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⁵ Ibid, 93.

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³¹ Joint Interim Report—Bahamas Marine Mammal Stranding Event of 15–16 March 2000 n 24. A recent study on beaked whales stranded off the Canary Islands in September 2002 foundevidence of acute and chronic tissue damage caused by the formation in vivo of gas bubbles which may have resulted from rapid decompression. See P Jepson et al ‘Gas-Bubble Lesions in Stranded Cetaceans’ (2003) 425 Nature 575.CrossRefGoogle Scholar

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⁴¹ Perry, C ‘A Review of the Impact of Anthopogenic Noise on Cetaceans’ IWC/SC/50/E9 (1998), 9.Google Scholar

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⁴⁵ Agreement for the Conservation of Cetaceans of the Black Sea, Mediterranean Sea, and Contiguous Atlantic Areas (1996) (ACCOBAMS); Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (1992) (ASCOBANS).Google Scholar

⁴⁶ 21 ILM (1982) 1261. In force 1994. Hereinafter, UNCLOS. Whilst UNCLOS itself cannot be regarded as customary international law in its entirety, the International Court of Justice has taken the approach that individual provisions of UNCLOS may be assessed in order to conclude whether they themselves may nevertheless be regarded as customary. See the Continental Shelf (Libya v Malta) Case ICJ Rep (1985), 13, 30. It is notable that the opening paragraph of ch 17 of Agenda 21 (Agenda 21: Programme of Action for Sustainable Development, adopted at the 1992 United Nations Conference on Environment and Development (UNCED)) describes the customary international law obligations of protection and sustainable development of the marine and coastal environment as ‘reflected in the provisions of’ UNCLOS 1982.Google Scholar

⁴⁷ Emphasis added.Google Scholar

⁴⁸ Emphasis added.Google Scholar

⁴⁹ See Art 31(1) of the 1969 Vienna Convention on the Law of Treaties (8 ILM (1969) 679).Google Scholar

⁵⁰ Young, HUniversity Physics (Reading, MassAddison-Wesley 1992), at 587.Google Scholar

⁵¹ Dotinga, H and Elferink, A note that the term ‘energy’ was included in Art 1 (4) of UNCLOS so as to apply its provisions to thermal pollution (heat). However, they and E McCarthy support the conclusion that the term energy should be likewise applied to sound. See Dotinga and Elferink op cit n 2, 158–9 and McCarthy op cit n 2, 276.Google Scholar

⁵² Art 2(1).Google Scholar

⁵³ In Art 9 parties undertake to adopt measures dealing with air pollution, noise, and the hydrodynamic effects of pleasure craft in the Baltic sea area.Google Scholar

⁵⁴ Art 238.Google Scholar

⁵⁵ Art 240(d).Google Scholar

⁵⁶ Art 208(1) and (2).Google Scholar

⁵⁷ Art 208(3).Google Scholar

⁵⁸ But see the non-binding 1981 UNEP Conclusions of the Study of Legal Aspects Concerning the Environment Related to Offshore Mining and Drilling Within the Limits of National Jurisdiction (adopted in UN General Assembly Res 37/217 (20 Dec 1982) which recommend that Sates should take preventative measures to limit pollution and other adverse effects on the environment (emphasis added) resulting from offshore production (reproduced Hohmann (ed) Basic Documents of International Law, Volume 1 (Dordrecht Graham & Trotman 1992) 121–9.Google Scholar

⁵⁹ See nn 217–18 and accompanying text.Google Scholar

⁶⁰ Art 206 stipulates that where States have reasonable grounds for believing that substantial pollution will result from planned activities they must, in so far as is practicable, assess the potential effects of such activities. The relatively high threshold required by Art 206 inevitably excludes much low level noise and even then, its terminology provides scope for considerable State discretion in subjecting activities to an environmental impact assessment.Google Scholar

⁶¹ 12 ILM (1973) 1319, 17 ILM (1978) 456. In force 1983. The reliance on one instrument (such as MARPOL) to provide the details of obligations incurred under another (UNCLOS) raisesan international conundrum of whether a State which is party to UNCLOS is bound by obligations incurred under MARPOL to which it is not a party. Whilst seemingly contrary to the consensual nature of international law, this mechanism, which has been adopted on a number of occasions in Part XII of UNCLOS, does not appear to be problematic in practice.Google Scholar

⁶² Preamble, Art 1(1).Google Scholar

⁶³ MARPOL regulates the discharge of oil (Annex I), noxious substances (Annex II), the packaging of harmful substances (Annex III), sewage (Annex IV) and air pollution (Annex IV).Google Scholar

