International Regulation of Underwater Sound: Establishing Rules and Standards to Address Ocean Noise Pollution

294 Pages·2004·7.09 MB·English

by  Elena McCarthy (auth.)

INTERNATIONAL REGULATION
OF UNDERWATER SOUND
Establishing Rules and Standards to
Address Ocean Noise Pollution
INTERNATIONAL REGULATION
OF UNDERWATER SOUND
Establishing Rules and Standards to
Address Ocean Noise Pollution
by
Elena McCarthy
Marine Policy Center
Woods Hole Oceanographic Institution
KLUWER ACADEMIC PUBLISHERS
NEW YORK,BOSTON, DORDRECHT, LONDON, MOSCOW
eBookISBN: 1-4020-8078-6
Print ISBN: 1-4020-8077-8
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Contents
Chapter One – Introduction
1. A Brief History of the Use of Sound in the Ocean 1
2. Ambient Noise in the Sea 4
3. Effects of Sound on Marine Mammals 5
4. Regulation of Noise in the Ocean-Some Background 7
Chapter Two – Scientific Aspects of Underwater Sound
1. The Physics of Underwater Sound 9
2. Effects of AcousticEmissions 14
2.1 Health Threats to Marine Mammals 14
2.2 Health Threats to Humans 16
2.3 Threats to other Marine Life 18
2.4 Acoustic Interference 19
3. Summary – Effects of Acoustic Emissions 20
4. Sources of Naturally-Occurring Sound in the Ocean 23
4.1 Physical & Geophysical Sources 23
4.2 Biological Sources 24
4.3 Sounds from Marine Mammals 25
5. Anthropogenic Sound in the Sea 28
5.1 Is Ambient Noise Increasing? 28
5.2 The Many Uses of Sonar 31
5.3 Shipping and Shipping Trends 32
5.4 Dredging and Coastal Construction 37
5.5 Offshore Oil and Mineral Exploration 41
5.6 Recreational Boating 47
5.7 Fishing and Aquaculture 50
5.8 Military Activities 52
5.9 Oceanographic Research 55
5.10 Other Sources 58
5.11 Ambient Noise-Summary 60
6. Hotspots – Sensitive Areas of Intense Acoustic Activity 62
6.1 Stellwagen Bank 66
6.2 The Ligurian Sea 71
6.3 Other Hotspots 80
Chapter Three - Focusing Events
1. What are Focusing Events? 83
2. The Role of Non-Governmental Organizations 85
2.1 What are Environmental NGOs? 86
2.2 Public Perception of Marine Mammals 87
2.3 The Natural Resources DefenseCouncil 88
2.4 Other NGOs involved in Ocean Noise Pollution 91
2.5 The Emergence of New NGOs 94
3. Key Focusing Events 95
3.1 Ship Shock Testing 96
3.2 Acoustic Thermometry of Ocean Climate (ATOC) 97
3.3 The North Pacific Acoustic Laboratory (NPAL) 101
3.4 Greek Whale Strandings and NATO 102
3.5 Surveillance Towed ArraySensor System (SURTASS) 104
3.6 Bahamas Strandings 112
3.7 Littoral Warfare Advanced Development (LWAD) 115
3.8 Other Focusing Events 116
4. Other Factors Contributing to the Noise Controversy 118
vi
Chapter Four – Policy Development
1. Trail Smelter & Regulation of Transboundary Pollutants 121
2. The Pollution Provisions of the Law of the Sea Convention 124
3. Ocean Noise as a TransboundaryPollutant 128
4. Previous Regulation of Transboundary Pollutants 131
4.1 Thermal Ocean Pollution 131
4.2 Radiation 132
4.3 Air Pollution 137
5. Existing International Regulatory Framework 142
5.1 The United Nations Environmental Programme 143
5.2 The International Maritime Organization 145
5.3 International Whaling Commission 148
5.4 International SeabedAuthority 150
5.5 The European Union 151
5.6 The Use of Regional Agreements 153
5.6.1 The OSPAR Convention 153
5.6.2 The Arctic Council 155
5.6.3 ASCOBANS 157
5.6.4 ACCOBAMS 160
5.6.5 NATO 164
Chapter Five - Politics, Potential Solutions, & Obstacles
1. International Institutions 169
1.1 The Value of International Regimes and Organizations 169
1.2 GESAMP 173
1.3 The Development of an International Treaty 176
2. Conventional Approaches to Pollution Control 180
3. Policy Instruments for Addressing Ocean Noise Pollution 193
3.1 Taxes 194
3.2 Performance Bonds and Subsidies 196
3.3 Permits 197
3.4 Technological Standards- BAT and BPT 205
3.6 BestPracticable Environmental Option 208
3.7BansandZoning 209
3.8 Marine Protected Areas 211
4. The Trend Toward Ecosystem Based Ocean Management 211
5. Policy Instruments – A Summary 216
Chapter Six – The Use Of Marine Protected Areas
1. Unilateral MPAS in the U.S. and Abroad 219
2. Multilateral MPAs 223
3. The Potential of MPAs to Prevent Acoustic Disturbance 226
4. Zoning in MPAs 226
4.1 Activity-Specific Zones 228
4.2 Individual Source-Specific Zones 230
4.3 Buffer Zones 231
5. Challenges in Implementing MPAs and Zoning 234
Chapter 7 – Conclusion
1. The Politics of Policy-Making 247
1.1 Where is the Issue of Ocean Noise? 249
1.2 Incrementalism and Public Policy 251
2. Summary of Findings 257
Appendix A – Glossary 263
Appendix B – List of Acronyms 265
Bibliography 267
Preface
In May 1996, the Alliance, an oceanographic research vessel operated by
the North Atlantic Treaty Organization (NATO), was conducting
