Essay on Ethics in International Maritime Law
Marko Pavliha*
European Transport Law, Vol. XLVII, No.5, 2012, pp. 461-472
This essay is dedicated to
zealous students and graduates
of IMO IMLI, Malta
1. Introduction
Planet Earth is double blue - not only in color 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, dishonesty, discrimination,
greed, hunger, thirst, pollution, climate change and other men-made inventions of decay.
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
*
Professor of Law, Head of Law Department, University of Ljubljana, Faculty of Maritime Studies and
Transportation (Slovenia); Visiting Fellow and Member of the Board of Governors of the IMO International
Maritime Law Institute (Malta); Secretary-General, Comité Maritime International (2003-2004), Minister of
Transport of the Republic of Slovenia (2004); Deputy Speaker of the Slovenian Parliament (2004-2007).
1
Simon Blackburn, Ethics: A Very Short Introduction, Oxford University Press, Oxford 2001, p.1.
2
Ibidem, p. 20.
3
Peter Singer, Practical Ethics, Third Edition, Cambridge University Press, Cambridge, 2001, pp. 1-15.
thinking and behavior. 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.”4
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, 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.
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
4
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, London, 2007.
5
Hans Küng, Handbuch Weltethos: eine Vision und ihre Umsetzung, Piper, München, 2012;
http://www.weltethos.org/index-en.php .
6
Declaration was signed at the Parliament of the World's Religions gathering in 1993 by more than 200 leaders
from about 40 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.
7
Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Ulp. D. 1, 1, 10, 1.
2
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).
M
M+L
L
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.
M
L+M
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
8
It is implied that the readers are familiar at least with the basic historical and philosophical elements of ethics,
from Confucius to Singer, Sandel and many other scholars. Excellent starting point is The New Encyclopædia
Britannica, Volume 18, Macropædia, Encyclopaedia Britannica, Inc., Chicago 1990, pp. 492-521 (Ethics).
9
http://www.imli.org .
10
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, Third Edition, Manchester University Press, Manchester, 1999.
3
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
11
See, e.g. William Tetley, International Maritime and Admiralty Law, International Shipping Publications,
Éditions Yvon Blais, Cowansville, 2002.
12
Article 38 of the Statute of the International Court of Justice. http://www.icjcij.org/documents/index.php?p1=4&p2=2&p3=0 .
13
Marry 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, New York, 2012, pp. 78-98.
14
Article 53 of the Vienna Convention on the Law of Treaties.
15
See the case law cited in O'Connell, supra, note 13, e.g. Barcelona Traction, Light & Power Co. (Belg. v.
Spain), 1970 I.C.J. 3 (February 5) and Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Trial Judgment, ¶ 155
(Int'l Crim. Trib. For the Former Yugoslavia, December 10, 1988).
16
Compare to Bert van Wee, Transport and Ethics: Ethics and the Evaluation of Transport Policies and
Projects, Edward Elgar, Cheltenham, 2011.
4
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
17
Roger P. Alford and James Fallows Tierney, Moral Reasoning in International Law, published in Childress,
supra, note 13, pp. 11-51.
18
Lawrence Kohlberg, Essays on Moral Development, Vo. 2, Harper & Row, New York, 1984.
19
Alford and Tierney, supra, note 17, pp. 25-29.
20
Ibidem, p. 37.
5
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
21
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).
22
Article 300 of UNCLOS.
23
Myron H. Nordquist (Ed.), United Nations Convention on the Law of the Sea 1982 – A Commentary, Volume
V, Martinus Nijhoff Publishers, Dordrecht, 2002, pp. 150-152.
24
Article 2(2) of the UN Charter.
25
Article 26 of the Vienna Convention on the Law of Treaties.
26
Nordquist, supra, note 23, p. 152; Certain German Interests in Polish Upper Silesia (Germany v. Poland),
P.C.I.J., 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 I.C.J.
Reports 99, 118.
27
Article 194 (2) of UNCLOS.
28
For instance, as to the importance of cooperation of the Adriatic states and the role of 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, Malta, 2010, pp. 223-268.
6
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 cooperation 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
29
See Article 3(3) of the Treaty on European Union.
Article 293 (2) of UNCLOS.
31
Professor Attard has been Director of IMO IMLI for many years and he is also Judge at the International
Tribunal for the Law of the Sea (ITLOS) in Hamburg.
32
See Francesca Vella, Interview: Climate: the Common Heritage of Mankind, The Malta Independent Online,
12 January 2009, http://www.independent.com.mt/news.asp?newsitemid=81389 .
33
Article 1 of the UN Charter.
34
Ibidem.
35
Article 33 of the UN Charter.
36
Ibidem.
30
7
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
37
Articles 279 and 280 of UNCLOS.
http://www.imo.org/KnowledgeCentre/HowAndWhereToFindIMOInformation/Pages/AbbreviationsOfIMOCo
nventions.aspx .
39
http://www.uncitral.org/uncitral/uncitral_texts/transport_goods/2008rotterdam_rules.html .
40
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.
41
Article 2 of the Rotterdam Rules.
42
http://www.ilo.org/global/standards/maritime-labour-convention/lang--en/index.htm .
38
8
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
5. Conclusion: The Crucial Importance of Upbringing and Education
It is rather naive to expect lawyers to think and act ethically if they were not brought
up and educated under the umbrella of moral values and virtues. Once they enroll to the
school of law 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 under-graduate legal
studies, accompanied by teaching ethical issues throughout the curriculum and perhaps an
43
Article VIII of MLC. Text of the convention is available at
http://www.mlc2006.com/the_convention/MLC_Maritime_Labour_Convention,_2006_/ .
44
Article III of MLC.
45
Article IV of MLC.
46
See Sections 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
Financiere de la Cite SA v. Westgate Insurance Co. Ltd. [1991] 2 AC 249.
47
See Michael J. Sandel, What money can't buy: the moral limits of markets, Farrar, Straus and Giroux, New
York, 2012.
48
For example, the 2002 Athens Protocol (sea), CVR convention (road) and CIV convention (railway).
9
additional syllabus on ethics in the last year of law school, as well as during post-graduate
studies and training for bar exam.
I have already suggested elsewhere49 that such an approach could serve as a truly
holistic method which would cover a number of issues, such as 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, skillful and moral lawyer would feel and know it which international goals
are of such a planetary and ethical importance they need to be achieved by mandatory rules;
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 and how to be professional, fair, honest and
compassionate at all time. Is it too much to ask?
Hope springs eternal …
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Marko Pavliha, The Significance of Ethics in Legal Education: Towards the Holistic Method, Slovenian Law
Review, Vol. VIII/No. 1-2, December 2011, pp. 115-135. See also the Roundtable on Legal Ethics in Legal
Education: Should it be a Required Course?, Legal Ethics, Volume 14(1), Summer 2011.
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