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ENERGY EXPERIMENTS HARM WHALES
 Wed Nov 23, 2005 5:39 pm
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Whales, Submarines, and Active Sonar
Jon M. Van Dyke
William S. Richardson School of Law, University of Hawaii at Manoa
Emily A. Gardner
Graduate Ocean Policy Program, University of Hawaii at Manoa
Joseph R. Morgan
Department of Geography, University of Hawaii at Manoa
Elisabeth Mann Borgese devoted her professional life to promoting aware-
ness about the ocean and building regimes to protect fragile marine ecosys-
tems. This article examines a new acoustic military use of the ocean, which
potentially threatens all ocean creatures, and explains how existing princi-
ples of international law and treaty regimes apply to this activity.
Professor Van Dyke worked with Elisabeth at the Center for the Study
of Democratic Institutions in Santa Barbara, California in 1969–1970, where
she introduced him to the emerging efforts to develop a global regime to
govern ocean resources and stimulated his early interest in this topic by invit-
ing him to the 1970 Pacem in Maribus meeting in Malta. Dr. Morgan worked
closely with Elisabeth as co-editor of the Ocean Yearbook for Volumes 7–14,
and Ms. Gardner was assistant editor of the Yearbook for Volume 12. Research
support for this paper was provided by the Ocean Mammal Institute.
INTRODUCTION
On 15 July 2002, the U.S. National Marine Fisheries Service (NMFS) ex-
empted the U.S. Navy’s Low Frequency Active Sonar (LFAS) program from
the requirements of the Marine Mammal Protection Act after determining
that its operation would have a “negligible impact” on any species.
1
NMFS
thus authorized the Navy to use two ships to transmit low frequency active
sonar in about 75 percent of the world’s oceans (exempting the polar ex-
1. K. R. Weiss, “Sonar Approved Despite Possible Risks to Whales,” Honolulu
Advertiser, 16 July 2002; M. Kaufman, “Navy Cleared to Use a Sonar Despite Fears
of Injuring Whales,” Washington Post, 16 July 2002, http://www.commondreams.
org/headlines02/0716-06.htm (accessed 19 July 2002).
2004 by the University of Chicago. All rights reserved.
Ocean Yearbook 18: 330–363
330
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Whales, Submarines, and Active Sonar
331
tremes). Ten weeks later, in late September 2002, 15 Cuvier’s beaked whales
beached on the Canary Islands at the same time the U.S. destroyer Mahan
was maneuvering in the area with ships from nine other members of the
North Atlantic Treaty Organization.
2
Autopsies of the whales revealed brain
damage consistent with an acoustic impact.
3
This mass stranding followed
similar incidents near the Bahamas in March 2000 and Greece in 1996, and
in the Canaries between 1985 and 1989, which are described later and which
were followed by another incident in the Haro Strait near Vancouver Island.
4
The NMFS approval of the Navy’s use of LFAS was challenged by the
Natural Resources Defense Council and other organizations in 2002, lead-
ing to a determination by Federal Magistrate Judge Elizabeth D. LaPorte
that NMFS had violated federal law in a number of respects, but that the
Navy should be permitted to continue with some limited testing because of
the strong national security interest involved.
5
On August 26, 2003, Judge
2. Nine Cuvier’s beaked whales were found dead on 24–25 September 2002
on the Canary Islands of Fuerteventura and Lanzarote. Six beached whales were
pushed back into the sea, and another two were seen floating lifeless in coastal
waters. Ships from Belgium, Canada, France, Germany, Greece, Norway, Portugal,
Turkey, the United Kingdom, and the United States were conducting a multina-
tional exercise known as Neo Tapon 2002 designed to practice securing the Strait
of Gibraltar. The Cuvier’s beaked whale is a toothed cetacean that ranges from 5
to 8 meters in length. J. Socolovsky, “Investigation Points to NATO Exercise in Mass
Whale Beaching,” Associated Press, 10 October 2002, posted at the Web site of the
Environmental News Network, http:/www.enn.com/news/wire-stories/2002/10/
10102002/ap_4866.
3. Ibid. (quoting a researcher as saying that the “the only cause which we can-
not rule out . . . is acoustic impact”).
4. See text at (n. 18, 21 and 24–7 below). On 5 May 2003, the U.S. Navy’s
guided-missile destroyer USS Shoup tested mid-range sonar for five hours in the Haro
Strait near Vancouver Island, sending out pings louder than 200 dB, which caused
a pod of 22 killer whales and a minke whale to stop their feeding and form into a
tight group as far from the sound as possible and then flee the region. The dead
carcasses of eight harbor porpoises washed ashore in the days after this test, and
subsequent investigations indicated that they had suffered severe trauma to their
brains. Tracy Vedder, “This Is Another Smoking Gun,” KOMO TV, 8 August 2003,
http://www.komotv.com/news/printstory.asp?id=26542 (accessed 28 August 2003);
Robert McClure, “Tests on Marine Mammals to Look for Sonar Link to Injuries,”
Seattle Post-Intelligencer, 12 July 2003, http://www.seattlepi.nwsource.com/local/
130609_sonar12.html (accessed 28 August 2003); Peggy Anderson, “Did Navy Tests
Kill Porpoises?” CBSNEWS.com, 23 July 2003, http://www.cbsnews.com/stories/
2003/07/23/tech/main564700.shtml (accessed 28 August 2003).
5. Natural Resources Defense Council, Inc. v. Evans, No. C-02-3805-EDL
(N.D.Cal., Opinion and Order on Cross-Motions for Summary Judgement, 26 Au-
gust 2003); Judge LaPorte’s earlier Opinion and Order Granting Plaintiff’s Motion
for a Preliminary Injunction was issued 31 October 2002 and published at 232
F.Supp.2d 1003 (N.D.Cal. 2002). Judge LaPorte ruled that NMFS had violated the
Marine Mammal Protection Act of 1972, 16 USC Chapter 31, the National Environ-
mental Policy Act of 1969, 42 USC secs. 4321 et seq., and the Endangered Species
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LaPorte issued a permanent injunction blocking the broad permit issued
by NMFS, holding that it had violated several federal statutes and explaining
that “the extremely loud and far traveling naval sonar system” maintains its
“sound pressure level of approximately 140 dB more than 400 miles from
the [transmitting] vessel” and covers broad areas because it “bounces from
the ocean bottom to the surface and back again.”
6
She stressed that NMFS
and the Navy had ignored relevant studies, such as one prepared by Great
Britain’s Defense Research Agency, which reported that fish exposed to
LFAS “suffered internal injuries at 160 dB, eye damage at 170 dB, auditory
damage at 180 dB, and transient stunning at 190 dB.”
7
The injunction re-
quires the Navy to extend its coastal buffer zone from 12 to at least 43 nauti-
cal miles offshore (except in certain limited areas where coastal training is
required), to use aerial surveys or observational vessels to monitor for nearby
species when operating close to shore, and also to avoid areas of the deep
ocean where marine mammals and other endangered species such as sea
turtles are migrating, breeding, feeding or clustering. The court’s opinion
instructs the parties to meet together to agree on limited areas where the
Navy’s testing can continue.
