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The IMLI Treatise On Global Ocean Governance - Volume II: UN Specialized Agencies and Global Ocean Governance edited by Attard, David Joseph; Fitzmaurice, Malgosia; Ntovas, Alexandros XM (26th July 2018)

Part III Human Health and Human Rights, 16 Ethics of International Maritime Law and Ocean Governance

Marko Pavliha

From: The IMLI Treatise On Global Ocean Governance: Volume II: UN Specialized Agencies and Global Ocean Governance

Edited By: David Joseph Attard, Malgosia Fitzmaurice, Alexandros XM Ntovas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 August 2019

Subject(s):
Sustainable development — Marine living resources — International organizations

(p. 339) 16  Ethics of International Maritime Law and Ocean Governance

16.1  Introduction

Sir Arthur C Clarke was a British science fiction writer, scientist, futurist, inventor, undersea explorer, and television series host who is also famous for his legendary quotes, for instance about our planet: ‘How inappropriate to call this planet Earth when it is quite clearly Ocean’. Our planet is double blue—not only in colour but also for its state of boiling sadness. Human beings are supposed to cherish humanity and love for nature, but the truth is terribly different. There are unimaginable apocalyptic forms of violence, wars, terrorism, dishonesty, discrimination, greed, hunger, thirst, pollution, climate deterioration, migrations, and other man-made inventions of decay, raising a fatal question of whether we are about to destroy the civilization, this time not only partially but globally.1

Hopefully not; however, it does not look promising. It is therefore urgent to start educating our hearts, not only our minds. Ethics, together with the rule of law on an international, regional, national, and municipal level, planetary and locally, shall dominate the third millennium rather than technical development or scientific inventions, which should serve all sentient beings and not the other way around. Such an approach must also positively affect maritime trade2 and ocean governance, and sooner or later the new human settlements on Mars and possibly on other planets. It is time to start thinking universally, not only globally.

As Blackburn put it vividly, we ‘have all learned to become sensitive to the physical environment’, however, ‘fewer of us are sensitive to what we might call the moral or ethical environment’, which gives us ‘our standards of behaviour’.3 He correctly suggests that the core of ethics is universal as every society ‘that is recognizably human’ will need some institution of property, the norms governing truth-telling and promise-giving, the standards restraining violence and killing, the devices for regulating sexual expression and some sense of what is appropriate by way of treating strangers, minorities, children, the aged, and the handicapped.4

(p. 340) The words ethics and morality may be used interchangeably. To put it less philosophically and more understandably, it is a (wo)man’s intimate, inner understanding of good or bad, the moral beliefs and rules about right and wrong, manifested by external positive or negative behaviour towards all living creatures and even more, regarding the whole surrounding world and universe. Ethics does not depend (solely) on religion and it is not relative to the society in which one lives nor it is merely a matter of subjective taste or opinion; rather it ‘points towards the course of action that has the best consequences, on balance, for all affected’ (the so-called preference utilitarianism).5

Both ethics and morality are spiritus agens of the global ethic (Weltethos, Ethique planétaire) which is primarily practical; it is a ‘golden’ moral compass directing our thinking and behaviour. In this light we should remember the unforgettable Mahatma Gandhi, who summarized his eternal wisdom in the following words:

Your beliefs become your thoughts, your thoughts become your words, your words become your actions, your actions become your habits, your habits become your values, your values become your destiny.6

Legal practitioners and especially law professors are by far the most responsible actors in the process of cherishing and teaching ethical values. Legal education should become much more holistic, integrated, and interdisciplinary, less aggressive and rather richer with principles of natural law and ethics, including compassion, altruism, solidarity, pacifism, honesty, justice, intercultural dialogue, and unconditional respect of all human rights. We must walk our positive talks and teach others to do the same, instead of hurting each other in the name of money and success.

The global ethic has been developed as a project and spread around the world by Hans Küng and his numerous deeds, actions, and publications.7 Drawing on many of the world’s religious and spiritual traditions, Küng’s Declaration Toward a Global Ethic identifies four affirmations being the shared principles essential to the global ethic and all people, religious and atheists, namely (i) commitment to a culture of non-violence and respect for life, (ii) solidarity and just economic order, (iii) tolerance and a life of truthfulness, and (iv) equal rights and partnership between men and women.8

To describe it differently, a person should treat others as he would like to be treated by them (positive form of the so-called Golden Rule), or one must not treat others in ways that she would not like to be treated (negative or prohibitive form). The Golden Rule was probably invented by Pitakos or Confucius hundreds of years before Christ (p. 341) and is still crucial for the modern concept of human rights, in which each individual has a right to just treatment and a reciprocal responsibility to ensure justice for others. Any person attempting to live by this rule should treat all people with consideration, not just members of his or her in-group. The Golden Rule has its roots in a wide range of world cultures, and it is a standard different cultures use to resolve conflicts. It can be found in some form in almost every ethical tradition, for example in the ancient Roman law emphasized by Ulpianus in the famous maxim: ‘The following are the precepts of the law: to live honestly, not to injure another, and to give to each one that which belongs to him’.9

Having explained the gist of ethics we should now turn to the law and its relationship with morality. Their interconnection is often explained by two overlapping circles (probably for the first time by German philosopher Immanuel Kant), that is, M (morality) and L (law) where the crossed oval part (M + L) represents illegal acts and omissions which are at the same time also immoral. In simple words, whatever is against the law is also morally and ethically condemned. The remaining part of the right circle (L) symbolizes illegal behaviour which is not considered immoral (eg fishing for survival without a license) and the remaining side of the left circle (M) shows the immoral acts which are not against the law (for instance, screaming loud in a church, promiscuity etc) (see Figure 16.1).

