**6. Regulatory framework**

The transboundary nature of the underwater noise and its variability across time and space and across the species have profound impact on any attempt at managing the acoustic habitat degradation in the underwater domain. Any attempt at regulation demands that we have precise information on the "cause and effect." While many stressors like seismic activities and sonar transmissions may

#### *Acoustic Habitat Degradation Due to Shipping in the Indian Ocean Region DOI: http://dx.doi.org/10.5772/intechopen.90108*

be reasonably quantifiable to establish the cause and effect, but the URN from shipping is very complicated to establish this direct connect. The low-frequency ambient noise due to URN for distant shipping is spread across the entire ocean basin, so it is near impossible to define the jurisdiction of a nation or a region. The regional or global regulatory framework will require political consensus among all the stakeholders, which is a very difficult task given the diverse socioeconomic and geopolitical realities [28].

The URN has been recognized as a pollutant way back in 1982 under the United Nations Convention on the Laws of the Seas (UNCLOS). The substance vs. energy debate has also been put to rest under the UNCLOS that is ratified by 168 countries by now. The UNCLOS did declare the hazards of noise on the marine mammals and stated that it had a deleterious effect on them. However, even today, it has failed to announce regulatory framework on tackling noise in the ocean. The complexities of URN measurement and the infrastructure requirement for the same are extremely prohibitive for the developing world to accept it particularly when the shipping industry is going through a global down-turn [12].

The Marine Strategy Framework Document (MSFD) proposed by the European Union is by far the most forward looking international agreement to manage the acoustic habitat degradation issue so far. It considers multiple anthropogenic stressors and their potentially cumulative effect, giving more stress on ecosystem-based approach toward managing maritime activities. The stated objective is to achieve and maintain "Good Environmental Status" by 2020, measured by 11 descriptors, out of which the 11th one refers to underwater noise. URN management is getting far more attention under the MSFD, and more R&D-based regulatory aspects are being encouraged. There are multiple other regional initiatives originating in Europe like the Helsinki Commission (HELCOM), OSPAR Convention, ASCOBANS, ACCOBAMS, etc., that do address the issue of noise in the oceans. However, it is important to recognize the trans-boundary nature of noise and the limited effect in the absence of larger regional and global initiatives [28].

The Marine Mammal Protection Act (MMPA) was probably the first regulation to recognize and implement the precautionary principle for the marine environment. In 1972, the MMPA in the United States recognized the harm caused by noise to marine mammals and mandated that activities in the oceans have to contain their energy (acoustic) emission into the water. The International Maritime Organization (IMO) in its protocol of 1978 (MARPOL) addresses the aspect of marine pollution from ships through its six annexures. The MARPOL fails to recognize noise as a pollutant being in energy form and only defines substance pollution (oil, noxious liquid substances, harmful packaged substances, sewage, garbage and air pollution). More recently, it has declared certain vulnerable areas as particularly sensitive sea areas (PSSA), where noise from the ships is recognized as a hazard and bars the ships from these areas in order to protect the acoustic habitat. However, in the open ocean, IMO fails to regulate the noise from the growing shipping traffic. The International Whaling Commission (IWC) does recognize the adverse impact of noise on the whales from the whale watching vessels and others. However, it fails to formulate an effective policy for protecting the whales from noise in the ocean [12].

The challenge of environmental conservation, rather management of the commons, has far greater complexities particularly in the developing world due to what we refer as the "Tyranny of Small Decisions." This concept was first explored in the context of economics by Alfred E Kahn, who highlighted the fact that a number of small decisions, individually small in size and time perspective, cumulatively generate an outcome that is neither optimal nor desired. He brought out that market economies commonly commit this, leading to market failure. The findings were extended to other areas like environmental degradation, political elections and

health by many other scholars. The underwater environment more specifically the acoustic habitat degradation, a late entrant to the entire environmental debate, is a very fit case to apply these concepts for holistic management of the entire issue [8].

The ocean noise regulation has significant scientific uncertainties, management limitations and regulatory complexities. The Marine Mammal Protection Act (MMPA) 1972 was one of the most progressive regulations of its times with the precautionary principle as the guiding environmental framework. The MMPA covered whales, dolphins, porpoises and other marine mammal species; however, even after so many decades, over 20 species from the great blue whale to the Hawaiian monk seal are still considered endangered and threatened. The failure of any regulatory provision has multiple political, economic, social, scientific and managementrelated attributes [Chapters 5, 8].

The first and foremost issue that made the act meaningless was the exemptions, as the *Defense Authorization Act* gave far too many exemptions for multiple military deployments related to sonars and numerous other use of underwater sound in the name of national security. The peak of the Cold War ensured that the US Navy had numerous operational naval deployments and also research and training projects with heavy use of underwater transmissions for Anti-Submarine Missions against their adversary namely the Soviets. The second aspect was the noise criterion itself that could not cover the large number of marine species with very unique auditory features. The regulatory provisions necessitate robust noise criterion; however, the diverse marine species are very hard to map in terms of their hearing characteristics. Further, in the absence of detailed psycho-acoustic study across the species, the precise cause and effect cannot be established. The absence of firm noise criterion also makes it open to exemptions in the court of law even for commercial activities, especially in the developing nations with least political will for environmental concerns against the socioeconomic demands. The tropical littoral water in the IOR makes the medium impact far more severe to establish the source-path receiver model for formalizing the noise criterion. The resource limitations ensure that field experiments are too few and far in-between to be able to establish the noise criterion for the indigenous species in the local water. Ecosystem approach has always been a causality, as it is highly resource intensive and also requires high-end and sustained research efforts. Species-specific conservation efforts can never map the cause and effect in a complex and high biodiversity habitat with very intricate interplay of exchange among the species [Chapters 5, 8].

The regulatory provisions that exist so far have been able to address the instantaneous noise sources like seismic surveys, sonar transmissions, underwater explosions and others. However, the transboundary nature and the slow manifestation of the shipping noise have very unique challenges to establish the precise cause and effect and also the noise criterion. The cumulative impact is not only hard to prove but also impossible to implement. The time and resource constraint on the regulatory authority to undertake a scientifically logical experiment to establish biologically significant and population level impact is never enough. Further, in the absence of a credible noise criterion that addresses all species and all sources, it is a non-starter. The transboundary and the widespread impact (due to low frequency of the URN) brings complications of legal jurisdiction on regulatory provisions. National authorities cannot unilaterally bring regulations, and regional cooperation involves geopolitical challenges of diplomacy and international relations. Socioeconomic diversity, political factors, extra-regional power play and others complicate regional cooperation. The IOR is a mix of all kinds of physical, economic, political and geo-strategic factors making it a fragmented regional dynamics with significant interference by the extra-regional powers [Chapters 5, 8].

*Acoustic Habitat Degradation Due to Shipping in the Indian Ocean Region DOI: http://dx.doi.org/10.5772/intechopen.90108*
