International regulation of undersea noise

International and Comparative Law Quarterly

Volumn 53, Issue 2, 2004, Pages 287-323

  Scott, Karen N ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85006906349     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.2.287     Document Type: Article

References (139)

1. O. Dyer ‘Death Knell’ The Guardian, 30 Oct 2002
2. Notable exceptions include H Dotinga and A Elferink ‘Acoustic Pollution in the Oceans: The Search for Legal Standards’ (2000) 31 Ocean Development and International Law 151–182
3. E. Gardner ‘The Precautionary Principle as Applied to Marine Acoustic Activities’ (1998) (31 Oct-1 Nov) Emerging Issues in National Ocean and Coastal Policy 9–14
4. E. McCarthy ‘International Regulation of Transboundary Pollutants: The Emerging Challenge of Ocean Noise’ (2001) 6 Ocean and Coastal Law Journal 257–292.
5. W. Richardson, C Greene, C Malme, and D Thomson Marine Mammals and Noise (San Diego Academic Press 1995) ch 5.
6. Marine Mammals and Noise.
7. Marine Mammals and Noise, 93.
8. Sound velocity reaches speeds of 1600 m/s in seawater as compared with 350 m/s in air. See A Myrberg ‘The Effect of Man-made Noise on the Behaviour of Marine Mammals’ (1990) 16 Environment International 575–86, at 575.
9. R. Urick Principles of Underwater Sound (3rd edn California Peninsula Publishing 1983) chs 5 and 6.
10. The depth of the deep sound channel (also known as the sofar channel) varies according to the temperature and salinity of the water. It can be found approximately 1 kilometre below the surface in the tropics and is a mere 100 metres or so below the surface in polar waters. See Urick, Principles of Underwater Sound, 159–164
11. R. Shockley et al ‘SOFAR Propagation paths from Australia to Bermuda: Comparison of Signal Speed Algorithms and Experiments’ (1982) 71(1) J Acoust Soc Am 51–60.
12. Marine mammals can be defined as including cetaceans, sirenians, and carnivores. On the impact of noise on fish see A Popper ‘The Impacts of Anthopogenic Sounds on Fishes’ (2001) 110(5) pt 2 J Acoust Soc Am 2750
13. A. Scholik and H Yan, ‘The Effects of Underwater Noise on Auditory Sensitivity of Fish’ (2001) 23(4) Proc IOA 27–36.
14. J. Gordon and P Tyack ‘Sound and Cetaceans’ in Evans and Raga (eds) Marine Mammals: Biology and Conservation (New York Kluwer Academic 2001) 139–96, at 140.
15. Echolocation is defined as the production of sound facilitating the location of objects by means of the returning sound waves or echoes. For a comprehensive study on marine mammalian hearing and use of sound see Richardson et al, n 3 chs 7 and 8.
16. P. Evans The Natural History of Whales & Dolphins (San Diego Academic Press 1987) 18.
17. B. Würsig and P Evans ‘Cetaceans and Humans: Influences of Noise’ in P Evans and J Raga (eds) Marine Mammals: Biology and Conservation (New York Kluwer Academic 2001) 565–87, 569.
18. See Richardson et al, n 3, 102–123.
19. M. Jasny Sounding the Depths: Supertankers, Sonar and the Rise of Undersea Noise, report available online at .
20. Würsig and Evans, n 13, 569.
21. C. Erbe and D Farmer ‘Zones of Impact Around Icebreakers affecting Beluga Whales in the Beaufort Sea’ (2000) 103(3) Pt 1 J Acoust Soc Am 1332–1340.
22. Richardson et al, n 3, 123–135.
23. J Acoust Soc Am 136–146.
24. J Acoust Soc Am 146–8.
25. I. Anderson ‘Global Hum Threatens to ‘Deafen’ Whales’ (19 Jan 1991) New Scientist 19
26. J. Cohen ‘Was Underwater ‘Shot’ Harmful to the Whales?’ (17 May 1991) 252 Science 912–914.
27. R. Payne and D Webb ‘Orientation by Means of Long Range Acoustic Signalling in Baleen Whales’ (1971) Ann NY Acad Sci 188, 110–141.
28. Richardson et al, Ann NY Acad Sci, n 3.
29. Joint Interim Report— Bahamas Marine Mammal Stranding Event of 15–16 March 2000 produced by the NOAA, NMFS, and US Navy available online at
30. NRC, Marine Mammals and Low-Frequency Sound: Progress Since 1994 (2000) (Washington National Academy Press).
31. C. Clark and K Fristrup ‘Baleen Whale Responses to Low-Frequency Human-Made Underwater Sounds’ (2001) 110(5) pt 2 J Acoust Soc Am 2751.