⁶⁴ Art l (a) of the 1948 IMCO ((53) (1959) AJIL 516) provides that the purpose of the IMO is to provide the machinery for cooperation in the field of regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade. Although the IMO does not (as yet) deal with acoustic pollution (expressly) in an environmental context, noise falls unequivocally within its mandate. The regulation of noise is for example, incorporated into the standards relating to machinery installations under the International Convention for the Safety of Life At Sea 1974 (SOLAS). Moreover, the IMO has issued resolutions in relation to noise levels on board ships (Resolution A.468(XII) (1981), now incorporated into SOLAS 1974, see Chapter II-1, Regulation 36) and the methods of measuring noise levels at listening posts (Resolution A. 343 (IX) (1975)).Google Scholar

⁶⁵ On noise mitigation measures see Richardson, et al. , op cit n 3, 417–23.Google Scholar

⁶⁶ New annexes enter into force upon acceptance by two-thirds of parties which constitute at least 50 per cent of world tonnage (Arts 16(5) and 16(2)(i) MARPOL).Google Scholar

⁶⁷ As noted by Simmonds in ‘Ocean Noise and the Law’ (SC/54/E8) (paper submitted to the Scientific Committee of the International Whaling Commission in 2002).Google Scholar

⁶⁸ Art 194(5).Google Scholar

⁶⁹ See also IMO Circular MEPC/Cir 298 (27 Mar 2003), Guidance Document for Submission of PSSA Proposals to the IMO.Google Scholar

⁷⁰ Para 2.2, Annex 2, Res A.927(22)(2001).Google Scholar

⁷¹ Para 1.2, Annex 2, ibid.

⁷² Ibid.

⁷³ This type of measure may be adopted independently of MARPOL and there would appear to be no reason why discharge cannot apply to noise emissions bearing in mind the identification of noise as a substance/pollutant in the Resolution.Google Scholar

⁷⁴ See paras 6.1.1–6.1.3, Annex 2, Res A.927(22)(2001). The resolution identifies compulsory pilotage or traffic management schemes as examples of ‘other measures’ but it is strongly suggested that these measures are not sui generis and para 6.1.3 essentially provides a general mandate for further conservation measures.Google Scholar

⁷⁵ The dates of designation are 1990, 1997, 2002, 2002, 2002, and 2003 respectively.Google Scholar

⁷⁶ Source: IMO Press Release, 22 July 2003, available online at <http://www.imo.org/HOME.html>..>Google Scholar

⁷⁷ Arts 64, 65, and 120.Google Scholar

⁷⁸ The IWC was established under Art III(l) of the Convention. 161 UNTS 143 (in force 1948, amended in 1956).Google Scholar

⁷⁹ Preamble.Google Scholar

⁸⁰ Arts IV(l)(a)and V(l).Google Scholar

⁸¹ Established pursuant to Art 111(4) of the Convention.Google Scholar

⁸² Resolution 2003–1, The Berlin Initiative on Strengthening the Conservation Agenda of the International Whaling Commission.Google Scholar

⁸³ See the 1998 Report of the Scientific Committee, Annexes, H and J, J Cetacean Res Manage 1 (Suppl) (1999) and Appendix 6; 1999 Report of the Scientific Committee, J Cetacean Res Manage 2 (Suppl) (2000), 64–5; 2001 Report of the Scientific Committee, J Cetacean Res Manage 4 (Suppl) (2002), 41. The Scientific Committee has also benefited from the submission of a number of working papers on the impact of noise on cetaceans. See S Dolman et al ‘Noise Sources in the Cetacean Environment’ SC/54/E7 (2002); Simmonds, n 67; T Rowles et al ‘Mass Stranding of Multiple Cetacean Species in the Bahamas on March 15–17 2000’ SC/52/E28 (2000); Simmonds and Dolman op cit n 26; Perry op cit n 41.Google Scholar

⁸⁴ 2002 Report of the Scientific Committee, J Cetacean Res Manage 5 (Suppl) (2003), 73 and Annex L.Google Scholar

⁸⁵ Available online on the website of the IWC at <http://www.iwcoffice.org/>..>Google Scholar

⁸⁶ The draft resolution on the Berlin Initiative helpfully compiles a list of these resolutions. See Document IWC/55/4/Rev (Agenda item 4) submitted to the 2003 IWC Meeting available online at <http://www.iwcoffice.org/>..>Google Scholar

⁸⁷ See Annex II of the draft resolution on the Berlin Initiative. Ibid.

⁸⁸ Art I of the Convention provides that the Schedule forms and integral part thereof.Google Scholar

⁸⁹ ArtV(l).Google Scholar

⁹⁰ The following statement has been made by Japan in relation to the status of whale-watching within the remit of the IWC: ‘The Government of Japan believes that whale-watching is outside the competence of the IWC. Japan does not deny that studying the effects of whale-watching on whale stocks is beneficial in order to obtain better understanding of the stocks. However, because the IWC has a limited budget, the budget should be used for the primary objectives of the IWC, such as stock assessments.’ See 2002 Report of the Scientific Committee, J Cetacean Res Manage 5 (Suppl) (2003) 72.Google Scholar