Figure 16.1  Actual Relation between Morality and Law.

The ideal relation between morality and law can be pictured by two concentric circles where the smaller one (L) represents illegal and immoral behaviour (L + M) whereas the outside area of the larger circle (M) symbolizes any human acts or omissions which are immoral but not banned or otherwise governed by the law (see Figure 16.2).

Figure 16.2  Ideal Relation between Morality and Law.

The purpose of this chapter is to cast light upon certain issues of the morality in order to initiate a thorough research on the role of ethics and global ethic in a very (p. 342) specific legal field(s) of international maritime law and ocean governance, offering perhaps one of the first steps towards a new paradigm. It deals, first, with the general ethical flavour of international law, underlining a few examples of moral standards in the law of the sea and maritime law. Secondly, it considers a few susceptible issues of ocean governance and, finally, it suggests how to improve legal education with an obligatory course on legal ethics.10

It is submitted that the expression ‘international maritime law’ should be understood broadly as inspired by the International Maritime Organization’s International Maritime Law Institute (IMO IMLI),11 thus including the law of the sea as part of public international law, as well as the maritime law, also known as shipping, admiralty, or marine law. The first entails themes such as the status of internal waters, the territorial sea, the legal regime of straits, the continental shelf, the exclusive economic zone, the delimitation of maritime boundaries, the high seas, the international sea bed area, the marine scientific research and the protection of marine environment,12 and the second includes topics such as contracts of carriage of goods and passengers, towage, collision, limitation of shipowners’ liability, salvage, general average, and marine insurance.13

Both legal fields are interconnected and demand a holistic approach which is a precondition to form a solid backbone of the sustainable ocean governance.

16.2  Ethical Flavour of International Law

It is well known that international law receives its legal substance from the following sources:

  1. (i)  general or particular international conventions, establishing rules expressly recognized by the participating states;

  2. (ii)  international customs, as evidence of a general practice accepted as law;

  3. (iii)  the general principles of law recognized by civilized nations; and

  4. (iv)  judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.14

What is often neglected, however, is that the implementation and upgrading of international law should be constantly refreshed by the elementary, universal ethical rules which reach beyond any boundaries of countries, cultures, legal orders or religions.

Mary Ellen O’Connell asserts that the highest ethical norms of international law are mandatory and imperative at all times, such as the prohibitions on aggression, (p. 343) genocide, slavery, arbitrary killing, apartheid, torture, and massive pollution of the environment.15 Jus cogens operates like public policy in national law, invalidating international or national laws that directly conflict with its norms.

The 1969 Vienna Convention on the Law of Treaties makes it clear that a treaty is void if, ‘at the time of its conclusion, it conflicts with a peremptory norm of general international law’ which is ‘a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.16 The identification of jus cogens is predominantly a matter for courts and judges.17

Another notable author researching the general problems of jus cogens, its nature, place, and function in the international order is Ernest Petrič, a long-standing and distinguished member of the International Law Commission. He is of the opinion that a norm to be a jus cogens should acquire general ‘consent’, which should reach beyond the consent of one state, and the rule should protect an important value at our stage of development of human society.18

For a better understanding of the ethical core of international law it is perhaps helpful to imagine a practical case where an international community represented by the IMO strives to adopt a new anti-piracy treaty because the existing national and global rules do not suffice anymore. The Legal Committee would probably send out questionnaires to various stakeholders in order to identify problems to be governed at the international level, such as types, locations, and frequencies of attacks by pirates; safety of ships and crews; economic consequences of piracy; court jurisdiction and procedures; the real reasons for maritime crimes (poverty, survival, terrorism); insurance implications, etc. Any potential international convention would need to deal with preventive and repressive measures which will likely diminish piracy but not entirely eliminate it. A checklist linking ethics to ex ante evaluations19 would have to be prepared, incorporating the following crucial questions: What is the real problem or the challenge? What are the choice options and respective pros and cons? Is it ethical for the rest of the world to tolerate for so many years a transitional government in Somalia (or similar problems elsewhere), which is socially blind and self-sufficient, turning its deaf ears to dying people who can survive only by stealing and robbing? What would be the ethical purpose of the international treaty in question? Which rules should be mandatory because of their ethical (p. 344) importance? What would be the ethical motives of the states and their representatives to abide by such a convention?

Alford and Tierney have developed the moral reasoning theory of international law, suggesting that states and their representatives employ different types of moral reasoning to resolve ethical dilemmas, so the law and psychology perspective of compliance with international law presents an opportunity to understand a state actor’s reasoning in complying with international rules.20 They draw on the writings of Lawrence Kohlberg21 to explore the cognitive process of choosing between different interests, values, norms, and claims.

According to Kohlberg, first, ‘the preconventional reasoning’ involves egocentrism without concern of social norms. The law is obeyed to avoid punishment and to maximize self-interest. Secondly, ‘the conventional reasoning’ focuses on the individual as a member of society. The compliance motive is reputational, to be a good, law abiding citizen, and it is also based on the desire to maintain the overall functioning of social relationships and institutions. Thirdly, ‘the postconventional reasoning’ is based on the vision of how society should be structured, what rational people think an ideal, fair, and just society would require. It involves the human rights and social welfare morality arising from a social contract.22

Ratification and compliance with the anti-piracy treaty might therefore help avoiding sanctions from other countries, provide long-term benefits outweighing the short-term costs, and improve the reputation of the ratifying and abiding state in the eyes of other nations. Furthermore, it would uphold a process of regulating the global issues by international law, conform with existing social contracts moving towards an ideal universal order and support the highest moral principles such as the right to life and safe and free navigation.23

The above logical approach, however, calls for experts, politicians, and other decision-makers with the highest moral values who are desperately missed and needed in the real world. Morality should play an important role in everybody’s life literally from birth to death, from the cradle to the coffin, involving parents, kindergartens, schools, universities, civil society, the media (especially the internet), commercial companies, and public authorities. The law faculties should contribute much more in this regard.

