Irini Papanicolopulu University of Milano-Bicocca (Italy)

1. The Barcelona System and its Linkages with Relevant International Conventions: Their Implementation RelationshipUnderwater Noise Irini Papanicolopulu University of Milano-Bicocca (Italy) Presentation for “The Legal Aspects of the Barcelona Convention and Its Protocols A Mediterranean Seminar on the Practical Elements of Implementation” Athens, 26-27 October 2006

2. The relation between different treaties Vienna Convention of the Law of Treaties (1969) Article 30 - Application of successive treaties relating tothe same subject matter 1.Subject to Article 103 of the Charter of the United Nations, the rights and obligations of StatesParties to successive treaties relating to the same subject matter shall be determined in accordance withthe following paragraphs. 2.When a treaty specifies that it is subject to, or that it is not to be considered as incompatiblewith, an earlier or later treaty, the provisions of that other treaty prevail. 3.When all the parties to the earlier treaty are parties also to the later treaty but the earlier treatyis not terminated or suspended in operation under article 59, the earlier treaty applies only to the extentthat its provisions are compatible with those of the later treaty. 4.When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty towhich both States are parties governs their mutual rights and obligations. 5.Paragraph 4 is without prejudice to article 41, or to any question of the termination orsuspension of the operation of a treaty under article 60 or to any question of responsibility which mayarise for a State from the conclusion or application of a treaty the provisions of which are incompatiblewith its obligations towards another State under another treaty.

3. The relation between different treaties Vienna Convention of the Law of Treaties (1969) Article 59 - Termination or suspension of the operation of a treatyimplied by conclusion of a later treaty 1.A treaty shall be considered as terminated if all the parties to it conclude a later treaty relatingto the same subject matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the mattershould be governed by that treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the twotreaties are not capable of being applied at the same time. 2.The earlier treaty shall be considered as only suspended in operation if it appears from the latertreaty or is otherwise established that such was the intention of the parties.

4. Relevant Conventions • Environmental law treaties (ACCOBAMS, Ramsar Convention, Bern Convention, Sanctuary agreement, …) • Law of the Sea treaties (UNCLOS, SFS Agreement) • Fisheries treaties (GFCM) • Economic integration treaties (EC Treaties)

5. Relationship between treaties • Expressly addressed: UNCLOS Art. 311: “1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958. 2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides. 5. This article does not affect international agreements expressly permitted or preserved by other articles of this Convention. 6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.”

6. Relationship between treaties Barcelona Convention Art. 3.2: “The Contracting Parties may enter into bilateral or multilateral agreements, including regional or sub-regional agreements for the promotion of sustainable development, the protection of the environment, the preservation and conservation of natural resources in the Mediterranean Sea Area, provided that such agreements are consistent with this Convention and the Protocols and conform to international law. Copies of such agreements shall be communicated to the Organization. As appropriate, Contracting Parties should make use of existing organizations, agreements or arrangements in the Mediterranean Sea Area.” Art. 3.3: “Nothing in this Convention and the Protocols shall prejudice the rights and positions of any State concerning the United Nations Convention on the Law of the Sea.”

7. Relationship between treaties ACCOBAMS Art. 11: “1. The provisions of this Agreement shall not affect the right of any Party to maintain or adopt more stringent measures for the conservation of cetaceans and their habitats, nor the rights or obligations of any Party deriving from any existing treaty, convention or agreement to which it is a party, except where the exercise of those rights and obligations would threaten the conservation of cetaceans.  2. Parties shall implement this Agreement consistently with their rights and obligations arising under the law of the sea.”