8
Act of 1973, 16 USC Chapter 35.
In her October 2002 opinion, Magistrate Judge LaPorte had explained that:
“It is undisputed that marine mammals, many of whom depend on sensitive hearing
for essential activities like finding food and mates and avoiding predators, and some
of whom are endangered species, will at a minimum be harassed by the extremely
loud and far traveling LFA sonar.” 232 F.Supp.2d at 1053. Although Magistrate Judge
LaPorte found that the Navy’s activities violated three federal statutes designed to
protect the marine environment, she accepted the testimony of the NMFS experts
regarding the impact of LFAS on marine mammals over the sharply conflicting testi-
mony presented by the plaintiff’s experts. Judge LaPorte wrote that: “The law is
clear . . . that when qualified experts on both sides reach carefully reasoned but
different conclusions, the Court must defer to the agency’s experts. . .” Order of
26 August 2003, slip op. at 49; also at 232 F.Supp.2d at 1017. Other courts dealing
with ocean environmental issues have taken a more skeptical view of the scientific
opinions offered by federal agencies. See, for example, Natural Resources Defense
Counsel v. Daley, 209 F.3d 747, 755, 754 (D.C. Cir. 2000) (explaining that courts “do
not hear cases merely to rubber stamp agency actions” and criticizing the agency’s
scientific conclusions as ones that could only be correct in “Superman Comics’ Bi-
zarro world, where reality is turned upside down”); Greenpeace v. National Marine
Fisheries Service, 106 F.Supp.2d 1066 (W.D.Wash. 2000) (where the court treated
the views of the two sides’ experts as having equal credibility and issued the injunc-
tion sought by plaintiffs despite the contrary testimony of the agency’s experts).
6. Ibid., Order of 26 August 2003, slip op. at 3, 11.
7. Ibid., slip op. at 40 (citing a 1994 study by Dr. Turnpenny entitled “The
Effects on Fish and Other Marine Mammals of High-Level Underwater Sound”).
8. After the court’s October 2002 order issuing a preliminary injunction, 232
F.Supp.2d 1003 (N.D.Cal. 2002), the parties reached an agreement allowing the
Navy to test its sonar in an area of the Western Pacific extending from Saipan in the
Commonwealth of the Northern Mariana Islands, to Japan’s Bonin Islands, south of
Tokyo. D. Kravets, “U.S. Navy Agrees to Temporarily Limit Testing of New Sonar
Page 4
Whales, Submarines, and Active Sonar
333
About the same time, U.S. Magistrate Judge James Larson, also in
Northern California, issued a temporary restraining order blocking geogra-
phers from the National Science Foundation, Columbia University, and
the Georgia Institute of Technology from “using an array of twenty airguns
to fire extremely high energy acoustic bursts into the ocean to generate
geophysical data in the Gulf of California” with sound blasts “as high as 263
decibels (dB) at the source,” which had apparently killed “[a]t least two
Cuvier beaked whales (Ziphius cavirostris), a species particularly susceptible
to acoustic trauma.”
9
Judge Larson noted that: “These levels are significantly
higher than 180 dB, which is acknowledged by the Government to cause
significant injury to marine mammals.”
10
In January 2003, U.S. District Judge Samuel Conti of the Northern Dis-
trict of California made an additional ruling against sonar use, blocking ex-
periments (authorized by NMFS) that were to be conducted by Woods Hole
Oceanographic Institution scientist Dr. Peter Tyack to determine the effect
of the sound on the gray whales migrating along the West Coast of Califor-
nia to their winter grounds along the coast of Mexico.
11
Judge Conti ruled
that because the permits involved “major amendments” to the original proj-
ect, which had generated “public controversy,” it was necessary to conduct
a proper environmental impact assessment under the National Environmen-
tal Policy Act before undertaking the experiments. In the process of “balanc-
ing” the “harms” to determine whether to issue an injunction, Judge Conti
noted that the population of gray whales had been dropping since 1984
(from 21,942 individuals to 17,414) and that “Dr. Tyack’s proposed experi-
ments might inflict unacceptable levels of harm on the gray whales.”
12
Because of the new acoustic technologies created by the Navy and other
researchers, the creatures living in the world’s oceans are now facing a new
form of pollution, justified by the Navy as militarily necessary, but with enor-
mous and untested destructive potential. The controversy surrounding the
use of sonar and other acoustic devices in the oceans is certain to continue
into the future, and will trigger challenges by other nations and nongovern-
mental organizations. The three cases described earlier indicate that proper
enforcement of U.S. environmental laws may protect the marine environ-
ment from the dangers posed by LFAS. But if these laws should prove to be
inadequate, or if Congress should exempt LFAS from U.S. environmental
System Amid Marine Life Concerns,” Associated Press (18 November 2002), http://
www.planetsave.com/ViewStory.asp?ID=3299 (accessed 2 March 2003).
9. Center for Biological Diversity v. National Science Foundation, No. C02-
5065 JL, 2002 WL 31548073 (N.D. Cal., Temporary Restraining Order, 30 October
2002), slip op. at 2–3.
10. Ibid., p. 3.
11. Hawaii County Green Party v. Evans, No. C-03-0078-SC (N.D.Cal., Order
Granting Permanent Injunction, 24 January 2003).
12. Ibid., slip op. at 24.
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laws that would otherwise govern,
13
other countries and groups concerned
about the impact of this technology on their marine resources, and the
ocean environment generally, will be obliged to utilize international law
principles and tribunals to limit the use of low frequency active sonar by the
navies and scientists of the United States and other countries. The sections
that follow examine the scientific information now available about the im-
pact of LFAS on the marine environment, address the military and scientific
arguments in favor of its use, and analyze possible international strategies
that might be pursued to challenge it.
THE EFFECTS OF LOW FREQUENCY ACTIVE SONAR
ON MARINE BIOTA
The ocean has always been a noisy place. For billions of years, natural sounds
produced by wind, waves, precipitation, ice, seismic events, and marine or-
ganisms defined the ocean’s acoustic milieu. The auditory sensitivities of
marine organisms surely evolved in the presence of these sounds and over
time species became specially adapted to deal with the ambient sounds of
the ocean environment.
14
During the last 2 centuries, humans have significantly added to the
ocean’s array of sounds with the introduction of machine-driven commercial
and military ships and the active exploitation of the hydrocarbons in the
ocean floor. Only recently has much consideration been given to the impacts
these sounds could be having on the life forms that inhabit the sea. A par-
ticular concern has arisen for marine mammals, many of which use sound
as their primary sense, to communicate, to navigate, and to detect predators
and prey.
The U.S. Navy’s Surveillance Towed Array Sensor System (SURTASS)
Low Frequency Active Sonar (LFAS) will employ very loud low-frequency
sounds (less than 500 Hz with intensity levels as great as 230 dB re 1µPa at
1 m
15
), posing a significant threat to the safety and welfare of marine mam-
13. The U.S. Navy received, for instance, a congressional exemption from the
requirements of the Migratory Bird Treaty Act of 1918 to permit it to continue live-
fire military training exercises on the island of Farallon de Medinilla, near Saipan,
in the Commonwealth of the Northern Mariana Islands. D. DePledge, “Navy Freed
from Bird Protection Act,” Honolulu Advertiser, 14 November 2002, at A11, col. 4.