16.3  Law of the Sea

On 10 December 1982, the United Nations Convention on the Law of the Sea (UNCLOS) was opened for signature at Montego Bay, Jamaica, marking the culmination of over fourteen years of hard work. More than 150 countries participated, representing all regions and legal and political systems of the world. The codification and progressive development of the law of the sea was finally achieved in the highest (p. 345) ethical spirit, hoping that a new legal order for the seas and oceans would contribute to the strengthening of peace, security, cooperation, and friendly relations among all nations in conformity with the principles of justice and equal rights.

The Convention is supposed to facilitate international communication and promote the peaceful uses of the seas and oceans; the equitable and efficient utilization of their resources; the conservation of fauna and flora; and the study, protection, and preservation of the marine environment. In addition, this ‘ocean bible’—now binding 168 states as of 23 May 201724—shall promote the economic and social advancement of all peoples of the world in order to realize a just and equitable international economic order, taking into account the mankind as a whole and, in particular, the special interests and needs of developing coastal and land-locked countries.25

Legal text of the Convention is woven by many ethical standards as a compromise between the two historic doctrines of mare liberum and mare clausum, including the maximum customary breadth of the territorial sea and other maritime zones; the right of innocent passage by third parties; the rights of access to and from the sea and freedom of transit of land-locked countries; the freedoms of the high seas; the principle of common heritage of mankind applying to the seabed, ocean floor, and the subsoil thereof beyond the limits of national jurisdiction; the obligation to protect and preserve the marine environment; and the obligation to settle disputes by peaceful means.

The key ethical rule is embodied in the binding promise of state parties to UNCLOS to fulfil in good faith all the obligations under the Convention and to exercise the rights, jurisdiction, and freedoms in a manner which would not constitute an abuse of right.26 In other words, the states should exercise their rights and jurisdictions recognized by UNCLOS in such a manner as not to unnecessarily or arbitrarily harm the rights of other countries or the interests of the international community as a whole. The provision was proposed by Mexico as a new introductory article at the very beginning of the Convention, but it was later moved to the end under the heading ‘General Provisions’.27

Reference to ‘good faith’ reflects the UN Charter which obliges all members of the United Nations that ‘in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter’.28 It also follows from the Vienna Convention on the Law of Treaties that every international convention in force is binding on the parties to it (pacta sunt servanda) and must be performed by them in good faith.29

The concept of ‘abuse of rights’ can be explained as the exercise by a state of a particular right in such a manner or in such circumstances as indicated that it was for that state an indirect means of avoiding an international obligation imposed upon that (p. 346) state, or was carried out with a wrong, illegitimate purpose (in fraudem legis agere). The concept is accepted in international law, although there is little relevant state practice or case law.30

It is not too difficult to notice the beam of the Golden Rule in the ancient behavioural norm of compassion and diligence that the countries ‘shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’—sic utere tuo ut alienum non laedas.31 It is possible to argue that the modern doctrine of sustainable development and environment protection means considerably more than a mere sum of preventive, curative, and repressive measures; it also involves a duty of states to cooperate32 and improve33 the quality of the environment. In case of a dispute where the parties agree so, the court or tribunal decides a case ex aequo et bono, according to what is right and good, giving the judges or arbitrators enormous potential to think ethically and creatively.34

Similarly, a fresh ethical and legal standard had been created by The Common Heritage of Mankind Doctrine which had taken place in two major international agreements: the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, providing that the moon and its natural resources are the common heritage of mankind and that an international regime should be established to govern the exploitation of such resources when such exploitation is about to become feasible; and the UNCLOS of 1982, which declares certain areas of the oceans and their resources to be the common heritage of mankind. Namely, in 1967 the legendary Maltese Ambassador Arvid Pardo had proposed to the UN General Assembly that the seabed should constitute part of the ‘common heritage of mankind’, a phrase appearing now in Article 136 of the UNCLOS.

Pardo’s visionary achievement can be compared to Professor David J Attard’s proposal in 1988 to the Government of Malta to request the UN to take action to protect the global climate.35 He was struck by the scientific work that had been carried out on climate change as there was already the evidence on anthropogenic (caused by human beings) climate change; however, international law was incapable of dealing with ecological threats to the planet. As the role of international law, in his strong belief, is to regulate international life and protect humankind, not only against armed conflict and aggression, but also against growing environmental threats, he reacted (p. 347) proactively and his proposal led to the 1992 UN Convention on the Protection of Global Climate.36

By far the most important ethical, political, and legal purpose of the UN is to maintain international peace and security, and to that end it is:

to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.37

Moreover, the UN must do everything possible to develop ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’, as well as to ‘achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.38

Pacific settlement of disputes shall be therefore treated preciously as the mother and the father of all ethical and international legal rules. The parties to any dispute, ‘the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.39 When it deems necessary, the Security Council shall call upon the parties to settle their dispute by such means.40

Obligation to settle disputes by peaceful means is also provided by UNCLOS41 and is found in most ‘private’ international maritime law conventions. This is especially significant if not fatal in light of the dangerous tension between China and Japan regarding the uninhabited Senkaku (Diaoyu) Islands in the East China Sea, because of the potential oil reserves. Similarly, the Paracel Island in the South China Sea are disputed by China, Vietnam, and Taiwan and the Spratly Islands by Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. If we consider these problems in light of the scary fact that there are presently sixty-seven countries and 763 militias-guerrillas and terrorist-separatist-anarchic groups involved in wars,42 we must reach the only possible and logical solution which is pacifism, a philosophy of non-violence, and compassion.