experiments with a new sonar off the coast of Greece. Several hours after
the experiments, 17 beaked whales stranded in the Kyparissiakos Gulf and
subsequently died.1 These events came to light much later when a Greek
biologist published a correspondence in the journal Nature, which raised the
concern that the sonar in some way had contributed to the deaths of the
whales.2 As a result of the article, NATO held an international inquiry in
June 1998. I attended this meeting, and listened to the many possibilities of
physiological and behavioral effects that the sonar could have created. In
part due to the lack of necropsy data, however, no conclusion was reached as
to the cause of the whales’ deaths.3
I left the meeting thinking of something other than ocean physics and
marine mammal physiology though—I began to think about who is
responsible in such a situation? What types of rules and regulations apply—
if, in fact, such rules and regulations even exist?
This event underscored the regulatory challenges posed by the presence
of noise in the international arena: The sonar was owned by the US
1 The number of stranded animals was reported to be between 12-17; the exact remains
unknown, as most cetaceans sink when they die.
2See A. Frantzis, “Does Acoustic Testing Strand Whales?,” Nature 392 (1998): 29. See also
“Quiet, Please. Whales Navigating,” The Economist, March 7, 1998 at 85 and “Beached
Whales and Military Testing”, The Washington Post, March 9, 1998 at A2.
3 SACLANTCEN Summary Record, SACLANTCEN Marine Mammal Environmental Policy
and Mitigation Procedures Panel, La Spezia, Italy, 17–19 June 1998.
viii International Regulation of Underwater Sound
government; the ship was owned by the 16 NATO nations but flew a
German flag; and the experiment was carried out in Greek waters.4
Determining who was responsible, let alone who might regulate the use of
the sonar in this scenario, was complex and the international implications
were significant.5 The challenge of regulating ocean noise in an
international context became disturbingly evident. Addressing this challenge
formed the basis of my research.
This book examines the issue of anthropogenic, or manmade, sound in a
global context. It investigates the nature and significance of problems
associated with anthropogenic sound in the ocean, identifies conflicting uses
of ocean space related to noise, and considers the need for new regulatory
initiatives. In particular, it considers the response of the international legal
system to the nascent problem of ocean noise. In doing so, it identifies the
existing legal, economic, and political barriers to the creation and
implementation of a new international regime designed to manage
anthropogenic noise in the ocean.
Because underwater noise can travel thousands of miles across the high
seas and into waters under the jurisdiction of other states, its impacts can be
international in scope. Presently, there are no rules of international law that
specifically address the transmission of sound through the ocean.6 This lack
of international rules and standards for regulating underwater sound has
stimulated intense controversy in scientific, environmental, and legal
communities. As a result, there is now a need to develop internationally
accepted rules and standards for sound propagation and transmission in the
world’s oceans.
Noise is clearly different from traditional pollutants such as oil or sewage
because it is not a substance, but a form of energy.7 As such, it shares
certain attributes with other types of energy pollutants such as radiation and
heat. For this reason, the book examines the historical treatment of radiation
and thermal energy by the 1982 United Nations Convention on the Law of
4John Peterson of SACLANTCEN provided a detailed explanation of why the NATO vessel
flies a German flag. Personnel e-mail correspondence, May/June 1998.
5 Although this NATO event was not the first time ocean noise and its effects on marine
mammals was in the spotlight, it was the first incident that had such overwhelming
international implications. Otherevents are discussed in detail in Chapter Three.
6See Harm Dotinga & Alex Oude Elferink, “AcousticPollution in the Oceans: The Search for
Legal Standards,” Ocean Development And International Law 31 (2000): 162.
7In this book no distinction is made between the terms “noise” and “sound”. They are often
used interchangeably. Noise is a somewhat relative term and has been defined as “sound
or a sound that is loud, unpleasant, unexpected, or undesired.” Also as “sound or a sound
of any kind.” The American Heritage Dictionary of the English Language, ed.,
(Boston: Houghton-Mifflin Co., 1996).