32. M. Simmonds and S Doleman ‘A Note on the Vulnerability of Cetacean to Acoustic Disturbance’ IWC51/E15 (1999).
33. M. Simmonds and L Lopez-Jurado ‘Whales and the Military’ (1991) 351 Nature 448.
34. O. Dyer ‘Death Knell’ The Guardian, 30 Oct 2002
35. A. Frantzis ‘Does Acoustic Testing Strand Whales?’ (1998) 392 Nature 29.
36. K. Balcomb and D Claridge ‘A Mass Stranding of Cetaceans Caused by Navel Sonar in the Bahamas’ (2001) 2 Bahamas Journal of Science 1–12.
37. Joint Interim Report—Bahamas Marine Mammal Stranding Event of 15–16 March 2000 n 24. A recent study on beaked whales stranded off the Canary Islands in September 2002 found evidence of acute and chronic tissue damage caused by the formation in vivo of gas bubbles which may have resulted from rapid decompression.
38. See P Jepson et al ‘Gas-Bubble Lesions in Stranded Cetaceans’ (2003) 425 Nature 575.
39. J. Gordon and A Moscrop ‘Underwater Noise Pollution and Its Significance for Whales and Dolphins’ in Simmonds and Hutchinson (eds) The Conservation of Whales and Dolphins: Science and Practice (Chichester John Wiley & Sons 1996) 281–319, at 295–297
40. D. Ketten ‘Ageing, Injury, Disease and Noise in Marine Mammal Ears’ (2001) 110(5) Pt 5 J Acoust Soc Am 2721
41. Myrberg J Acoust Soc Am, 580
42. Richardson et al J Acoust Soc Am, 397–403.
43. Richardson et al, J Acoust Soc Am, 226–236.
44. W. Watkins, K Moore, and P Tyack ‘Sperm Whale Acoustic Behaviors in the Southeast Caribbean’ (1985) 19 Cetology 1–15, at 6.
45. A. Bowles et al ‘Relative Abundance and Behavior of Marine Mammals Exposed to Transmissions from the Heard Island Feasibility Test’ (1994) 96(4) J Acoust Soc Am 2469–84, at 2481.
46. See references cited J Acoust Soc Am and n 34.
47. Erbe and Farmer, J Acoust Soc Am
48. Myrberg, J Acoust Soc Am, 579.
49. Richardson et al, J Acoust Soc Am, 252–272.
50. J. Goold ‘Acoustic Assessment of Populations of Common Dolphin Delphinus Delphis in Conjunction With Seismic Surveying’ (1996) 76 J Mar Biol Ass UK 811–820
51. W. Richardson et al ‘Reactions of Bowhead Whales, Balaena Mysticetus, to Drilling and Dredging Noise in the Canadian Beaufort Sea’ (1990) 29 Marine Environmental Research 135–160.
52. Simmonds and Doleman, J Acoust Soc Am.
53. C. Perry ‘A Review of the Impact of Anthopogenic Noise on Cetaceans’ IWC/SC/50/E9 (1998), 9.
54. Simmonds and Doleman, ‘A Review of the Impact of Anthopogenic Noise on Cetaceans’.
55. Perry, ‘A Review of the Impact of Anthopogenic Noise on Cetaceans’, 10.
56. Richardson et al, ‘A Review of the Impact of Anthopogenic Noise on Cetaceans’, 405–7.
57. 21 ILM (1982) 1261. In force 1994. Hereinafter, UNCLOS. Whilst UNCLOS itself cannot be regarded as customary international law in its entirety, the International Court of Justice has taken the approach that individual provisions of UNCLOS may be assessed in order to conclude whether they themselves may nevertheless be regarded as customary.
58. See the Continental Shelf (Libya v Malta) Case ICJ Rep (1985), 13, 30. It is notable that the opening paragraph of ch 17 of Agenda 21 (Agenda 21: Programme of Action for Sustainable Development, adopted at the 1992 United Nations Conference on Environment and Development (UNCED)) describes the customary international law obligations of protection and sustainable development of the marine and coastal environment as ‘reflected in the provisions of’ UNCLOS 1982.
59. See Art 31(1) of the 1969 Vienna Convention on the Law of Treaties (8 ILM (1969) 679).
60. H. Young University Physics (Reading, Mass Addison-Wesley 1992), at 587.
61. H. Dotinga and A Elferink note that the term ‘energy’ was included in Art 1(4) of UNCLOS so as to apply its provisions to thermal pollution (heat). However, they and E McCarthy support the conclusion that the term energy should be likewise applied to sound. See Dotinga and Elferink University Physics, 158–159
62. and McCarthy University Physics, 276.