One of the recent examples of a relatively good practice is the Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia signed in 2009, which inter alia requires the Arbitral Tribunal to determine Slovenia’s junction to the high sea, applying ‘international law, equity and (p. 348) the principle of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances’.43 The ruling44 was announced on 29 June 2017 by Gilbert Guillaume, President of the Arbitration Tribunal situated in the Hague, but Croatia unethically and illegally refused to recognize the judgment, saying it had withdrawn from the arbitration in 2015 after Slovenia violated and ‘contaminated’ the terms of the process. However, the award is now part of international law, final and legally binding for Slovenia and Croatia, and thus it is to be followed unconditionally. As for the time being Croatia is resisting applying the arbitration award and consequently is in breach of the rule of law, one of the fundamental values of the European Union, as well as the principle of loyal cooperation, it faces a possible legal action before the Court of Justice of the European Union in Luxemburg.

16.4  Maritime Law

Drafters of recent international maritime treaties appear to be somehow more inspired by natural law, morality, and ethics than their predecessors, which is a promising sign of reviving humanity. This is particularly true in light of the environmental consciousness of the IMO, which is now shining from various conventions including the International Convention on the Control of Harmful Anti-Fouling Systems (2001), the International Convention on Civil Liability for Bunker Oil Pollution Damage (2001), the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (2004), the Nairobi International Convention on the Removal of Wrecks (2007), and the Protocol of 2010 to amend the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996.45 Unfortunately, some of them have not entered into effect yet or have not been implemented efficiently in practice.

There are also other optimistic traces of increasing awareness of ethics in maritime law. For instance, the UN General Assembly declared expressly that the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules of 2008)46 would modernize and harmonize the rules governing the international carriage of goods involving a sea leg, thus enhancing legal certainty, improving efficiency, and commercial predictability and reducing legal obstacles to the flow of international trade ‘on a basis of equality, equity and common interest’, contributing ‘to the well-being of all peoples’.47 From an ethical perspective it is encouraging to note the provision that in the interpretation of this Convention ‘regard is to be had to its international character and to the need to promote uniformity (p. 349) in its application and the observance of good faith in international trade’.48 The Rules are composed of a number of minimum liability provisions, codifying jus cogens and therefore embodying moral and ethical standards.

The next example of symbiosis of ethics and law is the Maritime Labour Convention (MLC), which was adopted in 2006 under the umbrella of the International Labour Organization (ILO)49 in order to provide efficient and modern protection at work for the world’s seafarers. It sets out their rights to decent working conditions, aiming to apply globally, replacing almost seventy existing conventions and regulations and benefiting shipowners with a clear, consistent set of standards with which all must comply. MLC was entered into force on 20 August 2013, that is, twelve months after the date on which there have been registered ratifications by at least thirty state parties (members) with a total share in the world gross tonnage of ships of 33 per cent.50

The seafarers remain to be covered by the provisions of other ILO instruments and have, of course, the fundamental rights and freedoms applicable to all persons. Each state party must ensure the freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory work, the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation.51 Every seafarer has the right to (i) a safe and secure workplace that complies with safety standards, (ii) fair terms of employment, (iii) decent working and living conditions on board ship, and (iv) health protection, medical care, welfare measures, and other forms of social protection.52

As of July 2017, the MLC has been ratified by eighty-four countries, which is a solid number but far from being perfectly ethical.

Another illustration of the legal–ethical twins is one of the oldest sets of unique maritime rules named marine insurance which has been coloured throughout the centuries by morality and ethics because of its very nature. For instance, a contract of marine insurance is said to be a contract based upon the utmost good faith (uberrimae fidei) meaning that especially the insured is obliged to disclose all the material facts and must not misrepresent them to the insurer. The principle applies prior to the conclusion of contract and also during the contract. If it is not observed by either party, the contract may be avoided by the other party.53

However, in this regard one must not overlook the new UK Insurance Act 2015, which received royal assent on 12 February 2015, implementing considerable reforms to marine insurance and came into force in August 2016.54 The Act applies to every insurance (p. 350) policy, as well as to contracts of reinsurance and retrocession written in England and Wales, Scotland, and Northern Ireland. It is very ‘civilian’ in its nature, leaving behind some very old common law principles of insurance. For instance, policy-holders are subject to a new duty of fair presentation replacing the existing duty of disclosure. The contracts of insurance continue to be of the utmost good faith, however, the insurer has different remedies depending on the situation. There are also significant new rules on warranties, abolishing the basis of the contract clauses which effectively convert every statement made by a policy-holder before the contract is signed into a warranty. The new legislation replaces the existing harsh remedy for breach of a warranty in an insurance contract, which is contained in section 33(3) of the 1906 Marine Insurance Act.55