⁹¹ See, eg, Resolution 2000–9 on the Conservation of Freshwater Cetaceans. On the applicability of the IWC to small cetaceans see Birnie, P ‘Small Cetacea ns and the International Whaling Commission’ (1997) 10 Georgetown International Environmental Law Review 1–17;Google ScholarGillespie, A ‘Small Cetaceans, International Law and the International Whaling Commission’ (2001) 2 Melbourne Journal of International Law 257–303.Google Scholar

⁹² It is conceded however, that any action to regulate noise in order to protect cetaceans is likely also to benefit other species indirectly.Google Scholar

⁹³ There are currently forty-nine parties to the Convention.Google Scholar

⁹⁴ A function which the IWC is already carrying out in the context of marine acoustic pollution. For example, a recent study on the status of cetaceans and their vulnerability to noise and other environmental threats in the Black Sea and Mediterranean regions completed under the auspices of ACCOBAMS 1996 was presented at the IWC Meeting in June 2003. See G Notarbartolo di Sciara (ed) Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, A Report to the ACCOBAMS Secretariat, Monaco, February 2002. Available online at <http://www.accobams.mc>..>Google Scholar

⁹⁵ 31 ILM (1992) 818. In force 1993. The Convention currently has 187 ratifications.Google Scholar

⁹⁶ 19 ILM (1980) 15. In force 1983. The Convention currently has eighty-four ratifications.Google Scholar

⁹⁷ See Art 1 of the Biodiversity Convention and Arts II to IV of the Bonn Convention.Google Scholar

⁹⁸ Arts 4(a) and (b).Google Scholar

⁹⁹ See Art I(a), (f), and (h). It should be noted that the Convention applies to vessels flagged in party States wherever they may be within the range of a migratory species when they are engaged in the taking of that species (Art I(h)). ‘Taking’ is defined under the convention so as to include harassment (Art I(i)).Google Scholar

¹⁰⁰ Arts 7 and 8.Google Scholar

¹⁰¹ The language of Art 14(l)(a) clearly qualifies the general obligation in relation to environmental impact assessment. It is foreseeable that a party may not regard an environmental impact assessment of sonar deployment as ‘appropriate’ in the context of military security.Google Scholar

¹⁰² Art 11(2) and (3)(b).Google Scholar

¹⁰³ Art III(4)(b) and (c).Google Scholar

¹⁰⁴ Artl(i).Google Scholar

¹⁰⁵ Art 111(5).Google Scholar

¹⁰⁶ Art III(5)(a) and (d).Google Scholar

¹⁰⁷ Art 111(6).Google Scholar

¹⁰⁸ Resolution 7.5 on Wind Turbines and Migratory Species adopted by the Conference of the Parties at its Seventh Meeting (Bonn, 18–24 Sept 2002). Environmental impact assessment, whilst not expressly provided for in the text of the Bonn Convention was endorsed as a tool for the conservation of migratory species by the Conference of the Parties following developments within the Biodiversity Convention in this area in Resolution 7.2 on Impact Assessment and Migratory Species adopted by the Conference of the Parties at its Seventh Meeting (Bonn, 18–24 Sept 2002).Google Scholar

¹⁰⁹ See Decisions 11/10 and IV/5 on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity.Google Scholar

¹¹⁰ Below.Google Scholar

¹¹¹ Parties are encouraged to conclude agreements for the conservation of species listed in Appendix II of the Bonn Convention under Art IV. There are currently thirteen such agreements.Google Scholar

¹¹² On which see below.Google Scholar

¹¹³ The Mediterranean and Black Seas provide the habitat for approximately twenty-one species of cetacean, many of which are vulnerable and known to strand. The seas of Northern Europe which for the purposes of this article comprise the North East Atlantic, English Channel, North Sea, Baltic Sea, and Arctic Ocean provide habitat for at least twenty-nine species of cetacean. The Southern Ocean provides habitat for approximately seventeen species of cetacean. For convenience, the term ‘pinniped’ will be used throughout this article although the scientific consensus now regards pinnipeds as belonging to three related families within the order Carnivora: Otariidae (‘eared’ seals), Obdobenidae (walrus), and Phocidae (‘true’ seals).Google Scholar

¹¹⁴ The Antarctic Convergence lies between approximately 50° and 60° South Latitude. Heard Island is located at 53 06° South 72 31° East.Google Scholar

¹¹⁵ Arts 21(l)(f), (d) and (g), 245, and 56(l)(b)(iii) of UNCLOS 1982. A State's territorial sea extends up to 12 nautical miles from its baseline (Art 3) and its EEZ extends up to 200 nautical miles from its baseline (Art 57).Google Scholar

¹¹⁶ Art 246(3).Google Scholar

¹¹⁷ Art 246(5)(b).Google Scholar

¹¹⁸ Finally, it should be pointed out that where research relates to the exploitation of the continental shelf (which may or may not coincide with a State's EEZ), the coastal State has the exclusive right to authorize and regulate drilling (Art 81).Google Scholar

