choosing ethical theories and principles and applying them to the
TRANSCRIPT
International Journal of Transdisciplinary Research Vol. 5, No. 1, 2010
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CHOOSING ETHICAL THEORIES AND PRINCIPLES
AND APPLYING THEM TO THE QUESTION: ‘SHOULD
THE SEAS BE OWNED?’
Robert Howell
Council for Socially Responsible Investment
25 Kowhai Street
Kingsland, Auckland 1024
NEW ZEALAND
Tel.: +64-9-6236253
E-mail: [email protected]
Abstract
Grimond claims that the serious threat to the health of the oceans is best remedied
through ownership, and if that is not possible, regulation. This paper disagrees: what
is important is the relationship between humans and the ecological systems on which
we depend for survival and health. Changing this relationship to give humans a
chance to survive means discarding the Lockean right to property imbedded in
Western and Western-derived laws and constitutions, and codes such as the United
Nations Declaration of Human Rights. There are no ecological rights that guarantee
human right to life, liberty, health or property. To choose other ethical principles
means examining theories about the ability of key concepts to adequately generate the
moral responsibilities contained in schema such as constitutions and codes, and moral
discourse used in human-human and human-Earth relationships. Notions of respect,
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integrity, or intrinsic value, need to be incorporated into the prescriptions about the
use of the seas. These notions must lead to descriptions of obligations usually
captured by the terms ‘stewardship’, ‘guardianship’, ‘trusteeship’ or ‘fiduciary’, but
applied to the environment. This does not mean that there is no place for human
ownership of the oceans, but it needs to be within this wider constitutional and
regulatory context at local, national and global levels. Otherwise, the continued rape
and pillage of the oceans will continue, and the chances of human survival will
continue to diminish.
Key Words: Property, Lockean rights, Ethics, Nature, Respect.
I. Purpose
Grimond describes the depletion of life and degradation of the sea, and states that
humans must change their ways: the possibility of catastrophe is simply too great. He
argues that the tragedy of the sea is the tragedy of the commons, which is that anyone
with access to a common resource has an interest in exploiting it because if he or she
does not, someone else will.
“[A]bsence of ownership does not make for good management. The sea
needs owners, and where that is impossible it needs international
agreements for regulation, management and policing” (Grimond, 2009).
This paper disagrees with that conclusion. But in order to provide reasons and
alternative principles for sustainable resource use, it is necessary, first, to describe the
methodology for choosing ethical principles. Second, the current ethical principles
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underpinning the right to property ownership will be described and evaluated, and
alternatives outlined. Third, these principles will be used to assess policies advanced
by Barnes, advocates for the commons, the Georgists, and proponents of the rules of
the Ecuadorean constitution. In the fourth section of the paper, the foregoing analysis
is used to show that Grimond’s recommendation of ownership of the sea is not the
most important basic principle: it should be the caring, respectful relationship that
humans should have towards nature.
II. Methodology for Choosing Ethical Principles
Ethical theories aim to describe the meanings of moral language in everyday
discourse, and the schema in moral standards or sets of rules. Theories can also aim
to advocate for different understandings about how to behave where there are
contradictions between different discourse and behaviour, and between different
schema. (The Utilitarians, for example, were reformers in regard to such attitudes and
behaviour towards animals.) Everyday discourse includes words such as “right”,
“ought”, “duty”, “obligations”. Schema describe standards or sets of rules enshrined
in professional rules; organisational charters; national constitutions; policies; codes of
conduct; creeds and doctrines; and cultural customs through myths, stories, and
traditions. These sets of customs and rules are attempts to give system, clarity, and
intellectual power to everyday moral activity and discourse, but rely on certain
primary moral concepts or principles. Theories examine these concepts or principles.
Schema are to be distinguished from ethical theories: the latter identify and discuss
such concepts used in schema and everyday discourse. Ethical theories use a concept
or set of concepts to describe and explain schema and moral language.
Traditional ethical theorists or theories (such as Aristotle, Kant, and
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Utilitarianism), primarily focus on human-human relations. Kant relied on the notion
of duty, the Utilitarians on the concept of happiness or utility, and Rawls and the
Intergovernmental Panel on Climate Change on the idea of equity (Howell, 2009).
Aristotelians use a set of concepts coordinated by eudemonia (Aristotle, 1948; Kraut,
2007). The limitations of these theories regarding the human-Earth relationship has
been dealt with elsewhere (Howell, 2008). Although the right to own property has a
long history, it received prominence in the history of thought with the social contract
tradition, and particularly, Locke. The notion of the right of individual ownership and
Locke’s influence was immense: the notion of rights influenced the French revolution
and the United States Declaration of Independence. The Universal Declaration of
Human Rights (1948) states that everyone has the right to life, liberty and security of
person (Article 3); the right to own property (Article 17); and the right to health and
well-being (Article 25).