63. But see the non-binding 1981 UNEP Conclusions of the Study of Legal Aspects Concerning the Environment Related to Offshore Mining and Drilling Within the Limits of National Jurisdiction (adopted in UN General Assembly Res 37/217 (20 Dec 1982) which recommend that Sates should take preventative measures to limit pollution and other adverse effects on the environment (emphasis added) resulting from offshore production (reproduced Hohmann (ed) Basic Documents of International Law, Volume 1 (Dordrecht Graham & Trotman 1992) 121–9.
64. 12 ILM (1973) 1319
65. 17 ILM (1978) 456. In force 1983. The reliance on one instrument (such as MARPOL) to provide the details of obligations incurred under another (UNCLOS) raises an international conundrum of whether a State which is party to UNCLOS is bound by obligations incurred under MARPOL to which it is not a party. Whilst seemingly contrary to the consensual nature of international law, this mechanism, which has been adopted on a number of occasions in Part XII of UNCLOS, does not appear to be problematic in practice.
66. On noise mitigation measures see Richardson et al, ILM, 417–423.
67. As noted by Simmonds in ‘Ocean Noise and the Law’ (SC/54/E8) (paper submitted to the Scientific Committee of the International Whaling Commission in 2002).
68. See also IMO Circular MEPC/Cir 298 (27 Mar 2003), Guidance Document for Submission of PSSA Proposals to the IMO.
69. Para 1.2, Annex 2, Guidance Document for Submission of PSSA Proposals to the IMO.
70. Guidance Document for Submission of PSSA Proposals to the IMO.
71. See paras 6.1.1–6.1.3, Annex 2, Res A.927(22)(2001). The resolution identifies compulsory pilotage or traffic management schemes as examples of ‘other measures’ but it is strongly suggested that these measures are not sui generis and para 6.1.3 essentially provides a general mandate for further conservation measures.
72. The IWC was established under Art III(1) of the Convention. 161 UNTS 143 (in force 1948, amended in 1956).
73. Resolution 2003–1, The Berlin Initiative on Strengthening the Conservation Agenda of the International Whaling Commission.
74. See the 1998 Report of the Scientific Committee, Annexes H and J, J Cetacean Res Manage 1 (Suppl) (1999) and Appendix 6
75. 1999 Report of the Scientific Committee, J Cetacean Res Manage 2 (Suppl) (2000), 64–65
76. 2001 Report of the Scientific Committee, J Cetacean Res Manage 4 (Suppl) (2002), 41. The Scientific Committee has also benefited from the submission of a number of working papers on the impact of noise on cetaceans.
77. See S Dolman et al ‘Noise Sources in the Cetacean Environment’ SC/54/E7 (2002)
78. Simmonds, n 67
79. T. Rowles et al ‘Mass Stranding of Multiple Cetacean Species in the Bahamas on March 15–17 2000’ SC/52/E28 (2000)
80. Simmonds and Dolman ‘Mass Stranding of Multiple Cetacean Species in the Bahamas on March 15–17 2000’
81. Perry ‘Mass Stranding of Multiple Cetacean Species in the Bahamas on March 15–17 2000’.
82. 2002 Report of the Scientific Committee, J Cetacean Res Manage 5 (Suppl) (2003), 73 and Annex L.
83. See Annex II of the draft resolution on the Berlin Initiative. J Cetacean Res Manage.
84. The following statement has been made by Japan in relation to the status of whale-watching within the remit of the IWC: ‘The Government of Japan believes that whale-watching is outside the competence of the IWC. Japan does not deny that studying the effects of whale-watching on whale stocks is beneficial in order to obtain better understanding of the stocks. However, because the IWC has a limited budget, the budget should be used for the primary objectives of the IWC, such as stock assessments.’ See 2002 Report of the Scientific Committee, J Cetacean Res Manage 5 (Suppl) (2003) 72.
85. See, eg, Resolution 2000–9 on the Conservation of Freshwater Cetaceans. On the applicability of the IWC to small cetaceans see P Birnie ‘Small Cetaceans and the International Whaling Commission’ (1997) 10 Georgetown International Environmental Law Review 1–17
86. A. Gillespie ‘Small Cetaceans, International Law and the International Whaling Commission’ (2001) 2 Melbourne Journal of International Law 257–303.
87. 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 .
88. 31 ILM (1992) 818. In force 1993. The Convention currently has 187 ratifications.
89. 19 ILM (1980) 15. In force 1983. The Convention currently has eighty-four ratifications.
90. 123 Arts 19(2)(a) and (b) and 18(2). The question as to whether military vessels in of themselves have a right to innocent passage has given rise to considerable controversy. The reference to the manner of submarine navigation through the territorial sea in Art 20 of UNCLOS implies that such a right exists, yet the practice of a number of States indicates that they regard there being no such right and stipulate that consent must be sought prior to navigation. See R Churchill and A Lowe The Law of the Sea (3rd edn Manchester MUP 1999) 88–92.
