Current legal developments underwater noise

International Journal of Marine and Coastal Law

Volumn 23, Issue 2, 2008, Pages 365-376

  Papanicolopulu, Irini ^a  

^a UNIVERSITY OF MILANO BICOCCA   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

CETACEAN; INTERNATIONAL LAW; LAW OF THE SEA; NATURE CONSERVATION; NOISE POLLUTION; NONGOVERNMENTAL ORGANIZATION; UNITED NATIONS;

EID: 44349154673     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/092735208X295891     Document Type: Article

References (76)

1. These effects vary according to the type of noise considered, which may range from continuous noise with long-term effects (e.g., disturbance, masking, site avoidance) to acute exposure with potential short-term harmful and even lethal effects.
2. Among the most active NGOs in this field is the International Ocean Noise Coalition (website http://awionline.org/oceans/Noise/IONC/index.htm, which contains the list of the affiliated NGOs).
3. An important role is also played by the Natural Resources Defense Council (NRDC), an American NGO, which has brought actions before US judges concerning the damage caused to cetaceans by military exercises using high-power sonar, For more information see the website http://www.nrdc.org/wildlife/marine/sonar.asp.
4. See para. 2 of the present paper, infra.
5. See H.M. Dotinga & A.G. Oude Elferink, "Acoustic Pollution in the Oceans: The Search for Legal Standards," (2000) 31 Ocean Development and International Law 151-182;
6. E.M. McCarthy, "International Regulation of Transboundary Pollutants: The Emerging Challenge of Ocean Noise," (2001) 6 Ocean and Coastal Law Journal 257-292;
7. K.N. Scott, "International Regulation of Undersea Noise," (2004) 53 International and Comparative Law Quarterly 287-323;
8. J. Cummings, "Regulating Ocean Noise: Entering Uncharted Waters," (2007) 10 Journal of International Wildlife Law and Policy 101-107;
9. J. Firestone & C. Jarvis, "Response and Responsibility: Regulating Noise Pollution in the Marine Environment," (2007) 10 Journal of International Wildlife Law and Policy 109-152;
10. K.N. Scott, "Sound and Cetaceans: A Regional Response to Regulating Acoustic Marine Pollution," (2007) 10 International Journal of Wildlife Law and Policy 175-199;
11. A, Gillespie, "The Precautionary Principle in the Twenty-First Century: A Case Study of Noise Pollution in the Ocean," (2007) 22 The International Journal of Marine and Coastal Law 61-87.
12. See International Council for the Exploration of the Sea (ICES), Report of the Ad-Hoc Group on the Impacts of Sonar on Cetaceans and Fish (AGISC), Copenhagen, 2005, and the bibliography cited in this report. An updated list of Peer-reviewed scientific studies on the impacts of ocean noise on marine living resources, submitted pursuant to paragraph 107 of General Assembly resolution 61/222, is maintained by the UN Secretary-General and is available in the website of the Division for Ocean Affairs and the Law of the Sea of the UN (DOALOS), at http://www.un.org/depts/los/general_assembly/noise/ noise.htm.
13. According to Article 1 of the United Nations Convention on the Law of the Sea, "pollution" consists of "the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities", See Dotinga & Elferink, supra note 4 at 158-159, who consider that there is a need to assess on a case-by-case basis if a specific sound constitutes a form of pollution;
14. Scott "International Regulation", supra note 4 at 293;
15. Firestone & Jarvis, supra note 4 at 126. It is worth adding that the draft Marine Strategy Directive of the European Union (interinstitutional file 2005/0211 (COD), available at http://ec.europa.eu/ prelex/apcnet.cfm?CL=en) provides, in draft Art. 2a.7, that " pollution" means "the direct or indirect introduction into the marine environment, as a result of human activity, of substances or energy, including human-induced marine underwater noise."
16. 1833 UNTS 397. Adopted on 12 December 1982 and entered into force 16 November 1994, Under the LOSC, States have the obligation to prevent, reduce and control noise pollution "using for this purpose the best practicable means at their disposal and in accordance with their capabilities" (Art. 194, para. 1).
17. Such as the Convention on the Protection of the Marine Environment of the Baltic Sea, adopted on 9 April 1992,