In The Second Treatise of Government Locke develops his account of natural
rights and the social contract (Locke 2003). Natural rights are those rights which we
are supposed to have as human beings before government comes into being. Locke
argues that we have a right to the means to survive. If one takes survival as the end,
then the means necessary to that end are life, liberty, health and property. Since the
end is set by God, on Locke's view we have a right to the means to that end. These
are natural rights, that is, they are rights that we have in a state of nature before the
introduction of civil government, and all people have these rights equally. When
Locke comes to explain how government comes into being, he uses the idea that
people agree that their condition in the state of nature is unsatisfactory, and so agree
to transfer some of their rights to a central government, while retaining others. This is
the theory of the social contract (Locke, 2003; Tuckness, 2005).
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In discussing the origin of private property Locke begins by noting that God
gave the Earth to all men in common. He points out, however, that we are supposed to
make use of the Earth ”for the best advantage of life and convenience”. In 1661
England passed the Enclosure Laws, which are the legal basis for property law in the
Anglo-American tradition. A person could own land in England only through buying
it from a previous owner. Land could not be just claimed. This contrasted with
America, where land was seen to be unowned (Scherer, 2003). Locke claimed that
owned land in America could be owned when someone had invested one’s labour:
with an agriculturalist’s investment in the land went an agriculturalist’s claim to
ownership. The large portion of the value of land was developed by cultivation by
agriculturalists. According to Locke, private property is created when a person mixes
his labour with the raw materials of nature. When one tills a piece of land in nature,
and makes it into a piece of farmland, which produces food, then one has a claim to
own that piece of land and the food produced upon it. The only limitation (the
Lockean Proviso) was that though individuals have a right to acquire private property
from nature, that they must leave "enough and as good in common ... to others"
(Tuckness, 2005; Friend, 2008).
Lockean rights are out of touch with current reality in several ways. They are
based on only a primitive understanding of the development of human communities
and societies, and on a religious framework that is inappropriate today. Natural rights
based on a pre-government state do not exist. Rights based on religious premises are
not relevant for a modern society that separates religion from politics, and tolerates
secular beliefs and diverse religions. Rawls in his modern use of the social contract
tradition with the development of his theory of justice does not use the notion of
natural rights (Rawls, 1973). Further, in an ecological sense, there is no inherent right
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that gives humans the right to life. Hence, if the current trend towards ecological
collapse continues, the human race has no inherent right to survive and will not do so.
It is conceivable that another human form could evolve in some other distant part of
the universe, but there are no ecological rights to human species survival.
One of the weaknesses of the Lockean approach is its emphasis on individual
ownership, and not acknowledging the place of public and communal ownership.
Development of an understanding of the place of public and communal ownership
should include a discussion of the tragedy of the commons story, the arguments of
Peter Barnes for the use of trusts, and Georgist economics. A further limitation of
Locke’s work is the absence of responsibilities of a human-Earth relationship. A
modern example using rights is Ecuador, which has recently amended its constitution
to include rights of nature, and part of that involves promoting respect towards all
elements that form an ecosystem. But communal or public ownership of property
does not necessarily deal with the limitations of the notion of human ownership of
natural resources. At a more fundamental level, the concept of ownership needs to be
rethought: ownership by itself will not achieve a non-exploitative management if land
and resources generally are seen in instrumental terms (being of value for human
purposes only).
None of the traditional ethical theories give adequate consideration to the
human-Earth relationship. But the concept of nature is ambiguous: at times nature
includes humans and other times it does not. In the literature, the human-Earth
relationship includes humans as part of the Earth, as well as separate from it.
Worster in Nature’s Economy describes and evaluates various streams of thought
which depict the development of nature’s economy and the science of ecology during
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the last few centuries. He classifies, broadly, two streams: the imperial tradition and
the arcadian stance. The former is where nature is a storehouse of raw materials for
man’s use, and man dominates over nature. An example of someone taking this
position is Linnaeus, who aimed to establish by reason and hard work, human
dominion of nature.
The second stream is where man seeks to establish a harmony between man
and nature, although there are many nuances within this tradition. Worster includes
White, Thoreau, Darwin, Clements, and Tansley. Gilbert White believed in seeking a
peaceful co-existence with nature. Thoreau is called a romantic ecologist, seeking
human accommodation to the natural order. Darwin’s contribution is the lesson of
the Galapagos, that no single or individual species can hold a particular place in the
economy of nature forever. The dispute between Clements and Tansley is
illuminating for our purposes. Clements developed the idea of the climax theory of
vegetation, where the natural landscape must eventually reach a vaguely final climax
stage. Clements said that the California dust bowl experience was where humans
tried to work against this. Tansley said that Clements looked to primitive nature as a
pure state. Tansley said that this was not relevant in Great Britain, where nature and
civilization can co-exist. The notion of nature in this narrative is ambiguous.
