The Ocean Yearbook] Whales, Submarines, and Active Sonar

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[Revised -- March 3, 2003]

[For Publication in The Ocean Yearbook]

Whales, Submarines, and Active Sonar
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.1 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.2 Autopsies of the whales revealed brain damage consistent with an acoustic impact.3 This mass stranding followed similar incidents near the Bahamas in March 2000 and near Greece in 1996, and in the Canaries between 1985 and 1989, which are described below.4

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 statutes5 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.6 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.”7 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 2003.8

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.”9 Judge Larson noted that: “These levels are significantly higher than 180 dB, which is acknowledged by the Government to cause significant injury to marine mammals.”10

In January 2003, U.S. District Judge Samuel Conti of the Northern 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.11 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."12

Because of the new acoustic technologies created by the Navy and other researchers, the creatures living in the world's oceans are now facing a new form of pollution, justified by the Navy as militarily necessary, but with 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,13 other countries and groups concerned about the impact of this technology on their marine resources, and the ocean environment generally, will be obliged to utilize international law principles and tribunals to limit the use of low frequency active sonar by the navies and scientists of the United States and other countries. The sections that follow examine the scientific information now available about the 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.14

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 m15), 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.16 (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.17 These sounds are the loudest ever put into the world’s oceans by humans, with the possible exception of underground explosions. They are designed to travel great 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.18 Cuvier’s beaked whales are a deep-diving pelagic species that rarely strands. Only seven cases of more than four individuals stranding have been recorded since 1963.19 One commentator concluded that the probability that the mass stranding was not related to LFAS testing was less than 0.07%.20 Moreover, three mass strandings involving similar species were also associated with military maneuvers in the Canary Islands between 1985 and 1989, and in 198321 sperm whales in the southeast Caribbean became “unusually silent and dispersed” when exposed to intense military sonar from submarines operating in the area.22

Because of the way sound is measured and the different speed that sound travels through water, as compared to land, it is estimated that “underwater sound pressure levels numerically are about 61.5 dB greater than sound pressure levels in air for an equal intensity.”23 In other words, sound measured at 131-dB in water would have the same pressure impact as sound measured at 70-dB on land. 60-dB on land is the sound generated by freeway traffic. Continuous exposure above 85-dB (on land) is likely to degrade the hearing of most humans. “Deafening” noise (on land) begins at 110-dB, with 120-dB measuring a hard rock band, 130-dB being the point at which pain is registered, and 140-dB being the point adjacent to a jet engine. The 180-dB (in water) figure said by the Navy to be “safe” for 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.24 (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.25 The Navy has admitted that the Bahamas stranding and related deaths “were most likely caused by its [mid-range] sonar transmissions,”26 but contends that LFA sonar will affect whales differently. The Navy claims that mid-range sonar can be heard over shorter distances by many marine mammals, while LFA sonar can travel several hundred miles but is audible to fewer species.27

Because the Navy intends to deploy SURTASS LFAS globally, an 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.28 The findings from Phase II, in which gray whales migrating nearshore were exposed to LFAS source levels of 185 dB re 1 μPa at 1 m, and 170 dB re 1 μPa at 1 m (both substantially lower than the actual source level that will be utilized by the Navy), demonstrated an obvious avoidance response to the LFAS signal, 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.29 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.30

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.”31 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.32 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.33

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.34 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).”35 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.36 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.37 At present, snorkeling time is on the order of a few minutes, and can be carried out at night. Modern "enemy" boats,38 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.”39 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.40 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.41 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.42 Under Article 192 of the Law of the Sea Convention, all countries have Athe 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.43 Article 65 of the Convention has particular relevance to the threats posed to marine mammals, because it requires countries to Aco-operate with a view to the conservation of marine mammals and in the case of 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 Apollution@ 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 Aform of energy manifested by small pressure and/or particle velocity variations in a continuous medium.@44 AWhile the definition [of Apollution@ 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.@45

Article 194(1) is quite clear that countries must do everything possible Ato prevent, reduce and control pollution of the marine environment from any source.@ AStates 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.@46 Article 194(5) makes it clear that these duties, in particular, require countries to adopt measures Ato 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 Atake 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.47 Article III(4) of this treaty requires parties that are ARange States@ to Aendeavour@ A(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,48 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 Amay, 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.49 This treaty confirms in Article 3 the principle that emerged from the 1972 Stockholm50 and 1992 Rio51 Declarations that AStates 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 Apurer form@52 of the precautionary principle, stating in its preamble that Awhere 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 Aenvironmental 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.53 The United States signed this treaty in 1993, but the U.S. Senate refused to ratify it in 1994.

The International Whaling Convention.54 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 Aadopt[] 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 Astated 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.@55

Regional Cetacean Agreements. Two regional agreements designed to address small cetaceans have been adopted pursuant to the 1979 Bonn Convention on Migratory Species.56 The Agreement on the Conservation of Small Cetaceans of the Baltic and North Sea of 17 March 1992 (ASCOBANS)57 has been ratified by all eight countries in the region. The Conservation and Management Plan provides that the parties shall work toward Athe 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.58 The Agreement on the Conservation of the Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS)59 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).

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