18. entered into force 17 January 2000, (2099 UNTS 197), which provides that Parties shall "take special measures in order to abate harmful effects on the marine environment of the Baltic Sea Area caused by pleasure craft activities. The measures shall, inter alia, deal with air pollution, noise and hydrodynamic effects as well as with adequate reception facilities for wastes from pleasure craft" (Art. 9), and the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, adopted on 16 February 1976
19. and entered into force on 12 February 1978(1102 UNTS 45) as amended (and renamed) on 10 June 1995, entered into force 9 July 2004 (31 Law of the Sea Bulletin, 64), which, though not mentioning noise expressly, provides the obligations for Parties to "prevent, abate, combat and to the fullest extent eliminate pollution of the Mediterranean Sea Area and to protect and enhance the marine environment in the Area so as to contribute towards its sustainable development" (Art. 4, para. 1).
20. Such as the Convention on the Conservation of Migratory Species of Wild Animals, adopted on 23 June 1979 and entered into force on 1 November 1983 (1651 UNTS 356)
21. and regional agreements adopted pursuant to its Article 2, para. 3, as well as the International Convention for the Regulation of Whaling, adopted on 2 December 1946 and entered into force 10 November 1948 (161 UNTS 74).
22. Such as the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted on 4 August 1995 and entered into force on 11 December 2001 (2167 UNTS 88)
23. and the Convention for the Conservation of Antarctic Marine Living Resources, adopted on 20 May 1980 and entered into force on 7 April 1982 (1329 UNTS 48). In addition, the relevant articles of the LOSC on measures to preserve marine living resources, in both the high seas and jurisdictional zones, could apply.
24. RESWCC3.068 of the 2004 World Conservation Congress. Available at http://www.iucn.org/congress/2004/members/submitted_motions.htm.
25. At the adoption of the text, a statement was made by Norway, according to which the Resolution is considered premature.
26. See the Report of the Secretary-General on Oceans and the Law of the Sea for 2004 (UN doc. A/59/62/Add.1, para. 220),
27. 2005 (UN doc. A/60/63/Add.1, para. 159),
28. 2006 (UN doc. A/61/63, paras. 165-166)
29. and 2007 (UN docs. A/62/66, paras. 286-288, A/62/66/Add.1, paras. 190-195,
30. and A/62/66/Add.2, paras. 51-54). All these UN documents are available at the website of the DOALOS: www.un.org/depts/los.
31. In 2004, UNICPOLOS included undersea noise pollution and its impact on marine life in the issues that could benefit from attention in the future work of the General Assembly
32. (see UN doc. A/59/122). The issue was discussed in 2005 (see UN doc. A/60/99, para. 45) and in 2006
33. (see UN doc. A/61/156, paras. 33 and 96).
34. UN doc. A/61/156, para. 7.
35. Report of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, of 20 March 2006 (UN doc. A/61/65), para. 33.
36. UN doc. A/RES/60/30 of 29 November 2005, para. 84.
37. Respectively, UN doc. A/RES/61/222 of 20 December 2006, para. 107
38. and UN doc. A/RES/62/215 of 22 December 2007, para. 120.
39. The IWC was established by the International Convention for the Regulation of Whaling, supra note 9.
40. The text of the Resolutions and other documents adopted by the IWC and its bodies may be consulted in its website www.iwcoffice.org. The IWC has also addressed noise in some resolutions principally concerned with other activities, such as whale watching (Resolution No. 2 of 1996, which approved the Scientific Committee's recommendations on the general principles for the management of whale watching).
41. The workshop is summarised in the Report of the Standing Working Group on Environmental Concerns (Annex K to the 2004 Scientific Committee Report). This report is a useful source of information on the impact of noise on whales.
42. See the 2006 Scientific Committee Report, pp. 49-53 and Annex K (Report of the Standing Working Group on Environmental Concerns).
43. See Annex K to the 2006 Scientific Committee Report.
44. Supra, note 9. For further information and copies of the noted resolutions see www.cms.int.
45. Resolution 7.5 of 2002, Wind Turbines and Migratory Species.
46. Resolution 8.22 of 2005, Adverse Human Induced (sic) Impacts on Cetaceans.