See also J. McQuaid, “Fight Brews Over Environmental Law; Bush Officials Consider
Policy to Exempt Oceans,” Times-Picayune (New Orleans), 16 August 2002, p. 5.
14. National Research Council, Committee on Low-Frequency Sound and Ma-
rine Mammals, Low-Frequency Sound and Marine Mammals: Current Knowledge
and Research Needs (Washington, D.C.: National Academy Press, 1994), p. 2.
15. Although the Navy refuses to release the maximum source level of SUR-
TASS LFAS, claiming it to be classified information, reports indicate the maximum
source level to be 230 dB re 1 µPa. See “Quiet please. Whales navigating,” The
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Whales, Submarines, and Active Sonar
335
mals, and possibly to other forms of marine life as well. The transmitted
sound will be about 215 dB at its source, arrayed in a manner to have “an
effective source level” of 230–240 dB. According to the Navy’s environmen-
tal impact statement (EIS), the sound dispersion would vary somewhat ac-
cording to the geography and environment but would generally be at the
180 dB level 1 km from the source, at 173 dB 2 km from the source, about
165 dB 40 nautical miles (M) from the source, at the 150–160 dB level up
to 100 M from the source, and some 140 dB 400 M from the source vessel.
16
(Decibel levels are logarithmic in nature, so that a sound of 180 dB is 10
times as intense as one of 170 dB.) The sounds are not transmitted uniformly
in all directions from the source, but travel in a beam that is a few hundred
feet in width, which tends to expand as it leaves its source.
17
These sounds
are the loudest ever put into the world’s oceans by humans, with the possible
exception of underground explosions. They are designed to travel great dis-
tances and are audible by humans in the water 1000 km away without any
signal processing.
The threat of this active sonar to marine mammals first became evident
in 1996 when an unusual stranding event took place involving 12 Cuvier’s
beaked whales in the Mediterranean Sea near Greece that coincided tempo-
rally and geographically with “sound detecting system trials” of LFAS by the
NATO research vessel Alliance. The whales were exposed to sound transmit-
ted from at least 25 km away, which was determined to have reached them
at the 150–160 dB re 1 µPa at 1 m level after 238 short four-second pings
of sound were released, and which caused severe tissue damage to their ear
cavities.
18
Cuvier’s beaked whales are a deep-diving pelagic species that rarely
strands. Only seven cases of more than four individuals stranding have been
recorded since 1963.
19
One commentator concluded that the probability
that the mass stranding was not related to LFAS testing was less than 0.07
percent.
20
Moreover, three mass strandings involving similar species were
also associated with military maneuvers in the Canary Islands between 1985
and 1989, and in 1983
21
sperm whales in the southeast Caribbean became
Economist (7 March 1998): 85 and A. Frantis, “Does military testing strand whales?”
Nature 352 (5 March 1998): 29.
16. See Natural Resources Defense Council v. Evans, No. C-02-3805 EDL, 2002
WL 31445165 (N.D.Cal., Opinion and Order Granting Plaintiffs’ Motion for a Pre-
liminary Injunction, 31 October, 2002), slip op. at 12, 28.
17. Ibid., at 28.
18. See generally, Joint Interim Report Bahamas Marine Mammal Stranding
Event of 15–16 March 2000. U.S. Dept. of Commerce and Secretary of the Navy.
December 2001, http://www.nmfs.noaa.gov/prot_res/overview/Interim_Bahamas_
Report.pdf (accessed 28 August 2003).
19. Frantzis (n. 15 above).
20. Ibid.
21. M. P. Simmonds and L. F. Lopez-Jurado, “Whales and the military,” Nature
351 (6 June 1991): 448.
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“unusually silent and dispersed” when exposed to intense military sonar
from submarines operating in the area.
22
Because of the way sound is measured and the different speed that
sound travels through water, as compared to land, it is estimated that “under-
water sound pressure levels numerically are about 61.5 dB greater than
sound pressure levels in air for an equal intensity.”
23
In other words, sound
measured at 131 dB in water would have the same pressure impact as
sound measured at 70 dB on land (60 dB on land is the sound generated
by freeway traffic). Continuous exposure above 85 dB (on land) is likely to
degrade the hearing of most humans. “Deafening” noise (on land) begins
at 110 dB, with 120 dB measuring a hard rock band, 130 dB being the point
at which pain is registered, and 140 dB being the point adjacent to a jet
engine. The 180 dB (in water) figure said by the Navy to be “safe” for ceta-
ceans would thus affect them at about the same extent as human hearing
would be affected by standing next to a hard rock band at a rock concert,
if we can assume that the hearing system of cetaceans is roughly comparable
to ours.
Following the 1996 experience of the atypical mass stranding of beaked
whales in the Mediterranean, efforts have been made to collect the ears of
stranded animals that coincided with the nearby use of LFAS and other so-
nar devices. In March 2000, 17 whales of four different species, including
Cuvier’s beaked whales, two minke whales, and a dolphin stranded in the
Bahamas in March 2000 as a result of tactical mid-frequency sonar trans-
mitted from U.S. Navy vessels. The whales were exposed to sounds transmit-
ted at the 223–235 dB re 1 µPa at 1 m level, with pings transmitted every
24 seconds over a 16-hour period, which were thought to have reached the
whales at the 165 dB level.
24
(LFAS transmissions will be of longer duration
and have more energy; its pings will last between 6 and 100 seconds and
will be repeated every 6 to 15 minutes). Scientists found hemorrhaging
around the brain and ear bones of the beached cetaceans, injuries consistent
with exposure to extremely loud sounds. Eight of the stranded whales died,
and other whales probably sank to the sea floor before they had a chance
to strand.
25
The Navy has admitted that the Bahamas stranding and related
22. W. A. Watkins, K. E. Moore, and P. Tyack, “Sperm whale acoustic behaviors
in the Southeast Caribbean,” Cetology 49 (1985): 6.
23. R. C. Gisiner, “Proceedings, Workshop on the Effects of Anthropogenic
Noise in the Marine Environment, 10–12 February 1998” (Marine Mammal Science
Program, Office of Naval Research, 1988), p. 24.
24. Natural Resources Defense Council v. Evans, No. C-02-3805 EDL, 2002 WL
31445165 (N.D.Cal., Opinion and Order Granting Plaintiffs’ Motion for a Prelimi-
nary Injunction, 31 October 2002), slip op. at 5 (citing the Navy task force’s analysis
of the incident).
25. Those whales whose ability to navigate was most severely damaged by the
sonar would have died before they were able to make it to the nearest beach.
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Whales, Submarines, and Active Sonar
337
deaths “were most likely caused by its [mid-range] sonar transmissions,”
26
but contends that LFA sonar will affect whales differently. The Navy claims
that mid-range sonar can be heard over shorter distances by many marine
mammals, while LFA sonar can travel several hundred miles but is audible
to fewer species.