Sometimes humans are separate from nature, even in the arcadian stream (humans
must seek a peaceful co-existence, an accommodation with nature). In other
treatments humans are part of the natural order, as with Darwin. It is not clear how
Tansley uses the term.
The ethical theorist faces a choice between a concept or set of concepts that
cover human-human and human-Earth matters, or a concept or set of concepts for the
human-human matters, and another concept or set of concepts for the human-Earth
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issues. In deciding whether the choice and the subsequent theoretical description and
explanation are adequate, one needs to assess the potency of the notion or notions to
be able to include all the responsibilities and obligations that are necessary for
behaviours, relationships, attitudes and qualities that we normally call, or would want
to call, moral or ethical. An example of the first choice could be respect for both
nature and humans. Also the notion of integrity could be chosen, which could include
ecological integrity as well as the health and resilience of human societies (Leopold,
2003; Brown et al, 2009). An example of the second option could be ecological
integrity covering the human-Earth relationship, and another term, such as respect or
reverence or equity, covering the human-human relationship.
For instance, the mission of the International Union for the Conservation of
Nature is to influence, encourage and assist societies to conserve the integrity and
diversity of nature and ensure any use of natural resources is equitable and
ecologically sustainable (International Union for the Conservation of Nature, 2008).
As another example, the Earth Charter Initiative’s mission is to promote the transition
to sustainable ways of living and a global society founded on a shared ethical
framework that includes respect and care for the community of life, ecological
integrity, universal human rights, respect for diversity, economic justice, democracy,
and a culture of peace (Earth Charter Initiative, 2009). Both of these codes use more
than one notion (integrity and equity; respect, integrity, rights, justice) to cover both
human-human and human-Earth relationships. Ecuador’s new constitution included a
section giving Nature or Pachamama, where life is reproduced and exists, the right to
exist, persist, maintain and regenerate its vital cycles, structure, functions and its
processes in evolution. Article 3 states that the State will motivate natural and
juridical persons as well as collectives to protect nature; it will promote respect
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towards all the elements that form an ecosystem (Community Environmental Legal
Defense Fund, 2008). The constitution uses the notion of respect to deal with the
human-Earth relationship.
It is conceivable that a society could have a sound human-Earth relationship,
such as ecological integrity, but an unacceptable human-human ethic. A dictatorship
or an inhumane society could have a human-Earth relationship that meets criteria for
ecological integrity. A society built on slaves may have an acceptable human-Earth
relationship, but an unacceptable human-human ethic. A society with an ethic of
survival of the fittest, a political realist approach, could develop a human-Earth
relationship that is sustainable. Such an approach could see wide spread poverty and
death as a natural consequence of evolutionary processes bringing specie
overpopulation back into some balance.
III. Discussion of the Options for Ethical Principles
There are at least three candidates for an ethical principle, or a necessary concept in a
set of ethical principles that includes a human-human and human-Earth perspective:
respect; intrinsic value; integrity (including ecological integrity). Are these concepts
rich enough to cover what would be included as ethical in the human-human and
human-Earth dimensions? To test these concepts requires consideration of personal,
community, organizational, and environmental matters.
Consideration of personal relationships and responsibilities involves the
generation of rules or precepts against such things as murder, theft, physical assault,
bribery, lying, but also to include parental obligations for children, and children’s
responsibilities for care of elders. The three concepts cover these responsibilities.
This is because if someone murders, steals, assaults someone else, they are not
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respecting them and they are not valued intrinsically or with integrity. (Integrity
means the state of being whole, entire, or undiminished, as well as truthful and honest,
and includes ecological integrity where the Earth is valued intrinsically, and not for
utility or ownership for human use.) These three concepts may not cover some of the
Aristotelian virtues: kind, generous, brave or heroic actions. While a comprehensive
ethical theory should be able to include these qualities, they are not critical to an
ethical theory concerned with establishing a proper human-Earth relationship, and
will not be dealt with further here.
Communities provide people with the means for social and group
participation. In addition to government and privately owned resources, there are
facilities and services for work, cultural, recreational, family and spiritual activities,
provided by many forms of communal ownership such as trusts, and non-profit
organisations. Bachman states that the values of community necessary for surviving
peak oil and climate change include cooperation, moderation, frugality, charity,
mutual aid, confidence, trust, courtesy, integrity and loyalty (Bachman, 2008), and
these can be accepted for the purpose of testing the three concepts. The notion of
respect can incorporate most of these: if some one is not cooperative, moderate,
frugal, charitable and so on, then they are not respectful. Respect may have to be
stretched to include ‘confidence’, but that is not fatal. The notions of intrinsic value
and integrity will also involve such community values. If one is not cooperative,
moderate, frugal in the sense of being economical, charitable, and so on then one is
not acting with integrity or valuing the community intrinsically.
