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[Revised -- March 3, 2003]
[For Publication in The
Ocean Yearbook]
by Jon M. Van Dyke, Emily A.
Gardner, and Joseph R. Morgan
Elisabeth Mann Borgese devoted
her professional life to promoting awareness about the ocean
and building regimes to protect fragile marine ecosystems.
This article examines a new acoustic military use of the
ocean, which potentially threatens all ocean creatures, and
explains how existing principles 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
1969-70, 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 inviting 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.
On July 15, 2002, the U.S. National Marine Fisheries Service (NMFS)
exempted 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.
NMFS thus authorized the Navy to use two ships to
transmit low frequency active sonar in about 75% of the
world’s oceans (exempting the polar extremes). 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. Autopsies of the whales revealed brain damage consistent with
an acoustic impact. This mass stranding followed similar incidents near the
Bahamas in March 2000 and near Greece in 1996, and in the
Canaries between 1985 and 1989, which are described below.
In late October 2002, federal Magistrate Judge Elizabeth D.
LaPorte determined that the Navy’s use of low frequency active
sonar was likely to violate four federal statutes
and to cause irreparable injury to ocean
creatures, and she thus issued a preliminary injunction
restricting the Navy’s actions, but allowing further testing
and training of personnel regarding this system. The court explained: “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.” The subsequent agreement between the parties allowed 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, pending the
hearing for a preliminary injunction, scheduled for the summer
of 2003.
About the same time, U.S. Magistrate Judge James Larson, also
in Northern California, issued a temporary restraining order
blocking geographers 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.”
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.”
In January 2003, U.S. District Judge Samuel Conti of the
Northern District of California made an additional ruling
against sonar use, blocking experiments (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 California to their winter grounds along the coast of
Mexico. Judge Conti ruled that because the permits involved "major
amendments" to the original project, which had generated
"public controversy," it was necessary to conduct a proper
environmental impact assessment under the National
Environmental Protection Act before undertaking the
experiments. In the process of "balancing" 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 experiments might inflict unacceptable levels of harm
on the gray whales."
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 enormous 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 nongovernmental
organizations. The three cases described above indicate that
proper enforcement of U.S. environmental laws may protect the
marine environment 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 laws that would
otherwise govern,
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
impact 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 organisms 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.
During the last two 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 particular 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),
posing a significant threat to the safety and welfare of
marine mammals, 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 environmental
impact statement (EIS), the sound would be at the 180-dB level
one kilometer from the source, at 173-dB two kilometers from
the source, about 165-dB 40 nautical miles from the source, at
the150-160- dB level up to 100 miles from the source, and some
140-dB 400 miles from the source vessel.
(Decibel levels are logarithmic in nature, so that a sound of
180-dB is ten 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.
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 distances and
are audible by humans in the water 1000 kilometers 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 temporally and geographically with
“sound detecting system trials” of LFAS by the NATO research
vessel Alliance. The whales were exposed to sound
transmitted from at least 25 kilometers 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.
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.
One commentator concluded that the probability that the mass
stranding was not related to LFAS testing was less than 0.07%.
Moreover, three mass strandings involving similar species were
also associated with military maneuvers in the Canary Islands
between 1985 and 1989, and in 1983
sperm whales in the southeast Caribbean became “unusually
silent and dispersed” when exposed to intense military sonar
from submarines operating in the area.
Because of the way sound is
measured and the different speed that sound travels through
water, as compared to land, it is estimated that “underwater
sound pressure levels numerically are about 61.5 dB greater
than sound pressure levels in air for an equal intensity.”
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 cetaceans
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 sonar 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 transmitted from U.S. Navy vessels. The whales were
exposed to sounds transmitted 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.
(LFAS transmissions will be of longer duration
and have more energy; its pings will last between six and 100
seconds and will be repeated every six 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.
The Navy has admitted that the Bahamas stranding and related
deaths “were most likely caused by its [mid-range] sonar
transmissions,”
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.
Because the Navy intends to deploy SURTASS LFAS globally, an
Overseas Environmental Impact Statement and an Environmental
Impact Statement (OEIS/EIS) was required under the authority
of the National Environmental 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 marine 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 September 5
through October 21, 1997. Phase II focused on migrating gray
whales off central California and was conducted from January 8
through 27, 1998. Phase III was conducted off the northwest
coast of the Big Island of Hawaii from February 26 through
March 31, 1998 and focused on male humpback whales. An
environmental assessment 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% in blue whales and
approximately 30% in fin whales.
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, particularly at the higher source level of 185 dB
where whales deviated one kilometer from the source. The
extent of deviation from the source was less at the lower
source levels tested, but apparent nonetheless. 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% and an increase in dive times by about 11% when all
dives during acoustic playback were pooled.