27
Because the Navy intends to deploy SURTASS LFAS globally, an Over-
seas Environmental Impact Statement and an Environmental Impact State-
ment (OEIS/EIS) was required under the authority of the National Environ-
mental Policy Act, prior to the Navy’s use of the technology. As part of the
process of preparing the OEIS/EIS, the Navy sponsored a three-phase ma-
rine mammal research program (MMRP) to determine how representative
marine mammals responded to LFAS transmissions. Phase I of the program
focused on blue and fin whales and was conducted off San Nicolas Island
in southern California from 5 September through 21 October 1997. Phase
II focused on migrating gray whales off central California and was con-
ducted from 8 through 27 January 1998. Phase III was conducted off the
northwest coast of the Big Island of Hawaii from 26 February through 31
March 1998 and focused on male humpback whales. An environmental as-
sessment was prepared prior to each phase of this research.
Results from each of the three phases of the LFAS MMRP indicated
that the technology did have an effect on each of the representative marine
mammal groups tested. The results of Phase I, in which fin and blue whales
were exposed to less than full-scale LFAS sound transmissions, indicated a
decrease in vocal behavior by approximately 50 percent in blue whales and
approximately 30 percent in fin whales.
28
The findings from Phase II, in
which gray whales migrating nearshore were exposed to LFAS source levels
of 185 dB re 1 µPa at 1 m, and 170 dB re 1 µPa at 1 m (both substantially
lower than the actual source level that will be utilized by the Navy),
demonstrated an obvious avoidance response to the LFAS signal, particu-
larly at the higher source level of 185 dB where whales deviated 1 km from
the source.
29
The extent of deviation from the source was less at the lower
26. Center for Biological Diversity v. National Science Foundation, No. C02-
5065, 2002 WL 31548073 (N.D.Cal., Temporary Restraining Order, 30 October
2002), slip op. at 8.
27. “Navy Deployment of Sonar Protested,” Honolulu Advertiser, 6 September
2001, p. A6.
28. C. W. Clark, P. Tyack, and W. T. Ellison, “Quicklook, Low-Frequency Sound
Scientific Research Program, Phase I: Responses of Blue and Fin Whales to
SURTASS LFA, Southern California Bight, 5 September B 21 October, 1997” (27 Feb-
ruary 1998), pp. 30–1, Figure 28.
29. P. Tyack and C. Clark, “Quicklook Phase II, Playback of Low-Frequency
Sound to Gray Whales Migrating Past the Central California Coast, January 1998”
(23 June 1998), pp. 22–5, Figures 7–9. Gray whales migrating further offshore did
not display the same response.
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Living Resources
source levels tested, but apparent nonetheless.
30
In addition, observations
of sea otters near the LFAS Phase II playback site suggested a reduction in
the rate of foraging success of about 11 percent and an increase in dive
times by about 11 percent when all dives during acoustic playback were
pooled.
31
Similar to Phase I, the results of Phase III indicated a reduction
of vocal activity in male humpback whales exposed to less than full-scale
LFAS signals.
32
Of 17 male humpback whales tested, 10 individuals stopped
singing when exposed to received levels of the LFAS signal ranging from
121 to 151 dB re 1 µPa.
33
Four of the whales that stopped singing joined
other whales during the transmissions, suggesting they may be trying to
maintain normal social interactions or bonding for protection.
34
The evi-
dence suggested that the humpback whales avoided the LFAS sound source
in addition to stopping their singing.
35
The biological significance of these changes in behavior and distribu-
tion in response to the LFAS signal cannot be summarily dismissed.
Singing and migration are linked to courtship and mating activities. Disrup-
tion of these behaviors could potentially impact the reproductive success of
individuals, and ultimately the size of a population. Thus, the possibility that
the LFAS signal could have long-term adverse effects on marine mammal
populations cannot be ruled out, particularly in the case of small popula-
tions. A U.S. Navy press release following Phases I and II of LFAS MMRP
stated that although “behavioral responses were observed, none raised con-
cern about the potential harm to animals during the playback experi-
ments.”
36
This statement is insensitive to the potential long-term impacts
the disruption of courtship and migratory activities could have on a marine
mammal population. If such disruptions were widespread throughout a par-
ticular habitat, they could have a greater impact on a population overall
than that of a few individuals being harmed as a result of exposure to the
full-scale sound source.
It is also important to emphasize that none of the three phases of the
LFAS MMRP exposed animals to the sound source at the level the Navy
actually plans to utilize. Scientists leading the MMRP explained that less-
than-full-scale sound signals were used because it was critical to evaluate
how animals thought to be particularly sensitive would respond to sonar at
30. Ibid.
31. Ibid.
32. C. Clark and P. Tyack, “Quicklook, Low-Frequency Sound Scientific Re-
search Program, Phase III: Responses of Humpback Whales to SURTASS LFA off
the Kona Coast, Big Island, Hawaii” (31 August, 1998), p. 24, figure 15.
33. Ibid.
34. Ibid.
35. Ibid.
36.. “Navy and Scientific Community Conduct Low Frequency Sound Re-
search,” United States Navy Pacific Fleet Public Affairs Office (March 4, 1998).
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Whales, Submarines, and Active Sonar
339
received levels potentially well below those thought to pose a risk of harm,
and that the best way to evaluate the risk of behavioral disruption is by exper-
iments that carefully control the sound level.
37
Given that all three groups of
marine mammals tested displayed behavioral and/or distributional changes
upon exposure to less-than-full-scale LFAS, it is highly probable that they
will have additional and more dramatic responses to the full-scale sound
source, and that other species will be affected as well. In fact, the Navy has
assumed that 95 percent of the whales would be at risk of experiencing a
biologically significant behavioural reaction if exposed to the LFAS at 180
dB, that 70 percent to 75 percent would be at risk of being “taken” if exposed
to 173 dB, and that 50 percent would be at risk if exposed to 165 dB.
38
The mass strandings in the Bahamas, the Canaries, and the Mediterra-
nean coupled with the results of the MMRP establish that LFAS and other
forms of active sonar are harmful to marine mammals. Because the MMRP
focused on such a small sampling of species it is not possible to rule out
indirect effects on marine mammal populations resulting from adverse ef-
fects of LFAS on their species of prey. Laboratory evidence strongly suggests
that high intensity sounds may affect the egg viability and growth rates of
fish and invertebrates.
39
It is important to recognize that adverse effects expe-
rienced at one level of the marine food chain may have repercussions
throughout the chain as the delicate balance of predators and prey becomes
disrupted. The LFAS MMRP, which involved three separate studies, lasted
only 6 to 8 weeks in duration, and examined the effects on five species to
less than full-scale LFAS signals, was insufficient to rule out adverse impacts
from exposure to full-scale transmissions to the species tested or to other
components of the ecosystem. It has been suggested, because the MMRP
exposed whales to sounds that were much lower intensity than full-scale
LFAS transmissions, that the research was designed to yield results indicating
that the technology had no significant impact on marine mammals.
In any event, the National Marine Fisheries Service did exempt the
LFAS system from the Marine Mammal Protection Act in July 2002, after
determining it would have a “negligible impact” on any species.