¹¹⁹ Art 17 UNCLOS.Google Scholar

¹²⁰ Arts 18 and 19 UNCLOS.Google Scholar

¹²¹ Art 19(2)0).Google Scholar

¹²² Art 19(2)(h).Google Scholar

¹²³ Arts 19(2)(a) and (b) and 18(2). The question as to whether military vessels in of themselves have a right to innocent passage has given rise to considerable controversy. The reference to the manner of submarine navigation through the territorial sea in Art 20 of UNCLOS implies that such a right exists, yet the practice of a number of States indicates that they regard there being no such right and stipulate that consent must be sought prior to navigation. See R Churchill and A Lowe The Law of the Sea (3rd edn Manchester MUP 1999) 88–92.Google Scholar

¹²⁴ Art 94(3)(a) UNCLOS.Google Scholar

¹²⁵ Art 21(2).Google Scholar

¹²⁶ A right to designate sea lanes where necessary for the safety of navigation is provided for in Art 22 of UNCLOS. It is now not uncommon for sea lanes to be designated for the protection of the environment. For example, in July 2003 new shipping lanes were put into effect in the Bay of Fundy by Canada in order to protect the North Atlantic Right Whale (Eubalaena glacialis) from ship strikes. See Press Release of Transport Canada No A007/03.Google Scholar

¹²⁷ Art 211(5) UNCLOS.Google Scholar

¹²⁸ Art 211(6). States may not however, attempt to regulate the construction and design of vessels (Art 21 l(6)(c)).Google Scholar

¹²⁹ Art 234.Google Scholar

¹³⁰ Churchill and Lowe op cit n 123, 348.Google Scholar

¹³¹ It is highly unlikely that the provision could be applied to the Southern Ocean due to the absence of ice covering it for most of the year and the fact that the seas surrounding the Antarctic continent are currently classed as high seas. Arguably, Art IV of the Antarctic Treaty 1959 which essentially provides for a ‘freezing’ of Antarctic claims precludes the claim by a State to an EEZ within the Antarctic Treaty Area, although it should be noted that Australia has made such a claim. See Kaye, S and Rothwell, D ‘Southern Ocean Boundaries and Maritime Claims: Another Antarctic Challenge for the Law of the Sea?’ (2002) 33 Ocean Development and International Law 359–89.CrossRefGoogle Scholar

¹³² These voluntary guidelines were agreed upon in Dec 2002. See IMO.MSC/Cir.lO46/MEPC/Circ 399 available online at <http://www.imo.org/HOME.html>. Originally known as the Polar Code, considerable debate has taken place as to whether they should apply to the Antarctic. A working paper on the topic was presented by the UK to the XXV Antarctic Treaty Consultative Meeting (ATCM) in Poland, 2002 and it was decided that the parties should wait until finalized guidelines were produced by the IMO before any decision as to applicability is taken (see Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Poland, 2002, paras 97–9)..+Originally+known+as+the+Polar+Code,+considerable+debate+has+taken+place+as+to+whether+they+should+apply+to+the+Antarctic.+A+working+paper+on+the+topic+was+presented+by+the+UK+to+the+XXV+Antarctic+Treaty+Consultative+Meeting+(ATCM)+in+Poland,+2002+and+it+was+decided+that+the+parties+should+wait+until+finalized+guidelines+were+produced+by+the+IMO+before+any+decision+as+to+applicability+is+taken+(see+Final+Report+of+the+Twenty-Fifth+Antarctic+Treaty+Consultative+Meeting,+Poland,+2002,+paras+97–9).>Google Scholar

¹³³ 15 ILM (1976) 290. In force 1978.Google Scholar

¹³⁴ 1995 Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, text available online at <http://www.unep.ch/seas/hconlist.html>. The amended text is currently not in force. All references, unless otherwise stated, relate to the revised text of the Convention. It is notable that the number of parties to the B arcelona Convention represents almost complete geographic coverage of this region..+The+amended+text+is+currently+not+in+force.+All+references,+unless+otherwise+stated,+relate+to+the+revised+text+of+the+Convention.+It+is+notable+that+the+number+of+parties+to+the+B+arcelona+Convention+represents+almost+complete+geographic+coverage+of+this+region.>Google Scholar

¹³⁵ 32 ILM (1993) 1110. In force 1994.Google Scholar

¹³⁶ 32 ILM (1993), 1072. In force 1998. Replaces the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo) and the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris). OSPAR applies to those parts of the Atlantic and Arctic Oceans and their dependent seas which lie north of 36° north latitude and between 42° west longitude and 51° east longitude (Art l(a)(i)). The Baltic and Mediterranean Seas are excluded from its remit (Art l (a) (i) (l) and (2)).Google Scholar

¹³⁷ BNA 35:0401. In force 2000. Replaces 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area.Google Scholar

¹³⁸ Although as noted above, 1992 OSPAR has jurisdiction over limited parts of the Arctic.Google Scholar

¹³⁹ Text available on the website of the Arctic Council at <http://www.arcticcouncil.org/index.html>..>Google Scholar