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. Of 17 male humpback whales
tested, ten individuals stopped singing when exposed to
received levels of the LFAS signal ranging from 121 to 151 dB
re 1 μPa. 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. The evidence suggested that the humpback whales
avoided the LFAS sound source in addition to stopping their
singing.
The biological significance of these changes in behavior and
distribution in response to the LFAS signal cannot be
summarily dismissed. Singing and migration are linked to
courtship and mating activities. Disruption 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 populations. A U.S.
Navy press release following phases I and II of LFAS MMRP
stated that although “behavioral responses were observed, none
raised concern about the potential harm to animals during the
playback experiments.”
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 particular 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 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 experiments that carefully
control the sound level.
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% of
the whales would be at risk if exposed to the LFAS at 180-dB,
that 70-75% would be at risk of being “taken” if exposed to
173-dB, and that 50% would be at risk if exposed to 165-dB.
The mass strandings in the Bahamas, the Canaries, and the
Mediterranean 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
effects 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. It
is important to recognize that adverse effects experienced 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 six to eight 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.
This conclusion is directly contrary to the results of the
MMRP, which showed that LFAS brought about behavioral and
distributional changes in all species tested, and the 2000
incident in the Bahamas in which the Navy acknowledged that
mid-range sonar caused the death of at least eight whales.
As a condition of receiving its exemption, the Navy agreed not
to transmit LFAS from immediate coastal areas, but the sound
will undoubtedly reach these areas and will be very loud. In
its Environmental Impact Statement, the Navy stated that its
transmissions will be limited to “below 180 dB within 22 km
(12 nm) of any coastlines and offshore biologically important
areas.” On its website, the Navy says that “The HF/M3 sonar
will provide very high probability that no marine mammal will
be exposed to high sound levels in the LFA mitigation zone (at
or above 180 dB).”
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.
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 connected to cables that
terminated at shore stations. In the Pacific, this listening
system was called Oceanographic System Pacific and for many
years the "cover story" -- that the stations, Naval Facilities
(NAVFACS), were engaged 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.
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 seawater, 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 effectively 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 Oceanographic 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.
At present, snorkeling time is on the order of a few minutes,
and can be carried out at night. Modern "enemy" boats,
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 above, 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 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
countries 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.”
In order 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.
Midget subs are omitted from our list because of their obvious
incapability to attack U.S. ships, but all others are listed
-- whether operated by potential enemies or by countries
presumed to be friendly. In order to provide a general
assessment of the capabilities of the subs, the following
classification is used: SS is the general classification 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 B
4 SSK
-
Chile B
5 SSK
-
China B
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
-
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 B
23 SSK
-
Malaysia
B 3 SS
-
Netherlands -- 4 SSK
-
North Korea
B 22
SS and 22 classified as
Acoastal@
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 B
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
construction.
-
Singapore
B 4 SSK
-
Taiwan
B 10
(4SS, 6 SSK)
-
United Kingdom
B 4
SSBN, 12 conventional attack submarines with five more SSK
under construction
-
Venezuela
B 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 certainly
not enemies, but their important location guarding the Strait
of Malacca puts them in the category of countries of interest.
The Navy has a responsibility to try to detect potential enemy
submarines, 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.
The use of active sonar, especially 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 undertake
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 countries 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.
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.
Article 65 of the Convention has particular
relevance to the threats posed to marine mammals, because it
requires countries to 'co-operate
with a view to the conservation of marine mammals and in the
case of cetaceans...in particular [to] work through the
appropriate international organizations for their
conservation, management and study.'
The unusually loud sounds emitted in the LFAS process would
certainly be considered 'pollution'
under Article 1(1)(4) of the Convention, which is defined 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.'
'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.'
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 measures based on
existing knowledge to avoid pollution, rather than to take
remedial measures once it has occurred, and to apply a
precautionary approach when scientific certainty about the
harmful effects is not (yet) available.'
Article 194(5) makes it clear that these duties, in
particular, require countries to adopt measures 'to
protect and preserve rare or fragile ecosystems 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 assessments. Although the U.S. Navy did
prepare an EIS, the scientific tests it relied upon, as
explained above, were woefully inadequate and, even so,
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.
Article III(4) of this treaty requires parties
that are 'Range
States'
to 'endeavour'
'(b)
to prevent, remove, compensate for or minimize, as
appropriate, the adverse effects of activities or obstacles
that seriously impede or prevent the migration of the species;
and (c) to the extent feasible and appropriate, 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,
and it has relatively weak enforcement provisions, 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 substantive provisions can be viewed as
reflective of the consensus of international views on this
subject, and as supporting customary international law norms
requiring countries to protect wild migratory species.