40
This con-
clusion is directly contrary to the results of the MMRP, which showed that
37. P. Tyack, “Comments on Low-Frequency Playback Experiments to Singing
Humpback Whales in Hawaiian Waters in Phase III of the LFA Marine Mammal
Research Program” (MARMAM, 9 June 1998).
38. Natural Resources Defense Council v. Evans, No. C-02-3805 EDL, 2002 WL
31445165 (N.D.Cal., Opinion and Order Granting Plaintiffs’ Motion for a Prelimi-
nary Injunction, 31 October 2002), slip op. at 4, 49–50 (quoting from Declaration
of Dr. Kurt Fristrup).
39. National Research Council, Committee on Low-Frequency Sound and Ma-
rine Mammals (n. 14 above), pp. 53–4.
40. Dept. of Commerce, NOAA, NMFS Letter of Authorization, http://
www.surtass-lfa-eis.com/Home/Dept (accessed 8 September 2002).
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LFAS brought about behavioral and distributional changes in all species
tested, and the 2000 incident in the Bahamas in which the Navy acknowl-
edged that mid-range sonar caused the death of at least eight whales.
As a condition of receiving its exemption, the Navy agreed not to trans-
mit LFAS from immediate coastal areas, but the sound will undoubtedly
reach these areas and will be very loud in some locations. In its Environmen-
tal Impact Statement, the Navy stated that its transmissions would be limited
to “below 180 dB within 22 km (12 M) of any coastlines and offshore biologi-
cally important areas.” On its Web site, the Navy says that “The HF/M3 sonar
[which is designed to be used as a preventative measure] will provide a very
high probability that no marine mammal will be exposed to high sound
levels in the LFA mitigation zone (at or above 180 dB).”
41
The effects of
received sound levels above 151 dB on marine life have not been studied
at all, by the LFAS MMRP or in any other test, and many scientists contend
that transmissions above the 120 dB level are likely to cause negative
effects on marine mammals and other creatures. The October 2002 federal
court ruling required the Navy, in particular, to expand the areas that would
be protected from its sonar.
42
Available evidence suggests that the NMFS
decision to exempt the LFAS system from the Marine Mammal Protection
Act should be revisited and that international legal mechanisms should be
explored to better protect marine mammals and their environment from
the use of LFAS and other forms of military sonar.
THE NAVY’S JUSTIFICATIONS
One of the U.S. Navy’s principal missions is to detect and, when necessary,
destroy enemy submarines. During the Cold War, the enemy submarines of
concern were primarily nuclear powered and nuclear armed. Now, they are
chiefly diesel-electric craft. Nuclear submarines can be detected by passive
sonar, because of their relatively noisy propulsion machinery. The United
States established a system of hydrophones placed on the sea floor con-
nected to cables that terminated at shore stations. In the Pacific, this lis-
tening system was called Oceanographic System Pacific and for many years
the “cover story,” that the stations, Naval Facilities (NAVFACS), were en-
gaged in scientific research based on oceanography, was effective. When
the true nature of the system became known—the secret simply could not be
maintained—the specific locations of the hydrophone arrays still remained
secret.
41. See http://www.surtass-lfa-eis.com/Highlights/stage.htm (accessed 8 Sep-
tember, 2002).
42. Natural Resources Defense Council v. Evans, No. C-02-3805 EDL, 2002 WL
31445165 (N.D.Cal., Opinion and Order Granting Plaintiffs’ Motion for a Prelimi-
nary Injunction, 31 October 2002), slip op. at 54.
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Whales, Submarines, and Active Sonar
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The virtues of this passive sonar system were that long-range detections
became possible whenever the Soviet submarines were too noisy for their
own safety. Sound ranges are influenced by absorption of the sound in sea-
water, refraction or bending of the sound caused by changes in seawater
temperature, and spreading of the sound as it proceeds from its source to
the detecting hydrophones. The system of passive bottom-laid hydrophone
arrays could determine bearings or directions, but not ranges. Two or more
arrays detecting the target were needed to get an approximate location or
fix. Even then, the location as determined was not exact and was effective-
ly an area rather than a point. Follow-up activity by long-range surveillance
aircraft was needed to “localize” the enemy submarine, and finally surface
ships—destroyers or frigates—were vectored to the site to deliver what
might be the final blow. The use of this system was practiced frequently by
the combined passive sonar system, and a command or headquarters center
was needed to put the information together. The Commander Oceano-
graphic System Pacific was located initially at San Francisco, California
(later moved to Pearl Harbor, Hawai’i) and the NAVFACS were on the U.S.
west coast, at Barbers Point, Hawai’i, and in Adak, Alaska.
Commander Oceanographic System Pacific was disestablished in 1995
for reasons not disclosed. The Cold War, of course, had been over for half
a decade and the threat of a nuclear attack from submarines had been
greatly diminished. In addition, the Russian submarines had become quieter
and detection ranges determined by the passive sonar were diminished.
What is the submarine threat today? Diesel-electric submarines are now
much quieter than they were previously. The need to spend long periods
of time on the surface to charge batteries, a procedure that makes the sub
susceptible to visual detection, has changed. Even by the end of World War
II, efforts were made by German subs to reduce or even eliminate time on
the surface by means of a snorkel.
43
At present, snorkeling time is on the
order of a few minutes, and can be carried out at night. Modern “enemy”
boats
44
can thus escape detection from passive sonar used by the “black
boxes” on the ocean floor, and the U.S. Navy decided that long-range, very
high-powered, low-frequency active sonar is needed. As explained earlier,
this active sonar requires the generation of a powerful sound source that
bounces off the enemy ship and is returned to the source vehicle. Surface
ships operating as part of the modern SURTASS LFAS can carry and
43. The snorkel is a tube that is extended vertically from a submerged subma-
rine, enabling the submarine to obtain sufficient air to operate its diesel engines
while remaining submerged at a relatively shallow depth to avoid visual detection.
Use of the term snorkel as a verb, that is, to snorkel or snorkeling is common with
submarine personnel.
44. Submariners refer to their craft as “boats.” This is an exception to common
nautical terminology, which would classify them as “ships” because of their size and
importance.
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monitor hydrophone arrays and generate the active sound source, and
thereby increase the capability to detect enemy vessels.
Diesel-electric (conventional) submarines are operated by many coun-
tries bordering the Atlantic, Pacific, and Indian Oceans, and important
smaller bodies of water such as the South China Sea and the Sea of
Japan/East Sea. These submarines are particularly effective in straits where
numerous sea-lanes converge and surface ships are in transit. Many carry
torpedoes and long-range cruise missiles and are of the ex-Soviet Kilo class
or have similarly effective designs. Some of the important sea-lanes the
United States relies upon for its national security lie near or along important
straits, which have become potential “choke points.” Many of these choke
points such as the Suez and Panama Canals, the Malacca-Singapore Straits,
and the Straits of Florida are vulnerable to disruption by surface ships and
submarines.
The U.S. Navy has reported that “there are 224 submarines operated
by non-allied nations, and the submarines prowling the world’s oceans today
are much quieter and more deadly than ever before.”