In addition to the personal and community virtues, can the concept of respect
apply to the obligations and responsibilities of companies, government and
government agencies, and non-profit organisations? Respect should include rules for
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public information, organisational transparency, and accountability. Organisations
cannot be respected others if they do not show that their trust for the right use of
resources is justified. They cannot act with integrity if they are not transparent and
accountable. There needs to be an appreciation that a moral organisation is more than
just of utility to individuals. Can respect deal with the need to bring organisations
and groups to account, to enforce rules and regulations and punish offenders? It
should do because to have high regard for someone but behave badly towards them is
not being respectful, acting with integrity, or valuing them intrinsically, and public
notification of the offence and some form of retribution can be justified (although
what kind of punishment is necessary to stop the behaviour can be debated).
What about the financial reward systems that give excessive amounts to senior
executives in companies? Senior executives cannot respect others, or be respected,
when they receive such payments, especially when these do not benefit (and usually
disadvantage) other stakeholders. They cannot be considered as having acted with
integrity or to have valued others intrinsically. Rawls proposes the Difference
Principle to argue on the grounds of fairness that inequalities are justified only when
such inequalities raise the level of the least well off (Rawls 1971). If this principle
were rigorously applied today, very few pay differentials would be justified, It is
debatable whether the three notions can generate a similar principle to Rawls’, which
would indicate that the three principles are not sufficient to fully cover the range of
behaviour that is included in the notions of fairness, equity or justice. They are able to
deal with the extreme excesses, but not necessarily the not so extreme differences that
the notion of equity or fairness would catch.
Can the three concepts have the richness to assess the moral worth of the
laissez faire economic system that can lead to oligarchial and monopolistic structures
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and wide disparities of rich and poor? Beneficiaries of such an economic system,
knowing (and if they do not know, they should) that such impacts will or do result in
large differences in benefits, cannot be deemed to respect people, treat them with
integrity, or value them intrinsically. The three notions can be used to reject such an
economic system. Similar arguments can be used to reject a shareholder notion of the
firm, rather than a stakeholder understanding of the obligations of organisations.
If humans are to esteem and have high regard for the environment, then it
follows that their behaviour should enable nature not to die, but to flourish. The
behaviour of Chevron in Ecuador, that led the Ecuadoreans to revise their
constitution, is behaviour that does not respect the plants and animal life (including
fish, birds, insects and humans) and the ecology generally. The Chevron example is
one of disrespect (Community Environmental Legal Defense Fund, 2008; Taylor,
2003). It is also where nature is treated solely for human utility, and not valued
intrinsically (Rolston III 2003). Nor does it show ecological integrity (Westra, L., K.
Bosselmann, and R. Westra, Eds, 2008). Each of the three concepts is able to
generate the ethical human behaviour necessary for an adequate human-Earth
relationship, because they all involve recognition of the need for human life to be part
of the biosphere.
How can humans have respect for life that is essential to human life? How
can humans treat with integrity, and value intrinsically, vegetables necessary for food,
and trees that provide shelter? Eating food is necessary for survival and an integral
part of nature. How can one be disrespectful of a cabbage? There is a distinction to
be made between the individual and a species. Respect for species means valuing it
intrinsically and with integrity and the ecology essential for species survival, health
and resilience. Actions taken to preserve the continued existence of a species is not
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incompatible with eating a particular member of that species. Humans need to eat to
survive and over the centuries have domesticated and cultivated plants for human use.
Nature has been controlled for human benefit. As long as the ecology is respected, do
we need to value intrinsically the individual vegetable we eat, and the particular tree
we cut down for our houses and tools? Acting with integrity towards the particular
item necessary for our nourishment is not inconsistent with the death of the particular
plant or animal. For instance, a number of religions and indigenous cultures have
rituals and prayers where food (both animal and vegetable) is thanked and
acknowledged to show and encourage human respect.
Valuing a species means giving its existence and health priority over other
options that threaten its life and resilience. It means not proceeding with, stopping or
reversing the changes to an ecology (where that is possible) that will lead to such a
result. Sometimes it may mean transferring an endangered species to other locations
such as island sanctuaries for birds (Department of Conservation, 2009). It may be
argued that the concept of evolution means that species will evolve and some
disappear for that is the natural order of an evolving universe. To give value to all
species so that humans have a moral obligation to protect them regardless of
evolution, is to be unrealistic about the nature of the evolving world. However, it
can be countered that the option (on evolutionary arguments) of choosing or allowing
which species may or may not co-exist with the current economic and ethical systems
that we have chosen to exploit the oceans, is now hypothetical. The threat to the
oceans has reached a stage where such major change is predicted to ocean systems
and species, that they will no longer be able to support human life, except perhaps in
minimal numbers and very reduced and miserable circumstances.