The Biodiversity Convention.
This treaty confirms in Article 3 the principle that
emerged from the 1972 Stockholm
and 1992 Rio
Declarations that 'States
have...the responsibility 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 that countries, should, when feasible,
promote and protect biological diversity.
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...'
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 adverse 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.
The United States signed this treaty in 1993, but the
U.S. Senate refused to ratify it in 1994.
The International Whaling Convention.
This Convention's text does not say anything directly about
acoustic impacts 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.'
Regional Cetacean Agreements. Two
regional agreements designed to address small cetaceans have
been adopted pursuant to the 1979 Bonn Convention on Migratory
Species.
The Agreement on the Conservation of Small Cetaceans of the
Baltic and North Sea of 17 March 1992 (ASCOBANS)
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 disturbance, especially of an
acoustic nature'
of the species involved, and various meetings and studies have
been undertaken to address this issue.
The Agreement on the Conservation of the Cetaceans of the
Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS)
has now been ratified by seven nations and signed
by eight others. A number of the contracting 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
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.'
The introduction 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
countries and commentators prefer to call it, has evolved into
a norm with real content.
It mandates that studies precede action, and that
interdisciplinary environmental impact assessments be written
and distributed, with public input.
It shifts the burden to those that would undertake a new
development or use of an environmental resource, replacing the
old approach that had imposed the burden on the
environmentalists who challenged such activity.
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
engage 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 Straddling Stocks Agreement
and the 2000 Honolulu Convention,
and has also been recognized in regional and national
decisions. The European courts have led the way in applying
the precautionary principle,
and European institutions have also fully embraced it.
The British government has recognized that it should be widely
followed,
as have courts in, for instance, India, Pakistan, Australia,
and Hawaii.
When
risks are anticipated, the precautionary principle requires
those creating the risks to work with potentially-affected
nations to prepare for foreseeable emergency contingencies,
to create appropriate liability regimes to ensure that injured
parties are properly compensated,
to notify other countries of situations threatening harmful
effects on their environment,
and of course to take every appropriate precaution to prevent
or limit damage to the environment.
'A
strict application of the precautionary principle would
require additional research of a broader scope to eliminate
the possibility of long-term, irreversible harm to the marine
ecosystem or any of its living components before the SURTASS
LFA system can be deployed globally.'
The Polluter-Pays Principle. Another
general principle of international law is that when a state
violates its international obligations, it has a duty to make
reparations for the wrongs committed. The Permanent Court of
International Justice (PCIJ) stated in the Chorzow Factory
Case that "reparation must, as far as possible, wipe out
all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if
that act had not been committed."
The International Court of Justice (ICJ) also recognized in
the Gabcikovo-Nagymaros Case that "[i]t is a
well-established rule of international law that an injured
State is entitled to obtain compensation from the State which
has committed an internationally wrongful act for the damage
caused by it."
The emission of low-frequency-active sonar is not an
inherently "wrongful act," but it can be wrongful and harmful
if its operation falls short of accepted international
standards and has the effect of harming the marine
environment.
The Duty to Cooperate. Another principle
well-established in customary international law is the
requirement of cooperation among states in making decisions
that may substantially affect the environment. Principle 24
of the Stockholm Declaration states:
International matters concerning the protection and
improvement of the environment should be handled in a
co-operative spirit by all countries, big or small, on an
equal footing. Cooperation through multilateral or bilateral
arrangements or other appropriate means is essential to
effectively control, prevent, reduce and eliminate adverse
environmental effects resulting from activities conducted in
all spheres, in such a way that due account is taken of the
sovereignty and interests of all States.
This principle had earlier been utilized by the arbitral
tribunal in the 1957 Lac Lanoux Arbitration,[80]
where it was held that, as a matter of customary international
law, a state that is engaging in behavior likely to impact the
environment of another state significantly is obliged to
involve the affected state in discussions regarding these
activities. Article 197 of the Law of the Sea Convention[81] makes this duty obligatory with regard to
activities that may impact the marine environment:
States shall co-operate on a global basis and, as appropriate,
on a regional basis, directly or through competent
international organizations, in formulating and elaborating
international rules, standards and recommended practices and
procedures consistent with this Convention, for the protection
and preservation of the marine environment, taking into
account characteristic regional features.
What About the Immunity of Military Vessels?