45
To assess numerically
the danger to U.S. and allied navies now that the Cold War is over, we have
consulted the authoritative Jane’s Fighting Ships.
46
Midget subs are omitted
from our list because of their obvious inability to attack U.S. ships, but all
others are listed—whether operated by potential enemies or by coun-
tries presumed to be friendly. To provide a general assessment of the capa-
bilities of the subs, the following classification is used: SS is the general classi-
fication for submarines and the other designations are in effect modifiers: N
stands for nuclear; B stands for ballistic missile; G stands for guided missile; K
stands for killer (i.e., subs configured for hunter-killer operations).
Australia—6 SSK
Canada—4 SSK
Chile—5 SSK
China—121 with 8 more under construction. The numbers include 1
SSBN, 1 SSB, 7 SSN, 6 SSG, and 106 SS
Colombia—2 patrol subs (SS that are not modernized or improved)
Cuba—1 Foxtrot class (SSK)
Denmark—5 coastal subs with an additional 4 under construction (SS)
Ecuador—2 type 209 class subs (SSK)
Egypt—4 patrol subs with an additional 2 under construction
45. See http://www.surtass-lfa-eis.com/WhyNeed/stage.htm (accessed 9 June
2002); see also Department of Navy Office of Legislative Affairs, Memorandum for
Interested Members of Congress—Record of Decision for the Surveillance Towed
Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, 17 July 2002.
46. Jane’s Fighting Ships, 2002–2003 (Coulsdon, Surrey, U.K.: Jane’s Informa-
tion Group, Sentinel House, 2002).
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Whales, Submarines, and Active Sonar
343
France—2 SSBN with an additional 4 either under construction or
planned, 6 SS
Germany—14 patrol subs with an additional 4 under construction (SS)
Greece—8 patrol subs with an additional 3 under construction (SS)
India—1 SSN under construction, 17 patrol subs (SS)
Indonesia—2 SSK
Iran—3 Kilo class (SSK)
Japan—23 SSK
Malaysia—3 SS
Netherlands—4 SSK
North Korea—22 SS and 22 classified as “Coastal” and presumed to be
unimproved models with limited capability
Norway—10 SSK with an additional 4 under construction
Pakistan—7 SSK with an additional 2 under construction
Poland—3 SSK
Portugal—3 SSK
Russia—17 SSBN with an additional 1 under construction, 7 SSGN with
an additional 1 under construction, 17 SSN with an additional 3
under construction, 14 SSK with an additional 2 SSK under con-
struction.
Singapore—4 SSK
Taiwan—10 (4SS, 6 SSK)
United Kingdom—4 SSBN, 12 conventional attack submarines with five
more SSK under construction
Venezuela—2 SSK
Simple quantitative data cannot, of course, completely assess the threat. We
are at present unable to judge the skills of the submarine crews, the state
of maintenance of the boats, or, most importantly, whether the countries
can be considered to be potential enemies or allies. North Korea would
certainly be in the potential enemy category. In view of our current relations
with China, we cannot be certain about the danger of Chinese subs, but it
would be foolish to discount it. Malaysia, Indonesia, and Singapore are cer-
tainly not enemies, but their important location guarding the Strait of Ma-
lacca puts them in the category of countries of interest.
The Navy has a responsibility to try to detect potential enemy subma-
rines, but in view of the recognized threat to marine life posed by its low
frequency active sonar, passive sonar alternatives should continue to be
developed and utilized wherever possible.
47
The use of active sonar, espe-
47. The Executive Summary of the Navy EIS for SURTASS LFA Sonar at ES-
6 states this idea generally as “(Restricted Operation—the Navy’s preferred alterna-
tive) the use of this system would include geographic restrictions and monitoring
to prevent injury to potentially affected species.”
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cially in light of the documented damage it causes, can be justified only
where the threat from a potential enemy submarine is clearly demonstrated,
immediate, and severe.
DOES THE USE OF LOW FREQUENCY ACTIVE SONAR VIOLATE
INTERNATIONAL LAW?
The U.S. Navy’s current and projected plans to use LFAS do appear to violate
international law, particularly the duty of all states to protect the marine
environment from pollution, the duty to act with precaution (and to under-
take environmental assessments before starting new activities), and the duty
to cooperate with other affected countries.
International law is relevant because LFAS will impact areas outside
the areas under the jurisdiction of the United States and the NATO coun-
tries using this technology, and also because it will impact migratory and
straddling species that are in waters under U.S./NATO jurisdiction for part
of their life-cycle and outside these waters for other phases of their lives.
RELEVANT TREATY REGIMES
The 1982 United Nations Law of the Sea Convention
48
Under Article 192 of the Law of the Sea Convention, all countries have “the
obligation to protect and preserve the marine environment.” This principle
is obligatory even for countries that have not ratified the Convention, like
the United States, because it has become a binding norm of customary
international law.
49
Article 65 of the Convention has particular relevance to
the threats posed to marine mammals, because it requires countries to “co-
48. United Nations Convention on the Law of the Sea, 10 December 1982,
entered into force 16 November 1994, UN Doc. A/CONF.62/122 (1982), Interna-
tional Legal Materials 21 (1982) at 1261.
49. As of 24 February 2003, 142 countries had ratified the Law of the Sea Conven-
tion. UN Division for Ocean Affairs and the Law of the Sea, Chronological List of
Ratifications, http://www.un.org/Depts/los/reference_files/chronological_lists_of_. . .
(accessed 1 March 2003). A few important countries like the United States and Canada
had not ratified the Convention as of that date, but they both have been giving serious
consideration to ratification. The United States has frequently acknowledged that the
provisions in the Law of the Sea Convention, except those governing exploitation of
deep seabed minerals, reflect existing norms of customary international law. See, for
example, Ocean Policy Statement by the President, 10 March 1983, accompanying Proc-
lamation No. 5030, 48 Fed. Reg. 10,605 (1983)(“the Convention . . . contains provisions
with respect to traditional uses of the oceans which generally confirm existing maritime
law and practice and fairly balance the interests of all States”).
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Whales, Submarines, and Active Sonar
345
operate with a view to the conservation of marine mammals and in the case
of cetaceans . . . in particular [to] work through the appropriate interna-
tional organizations for their conservation, management and study.”
The unusually loud sounds emitted in the LFAS process would certainly
be considered “pollution,” which is defined in Article 1(1)(4) of the Conven-
tion as:
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. (Emphasis added).
Sound is a “form of energy manifested by small pressure and/or particle
velocity variations in a continuous medium.”
50
“While the definition [of
“pollution” in the Law of the Sea Convention] was . . . not drafted with
acoustic pollution in mind, the inclusion of ‘energy’ implies that noise can
be a form of pollution under the terms of the LOS Convention.”
51
Article 194(1) is quite clear that countries must do everything possible
“to prevent, reduce and control pollution of the marine environment
from any source.” “States are required, therefore, to take preventive mea-
sures based on existing knowledge to avoid pollution, rather than to take
remedial measures once it has occurred, and to apply a precautionary ap-
proach when scientific certainty about the harmful effects is not (yet) avail-
able.”