Last but not least, shipowners and other carriers have been historically entitled to limit their liability per package or unit of damaged, lost, or delayed cargo. Indeed, such a privilege also exists in the case of injured or dead passengers during the carriage which is, in my humble opinion, no longer ethically acceptable, not even for commercial reasons as the insurance industry is prepared to cover virtually everything. A major positive step forward was achieved by the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, which was inspired by the consumers’ protection movements, private aviation sector and the EU legislation, in dubio pro consumatore. The Convention provides a two-tier liability regime, a genius combination of fault and strict liability without any upper limit for carrying passengers. It is time to reconsider ‘what money can’t buy’, what are ‘the moral limits of markets’56 and make proper amendments to the existing transport treaties.57

16.5  Ocean Governance

Ocean governance is usually described as a holistic conduct of the policy, actions, and affairs regarding oceans and seas on our planet. Besides states and international organizations it involves the influence of universities, funds, institutes, non-governmental organizations, and other stakeholders. Despite maritime delimitations and respective state control, most of the oceans belong to humankind, which must be reflected by international law and based on solid ethical and/or moral values.

According to the European Union and European Academies’ Science Advisory Council (EASAC) policy report, oceans and seas are essential components of the biosphere and crucial for global food security, human health, and regulation of climate as the marine sustainability and human society are intrinsically interlinked. Given the fact that the livelihoods of over three billion people worldwide depend upon service from marine and coastal biodiversity, it is more than sensible and rational that over the past ten years there has been increasing focus on marine and maritime governance (p. 351) both within the European Union and beyond. The fundamental challenge for all policy-makers is how to achieve a sustainable use of the oceans that ensures the availability of marine goods and services for future generations while meeting the demographic and economic demands.58

Although the law of the EU and its integrated maritime policy as related to ocean governance is discussed elsewhere, it is important to note because of the moral context that almost a revolutionary and highly ethical provision can be found in the third paragraph of Article 3 of the Treaty of the European Union to the effect that the Union shall establish an internal market, promote scientific and technological advance, and work for the sustainable development of Europe ‘based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment’, as already mentioned. Similarly, Article 37 of the Charter of Fundamental Rights of the European Union requires that a ‘high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.

In other words, it is worth repeating that it is not sufficient anymore to merely protect the environment but we must improve its quality.

One of the crucial pillars of the EU holistic maritime policy is blue growth, in addition to international ocean governance, marine knowledge, skills and ocean literacy, maritime spatial planning, integrated maritime surveillance, maritime security strategy, and sea basins. Blue growth entails aquaculture, coastal tourism, ocean energy, seabed mining, and blue biotechnology.59 With respect to the latter, Koren Shadmi interestingly explains how the scientists alter our genetic code and engineer new forms of material that improve nature, ‘from flowers that can detect bombs to bacteria that secretes fuel’. That is the promise of synthetic biology, a technology which can also affect our oceans and seas, because it is ‘poised to change how we feed ourselves, clothe ourselves, fuel ourselves—and possibly even change our very selves’:60

If the idea of synthesizing an entire human genome alarms you, you’re not alone—even some synthetic biologists, like Stanford’s Endy, are wary of the notion. The researchers behind GP-write have made it clear that they have no intention of creating artificial people with their synthesized DNA; rather, their work will be confined to synthesizing human cells, in an effort to better understand how the human genome works—and, potentially, how to make it work better. But any attempt to engineer the genetic code of living beings raises ethical concerns—first over safety, and even more so, over success. What happens if an engineered plant or animal escapes into the wild, where its impact on the environment would be hard to predict? Engineering (p. 352) human cells to eliminate deadly genetic disorders might seem straightforward, but where would we draw the line between treatment and enhancement?61

On 25 September 2015 the UN member countries adopted seventeen goals to ‘transform our world’, to end poverty, protect the planet, and ensure prosperity for all as part of a new sustainable development agenda.62 Each goal has specific targets to be achieved over the next fifteen years, and the goals are the following: no poverty; zero hunger; good health and well-being; quality education(!); gender equality; clean water and sanitation; affordable and clean energy(!); decent work and economic growth; industry, innovation and infrastructure; reduced inequality; sustainable cities and communities; responsible consumption and production; climate action(!); life below water(!); life on land; peace, justice, and strong institution; and partnership for the goals.

It is perhaps not too pessimistic to assert that we must do our best and more to achieve all of the aforementioned goals because they are crucial for our survival, at least on the existing beautiful blue planet. It is not difficult to agree with Peter Singer,63 a distinguished Australian moral philosopher, that we need a frank, de facto, public, and ‘open government’, as well as ‘open diplomacy’ as to what should be also one of the crucial missions of media and internet.

‘We could’, in his opinion, ‘try to get closer to that ideal’, because:

If government did not mislead their citizens so often, there would be less need for secrecy, and if leaders knew that they could not rely on keeping the public in the dark about what they are doing, they would have a powerful incentive to behave better.64

It is perhaps interesting to mention that the high-level UN Conference to Support the Implementation of Sustainable Development Goal 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development was convened at UN Headquarters in New York from 5 to 9 June 2017, coinciding with the World Oceans Day, to support the implementation of Sustainable Development Goal (SDG) No 14. The Governments of Fiji and Sweden had the co-hosting responsibilities of the conference, which aimed to be the game changer that would reverse the decline in the health of our ocean for people, planet, and prosperity.