If we classify the human species as an endangered one, then it is morally
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obligatory to protect the ecological systems that give humans life and health. But the
UN Declaration of Human Rights does not talk about human species, rather it refers
to individual humans. Should respect for nature mean that we have to also value the
individuals within each species? But does this mean that when species populations
grow beyond the limits of food supplies, we have a moral obligation to respect each
individual as well as the species? Clearly this is impossible to expect, and this
principle must include the human species. So, it is unrealistic to have an unchecked
human population growth with the expectation that there should be a moral obligation
to respect (and preserve) each individual human regardless of the food capacity of the
world.
Is there a distinction to be made between plants and animals? Does respect
require that humans should be vegetarians? Animals are different from plants in that
they experience pain, and many are able to play, work and engage with others
(Haraway, 2006). There have been arguments against the cattle industry on grounds of
inefficiency and cruelty (Rifkin, 1993). Does that mean as long as animals are bred
and killed humanely, then it is acceptable to eat meat? An argument for
vegetarianism is that it is a much more efficient to use land and water to grow plants
rather than animals (Porrit, 2006; Kirby, 2004). However, there are land soils and
conditions where animals are more suitable for cultivation than plants. Not all non-
human animals are vegetarian. If it is accepted that humans can respect plants even
though they eat them, then it should also be accepted that there are scenarios where
humans can respect animals and eat them. However, this may mean that eating meat
takes less prominence in one’s diet for more pragmatic and strategic reasons.
If there is respect for the Earth (including the oceans), then humans have a
stewardship responsibility to protect the ecology. Stewards are people who are given
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responsibilities for particular duties, or care of items that they do not own. An
example is where house stewards in medieval times were responsible for bringing
food and drink into a castle dining hall. They did not own the food or drink but had
to look after it prior to and during its transportation. Another term that can be
considered is ‘guardian’. A legal guardian is a person who has the legal authority and
duty to care for the personal and property interests of another person, often called ‘a
ward’. Parents are guardians of their children: they do not own them, but have
obligations and responsibilities towards their care and upbringing. Although the term
‘guardian’ is usually used in the case of the care of another human, Guardians of Lake
Manapouri are given responsibilities for the oversight and care of the lake (Save
Manapouri Campaign, 2009; Mark, 2001). Barnes does not like the notion of
stewardship, saying that the obligations for care of an asset under stewardship are
voluntary and vague; he prefers the concept of trustee. A fiduciary is someone who
has undertaken to act for and on behalf of another in a particular matter in
circumstances that give rise to a relationship of trust and confidence. But Barnes
overlooks the fact that tasks within a work context can be specific, and hence the
notion of stewardship is applicable. However, whatever term is chosen in the context
of human responsibility for the impact of human behaviour on nature, (steward,
guardian, trustee, fiduciary), it is important to have clear details of responsibilities and
obligations so that the current destruction of the planet does not continue.
The rights of nature promoted by Ecuador are a worthwhile initiative to use
existing legal and constitutional frameworks to counter the abuse of nature by human
individuals and corporations. The state, through Article 3 of the constitution, has a
responsibility to motivate people to respect nature. However, the issue is whether or
not this right has enough legal authority to counter human property and other rights.
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It needs to be noted that these are legal, not natural or moral rights, and are therefore
not relying on the Lockean natural rights framework. Nussbaum has written about the
limitations of the social contract framework:
‘More deeply, we may need to call into question the whole idea of a social
contract for mutual advantage as a way of thinking about choosing basic
political principles. It simply cannot sufficiently express the dignity of those
who give and receive care. Instead of a Kantian image of people, which
stresses rationality and reciprocity, we may need to move more to an
Aristotelian image, which sees dignity and need as subtly intertwined.
Instead of picturing one another as rough equals making a bargain, we may
be better off thinking of one another as people with varying degrees of
capacity and disability, in a variety of different relationships of
interdependency with one another’ (Nussbaum, 2001).
While the Ecuadorean initiative is commendable, ‘respect’ can only be
justified if it generates the obligations for community behaviour and attitudes
captured by such terms identified by Bachman above, and for the range of
interdependencies mentioned by Nussbaum.
The three notions of respect, intrinsic value, and integrity, meet the majority of
our criteria regarding the question of including all the responsibilities and obligations
that are necessary for behaviours, relationships, attitudes and qualities that we
normally call, or would want to call, moral or ethical. In regard to the notion of
‘fairness or equity’, certainly as argued by Rawls, the differential reward systems
cannot be justified, but Rawls does not adequately deal with ecological matters. It is
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questionable if ‘equity’ also covers Bachman’s community values and Nussbaum’s
interdependencies. It is argued elsewhere that, in regard to climate change, equity
cannot be the sole or main moral criteria, because the time has past where poor and
developing countries can be left out of calculations for emission reductions: they must
be treated unfairly (Howell, 2009). This means that while terms such as ‘respect’,
intrinsic value’, ‘integrity’ can be used as core concepts for describing the moral
obligations necessary for adequate human-human and human-Earth relationships, they
are not individually both necessary and sufficient; they need to be supplemented by
other terms. These would include ‘equity’ to cover the poor-rich divide.