91. Churchill and Lowe The Law of the Sea, 348.
92. It is highly unlikely that the provision could be applied to the Southern Ocean due to the absence of ice covering it for most of the year and the fact that the seas surrounding the Antarctic continent are currently classed as high seas. Arguably, Art IV of the Antarctic Treaty 1959 which essentially provides for a ‘freezing’ of Antarctic claims precludes the claim by a State to an EEZ within the Antarctic Treaty Area, although it should be noted that Australia has made such a claim. See S Kaye and D Rothwell ‘Southern Ocean Boundaries and Maritime Claims: Another Antarctic Challenge for the Law of the Sea?’ (2002) 33 Ocean Development and International Law 359–389.
93. These voluntary guidelines were agreed upon in Dec 2002. See IMO. MSC/Cir.1046/MEPC/Circ 399 available online at . Originally known as the Polar Code, considerable debate has taken place as to whether they should apply to the Antarctic. A working paper on the topic was presented by the UK to the XXV Antarctic Treaty Consultative Meeting (ATCM) in Poland, 2002 and it was decided that the parties should wait until finalized guidelines were produced by the IMO before any decision as to applicability is taken (see Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Poland, 2002, paras 97–9).
94. 15 ILM (1976) 290. In force 1978.
95. 32 ILM (1993) 1110. In force 1994.
96. 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 1(a)(i)). The Baltic and Mediterranean Seas are excluded from its remit (Art 1(a)(i)(1) and (2)).
97. Arctic Environmental Protection Strategy, paras 3.4 and 4.4.
98. 30 ILM (1991) 1461. In force 1998.
99. 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
100. Report of the Committee for Environmental Protection's Fifth Meeting (CEP V), Warsaw, Poland, 2002, paras 25–8
101. 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.
102. See further SCAR ‘Marine Acoustic Technology and the Environment’ WP-023
103. SCAR Impacts of Marine Acoustic Technology on the Antarctic Environment (July 2002), 25IP024/E both presented at the XXV ATCM (2002)
104. Spain ‘Anthropogenic Acoustic Noises and Discharges and their Impact on Marine Mammal Populations’ WP-034-E
105. SCAR ‘Acoustic Technology and the Marine Ecosystem’ IP-077-SCAR
106. and; ASOC ‘Marine Acoustic Technology and the Antarctic Environment’ IP-073-ASOC all presented at the XXVI ATCM (2003).
107. 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).
108. Art 4(3)(a) Barcelona Convention 1995
109. Art 2(2)(a) OSPAR 1992
110. Art 3(2) HELCOM 1992.
111. 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 ). 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.
112. (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.
113. See WP-026 presented at the V CEP Meeting in Poland in 2002.
114. 19 ILM (1980) 837. In force 1982. Arts 1(1), II(1) and I(2). Art VI 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.
115. 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.
116. Council Directive 92/43/EEC [1992] OJ L206/7.
117. 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 .
118. See C Coffey (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 .
119. ATCM Resolution 1 (2002) reproduced in Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Warsaw, Poland, 2002.
120. Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting. 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.
121. See Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Warsaw, Poland, 2002, para. 64.
122. (1995) UKTS No 52. In force 1994.
123. 36 ILM (1997) 777. In force 2001.
124. MOP2: Resolution on Further Implementation of ASCOBANS (Bonn 1997).
125. MOP4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003).
126. 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.
127. 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.
128. See also Raga Project of the Establishment of a Mediterranean and Black Sea Regional Cetacean Stranding Network MOP 1/inf.7 rev 1 submitted to the First Meeting of the Parties, ACCOBAMS, Monaco, 28/02/2002–2/03/2002.
129. Raga Project of the Establishment of a Mediterranean and Black Sea Regional Cetacean Stranding Network.
130. MOP4: Resolution No 4 on Extension of the ASCOBANS Agreement Area (Esbjerg 2003).
131. See the Report on Specific Sites, Caretta caretta in Laganas Bay, Zakynthos (Greece), 1998 T-PVS (98) 43.
132. Report on Specific Sites, Caretta caretta in Laganas Bay, Zakynthos (Greece).
133. §105(5)(A) MMPA 1972, 16 USC § 1731(101(5)(S)). The decision of the NMFS is reported in 67 Fed Reg 46712.
134. Natural Resources Defense Council et al v Donald L. Evans et al (2003) 279 F Supp 2d 1129.
135. 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).
136. See E Weiss ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’ (1993) 81 Georgetown Law Journal 675–710, at 697–702.
137. 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.
138. 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).)
139. 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 Diego California Academic Press 2001) 229–244.