47. Resolution of 28 October 2004 (P6_TA(2004)0047) in Official Journal of the European Union, C 174 E of 14 July 2005. The resolutions of the European Parliament are not binding on Member States.
48. Communication from the Commission to the Council and the European Parliament-Thematic strategy on the protection and conservation of the marine environment (doc. COM(2005)504 of 24 October 2005), p. 3.
49. The Guidelines are annexed to Resolution A.982(24) of the 24th Assembly of the Parties (IMO doc. A24/Res.982).
50. Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, para. 1.2.
51. Ibidem, para. 2.2, which also recognises that "adverse effects and damage may occur to the marine environment and the living resources of the sea as a result of shipping activities. With the increase in global trade, shipping activities are also increasing, thus including greater potential for adverse effects and damage".
52. Ibidem, para. 4.3.
53. (1973) 12 ILM 1319.
54. The Treaty was adopted on 17 March 1992 and entered into force on 29 March 1994 (1772 UNTS 218). As of 18 July 2007, 10 States are parties to the Agreement (Belgium, Denmark, Finland, France, Germany, Lithuania, the Netherlands, Poland, Sweden and the United Kingdom). For further information see the web site of the Convention: www.ascobans.org.
55. Resolution No. 5 of the 4th Meeting of the Parties.
56. "A 'Range State' is any State, whether or not a Party to the agreement, that exercises jurisdiction over any part of the range of a species covered by this agreement, or a State whose flag vessels, outside national jurisdictional limits but within the area of the agreement, are engaged in operations adversely affecting small cetaceans" (Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, Art. 1.2 f).
57. The Treaty was adopted on 24 November 1996 and entered into force on 1 June 2001 (2183 UNTS 321). As of 18 July 2007, 20 States are parties to the Agreement (Albania, Bulgaria, Croatia, Cyprus, France, Georgia, Greece, Italy, Lebanon, Libya, Malta, Monaco, Morocco, Portugal, Romania, Slovenia, Spain, Syria, Tunisia, Ukraine). For further information see the website of the Convention: www.accobams.org.
58. Resolution No. 2.16 of the 2nd Meeting of the Parties, For information about ACCOBAMS activities relating to anthropogenic noise see http://www.accobams.org/2006.php/pages/show/46.
59. Para. 1.
60. Paras. 4-5.
61. Para. 3.
62. Para. 6.
63. Acoustic deterrent devices are used in aquaculture in order to keep species (among which are some dolphins) away from the fields.
64. SC3/Doc.20 "Recommendations and guidelines to address the issue of the impact of anthropogenic noise on marine mammals in the Mediterranean Sea: toward a permit system for the ACCOBAMS area".
65. See the Report of the Third Meeting of the Scientific Committee, para. 5.6.
66. See the Report of the Fourth Meeting of the Scientific Committee, para. 5.6.
67. Recommendation SC4.3 of 8 November 2006.
68. Recommendation SC4.3, para. 13.
69. Established under the Antarctic Treaty, adopted on 1 December 1959 and entered into force on 23 June 1961 (402 UNTS 72). The issue of underwater noise is discussed in particular at the Committee for Environmental Protection, established under the Protocol on Environmental Protection to the Antarctic Treaty, adopted on 4 October 1991 and entered into force on 14 January 1998, (1991) 30 ILM 1461.
70. See the Report of the Committee for Environmental Protection to the XXX Antarctic Treaty Consultative Meeting (in particular paras. 255-264) and to the XXIX Antarctic Treaty Consultative Meeting (in particular paras. 145-150), available at the Treaty's website: www.ats.aq.
71. Adopted on 20 May 1980 and entered into force on 7 April 1982 (1329 UNTS 48).
72. See the Report of the Twenty-Fifth Meeting of the Scientific Committee, in particular p. 167, available on the Convention's website: www.ccamlr.org.
73. Adopted on 22 September 1992 and entered into force on 25 March 1998, (1993) 32ILM 1072.
74. See the 2007 Summary Record of the Meeting of the Working Group on the Environmental Impact of Human Activities, in particular paras. 3.1-3.7,
75. and the 2007 Summary Record of the Meeting of the Biodiversity Committee, in particular paras. 4.28-4.37, available at the website www.ospar.org.
76. With the notable exception, so far, of the UN General Assembly.