8. Underwater Noise

9. Sounds in the sea Natural sounds: • Fish • Marine Mammals • Earthquakes • Waves • … Man-made sounds

10. Sources of man-made noise • Ships • Sonars, used both by military and commercial vessels • Airguns (used for seismic surveys) • Explosives • Weapons • Sound devices (e.g. in aquaculture) • Drilling • Noise coming from the airspace above the sea (windmills, aircraft, …)

11. The harmful effects of noise • Mortality (by haemorrhage, by embolism) • Temporary or permanent loss of hearing • Strandings (for whales) • Avoidance behaviour, leading also to abandonment of habitats • Behavioural changes (temporary or permanent) • Masking • Depletion of prey species • Interruption of spawning • …

12. Noise as a form of pollution 1982 United Nations Convention on the Law of the Sea (UNCLOS) Art. 1: “pollution of the marine environment” means “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” Barcelona Convention Art. 2

13. Underwater noise under UNCLOS Noise as a form of pollution: Part XII Noise as a threat to marine mammals: Art. 65, Art. 120 Noise as a threat to fisheries: EEZ: Art. 56 HS: Art. 117, Art. 118

14. Noise in treaties on cetaceans 1946 International Convention for the Regulation of Whaling(IWC) Art. 4: The IWC may: - encourage, recommend, or if necessary, organize studies and investigations relating to whales and whaling; - collect and analyse statistical information concerning the current condition and trend of the whale stocks and the effects of whaling activities thereon; -study, appraise, and disseminate information concerning methods of maintaining and increasing the populations of whale stocks

15. Noise in treaties on cetaceans 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area(ACCOBAMS) Art. 2.1: prohibits the deliberate taking of cetaceans. Taking = taking, hunting, fishing capturing, harassing, deliberate killing, or attempting to engage in any such conduct Art. : obligation to “adopt the necessary legislative, regulatory or administrative measures to give full protection to cetaceans in waters under their sovereignty and/or jurisdiction and outside these waters in respect of any vessel under their flag or registered within their territory engaged in activities which may affect the conservation of cetaceans” Annex 2

16. Noise in treaties on cetaceans 1991 Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas(ASCOBANS) Art. 2.1: “Parties undertake to cooperate closely in order to achieve and maintain a favourable conservation status for small cetaceans” and to this end they “shall apply within the limits of its jurisdiction and in accordance with its international obligations, the conservation, research and management measures prescribed in the Annex” Annex: obligation of the Parties to work towards “the prevention of other significant disturbance, especially of an acoustic nature”

17. Noise in treaties on fisheries 1995 UN Convention relating to the Conservation and management of Straddling Fish Stocks and Highly Migratory Fish Stocks(SFS Agreement): States agree to “ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks. To this end, they shall “assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks”, shall “minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species, (hereinafter referred to as non-target species) and impacts on associated or dependent species, in particular endangered species, through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques” and shall “protect biodiversity in the marine environment” Agreement for the Establishment of the General Fisheries Commission for the Mediterranean (GFCM): the Commission recommends measures “for the conservation and rational management of living marine resources”

18. Noise in the Barcelona Convention and Protocols Barcelona Convention Art. 4.1: Parties shall take all appropriate measures to “prevent, abate, combat and to the fullest extent eliminate pollution of the Mediterranean Sea Area and to protect and enhance the marine environment in the Area so as to contribute towards its sustainable development”

19. Noise in the Barcelona Convention and Protocols Off-shore Protocol Art. 3: Parties shall take, individually or jointly, “all appropriate measures to prevent, abate, combat, and control pollution in the Protocol Area resulting from activities, inter alia by ensuring that the best available techniques, environmentally effective and economically appropriate, are used for this purpose”. Activities = activities of scientific research, exploration activities (including seismologic activities and exploration drilling) and exploitation activities, including transportation to shore by pipeline and loading of ship Art. 4.1 requires that all activities obtain a prior written authorisation, following the presentation of a project, which has to include a series of information and data

20. Military vessels UNCLOS Art. 236: “The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, 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” Barcelona Convention, Art. 3.1

21. Action by international bodies World level • SG Reports • UNICPOLOS • UN GA • IUCN And within a specific framework: IWC Regional Level • ACCOBAMS • ASCOBANS