¹⁴⁰ Arctic Environmental Protection Strategy, paras 3.4 and 4.4.Google Scholar

¹⁴¹ Arts 4(1) and 2(a) of the Barcelona Convention; Arts 11(1) and V(2) of the Bucharest Convention; Arts 2(1) and l(d) of OSPAR 1992; Arts 3(1) and 2(1) of HELCOM 1992. With few firm conservation obligations, it should be noted that the fifth objective of the AEPS is the elimination of pollution which is undefined in the Strategy.Google Scholar

¹⁴² It should be noted that under HELCOM, obligations in respect of the offshore exploration and exploitation are broad enough to apply to noise. Regulation 2 of Annex VI stipulates that parties must use best available technology and best environmental practice to prevent and eliminate pollution from offshore activities. Pollution is defined in terms of substances or energy (Art 2(1)) and as argued above, these obligations are consequently of application to noise. Annex III of OSPAR, which also relates to the regulation of pollution from offshore sources, is expressed much more narrowly. Art 4 of the Annex seeks to restrict the discharge of substances in the maritime area.Google Scholar

¹⁴³ 30 ILM (1991) 1461. In force 1998.Google Scholar

¹⁴⁴ Art 2.Google Scholar

¹⁴⁵ Art l ( b ) of the Environmental Protocol.Google Scholar

¹⁴⁶ The CEP was established under Art 11 of the 1991 Environmental Protocol. See Report of the Committee for Environmental Protection's Third Meeting (CEP III), The Hague, Netherlands, 2000, at paras 42–3; Report of the Committee for Environmental Protection's Fifth Meeting (CEP V), Warsaw, Poland, 2002, paras 25–8; Report of the Committee for Environmental Protection's Sixth Meeting (CEP VI), Madrid, 2003, at paras 56–8. An information and working paper submitted by the Scientific Committee on Antarctic Research (SCAR) to the 2002 CEP Meeting noted that although disturbance of cetaceans has been documented on occasion, acoustic scientific investigation is vital to the understanding of the Antarctic environment. Consequently, the organization regarded a ban on seismic surveys or scientific echo-sounders in Antarctic waters as unjustifiable. However, SCAR recommended that all surveys should be examined on a case by case basis and that in all instances, mitigation strategies such as the use of minimum source levels, soft starts and special measures in biologically sensitive areas should be implemented. See further SCAR ‘Marine Acoustic Technology and the Environment’ WP-023; SCAR Impacts of Marine Acoustic Technology on the Antarctic Environment (July 2002), 25IP024/E both presented at the XXV ATCM (2002); Spain ‘Anthropogenic Acoustic Noises and Discharges and their Impact on Marine Mammal Populations’ WP-034-E; SCAR ‘Acoustic Technology and the Marine Ecosystem’ IP-077-SCAR and; ASOC ‘Marine Acoustic Technology and the Antarctic Environment’ IP-073-ASOC all presented at the XXVI ATCM (2003).Google Scholar

¹⁴⁷ Art 8.Google Scholar

¹⁴⁸ But see the Guidelines for Environmental Impact Assessment in Antarctica available on the CEP website at <http://www.cep.aq/>..>Google Scholar

¹⁴⁹ As noted by SCAR in WP-023 (2002).Google Scholar

¹⁵⁰ After being made publicly available and passed to the CEP. See Arts 3(3) and (4) of Annex I.Google Scholar

¹⁵¹ Art 4, Annex I. It should be noted that although subject to a 50-year moratorium under Art 7 of the Environmental Protocol, the commercial exploitation of oil and gas in and off Antarctica remains a possibility (see Art 25(2) of the Protocol). Conscious of the potential negative impact of such a development, the parties to the Protocol agreed that the conclusion of a binding minerals regime must precede any such exploitation (Art 25(5)(a)). Plainly, any such instrument must address the discharge of undersea noise as well as the discharge of other substances. It is notable that the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) ((1988) 27 ILM 868, not in force) is drafted in terms broad enough to embrace noise (see Arts 4 and 13).Google Scholar

¹⁵² In common with most regional seas conventions, the Barcelona Convention incorporates a sovereign immunity provision (Art 3(5)) which arguably might prevent its provisions from applying to the deployment of military sonar.Google Scholar

¹⁵³ Art 7(1). Where the impact of noise is transboundary in nature such an assessment will in fact be required by the 1991 Espoo Convention on Envir onmental Impact Assessment in a Transboundary Context (30 ILM (1991) 802, in force 1997) which applies to maritime as well as terrestrial areas (see Art l(Viii)) and has been ratified by all HELCOM parties save Russia. In particular, Appendix I activities, which include the construction of ports and the development of offshore activities, must be assessed under the Convention. Moreover, those parties which are also Member States of the EU are subject to European EIA regulation (see Council Directive 85/337/EC as amended by Council Directive 97/1 I/EC of 3 Mar 1997). It should be noted that both the Espoo Convention and EU regulations are of course applicable to the seas of Europe beyond the Baltic.Google Scholar