The conference has adopted two resolutions. The first one is dedicated to ‘Our ocean, our future: call for action’. The leaders and representatives of governments have been mobilized ‘by a strong conviction that our ocean is critical to our shared future and common humanity in all its diversity’, being determined to act decisively and urgently, and convinced that only the collective action will make a meaningful difference to the people, the planet, and prosperity. They recognize again the notorious fact that our oceans and seas cover three-quarters of our planet, connect our populations and markets, form an important part of our natural and cultural heritage, supply (p. 353) nearly half the oxygen we breathe, absorb over a quarter of the carbon dioxide we produce, play a vital role in the water cycle and the climate system, and that they are an important source of our planet’s biodiversity and of ecosystem services. Furthermore, the marine waters contribute ‘to sustainable development and sustainable ocean-based economies, as well as to poverty eradication, food security and nutrition, maritime trade and transportation, decent work and livelihoods’. The well-being of present and future generations is inextricably linked to the health and productivity of the oceans.

The high representatives were particularly alarmed ‘by the adverse impacts of climate change on the ocean, including the rise in ocean temperatures, ocean and coastal acidification, deoxygenation, sea-level rise, the decrease in polar ice coverage, coastal erosion and extreme weather events’. They have called on all stakeholders to conserve and sustainably use the oceans, seas, and marine resources for sustainable development by taking, inter alia, the following actions (hereinafter cited verbatim from paragraph (a) to (v) because of their importance65) on an urgent basis, including by building on existing institutions and partnerships:

  1. (a)  Approach the implementation of Goal 14 in an integrated and coordinated way and promote policies and actions that take into account the critical interlinkages among the targets of Goal 14, the potential synergies between Goal 14 and the other Goals, particularly those with ocean-related targets, as well as other processes that support the implementation of Goal 14;

  2. (b)  Strengthen cooperation, policy coherence and coordination among institutions at all levels, including between and among international organizations, regional and subregional organizations and institutions, arrangements and programs;

  3. (c)  Strengthen and promote effective and transparent multi-stakeholder partnerships, including public-private partnerships, by enhancing engagement of Governments with global, regional and subregional bodies and programs, the scientific community, the private sector, the donor community, non-governmental organizations, community groups, academic institutions and other relevant actors;

  4. (d)  Develop comprehensive strategies to raise awareness of the natural and cultural significance of the ocean, as well as of its state and role, and of the need to further improve knowledge of the ocean, including its importance for sustainable development and how it is impacted by anthropogenic activities;

  5. (e)  Support plans to foster ocean-related education, for example as part of education curricula, to promote ocean literacy and a culture of conservation, restoration and sustainable use of our ocean;

  6. (f)  Dedicate greater resources to marine scientific research, such as interdisciplinary research and sustained ocean and coastal observation, as well as the collection and sharing of data and knowledge, including traditional knowledge, in order to increase our knowledge of the ocean, to better understand the relationship between climate and the health and productivity of (p. 354) the ocean, to strengthen the development of coordinated early warning systems on extreme weather events and phenomena, and to promote decision-making based on the best available science, to encourage scientific and technological innovation, as well as to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries;

  7. (g)  Accelerate actions to prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris, plastics and microplastics, nutrient pollution, untreated wastewater, solid waste discharges, hazardous substances, pollution from ships and abandoned, lost or otherwise discarded fishing gear, as well as to address, as appropriate, the adverse impacts of other human-related activities on the ocean and on marine life, such as ship strikes, underwater noise and invasive alien species;

  8. (h)  Promote waste prevention and minimization; develop sustainable consumption and production patterns; adopt the 3Rs—reduce, reuse and recycle—including through incentivizing market-based solutions to reduce waste and its generation, improving mechanisms for environmentally sound waste management, disposal and recycling and developing alternatives such as reusable or recyclable products or products that are biodegradable under natural conditions;

  9. (i)  Implement long-term and robust strategies to reduce the use of plastics and microplastics, in particular plastic bags and single-use plastics, including by partnering with stakeholders at relevant levels to address their production, marketing and use;

  10. (j)  Support the use of effective and appropriate area-based management tools, including marine protected areas and other integrated, cross-sectoral approaches, including marine spatial planning and integrated coastal zone management, based on best available science, as well as stakeholder engagement and applying the precautionary and ecosystem approaches, consistent with international law and in accordance with national legislation, to enhance ocean resilience and better conserve and sustainably use marine biodiversity;

  11. (k)  Develop and implement effective adaptation and mitigation measures that contribute to increasing and supporting resilience to ocean and coastal acidification, sea-level rise and increase in ocean temperatures, and to addressing the other harmful impacts of climate change on the ocean as well as coastal and blue carbon ecosystems, such as mangroves, tidal marshes, seagrass and coral reefs, and wider interconnected ecosystems impacting on our ocean, and ensure the implementation of relevant obligations and commitments;

  12. (l)  Enhance sustainable fisheries management, including to restore fish stocks in the shortest time feasible at least to levels that can produce maximum sustainable yield as determined by their biological characteristics, through the implementation of science-based management measures, monitoring, control and enforcement, supporting the consumption of fish sourced from sustainably managed fisheries, and through precautionary and ecosystem approaches as appropriate, as well as strengthening cooperation and (p. 355) coordination, including through, as appropriate, regional fisheries management organizations, bodies and arrangements;

  13. (m)  End destructive fishing practices and illegal, unreported and unregulated fishing, addressing their root causes and holding actors and beneficiaries accountable by taking appropriate actions, so as to deprive them of benefits of such activities, and effectively implementing flag State obligations as well as relevant port State obligations;

  14. (n)  Accelerate further work and strengthen cooperation and coordination on the development of interoperable catch documentation schemes and traceability of fish products;