52
Article 194(5) makes it clear that these duties, in particular, require
countries to adopt measures “to protect and preserve rare or fragile ecosys-
tems as well as the habitat of depleted, threatened or endangered species
and other forms of marine life.”
Article 196 requires countries to “take all measures necessary to prevent,
reduce and control pollution of the marine environment resulting from the
use of technologies under their jurisdiction or control.” Articles 204–206
require the preparation and dissemination of environmental impact assess-
ments.
53
Although the U.S. Navy did prepare an EIS, the scientific tests it
relied upon, as explained earlier, were woefully inadequate and, even so,
50. W. J. Richardson et al., Marine Mammals and Noise (San Diego: Academic
Press, 1995), p. 544.
51. H. M. Dotinga and A. G. Oude Elferink, “Acoustic pollution in the oceans:
The search for legal standards,” Ocean Development and International Law 31 (2000):
151, 158.
52. Ibid., at 161.
53. See also Law of the Sea Convention (n. 48 above), Article 165(2)(d) (also
requiring environmental impact assessments for activities exploiting the resources
of the deep seabed).
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Living Resources
demonstrated that LFAS will have negative impacts on marine mammals. In
addition, the Navy’s EIS was not made available to other countries during
its preparation for their comments and input.
The Convention on the Conservation of Migratory Species of
Wild Animals
54
Article III(4) of this treaty requires parties that are “Range States” to “en-
deavour” “(b) to prevent, remove, compensate for or minimize, as appro-
priate, the adverse effects of activities or obstacles that seriously impede or
prevent the migration of the species; and (c) to the extent feasible and ap-
propriate, to prevent, reduce or control factors that are endangering or are
likely to further endanger the species . . .” The United States is not one of
the 81 parties to this treaty,
55
and it has relatively weak enforcement provis-
ions, saying only in Article XIII that disputes should be resolved through
negotiation and that, if negotiations are unsuccessful, countries “may, by
mutual consent, submit the dispute to arbitration . . .” Nonetheless, its sub-
stantive provisions can be viewed as reflective of the consensus of interna-
tional views on this subject, and as supporting customary international law
norms requiring countries to protect wild migratory species.
The Biodiversity Convention
56
This treaty confirms in Article 3 the principle that emerged from the 1972
Stockholm
57
and 1992 Rio Declarations
58
that “States have . . . the responsibil-
ity to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or of areas beyond the limits of
national jurisdiction.” The treaty also contains general provisions saying
54. Convention on the Conservation of Migratory Species of Wild Animals,
Bonn, 1979, reprinted in D. Hunter, J. Salzman, and D. Zaelke, International Environ-
mental Law and Policy—Treaty Supplement, 2002 Edition (New York: Foundation Press,
2002), p. 320.
55. Convention on Migratory Species, http://www.wcmc.org.uk/cms/cms_
banner.html (accessed 1 March 2003).
56. Convention on Biological Diversity, 5 June 1992, preamble, UNEP/Bio.
Div/CONF/L.2, S. Treaty Doc. No. 103-20, International Legal Materials 31 (1992) at
818, 822–3.
57. Declaration of the United Nations Conference on the Human Environ-
ment (Stockholm Declaration), UN Doc. A/CONF.48/14, 7, International Legal
Materials 11 (1972) at 1416, 1420.
58. Rio Declaration on Environment and Development, 14 June 1992, UN Doc.
A/CONF.151/5/Rev.1(1992), International Legal Materials 31 (1992) at 874.
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Whales, Submarines, and Active Sonar
347
that countries, should, when feasible, promote and protect biological diver-
sity.
The Biodiversity Convention utilizes what some have called a “purer
form” of the precautionary principle, stating in its preamble that “where
there is a threat of significant reduction or loss of biological diversity, lack
of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimize such a threat. . .”
59
In addition, Article
14(1)(a) requires contracting parties to undertake “environmental impact
assessment[s] of its proposed projects that are likely to have significant ad-
verse effects on biological diversity with a view to avoiding or minimizing
such effects and, where appropriate, allow for public participation in such
procedures.”
The Biodiversity Treaty has a dispute settlement provision saying that
disputes should be resolved through conciliation unless the parties agree to
compulsory submission to an arbitral panel or to the International Court
of Justice. This treaty has achieved almost-universal acceptance, with 187
ratifications.
60
The United States signed this treaty in 1993, but the U.S. Sen-
ate refused to ratify it in 1994.
The International Whaling Convention
61
This Convention’s text does not say anything directly about acoustic im-
pacts on whales, or indeed about pollution of the habitats of whales. But
Article V does authorize the contracting parties to “adopt regulations with
respect to the conservation . . . of whale resources, fixing . . . (c) open and
closed waters, including the designation of sanctuary areas . . . ” Various
committees have examined the acoustic issues, and the 1999 Report of the
Scientific Committee “stated that noise-producing activities (such as seismic
surveys or sonar operations) should not be conducted in critical habitats at
certain times of the year, which could greatly reduce exposing mothers and
calves or breeding animals to high sound levels. It supported measures to
mitigate adverse effects of noise wherever possible and stressed the need for
further research.”
62
59. S. McCaffrey, “Biotechnology: Some issues of general international law,”
Transnational Law 14 (2001): 91, 97.
60. Parties to the Convention on Biological Diversity, http://www.biodiv.org/
world/parties.asp (accessed 1 March 2003).
61. International Convention for the Regulation of Whaling, 2 December
1946, 161 U.N.T.S. 72, 10 U.S.T. 952.
62. Dotinga and Oude Elferink (n. 51 above), p. 169 (citing IWC/51/4, para.
11.4.1 and Annex H, para. 7.1).
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Living Resources
Regional Cetacean Agreements
Two regional agreements designed to address small cetaceans have been
adopted pursuant to the 1979 Bonn Convention on Migratory Species.
63
The Agreement on the Conservation of Small Cetaceans of the Baltic and
North Sea of 17 March 1992 (ASCOBANS)
64
has been ratified by all eight
countries in the region. The Conservation and Management Plan provides
that the parties shall work toward “the prevention of other significant distur-
bance, especially of an acoustic nature” of the species involved, and various
meetings and studies have been undertaken to address this issue.
65
The
Agreement on the Conservation of the Cetaceans of the Black Sea, Mediter-
ranean Sea and Contiguous Atlantic Area (ACCOBAMS)
66
has now been
ratified by seven nations and signed by eight others. A number of the con-
tracting parties to these two treaties are also members of the North Atlantic
Treaty Organization (NATO).
RELEVANT PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW
The Duty to Avoid Causing Harm to Shared Resources and the
Common Heritage
Principle 21 of the Stockholm Declaration on the Human Environment
67
affirmed the responsibility of States “to ensure that activities within their
jurisdiction and control do not cause damage to the environment of other
states or areas beyond the limits of national jurisdiction.”
68
The introduc-
63. See text accompanying n. 54 and 55 above.
64. Agreement on the Conservation of Small Cetaceans of the Baltic and North
Seas, 17 March 1992, http://www.oceanlaw.net/texts/summaries/ascobans.htm
(accessed 1 March 2003).