¹⁵⁴ Art 4(3)(a) Barcelona Convention 1995; Art 2(2)(a) OSPAR 1992; Art 3(2) HELCOM 1992. Since 1997 the parties to the AEPS 1991 have regarded the principles of precaution and EIA as central to the protection of biodiversity and prevention of pollution in the Arctic (see the Co-operative Strategy for the Conservation of Biological Diversity in the Arctic Region (1997) text available online at <http://www.arctic-council.org/index.html>). Although lacking an express endorsement in the manner of the regional seas conventions, the nature of the 1991 Environmental Protocol is clearly precautionary and this is best illustrated by Art 3(2) of the Protocol.).+Although+lacking+an+express+endorsement+in+the+manner+of+the+regional+seas+conventions,+the+nature+of+the+1991+Environmental+Protocol+is+clearly+precautionary+and+this+is+best+illustrated+by+Art+3(2)+of+the+Protocol.>Google Scholar

¹⁵⁵ Art 10 of the Barcelona Convention; Art XIII of the 1992 Bucharest Convention; Annex V of 1992 OSPAR; Art 15 of 1992 HELCOM.Google Scholar

¹⁵⁶ (1995) 6 Yearbook of International Environmental Law 887. In force 1999. Hereinafter cited as the SPA Protocol. This protocol replaces the 1982 Protocol Concerning Mediterranean Specially Protected Areas. Again geographic coverage of the region is comprehensive although the current omission of Greece, Libya, and Turkey from among its parties results in diminished protection for the Eastern Mediterranean.Google Scholar

¹⁵⁷ Art 3(5).Google Scholar

¹⁵⁸ Annex II of the Environmental Protocol incorporates and updates the 1964 Agreed Measures for the Conservation of Antarctic Flora and Fauna.Google Scholar

¹⁵⁹ Art 3(1), Annex II. Authorization may be given in order to provide for unavoidable consequences of scientific activities or for the construction and operation of scientific support facilities (Art 3(2)(c), Annex II).Google Scholar

¹⁶⁰ Art l(g), Annex II.Google Scholar

¹⁶¹ Art l(h), Annex II.Google Scholar

¹⁶² See WP-026 presented at the V CEP Meeting in Poland in 2002.Google Scholar

¹⁶³ 19 ILM (1980) 837. In force 1982. Arts 1(1), 11(1) and 1(2). Art V I provides that nothing in CCAMLR shall derogate from the rights and obligations of contracting parties under the ICRW 1946 and the Antarctic Seals Convention 1972. This provision does not however, necessarily exclude seals and whales from the remit of CCAMLR which, it is suggested, may adopt conservation measures in respect of those species to the extent that they are not provided for under the above instruments.Google Scholar

¹⁶⁴ Art 11(3).Google Scholar

¹⁶⁵ The types of conservation measures which may be implemented by the Commission (established under Art VII of CCAMLR) are relatively broadly defined under Art IX.Google Scholar

¹⁶⁶ Art II(3)(b). Recently the CCAMLR Commission has promulgated conservation measures relating to harvesting equipment with the a im of reducing the by-catch of seabirds and marine mammals. See Conservation Measures 25–02 (2002): Minimization of the Incidental Mortality of Seabirds in the Course of Longline Fishing or Longline Fishing Research in the Convention Area and Conservation Measure 25–03 (1999): Minimization of the Incidental Mortality of Seabirds and Marine Mammals in the Course of Trawl Fishing in the Convention Area.Google Scholar

¹⁶⁷ Annex V was incorporated into the Protocol through Recommendation XVI-10 of 1991. See the Final Report of the Sixteenth Antarctic Treaty Consultative Meeting, Bonn, Germany, 1991. In force May 2002.Google Scholar

¹⁶⁸ Art II, Annex V.Google Scholar

¹⁶⁹ Art 4(2), Annex V, OSPAR 1992, stipulates that the OSPAR Commission must bring issues which relate to the management of maritime traffic to the IMO with a view to their being dealt with in the context of PSSA designation. HELCOM Recommendation 15/5 (as updated by HELCOM HOD 11/2003) notes that it is intended that the IMO PSSA guidelines will ultimately be incorporated into the Baltic Sea Protected Areas (BSPAs) guidelines.Google Scholar

¹⁷⁰ Art 5 Mediterranean SPA Protocol; HELCOM Recommendation 15/5 as updated by HELCOM HOD 11/2003 which establishes a system of Baltic Sea Protected Areas (BSPAs). It should also be noted that a network of protected areas (known as Protected Areas Network or PAN) within the Arctic is in the process of being created, although currently only 2 per cent of the Arctic maritime environment is protected. A Strategy and Action Plan for the creation of a Protected Areas Network was endorsed in 1996. See <http://www.arcticcouncil.org/index.html>).).>Google Scholar

