges in implementing the precautionary principle are discussed in this paper. Others are addressed by David Vanderzwaag, who cites seven reasons that make the precautionary principle difficult to implement. These include: Differences in terminology; definitional variations; definitional generalities; the spectrum of precautionary measures; ongoing philosophical debates; differing socioeconomic interests; vagueness over who should be responsible for precautionary decisions; and limited interpretation by international tribunals. See David Vanderzwaag, The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative Tides, Ocean Development and International Law 33 (2002): 165-188.
52. William C.G. Burns and Mark Simmonds, Some Preliminary Thoughts on the Application of the Precautionary Principle to Cetacean Conservation with the ACCOBAMS Area, in ACCOBAMS Secretariat, Proceedings of the First Session of the Meeting of the Parties of the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea, and Contiguous Atlantic Area (ACCOBAMS, 2002), pp. 231-239.
53. "Notice of Intent to Prepare an Environmental Impact Statement on Issuance of Permits for Research on Northern Right Whales in the Atlantic and Pacific Oceans" 79 Fed. Reg. 60285-60287 (October 17, 2005).
54. Others have also claimed that in the absence of clear guidelines, the precautionary principle's potential to enhance conservation and protect marine mammals from the threats of ocean noise has been diminished. See for example,William C.G. Burns and Mark Simmonds, Some Preliminary Thoughts on the Application of the Precautionary Principle to Cetacean Conservation with the ACCOBAMS Area, p. 231.