  15. (o)  Strengthen capacity-building and technical assistance provided to small-scale and artisanal fishers in developing countries, to enable and enhance their access to marine resources and markets and improve the socioeconomic situation of fishers and fish workers within the context of sustainable fisheries management;

  16. (p)  Act decisively to prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, including through accelerating work to complete negotiations at the World Trade Organization on this issue, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of those negotiations;

  17. (q)  Support the promotion and strengthening of sustainable ocean-based economies, which, inter alia, build on sustainable activities such as fisheries, tourism, aquaculture, maritime transportation, renewable energies, marine biotechnology and seawater desalination as means to achieve the economic, social and environmental dimensions of sustainable development, in particular for small island developing States and least developed countries;

  18. (r)  Increase efforts to mobilize the means necessary for the development of sustainable ocean-related activities and the implementation of Goal 14, particularly in developing countries, in line with the 2030 Agenda, the Addis Ababa Action Agenda and other relevant outcomes;

  19. (s)  Actively engage in discussions and the exchange of views in the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, so that the General Assembly can, before the end of its seventy-second session, taking into account the report of the Preparatory Committee to the General Assembly, decide on the convening and on the starting date of an intergovernmental conference;

  20. (t)  Welcome follow-up on the partnership dialogues and commit to implementing our respective voluntary commitments made in the context of the Conference;

  21. (u)  Contribute to the follow-up and review process of the 2030 Agenda by providing an input to the high-level political forum on sustainable development (p. 356) on the implementation of Goal 14, including on opportunities to strengthen progress in the future;

  22. (v)  Consider further ways and means to support the timely and effective implementation of Goal 14, taking into account the discussions at the high-level political forum during its first cycle.66

For the time being, the aforementioned actions need no additional comments, just let us hope they will be realized in the not too distant future.

16.6  Conclusion: The Crucial Importance of Upbringing and Education

It is rather naive to expect professionals and particularly lawyers to think and act ethically (morally) if they were not brought up and educated under the umbrella of moral values and virtues. Once they enrol in a school of law it is already late if not too late but it is nevertheless strongly recommended to introduce an obligatory course on holistic legal ethics in the first year of undergraduate legal studies, accompanied by teaching ethical issues throughout the curriculum and perhaps an additional syllabus on ethics in the last year of law school, as well as during postgraduate studies and training for bar exams.

It has already been suggested elsewhere67 that such an approach could serve as a truly holistic method which would cover a number of issues, such as an introduction to ethics, ethics and natural law, rhetoric and ethics, multiculturalism, equality, life, health, poverty, personal integrity, environment and climate change, civil disobedience, violence and terrorism, professional responsibility, and ethical decision-making and ‘good lawyering’.

A good, skilful, and moral lawyer would feel and know which international goals are of such a planetary and ethical importance they need to be achieved by mandatory rules; how to govern oceans and the rest of the environment and climate sustainably for future generations; how to construe legally and ethically certain norms, standards, and principles; how to implement international treaties in practice; how to adjudicate disputes in the name of justice, how to settle disputes by peaceful means; how to be professional, fair, honest, and compassionate at all times and, most importantly, how to be human.

Is this too much to ask?

Beware: every tiny and huge change begins with you and me, with every enlightened individual, because ‘two is one and one is none’, to quote the Navy Seals, if one prefers militaristic jargon instead of pacifistic terminology.

Footnotes:

1  This chapter is a substantially adapted and upgraded version of the following article: Marko Pavliha, ‘Essay on Ethics in International Maritime Law’ (2012) 5 European Transport Law 461.

2  See eg Francis Fernandes, ‘Ethics in Maritime Trade’ (2016) 2 European Transport Law 131.

3  Simon Blackburn, Ethics: A Very Short Introduction (Oxford University Press 2001) 1.

4  ibid 20.

5  Peter Singer, Practical Ethics (3rd edn, Cambridge University Press 2001) 1–15.

6  I do not know the exact source of this quotation which is explained in detail in Mohandas Karamchand Gandhi, An Autobiography or the Story of My Experiment with Truth (Penguin Books 2007).

7  Hans Küng, Handbuch Weltethos: eine Vision und ihre Umsetzung (Piper 2012) http://www.weltethos.org (last accessed February 2018). See also Bradley Shingleton and Eberhard Stilz (eds), The Global Ethic and Law: Intersections and Interactions (Nomos Verlagsgesellschaft 2015).

8  Declaration was signed at the Parliament of the World’s Religions gathering in 1993 by more than 200 leaders from about forty different faith traditions and spiritual communities. Since 1993 it has been signed by thousands more leaders and individuals around the world. As such, it established a common ground for people of faith to agree and to cooperate for the good of all.

9  Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Ulp. D. 1, 1, 10, 1.

10  It is implied that the readers are familiar at least with the basic historical and philosophical elements of ethics, from Confucius to Peter Singer, Michael Sandel and many other scholars. An excellent starting point is The New Encyclopedia Britannica, vol 18, Macropædia (Encyclopaedia Britannica, Inc 1990) 492–521 (Ethics).

11  http://www.imli.org (last accessed July 2017).

12  Short and popular introduction to the modern law of the sea has been written by R R Churchill and A V Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999).

13  See eg William Tetley, International Maritime and Admiralty Law (Éditions Yvon Blais 2002).

14  Statute of the International Court of Justice, art 38 http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 (last accessed July 2017).