65. Dotinga and Oude Elferink (n. 51 above), pp. 169–70.
66. Agreement on the Conservation of the Cetaceans of the Black Sea, Mediter-
ranean Sea and Contiguous Atlantic Area (ACCOBAMS), 24 November 1996,
http://www.oceanlaw.net/texts/summaries/accobams.htm (accessed 1 March 2003).
67. Declaration of the United Nations Conference on the Human Environ-
ment, UN Doc. A/CONF.48/14, 7, International Legal Materials 11 (1972) at 1416,
1420. See generally L. Sohn, “The Stockholm declaration on the human environ-
ment,” Harvard Journal of International Law 15 (1973): 423, and M. Akehurst, “Inter-
national liability for injurious consequences arising out of acts not prohibited by
international law,” New York Journal of International Law (1985): 3.
68. See also Principle 2 of the 1992 Rio Declaration (n. 58 above), and Re-
statement (Third) of Foreign Relations Law (1987), Section 601. Philippe Sands in
Principles of International Environmental Law, vol. I (1995), p. 186 concludes that taken
together Principle 21 and Principle 2 “establish the basic obligation underlying envi-
ronmental law and the source of its further elaboration in rules of greater specific-
ity.” The International Court of Justice has referred to “every State’s obligation not
to allow knowingly its territory to be used for acts contrary to the rights of other
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Whales, Submarines, and Active Sonar
349
tion of acoustic pollution into the ocean, which causes damage to marine
mammals and other marine species in the exclusive economic zones of other
nations and in the high seas beyond national jurisdiction, would certainly
violate this norm of customary international law.
The Precautionary Principle
The precautionary principle, or “precautionary approach” as some coun-
tries and commentators prefer to call it, has evolved into a norm with real
content.
69
It mandates that studies precede action, and that interdisciplinary
environmental impact assessments be written and distributed, with public
input.
70
It shifts the burden to those that would undertake a new develop-
ment or use of an environmental resource, replacing the old approach that
States,” Corfu Channel Case (United Kingdom v. Albania), 1949 I.C.J. 4, and this
central principle is also relied upon in the Trail Smelter Arbitration, 3 R. Int’l Arb.
Awards 1905, 1938 (1941), holding that “no State has the right to use or permit the
use of its territory in such a manner as to cause injury by fumes in or to the territory
of another.”
69. The essence of this norm was articulated in the 1992 Rio Declaration as
“Where there are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to
prevent environmental degradation.” Rio Declaration (n. 58 above), at 879. For de-
tailed analysis of the precautionary principle, see, for example, D. Freestone, “The
Precautionary Principle,” in International Law and Global Climate Change, ed. R.
Churchill and D. Freestone (London: Graham & Trotman/M. Nijhoff, 1991), p. 21;
E. Hey, “The precautionary concept in environmental policy and law: Institutionaliz-
ing caution,” Georgetown International Environmental Law Review 4 (1992): 303; J. E.
Hickey, Jr., and V. R. Walker, “Refining the precautionary principle in international
law,” Virginia Environmental Law Journal 14 (1995): 423; G. D. Fullem, Comment,
“The precautionary principle: Environmental protection in the face of scientific un-
certainty,” Willamette Law Review 31 (1995): 495; J. M. Macdonald, “Appreciating
the precautionary principle as an ethical evolution in ocean management,” Ocean
Development and International Law 26 (1995): 255; J. M. Van Dyke, “Applying the pre-
cautionary principle to ocean shipments of radioactive materials,” Ocean Development
and International Law 27 (1996): 379; J. Cameron and J. Abouchar, “The Status of
the Precautionary Principle in International Law” in The Precautionary Principle and
International Law: The Challenge of Implementation, ed. D. Freestone and E. Hey (The
Hague: Kluwer Law International, 1996), p. 29; M. Territo, “The precautionary prin-
ciple in marine fisheries conservation and the U.S. Sustainable Fisheries Act of
1996,” Vermont Law Review 24 (2000): 1351; R. Unger, “Brandishing the precaution-
ary principle through the Alien Tort Claims Act,” New York University Environmental
Law Journal 9 (2001): 638; V. R. Walker, “Some dangers of taking precautions with-
out adopting the precautionary principle,” Environmental Law Reporter 31 (2001):
10040.
70. For a listing of international agreements requiring environmental assess-
ments, see D. Hunter, J. Salzman, and D. Zaelke, International Environmental Law and
Policy (New York: Foundation Press, 1998), pp. 366–70.
Page 21
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Living Resources
had imposed the burden on the environmentalists who challenged such ac-
tivity.
71
It requires those countries and companies that want to undertake
new developments to engage in scientific studies to determine the effect of
their initiatives, and also to consider less intrusive approaches. It accords
respect to ecosystems and living creatures for their own sake, without
requiring that they prove themselves to be useful or to have marketplace
value. It rejects the idea that risks and costs can be transferred from one
region to another, or from this generation to future ones, and it requires
that risks and costs be internalized in order to force decision makers to en-
gage in a fair and sober analysis before deciding to proceed with a project.
And ultimately it requires that we proceed slowly in the face of uncertainty,
constantly testing and monitoring the effects of our activities.
The precautionary principle has become the foundation of a number
of important recent treaties designed to manage fishing resources and to
protect the marine environment, including the 1995 Migratory and Strad-
dling Stocks Agreement
72
and the 2000 Honolulu Convention,
73
and it has
also been recognized in regional and national decisions. The European
courts have led the way in applying the precautionary principle,
74
and Euro-
71. Ibid., p. 360.
72. 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, 8 Septem-
ber 1995, UN Doc. A/CONF.164/37, International Legal Materials 34 (1995): 1542.
73. The Convention on the Conservation and Management of Highly Migra-
tory Fish Stocks in the Western and Central Pacific Ocean, Honolulu, 4 September
2000, (accessed 26 March 2001); see generally V. Botet, “Filling in one of the last
pieces of the ocean: Regulating Tuna in the Western and Central Pacific Ocean,”
Virginia Journal of International Law 41(2001): 787.
74. The most significant decision of the European Court of Justice occurred
in 1998, when the Court upheld the European Commission’s decision to ban all
bovine animals and all beef and veal products from the United Kingdom, based on
the EC’s judgment that all risks of transmission from bovine spongiform encepha-
lopathy (mad cow disease) could not be excluded. The Queen v. Ministry of Agricul-
ture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National
Farmer’s Union, David Burnett and Sons Ltd., R.S. Case C-147-96, [1998] E.C.R. I-
2211. In response to the argument of the English National Farmers’ Union that this
decision violated the principle of proportionality, the Court acknowledged that the
principle of proportionality required that the least onerous alternative be chosen,
but ruled also that “[w]here there is uncertainty as to the existence or extent of
risks to human health, the institutions may take protective measures without having
to wait until the reality and seriousness of the risks become fully apparent.” Ibid.,
para. 63. The Court repeated this statement in United Kingdom v. Commission of
the European Communities, Case C-180/96, [1998] E.C.R. I-2265, para. 99. In an-
other important decision, the Court of First Instance in Europe rejected a challenge
to a decision that had withdrawn an antibiotic from the list of aut |
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