IV. Application to the Question of Ownership of the Seas
If the notions of respect, intrinsic value, or integrity, have the potency to lead to
descriptions of the moral obligations of humans towards nature, that protect the life
and health of ecological systems, what are the implications for ownership of
resources, such as the sea? In the discussion above about stewardship, it is not
ownership but the exercise of care that is important: ownership is not critical to the
proper care of nature. In fact ownership has often been associated with domination of
nature, and the reckless disregard of obligations to protect species. The problem with
current property rights in the neoclassical economic model is that the model adopts
Utilitarian principles and values nature in instrumental terms for human utility.
Utilitarianism states that an action is right when its outcome produces the maximum
utility or happiness (Brink, 2007; Frankena 1942).
It is short term in approach and primarily ignores ecological integrity. The
current market approach allows speculative activity where assets are valued and sold
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in terms of profits able to be made, often at the expense of the environment. This has
been the pattern of the use of the land resource. It is hard to see how the ownership of
the seabed and resources within the sea as claimed by Grimond, is going to provide
long term sustainability and ecological integrity when ownership within the current
neoclassical economic system has failed to protect the integrity of land. If ownership
is to have any chance of rescuing oceans, it needs to be placed within a system that
has different scientific and ethical principles from the neoclassical economic model
and the Lockean-derived concepts of property ownership (Howell, 2008; Howell
2009).
At the heart of a different model needs to be the notion of respect or intrinsic
value or integrity, incorporating stewardship, guardianship, trusteeship or fiduciary
duties in the human-Earth relationship. These notions describe obligations that entail
different behaviour that is not just concerned about the longer-term perspective (a
quantitative consideration) but a difference in the human-Earth relationship (a
qualitative factor).
The introduction of a market economy and private property generally means a
deterioration of common-pool resources and communities (Dolak, N et al 2003). In
1967, Pardo asked the United Nations to establish international regulations to ensure
peace at sea, to prevent further pollution and to protect ocean resources. He proposed
that the seabed constitutes part of the "common heritage of mankind" and asked that
some of the sea’s wealth be used to bankroll a fund that would help close the gap
between rich and poor nations. It was Pardo who initiated the fifteen-year process that
would culminate in 1982, when the Convention on the Law of the Sea was opened for
signatures. He continued a dedicated effort to promote the issue, but was unhappy
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with the final instrument's provision for an Exclusive Economic Zone, lamenting that
the common heritage of mankind had been whittled down to "a few fish and a little
seaweed” (Centre for War/Peace Studies, 1999/2000). Although Pardo sought to
prevent pollution and protect ocean resources, the underlying values are of their utility
to humans. The International Seabed Authority has responsibility for organizing and
controlling all mineral-related activities in international waters, but both national and
international authorities can permit exploitation of resources using a neo-classical
economic model and a Lockean notion of property ownership. So Pardo’s proposals
do not necessarily conform to the principles of respect, intrinsic value, or integrity.
Barnes offers a solution to the tragedy of the commons: protect it by giving it
property rights and strong institutional managers (Barnes, 2006). He observes that a
third of the land in the United States is government owned. But government agencies
charged with the responsibility of protecting the commons have been captured by
commercial operators. Barnes proposes the commons trust. This is a market-based
entity with the power to limit use of scarce commons, charge rent, and pay dividends
to everyone. Barnes quotes examples such as the Alaska Permanent Fund, The
Tennessee Valley Authority, Marin Agricultural Land Trust, and Pacific Forest Trust.
The trusts he envisages have fiduciary responsibility to act for beneficiaries with
mandatory obligations. They act with long time horizons and legal responsibility to
future generations.
The term "Georgist philosophy" refers to the economic analysis and social
philosophy advanced by the North American economist Henry George in the
nineteenth century (Council of Georgist Organizations, 2009; Gaffney et al 1994;
Georgism 2009). The Georgist philosophy advocates equal rights for all. It affirms a
universal right for all to share in the gifts and opportunities provided by nature.