15  Mary Ellen O’Connell, ‘International Law’s Higher Ethical Norms’ in Donald Earl Childress III (ed), The Role of Ethics in International Law (Cambridge University Press 2012) 78–98.

16  Vienna Convention on the Law of Treaties, art 53.

17  See the case law cited in O’Connell (n 15), eg Barcelona Traction, Light & Power Co. (Belg. v Spain) [1970] ICJ 3 (5 February ) and Prosecutor v Furundzija, Case No IT-95-17/1-T, Trial Judgment, para 155 (Int’l Crim. Trib. for the Former Yugoslavia, 10 December 1988).

18  See Ernest Petrič, Principles of the Charter of the United Nations—Jus Cogens? (2016) 7 Czech Yearbook of Public & Private International Law 3 https://rozkotova.cld.bz/rww/CYIL-vol-7-20161/32 (last accessed July 2017).

19  Cf Bert van Wee, Transport and Ethics: Ethics and the Evaluation of Transport Policies and Projects (Edward Elgar Publishing 2011).

20  Roger P Alford and James Fallows Tierney, ‘Moral Reasoning in International Law’ in Donald Earl Childress III (ed), The Role of Ethics in International Law (Cambridge University Press 2012) 11–51.

21  Lawrence Kohlberg, Essays on Moral Development, vol 2 (Harper & Row 1984).

22  Alford and Tierney (n 20) 25–29.

23  ibid 37.

25  The Law of the Sea, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, New York, 1997 (see Introduction and Preamble).

26  UNCLOS, art 300.

27  Myron H Nordquist (ed), United Nations Convention on the Law of the Sea 1982: A Commentary, vol V (Martinus Nijhoff Publishers 2002) 150–52.

28  UN Charter, art 2(2).

29  Vienna Convention on the Law of Treaties, art 26.

30  Nordquist (n 27) 152; Certain German Interests in Polish Upper Silesia (Germany v Poland), PCIJ, Ser. A, No 7, at 30 (1926); Free Zones case (France/Switzerland), PCIJ, Ser A/B, No 46, at 167 (1932); the Nuclear Tests cases (interim protection) (Australia v France; New Zealand v France) [1973] ICJ Reports 99, 118.

31  UNCLOS, art 194(2).

32  For instance, as to the importance of cooperation of the Adriatic states and the role of the Barcelona Convention with its Protocols see Mitja Grbec, Extension of Coastal State Jurisdiction in Enclosed or Semi-enclosed Seas: An Adriatic Sea Perspective (Doctoral Thesis (IMO IMLI: 2010)) 223–68.

33  Treaty on European Union, art 3(3).

34  UNCLOS, art 293 (2).

35  Professor Attard has been Director of IMO IMLI for many years and he is also a judge at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg.

36  See Francesca Vella, ‘Interview: Climate: the Common Heritage of Mankind’ The Malta Independent Online (12 January 2009) http://www.independent.com.mt/articles/2009-01-12/news/interview-climate-the-common-heritage-of-mankind-218791/ (last accessed February 2018).

37  UN Charter, art 1.

38  ibid.

39  ibid art 33.

40  ibid.

41  UNCLOS, arts 279 and 280.

42  https://www.warsintheworld.com (last accessed February 2018).

44  https://www.pcacases.com/web/sendAttach/2172 (last accessed July 2017).

47  See Resolution adopted by the UN General Assembly at 67th plenary meeting in December 2008, A/RES/63/122, and the Preamble of the Rotterdam Rules.

48  Rotterdam Rules, art 2.

51  ibid art III.

52  ibid art IV.

53  See ss 17–21 of the UK Marine Insurance Act 1906; Carter v Boehm (1766) 3 Burr 1905; Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd and La Réunion Européene (The Star Sea) [2001] 1 Lloyd’s Rep 389 (HL); Pan Atlantic Insurance Co v Pine Top Insurance Co Ltd [1995] 1 AC 501 (HL); Banque Financière de la Cité SA v Westgate Insurance Co Ltd [1991] 2 AC 249.

54  See full text of the Insurance Act 2015 ch 4 at http://www.legislation.gov.uk and Explanatory Notes to Bills: Insurance Bill [HL] at http://www.publications.parliament.uk (both last accessed July 2017).

55  For more about the reform see Marko Pavliha, ‘Reform of the UK (Marine) Insurance Law: A Compromise between Common and Civil Law’ (2016) 1 European Transport Law 3.

56  See Michael J Sandel, What Money Can’t Buy: The Moral Limits of Markets (Farrar, Straus and Giroux 2012).

57  See eg the 2002 Athens Protocol (sea), CVR convention (road) and CIV convention (railway).

58  European Union and European Academies’ Science Advisory Council, Marine Sustainability in an Age of Changing Oceans and Seas, EASAC Policy Report 28, Brussels, January 2016.

59  https://ec.europa.eu/maritimeaffairs/home_en (last accessed July 2017).

61  ibid.

62  http://www.un.org/sustainabledevelopment/sustainable-development-goals/ (last accessed July 2017). Compare to Agenda 21 an UN-Oceans: http://www.unoceans.org/about/en/#c267737 (last accessed July 2017).

63  Peter Singer, Ethics in the Real World (Princeton University Press 2016) 253–56.

64  ibid.

66  ibid.

67  Marko Pavliha, ‘The Significance of Ethics in Legal Education: Towards the Holistic Method’ (2011) (1–2) Slovenian Law Review 115. See also contributions by numerous authors participating at the ‘Roundtable on Legal Ethics in Legal Education: Should it be a Required Course?’ (2011) 14 Legal Ethics 109.