Article 236 of the 1982 Law of the Sea Convention contains the
following, somewhat confusing, language:
The provisions of this Convention regarding the protection and
preservation of the marine environment do not apply to any
warship, naval auxiliary, or other vessels or aircraft owned
or operated by a State and used, for the time being, only on
government non-commercial service. However, each State shall
ensure, by the adoption of appropriate measures not impairing
operations or operational capabilities of such vessels or
aircraft owned or operated by it, that such vessels or
aircraft act in a manner consistent, so far as is reasonable
and practicable, with this Convention.
Articles 31 and 32 provide further explanation, making it
clear (in Article 32) that the warship is itself immune from
seizure but also (in Article 31) that the flag State of the
vessel "shall bear international responsibility for any loss
or damage to the coastal State resulting from the
non-compliance by a warship...with the provisions of this
Convention or other rules of international law." It would
thus be improper to seize a military vessel engaging in
polluting activity, but the government that owns such a vessel
is duty bound to provide compensation for damage caused by the
vessel and Article 235(3) requires nations to work together to
establish meaningful liability and compensation regimes to
ensure that victims can recover for their losses and that the
marine environment is protected.
What About the Self-Defense Purposes of LFAS?
In its Nuclear Weapons advisory opinion,
the International Court of Justice said, "The Court does not
consider that the treaties in question could have intended to
deprive a State of the exercise of its right of self-defence
under international law because of its obligations to protect
the environment. Nonetheless, States must take environmental
considerations into account when assessing what is necessary
and proportionate in the pursuit of legitimate military
objectives." The Court then went on to quote from Principle
24 of the 1992 Rio Declaration,
which says that "Warfare is inherently
destructive of sustainable development. States shall
therefore respect international law providing protection for
the environment in times of armed conflict and cooperate in
its further development as necessary."
Although the right to self-defense permits the use of force in
appropriate situations, governments are now being held liable
for environmental damage caused by their acts of warfare.
Examples include the United Nations Compensation Commission's
rulings holding Iraq liable for the extensive environmental
damage caused by its military activities during the Gulf War,
and Article 55 of the 1977 Protocol No. 1 to the 1949 Geneva
Conventions,
which requires combatants to take care "in
warfare to protect the natural environment against widespread,
long-term and severe damage." Also relevant is Article 35(3)
of Protocol I prohibiting the use of weapons that "are
intended, or may be expected, to cause" such damage.
The Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques, which
the United States ratified in 1980, prohibits the use of
techniques that modify the environment and cause "widespread,
long-lasting or severe" destruction, damage or injury to
another party.
The focus of this convention is on “deliberate manipulation of
natural processes,” but its language would also appear to
prohibit actions that incidentally have the effect of altering
or eliminating a species or ecosystem.
In its Nuclear Weapons advisory opinion,
the ICJ said, referring to the language in 1977 Geneva
Protocol I, that "these provisions embody a general obligation
to protect that natural environment against widespread,
long-term and severe environmental damage."
Options to Address the Problem at the International
Level
If the use of this polluting active sonar in the world's
oceans violates governing principles of international law, do
mechanisms exist to limit the use of this
technology?
Dispute-Resolution
Procedures Under the Law of the Sea Convention – The
International Tribunal for the Law of the Sea. The
Law of the Sea Convention establishes binding
dispute-resolution procedures, and these could be invoked
directly by an injured state against any other state that is
utilizing LFAS in a manner that damages the marine resources
of the victim state or the marine environment generally. The
United States could argue that these procedures cannot be
invoked against it until it ratifies the Convention, but they
appear to have become applicable to the United States, at
least in part, through the U.S. ratification of the 1995
Straddling and Migratory Stocks Agreement, as explained
below
Article 286 of the Law of the Sea Convention says that:
"Subject to section 3, any dispute concerning the
interpretation or application of this Convention shall...be
submitted at the request of any party to the dispute to the
court or tribunal having jurisdiction under this section." In
Section 3, Article 297(1)(b) says that the compulsory
jurisdiction provisions apply "when it is alleged that a State
in exercising the aforementioned freedoms, rights or uses
[referring to freedom of navigation and “other internationally
lawful uses of the sea,” i.e. military activities
related to self-defense] has acted in contravention of this
Convention or of laws or regulations adopted by the coastal
State in conformity with this Convention and other rules of
international law not incompatible with this Convention."
This language is thus explicit in establishing compulsory
jurisdiction over claims that military activities damage
coastal resources and pollute the marine environment.
Article 298(1)(b), however, allows a country to issue a
written declaration saying that it does not accept compulsory
jurisdiction over "disputes concerning military activities,
including military activities by government vessels and
aircraft engaged in non-commercial service." Argentina, Cape
Verde, Chile, France Norway, Portugal, Russia Slovenia,
Tunisia, and Ukraine have issued such declarations. Those
countries that have exempted military matters through a
declaration are still required by Article 279 to settle their
disputes through peaceful means according to the procedures
listed in Article 33 of the United Nations Charter.