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George was struck by the widespread poverty of his time that he believed was
significantly caused by the unfair ownership of property. He proposed the public
appropriation of land rent. He proposed that the only tax should be a land tax, and
his proposal became known as The Single Tax. (The notion of a single tax goes back
to the French Physiocrats, particularly Mirabeau (Physiocrats 2009), and also Ricardo
and Mill (Hooper 2008).) The proposal is actually a user fee or payment to society
for the use of land whose value is determined by the market. It is not an arbitrary levy
upon labour, as is the case with most taxes. George argued that his proposals would
remove the disastrous tendency for valuable sites to be held out of use. More land
would become available, lowering rents and prices, allowing producers to keep more
of what they produce. Relying on land rents to finance public services would free
labour and capital from taxation. Hong Kong is perhaps the best example today of a
successful implementation of a high land value tax (Council of Georgist
Organizations, 2009).
Hardin popularised the story of the tragedy of the commons, using the
metaphor of a pasture open to common use by herdsman (Hardin, 1968). At an
individual level, a herdsman will continue to add another animal to his herd, without
taking into account the overall effect on the health of the common resource. The
moral taken from this parable in the neoclassical economic tradition is that individual
ownership is necessary if the commons is to be protected. As a result of the interest
generated by Hardin’s article an International Association for the Study of the
Commons was established devoted to understanding and improving institutions for
the management of resources that are (or could be) held or used collectively. A recent
review of this research
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“has shown that Hardin’s conclusion that centralized government or
private solutions must be imposed on harvesters is not the only solution to
the dilemma that Hardin identified. Many alternative forms of property
have repeatedly been found to work effectively when well matched to the
attributes of the resource and the harvesters themselves, and when the
resulting rules are enforced, considered legitimate, and generate long-
term patterns of reciprocity. Cumulatively, we now provide an
acknowledged and large set of viable alternatives to these appealingly
simple but often faulty policy prescriptions. In spite of Hardin’s persistent
metaphor, today many people, ranging from policy makers, donors,
practitioners, and citizen activists, to scientists from different disciplines,
have begun to appreciate that there is a world of nuances between the
State and the Market” (Laerhoven and Ostrom 2007).
Barnes, the Georgists, and researchers of the commons assert that ownership is
acceptable: humans have a right to own and use resources for their benefit. Barnes,
the commons’ researchers, and the Georgists state that the problem is that the use is
not done fairly: the benefits are to select groups within current society rather than all
humans within that society, and future generations are ignored. If all humans are to be
considered, then the human use of resources needs to be rethought. There is still the
assumption that humans have rights in regard to property ownership, except that this
time the ownership is to include public and communal ownership; benefits are to be
extended to all current humans and future generations; and the commons are to be
protected and preserved for human use. Some Georgists claim that land value taxation
provides a "green tax shift" that promotes conservation of natural resources and
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encourages sustainable economic development (Council of Georgist Organizations,
2009). But both Barnes and the Georgists have not addressed the matter of an
overpopulated human world and the need to have an upper limit to use of resources.
In identifying how an human-Earth relationship based on respect, intrinsic
value or intregrity, is to be established, human societies may well allocate individual
humans (or organisations) care or responsibility of individual portions of a resource
(example: fish quotas) through ownership. There is evidence from New Zealand
(Yandle and Dewees 2003) and Iceland (Eythorsson 2003) that fish stocks under a
Quota Management System can improve but at the loss of equity between
stakeholders. Local small fishers, staff and the fishing community tend to be
disadvantaged. But owning is not the important characteristic: it is instead the caring,
respectful relationship. Minerals on the seabed are not like fish stocks that are
renewable, and need to be dealt with as recommended by the Natural Step (The
Natural Step, 2009). Daly stated that humans should not use natural resources faster
than they can be replenished by the planet, and not deposit wastes faster than they can
be absorbed (Daly, 2008).
In July 7, 2008, Ecuador adopted a new constitution that included a section
giving Nature or Pachamama, where life is reproduced and exists, the right to exist,
persist, maintain and regenerate its vital cycles, structure, functions and its processes
in evolution. Every person, people, community or nationality will be able to demand
the recognitions of rights for nature before the public agencies. Nature has a right to
integral integration and restoration, and these are the responsibility of the State
(Community Environmental Legal Defense Fund, 2008). The Ecuadorean initiative
does not deny human right to own property, but weighs human right to property with
nature’s right to integral integration and restoration. It has yet to be established how
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human property rights are to be weighed over rights of nature.
Human respect for nature recognises that humans are part of a natural system.
It describes the responsibilities that humans should have towards the Earth if human
life is to continue and flourish. Respect can cover the concerns of Leopold (who
stated that a thing is right when it tends to preserve the integrity, stability and beauty
of the biotic community); Carson (who stated that humans should not see nature as
something to dominate for their benefit); and many other arcardian ecologists who
have argued for a similar regard for the Earth (Leopold, 2003; Carson, 1963; Worster,
1994).