¹⁷¹ Arts 5, 8 and Annex I of the SPA Protocol.Google Scholar

¹⁷² Arts 6(c), (f), (e) and (h). Emphasis added.Google Scholar

¹⁷³ UKTS 56 (1982), Cmnd 8738. In force 1982.Google Scholar

¹⁷⁴ Council Directive 92/43/EEC [1992] OJ L206/7.Google Scholar

¹⁷⁵ Art 1 of the Bern Convention; Art 2(1) of the Habitats Directive. On their conservation obligations in respect of individual species see below.Google Scholar

¹⁷⁶ Under Art 4(1) of the Bern Convention parties must take appropriate measures to protect the habitats of species listed in Appendix II (which includes all species of cetacean not listed in Appendix I, below). See also Arts 3–5 of the EC Habitats Directive where parties must protect inter alia the habitats of species listed in Annex II, which include two species of cetacean and five species of pinniped.Google Scholar

¹⁷⁷ Arts 4(2) and 4(3).Google Scholar

¹⁷⁸ Art 6(1).Google Scholar

¹⁷⁹ Art 6(2).Google Scholar

¹⁸⁰ Art 2(2) Conservation status is defined in Art l (i) as the ‘sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2’.Google Scholar

¹⁸¹ For further detail on Art 6 of the Habitats Directive see Managing Natura 2000 Sites: The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC available online at <http://europa.eu.int/comm/environment/nature/art6en.pdf>..>Google Scholar

¹⁸² See Coffey, C (ed) Implementing the Habitats Directive in Marine and Coastal Areas: Proceedings of a Seminar Held at Morecambe Bay, England, 22–24 June 1997 available online at <http://europa.eu.int/comm/dgll/nature/home.htm>..>Google Scholar

¹⁸³ Art 11(2).Google Scholar

¹⁸⁴ Art ll(3)(a).Google Scholar

¹⁸⁵ Art 12(2).Google Scholar

¹⁸⁶ Art 6(c).Google Scholar

¹⁸⁷ Art 1(1).Google Scholar

¹⁸⁸ It should be noted that in Resolution No 1 adopted by the Standing Committee in 1989 ‘deliberate damage to or destruction of breeding or nesting sites’ in Art 6(b) has been interpreted so as to include ‘any act committed without the intention to cause damage or destruction but in the knowledge that such would probably be the consequences of the act’. A broader interpretation of Art 6(c) is therefore consistent with this interpretation of Art 6(b). Moreover, under Art 8 parties must also prevent the serious disturbance of populations of all species listed in Appendix III, which includes all species of cetacean not listed in Appendix II.Google Scholar

¹⁸⁹ Art 12(l)(b).Google Scholar

¹⁹⁰ Art 3(5), Annex II. Art 3(4), Annex II stipulates that any species of native mammals, birds, and plants may be listed in Appendix A.Google Scholar

¹⁹¹ Appendix A lists all species of fur seals (Arctocephalus) and the Ross Seal (Ommatopocarossi).Google Scholar

¹⁹² ATCM Resolution 1 (2002) reproduced in Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Warsaw, Poland, 2002.Google Scholar

¹⁹³ Ibid. It should also be noted that a UK proposal to give special consideration to the inclusion of marine biodiversity within the list of ASPSs was acceded to. See Final Report of the Twenty-Fifth Antarctic Treaty Consultative Meeting, Warsaw, Poland, 2002, para. 64.

¹⁹⁴ (1995) UKTS No 52. In force 1994.Google Scholar

¹⁹⁵ 36 ILM (1997) 777. In force 2001.Google Scholar

¹⁹⁶ 1999 Agreement Relative to the Creation of a Mediterranean Sanctuary for Marine Mammals. Text available online at the Tethys Research Institute at <http://www.tethys.org/sanctuary_text.htm>..>Google Scholar

¹⁹⁷ ACCOBAMS, Art 11(1), the Ligurian Sanctuary Agreement, Art 2(2) and ASCOBANS, Art 2(1). Small cetaceans under ASCOBANS are defined as any species, subspecies or population of toothed whales Odontoceti, except the sperm whale (Physeter macrocepalus) (Art 1.2(a) ASCOBANS).Google Scholar

¹⁹⁸ Arts 2(1) and 2(2).Google Scholar

¹⁹⁹ Annex, Art l(d). Emphasis added.Google Scholar

²⁰⁰ Established under Art 5 of ASCOBANS.Google Scholar

²⁰¹ MOP2: Resolution on Further Implementation of ASCOBANS (Bonn 1997).Google Scholar

²⁰² The ASCOBANS MOP is established under Art 6 of the Convention. MOP3: Resolution No 4 on Disturbance (Bristol 2000) was repealed by MOP4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003).Google Scholar

²⁰³ MOP4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003).Google Scholar

²⁰⁴ Art II(3)(b) and Annex II.Google Scholar

²⁰⁵ Established under Art VII of the Convention with the function of providing advice to the Meeting of the Parties (established under Art III) and conducting scientific research.Google Scholar

