Imo international Maritime Law Institute

APPENDIX III

Are we going to destroy the civilization, this time not only partially but globally?

Hopefully not, however, it does not look promising. It is therefore urgent to start educating our hearts, not only minds. Ethics shall dominate the third millennium rather than technical development or scientific inventions which should serve all sentient beings and not the other way around.

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 behavior”.¹ 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.²

The words ethics and morality may be used interchangeably. 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 behavior 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 ob subjective taste or opinion, but it rather “points towards the course of action that has the best consequences, on balance, for all affected” (the so called “preference utilitarianism”).³

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

Global ethic has been developed and spread around the world by Hans Küng and his numerous publications and projects.⁵ Drawing on many of the world's religious and spiritual traditions, the Küng’s Declaration on Global Ethic identifies four affirmations being the shared principles essential to global ethic and all people, religious and atheists, namely (i) commitment to a culture of non-violence and respect for life, (ii) solidarity and a just economic order, (iii) tolerance and a life of truthfulness and (iv) equal rights and partnership between men and women.⁶

To describe it differently, one shall treat others as he would like to be treated by them (positive form of the 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 years before Christ 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 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”.⁷
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, 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 behavior which is not considered immoral (for example, 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).

The ideal relation between morality and law can be pictured by two concentric circles where the smaller one (L) represents illegal and immoral behavior (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.

The purpose of this article is to initiate a thorough research on the role of ethics, morality and global ethic in a very specific legal field of international maritime law, offering perhaps one of the first steps towards a new paradigm. It deals, firstly, with general ethical flavor of international law, underlining a few examples of moral standards in the law of the sea and maritime law. Secondly, it suggests how to improve legal education with an obligatory course on legal ethics.⁸

It is submitted that the expression “international maritime law” should be understood broadly as inspired by the IMO International Maritime Law Institute (IMO IMLI),⁹ 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 issues such us 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,¹⁰ and the second includes topics like contracts of carriage of goods and passengers, towage, collision, limitation of shipowners’ liability, salvage, general average and marine insurance.¹¹

Both legal fields are interconnected and demand a holistic approach.
2. Ethical Flavor of International Law
It is well known that international law receives its legal substance from the following sources: (i) general or particular international conventions, establishing rules expressly recognized by the participating states; (ii) international customs, as evidence of a general practice accepted as law; (iii) the general principles of law recognized by civilized nations and (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.¹² What is often neglected, though, 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.

O’Connell asserts that the highest ethical norms of international law are mandatory and imperative at all times, such as the prohibitions on aggression, genocide, slavery, arbitrary killing, apartheid, torture and massive pollution of the environment.¹³ 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.”¹⁴ The identification of jus cogens is predominantly a matter for courts and judges.¹⁵

For better understanding of ethical core of international law it is perhaps helpful to imagine a practical case where an international community represented by the International Maritime Organization 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. 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 evaluations¹⁶ 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 which is socially blind and self-sufficient, turning its deaf ears to dying people who can survive only by stilling and robbing? What would be the ethical purpose of the international treaty in question? Which rules should be mandatory because of their ethical importance? What would be the ethical motives of the states and their representatives to abide by such a convention?

Alford and Tierny 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.¹⁷ They draw on the writings of Lawrence Kohlberg¹⁸ to explore the cognitive process of choosing between different interests, values, norms and claims.

According do Kohlberg, first, “the preconventional reasoning” involves egocentrism without concern of social norms. The law is obeyed to avoid punishment and to maximize self-interest. Second, “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. Third, “the postconventional reasoning” is based on the vision 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.¹⁹

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 toward an ideal universal order and support the highest moral principles such as the right to life and safe and free navigation.²⁰

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 of everybody’s life literally from birth do death, from the cradle to the coffin, involving parents, kindergartens, schools, universities, civil society, commercial companies and public authorities. The law faculties should contribute much more in this regard.
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, legal and political systems of the world. The codification and progressive development of the law of the sea was finally achieved in the highest 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 162 states - 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.²¹

Legal text of the convention is woven by many ethical standards, including the maximum 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 fulfill 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.²² 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”.²³

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 fulfill in good faith the obligations assumed by them in accordance with the present Charter.”²⁴ 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.²⁵

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 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.²⁶

It is not too difficult to notice the beam of the Golden Rule in the ancient behavioral 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 cause damage by pollution to other States and their environment” - sic utere tuo ut alienum non laedas.²⁷ 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 cooperate²⁸ and improve²⁹ 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.³⁰

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, which declares the moon and its natural resources to be the common heritage of mankind; 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 that now appears in Article 136 of the UNCLOS. This 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.³¹ 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 humans) climate change, however, the international law was incapable of dealing with ecological threats to the planet. As the role of international law, in his strong believe, is to regulate international life and protect humankind, not only against armed conflict and aggression, but also against growing environmental threats, he reacted proactively and his proposal led to the 1992 UN Convention on the Protection of Global Climate.³²

The far most important ethical, political and legal purpose of the United Nations is to maintain international peace and security, and to that end “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”.³³ Furthermore, 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”.³⁴

Pacific settlement of disputes shall be therefore treated preciously as the mother 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.”³⁵ When it deems necessary, the Security Council shall call upon the parties to settle their dispute by such means.³⁶

Obligation to settle disputes by peaceful means is also provided by UNCLOS³⁷ and is found in most “private” international maritime law conventions. This is especially significant if not fatal in light of the increasing tension between China and Japan regarding the uninhabited Senkaku (Diaoyu) Islands in East China Sea because of the potential oil reserves. Similarly, the Paracel Island in South China Sea are disputed by China, Vietnam and Taiwan and the Spratly Islands by Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam. Let us all hope for an amicable solution.
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 International Maritime Organization which is now shining from various conventions including the International Convention on the Control of Harmful Anti-Fouling Systems (2001), International Convention on Civil Liability for Bunker Oil Pollution Damage (2001), International Convention for the Control and Management of Ships' Ballast Water and Sediments (2004), Nairobi International Convention on the Removal of Wrecks (2007)  and 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, 1996.³⁸ Unfortunately, too many 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 put it expressly that the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules of 2008)³⁹ 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”.⁴⁰ From 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 in its application and the observance of good faith in international trade”.⁴¹ The Rules are composed of a number of minimum liability provisions, codifying jus cogens and therefore embodying moral and ethical standards.

Next example of symbiosis of ethics and law is the Maritime Labor Convention (MLC) which was adopted in 2006 under the umbrella of the International Labor Organization (ILO)⁴² 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 70 existing conventions and regulations and benefitting shipowners with a clear, consistent set of standards with which all must comply. The ILO has recently received the 30th ratification meaning that the MLC will enter into force on 20 August 2013, i.e. 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 thirty-three per cent.⁴³

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 labor and the elimination of discrimination in respect of employment and occupation.⁴⁴ 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.⁴⁵

The sad fact is that for the time being only 15 per cent of the world has ratified such an important convention. Can we call that ethical?

Another illustration of the legal-ethical twins is one of the oldest sets of unique maritime rules named marine insurance which has been colored 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.⁴⁶

Last but not least, the shipowners and other carriers have been historically entitled to limit their liability per package or unit of damaged, lost or delayed cargo. Even more, such a privilege also exists in the case of injured or dead passengers during the carriage which is, in my humble opinion, not ethically acceptable anymore, 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. 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”⁴⁷ and make proper amendments to the existing transport treaties.⁴⁸