The 1995 Straddling and Migratory Stocks Agreement.
Article 30 of this Agreement (which the United States ratified
in 1996 and which came into effect on December 11, 2001 when
the 30th nation deposited its ratification) says
that the dispute resolution provisions in the Law of the Sea
Convention "apply mutatis mutandis to any dispute
between States parties to this Agreement concerning the
interpretation or application of this Agreement, whether or
not they are also Parties to the [Law of the Sea]
Convention." Because the 1995 Agreement has just recently
come into force, it is not clear how exactly this language
will be interpreted, but Canada (which, like the United
States, has ratified the 1995 Agreement but not the Law of the
Sea Convention) recognized the potential use of the
dispute-resolution procedure and issued an explicit
declaration to the 1995 Agreement exempting military
activities from the compulsory procedures pursuant to Article
298(1)(b) of the Law of the Sea Convention.
Significantly, however, the United States did
not file a similar declaration when it ratified the 1995
Agreement.
The dispute-resolution procedures under the 1995 Agreement
could become important if a state whose resources were being
damaged by LFAS sought to invoke them, because this Agreement
requires all contracting parties to protect living marine
resources and it is predicated explicitly on the precautionary
approach. The governing principles in Article 5(d), (f), and
(g) require contracting parties to “assess the impact
of...other human activities...on...stocks and species,” to
“minimize pollution,” and to “protect biodiversity in the
marine environment.” And Article 6(2) says that "States shall
be more cautious when information is uncertain, unreliable or
inadequate. The absence of adequate scientific information
shall not be used as a reason for postponing or failing to
take conservation and management measures." The use of LFAS
in a manner that caused damage to marine species, interfering,
for instance, with their habitats or reproductive activities,
would appear to violate these responsibilities.
International Court of Justice.
Sixty-four countries have accepted the compulsory jurisdiction
of the International Court of Justice with regard to other
countries that have similarly accepted this jurisdiction.
(The United States withdrew its acceptance of the Court’s
compulsory jurisdiction in 1986.) A country that has accepted
this jurisdiction would be able to challenge the use of the
LFAS system by another country that has similarly accepted the
Court’s compulsory jurisdiction, and a number of NATO
countries have issued such declarations and thus could be
named as defendants.
Jurisdiction against a country using LFAS in a manner that
damages living resources of another country might also be
obtained through another treaty, possibly through one of the
“Friendship, Commerce, and Navigation” treaties that the
United States signs with its trading partners.
The International Maritime Organization (IMO).
"The IMO is the competent organization to address
vessel-source pollution at the international level."
But the IMO has not given the LFAS issue any particular
attention thus far, and it generally does not deal with
military vessels or with living resources. It may be possible
for countries concerned about potential LFAS pollution coming
from ships to get the attention of the IMO and create a focus
for this issue, and, if so, nongovernmental organizations
(NGOs) may then also be able to play a useful supporting role.
The European Court of Human Rights.
The European Convention on Human Rights
protects the "right to life" in Article 2 and "the right to
respect for private and family life, his home and his
correspondence" in Article 8. The language in Article 8 was
used to protect the rights of a family that was forced to
abandon its home after noxious fumes from a waste treatment
facility violating environmental standards made the daughter
sick.
In its conclusion, the European Court of Human Rights stated
that the Spanish government "did not succeed in striking a
fair balance between the interest of the town's economic
well-being -- that of having a waste-treatment plant -- and
the applicant's effective enjoyment of her right to respect
for her home and her private and family life.
It may be possible to build upon
this case to bring a broader claim on behalf of the marine
environment, or on behalf of endangered cetacean species.
The language used by the European Court focuses on the rights
of individuals to family and home, and the right to live in a
world with diverse creatures may require another step forward.
Perhaps if it could be stressed that migratory cetacean
species are “common property” shared by all of us, then a
claim brought on their behalf, or based on the loss each of us
suffers if we lose biological diversity, might be possible.
A Lawsuit in the United States? The
Alien Tort Claims Act
(ATCA) provides non-U.S. citizens with an avenue to bring
suits in U.S. federal courts for torts committed in violation
of fundamental principles of international law. The ATCA
states that: “The district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or treaty of the
United States.”
In 1980, the U.S. Court of Appeals for the Second Circuit in
Filartiga v. Pena-Irala,
expanded the reach of ATCA to include suit for violations of
modern international law. A claim under ATCA must be brought
(1) by a foreign citizen (2) for a tort (3) in violation of
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