Preface ix
the Sea. It then seeks to identify the appropriatetreatment for noise as a type
of pollution that directly and indirectly impacts on the ocean ecosystem.
Finally, the book proposes some new approaches that could be used by the
international community to address the problems that have been identified.
Specifically, it focuses on the potential of marine protected areas,
sanctuaries, and multi-lateral regional initiatives in regulating underwater
noise pollution.
The first chapter outlines the history of the use of sound in the sea, the
effects of sound on marine life, and the evolution of noise regulation in the
ocean.
Chapter Two provides an explanation of the scientific aspects of
underwater sound including the physics of sound, its sources, and its effects.
Additionally, it analyzes statistical and technical data to determine trends in
anthropogenic noise in the ocean and to locate geographical areas that pose
the greatest threat to marine life and habitat.
Chapter Three examines how ocean noise became an international
concern, specifically the catalyzing role of non-governmental organizations
(NGOs) and environmental groups in bringing the issue of underwater noise
pollution to the attention of governments, intergovernmental organizations,
and the public. Chapter Three also describes several of the key “focusing
events” that brought this issue to the public’s attention. These include the
highly publicized Acoustic Thermometry of Ocean Climate (ATOC)
experiment—the first event to prompt a debate over the use of sound in the
ocean and its possible harm to marine mammals. It also takes an in-depth
look at the development of the US Navy’s SURTASS-LFA system, the
stranding of whales in Greece during the NATO sea trial, the US Navy’s
submarine and surface ship shock tests, and whale deaths in the Bahamas
during US naval operations.
Chapter Four outlines the “route to government” that has guided
international pollution issues in the past and validates the concept of noise as
a type of transboundary pollutant. It then looks at the existing international
legal framework to determine whether it can be applied to the issue of
anthropogenic ocean noise. It focuses on the evolution of international
policy that regulates thermal, radioactive, and air pollution, including a case
study of the 1979 Convention on Long Range Transboundary Air Pollution.
Chapter Four also discusses the current role of the United Nations (UN) and
other intergovernmental bodies in controlling pollution and comments on the
applicability of the legal framework provided by the 1982 UN Convention
on the Law of the Sea (UNCLOS). It then considers the existing
responsibilities and potential contributions from other international
organizations such as the Arctic Council, the International Maritime
Organization (IMO), the International Whaling Commission (IWC), the
x International Regulation of Underwater Sound
International Seabed Authority (ISBA), and NATO. Finally, Chapter Four
looks at existing international legal instruments and regional agreements
which provide some specific rules and standards to govern anthropogenic
sound in the ocean.
Chapter Five suggests potential approaches to the problem, obstacles to
establishing effective policy, and the political dynamics surrounding the
issue of ocean noise. Specifically, this chapter identifies several institutions
with the jurisdictional capacity and expertise to address underwater noise
pollution. It then investigates the use of a habitat-focused regulatory
structure to minimize cumulative risksfrom acoustic activities in the ocean.
Chapter Six addresses the establishment of marine sanctuaries and the
use of zoning as mechanisms for controlling noise-producing activities.
Chapter Seven includes a brief summary of the conclusions made in the
book. A glossary and a list of acronyms is found in Appendices A and B.
Acknowledgments
This work was supported with a grant from the Robert and Patricia
Switzer Foundation with additional support from the Marine Policy Center at
the Woods Hole Oceanographic Institution and the SACLANT Undersea
Research Centre in La Spezia, Italy.
I would like to express my sincere gratitude to Professor Lawrence Juda
at the University of Rhode Island whose encouragement and support guided
me through much of this research. He is an exceptional scholar and advisor,
and moreover, a kind man with great respect for students. Our discussions
together are among my most pleasant professional memories.
I would also like to acknowledge my friends and colleagues at the
University of Rhode Island who read this book in its earlier form and offered
helpful suggestions on content and format. These include Tom Braisted,
Shannon Bettridge, Jason Gomez, and especially Holly Turton. Professors
Dennis Nixon, Richard Burroughs, Bill Gordon, and Jim Miller also
provided valuable input to my research.
My colleagues at the Woods Hole Oceanographic Institution have been a
great help to me in completing this book. They include Porter Hoagland,
George Friske, Peter Tyack, and especially Flora Lichtman, who read and
editedeach chapter with great care.
The support of all my colleagues at the SACLANT Undersea Research
Centre is greatly appreciated. These individuals include Mike Carron, Bill
Roderick, Steve Ramberg, Arthur Green, and Federico de Strobel.
Others whose contributions cannot be overlooked include Richard
Nadolink who has been an advocate of my research for many years, Darcy
Magratten who designed the cover and was a great help in formatting and