Oceans of noise - Whale and Dolphin Conservation Society

In the EEZ, in comparison to the territorial sea, the coastal State’s legislative powers arerelatively weak. The current absence of “generally accepted international rules and standardsestablished through the competent international organization or general diplomatic conference” inrespect of noise pollution from vessels renders the coastal State unable to legislate in general inrespect of its EEZ under Art 211(5) LOSC. Instead, Art 211(6) LOSC provides the coastal Statewith the option of seeking “special area” status for particular parts of the EEZ, but only wherespecified criteria are judged by the IMO to have been met. This option is available in respect ofocean noise. In current circumstances, measures proposed by the coastal State may relate “todischarges or navigational practices”. In contrast to routeing measures for the territorial sea, anyrouteing measures for special areas in the EEZ are subject to IMO approval.Two IMO tools may be of assistance: routeing measures and “particularly sensitive sea areas”(“PSSAs”), both of which may also apply beyond areas under national jurisdiction. However, itis strongly arguable that IMO-approved routeing measures do not, because of the wording of theIMO’s General Provisions on Ships’ Routeing, address operational noise pollution. Thisweakness is incompatible with the IMO’s increasing desire to use routeing systems and reportingsystems to help protect the environment. PSSAs show more promise. There is no reason why aState should not submit a proposal for a PSSA in view of concerns about ocean noise. The scopefor routeing measures as an associated protective measure may be limited, in view of the pointmade above. However, there is scope for speed restrictions and perhaps for special constructionrequirements. There is currently a resurgence of interest by States in PSSAs, and States should beencouraged to establish and manage PSSAs in respect of ocean noise concerns.123