²⁰⁶ Notarbartolo di Sciara et al ‘Overview of Known or Presumed Impacts on Different Species of Cetaceans in the Mediterranean and Black Seas’ in id (ed) n 94, s 17 at 4. In this report four chapters are devoted to the impact of noise in the Mediterranean and Black Seas. Particular attention is paid to noise resulting from vessel traffic and whale-watching activities.Google Scholar

²⁰⁷ MOP 1, Resolution 1.11. As would be expected these guidelines seek to minimize acoustic and other forms of disturbance to cetaceans.Google Scholar

²⁰⁸ Arts 1(c) and 7(a) of the Agreement. The analysis of ‘deliberate disturbance’ in the context of the Bern Convention is equally applicable in the interpretation of ‘intentional disturbance’ under the Ligurian Sanctuary Agreement. See n 187 and accompanying text.Google Scholar

²⁰⁹ See the Report of the Fifth Meeting of National Focal Points for SPAs (Valencia, 23–26 April 2001) UNEP(DEC)/MED WG.177/9 (29 May 2001) 11–12. See also Raga Project of the Establishment of a Mediterranean and Black Sea Regional Cetacean Stranding Network MOP l/inf.7 rev 1 submitted to the First Meeting of the Parties, ACCOBAMS, Monaco, 28/02/2002–2/03/2002.Google Scholar

²¹⁰ Ibid.

²¹¹ Art 16 of the Ligurian Sea Sanctuary Agreement obliges the parties to prepare a proposal for inclusion within the SPAMI list as soon as the SPA Protocol enters into force.Google Scholar

²¹² MOP4: Resolution No 4 on Extension of the ASCOBANS Agreement Area (Esbjerg 2003).Google Scholar

²¹³ This mechanism was first adopted in 1984 and procedures for its implementation were provisionally adopted in 1993. See Secretariat Memorandum, Opening and Closing of Files and Follow Up to Recommendations, Document T-PVS (93) 48. The Standing Committee is authorized to adopt conservation recommendations under Art 14 of the Bern Convention.Google Scholar

²¹⁴ See the Report on Specific Sites, Caretta caretta in Laganas Bay, Zakynthos (Greece), 1998 T-PVS (98) 43.Google Scholar

²¹⁵ Ibid.

²¹⁶ Section 4, A Wildlife and Countryside Act 1981 (as inserted by the 2000 Countryside and Rights of Way Act). This provision also applies to basking sharks (Cetorhinus maximus).Google Scholar

²¹⁷ See the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (SI 2001 No 1754). JNCC Guidelines for Minimising Acoustic Disturbance to Marine Mammals from Seismic Surveys are available online at <http://www.jncc.gov.uk/marine/seismic_survey> and include recommendations on the planning and implementation stage, the need for marine mammal observers, the use of soft starts and the operation of surveys with lowest practicable noise levels.+and+include+recommendations+on+the+planning+and+implementation+stage,+the+need+for+marine+mammal+observers,+the+use+of+soft+starts+and+the+operation+of+surveys+with+lowest+practicable+noise+levels.>Google Scholar

²¹⁸ See s 238 Environment Protection and Biodiversity Conservation Act 1999 and the Petroleum (Submerged Lands) (Management of Environment) Regulations 1999 (Statutory Rules 1999 No 228) made under the Petroleum (Submerged Lands) Act 1967.Google Scholar

²¹⁹ §105(5)(A)MMPA1972, 16USC§ 1731(101(5)(S)). The decision of the NMFS is reported in 67 Fed Reg 46712.Google Scholar

²²⁰ Natural Resources Defense Council et al v Donald L. Evans et al (2003) 279 F Supp 2d 1129. See also Natural Resources Defense Council et al v Donald L. Evans et al (2002) 232 F Supp 2d 1003. It should also be noted that a petition demanding a moratorium on the use of NATO high-intensity active sonar was presented to NATO in Oct 2003 by members of the European Parliament acting together with a number of non-governmental organizations (text of petition on file with author).Google Scholar

²²¹ See Weiss, E ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’ (1993) 81 Georgetown Law Journal 675–710, at 697–702.Google Scholar

²²² See the dissent of Judge Weeramantry in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) (1995) ICJ Reports 288, 342–4.Google Scholar

²²³ Above n 57 and accompanying text.Google Scholar

²²⁴ The UK regulatory guidelines were recently commended by the ASCOBANS Meeting of the Parties in 2003 and it was noted that Belgium had also adopted legislation providing for similar guidelines. (See MOP 4: Resolution No 5 on Effects of Noise and of Vessels (Esbjerg 2003)).Google Scholar

²²⁵ The concept of the ecological footprint was developed by William E Rees. See Rees, ‘Ecological Footprint, Concept of’ in Encyclopaedia of Biodiversity, Volume 2 (San DiegoCalifornia Academic Press 2001) 229–44.CrossRefGoogle Scholar