Traditional ethical theories can be criticized for ignoring the human impact on
our environment. It was left to people such as Thoreau, Leopold, Schweitzer, and
Carson to advocate for an environmental ethic. Yet it is not just a matter of choosing
a core concept that describes the right human-Earth relationship and also claiming that
it will be adequate for human-human relationships. Nor is it a matter of choosing a
core concept or set of concepts for the human-Earth relationship, and then dealing
independently with human-human matters. They must be integrated. Equity cannot
take priority over ecological integrity because we are now at a critical stage in global
warming where developing countries cannot be treated fairly. Moreover, equity in
the human dimension has implications for the planet. Diamond has shown that
societies that are inequitable have suffered ecological collapse in part because the
wealthy elites have become insulated from the ecological threats (Diamond, 2005).
While the matter of ownership is of secondary importance for determining a
better human-Earth relationship, this does not mean the question of ownership is
unimportant. Ownership is used to determine wealth and control. Excessive reliance
on individual property rights can lead to an unjust allocation of wealth, a short-term
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24
perspective on ecological health, and an undermining of the need for communal and
state management of resources for the public good. But, there are examples of
private owners taking a long-term-environmentally-responsible approach, and
communal and government owners doing the opposite. The significant factor is the
ethics not the ownership. Barnes’ advocacy of trusts promises to lead to more
responsible use of resources, but his recommendations are not without risk.
Appointments for long terms will not necessarily lead to good trusteeship. His
proposals are worth adopting, but it is important that the legal framework for trustees
is determined by notions such as respect and fairness.
There is a more pragmatic argument. If we start with the notion that nature is
mainly to be seen for instrumental utility for humankind, but subject to certain limits,
it is much harder to develop a relationship with nature that enables a fit that works for
humans, and where nature is able to provide a sustainable place for human life. It is
the same as having a competitive ethic for business, but within some limits. If the
basic value of business is maximization of self-interest, it is very difficult for a
business executive to leave the office for home and change into a loving, caring
spouse or parent. And to develop a society as a whole that is a loving and caring
place to live in, while a significant portion of it works to contrary standards, is very
difficult. People do not find it easy to be schizophrenic. Aristotle talked about
phronesis or practical wisdom that is a complex, learned and nuanced ability to be
virtuous. It is like an apprenticeship. It is not something that can be switched on and
off. If humans value nature intrinsically, but recognise that it is also of utility for
food, shelter, and warmth, it will be much easier to design an economy and society
that has the right relationship with nature, than if we start with the belief that the
world is primarily for our use, but within certain limits. Rather than start at one end
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25
(the world is for us to exploit) but then impose some limits, start at the other end (we
should ensure nature’s health and resilience are paramount) and then see what
resources are needed for humans and how they can be used.
VI. Conclusion
The health of the oceans is seriously threatened by human impact. Yet the answer is
not to assign human ownership to it. The seas are no different from other resources
in the planet, and ownership has not proved the way to ecological health in land use.
This assessment applies to individual, communal or state ownership. There are many
common-pool resource use examples that offer useful models for policy other than
privatisation or government control. But the critical factor is a change in the human-
Earth relationship where humans do not see nature in instrumental terms for their own
utility, and claim a right to property ownership over other obligations. This will have
major consequences for constitutions, codes, charters, policies, creeds and other
formulations that have principles based on human rights and human superiority over
nature. The United Nations Declaration of Human Rights with its assertion of human
rights to life, liberty, security and property ownership must be countered by the
realisation that there are no ecological rights to guarantee such human rights.
Ecuador has changed its constitution to recognise rights to nature. But it is not
clear that this will lead to a healthy human-Earth relationship unless human rights are
subjugated. Ecuador’s constitution assigns a responsibility for the state to promote a
respect for nature. But the concept of respect does not depend for a rights framework
or a social contract approach for its application. Nussbaum has provided convincing
arguments that such a framework constrains our ability to adequately understand and
provide for the appropriate responsibilities and obligations we humans have to each
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26
other. (Although according to Grove, Rousseau’s version of the social contract
inspired followers in Mauritius and other colonies to develop a concern of
deforestation and began the modern environmental awareness (Grove, 1995)).
Options for describing a healthy human-Earth relationship rest on notions such
as respect, integrity or intrinsic value. If one of these concepts is at the core of a
human-Earth relationship, then the responsibilities contained in such notions as
steward, guardian, trustee or fiduciary, when applied to nature, can be defined. Equity
issues need to be considered as secondary ethical principles. If the human-Earth
relationship is where the health and resilience of ecologies take priority over human
use of nature, then there is a possible future for the oceans and the planet to provide
an environment where humans could have some form of sustainable and healthy life.
Otherwise, the chances of human life on earth are bleak.
Footnote. These ethical concepts are important for working out policies, rules and
responsibilities based on a human society that is not in serious, perhaps fatal, conflict
with its natural environment. However, when benign, planned and managed
transitions to a sustainable society are not likely, then other moral and difficult
choices face humans that involve lifeboat ethical choices and other dilemmas.
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