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The way he ‘seas’ things

Malta’s first international sea court judge, Professor David Attard speaks to Christian Peregin about the significance of his appointment, the law’s limitations, and what the Arab Spring means for Malta.

Chunky reference books line almost every inch of the shelved walls in Prof. David Attard’s cosy office at the International Maritime Law Institute.

If you look at areas where there is a long tradition of good neighbourliness, they have agreed to their boundaries and have been exploiting oil

The rest of the space is taken up by framed photographs, impressive certificates of achievement and an eclectic collection of sea-related artefacts and souvenirs.

As Prof. Attard sits comfortably on his elevated revolving chair, forcing him to look down on his sofa’s guest, the first impression is that he relishes his superiority.

But when he speaks it is without any hint of pretension. It quickly becomes clear that what he relishes is sharing his knowledge of maritime law, which seems to be as immense as the oceans themselves.

Oxford educated, Prof. Attard has a measured drawl which he uses to make the most complex of explanations accessible.

He naturally slips into lecture mode, so he is surprised when a question breaks his flow. “Oh, you prepared questions? Great,” he says, genuinely.

Prof. Attard has just been appointed as a judge on the Law of the Sea Tribunal, taking Malta’s rightful place in an institution which was created as a “direct consequence” of the small island’s 1967 appeal for reform.

“Malta was the catalyst,” Prof. Attard says, recalling the island’s insistence through its permanent representative to the UN at the time, Arvid Pardo, who instigated the UN general assembly to convene the third conference of the law of the sea.

“It turned out to be the longest, largest and most expensive diplomatic conference in the history of humankind and probably still holds this record – although there is competition from conferences on climate change, which is another Maltese initiative. In any case, it certainly was massive.”

The first meeting was held in 1973 and the convention was adopted in Jamaica in 1982 but was fiercely opposed by the Reagan administration, meaning that it took until 1993 for it to be amended to appease the US and finally come into force.

One of the institutions the convention created was the law of the sea tribunal – the first specialised international tribunal dealing with maritime matters.

And for the first time, a Maltese is now among the 21 judges, each of whom shares the status of deputy secretary-general of the United Nations.

“It’s a very prestigious job,” Prof. Attard says, before describing the luxurious surroundings that will serve as his workplace.

“This is what courtrooms will look like in the next decade... Wonderful high-tech and instant communications. It’s a bit more luxurious than the one in Malta,” he jokes.

The tribunal is based in Hamburg, Germany, on the River Elb, overlooking the headquarters of Airbus.

“You can see huge aircraft being tried across the river... it’s quite a sight actually.”

The tribunal was created to determine disputes relating to more than 300 provisions of the convention.

To be appointed, each judge must be supported by two-thirds of the 145 member states, meaning serious lobbying is required.

“In fact, my election is also a tribute to the Maltese diplomatic effort,” he says, recalling that this was the second time he was in the running.

The first was 15 years ago, when he lost out to a British judge after eight rounds of voting. He cites “British diplomacy” during the lunch-break as the reason for his non-selection.

He says judges are chosen not just on their competence but, more importantly, for their world view and ideology, but this worked to his advantage. He says there was a lobby, spearheaded by Africa, “determined not to have a European judge”, but Prof. Attard’s background made him the best choice even for developing countries.

“Of course, the Africans summoned other parts of the developing world,” he says.

Through his work at the International Maritime Law Institute, Prof. Attard has been part of the education of hundreds of diplomats and experts who now hold top positions in their respective countries.

“As director of IMLI, I now have over 600 graduates in 125 countries, mainly developing countries, who have studied here. So my nomination crossed that bridge between north and south.

“One of the reasons I got the highest number of votes is because my ideas on the law of the sea reflect this emerging trend to take into account economic equitable distribution of the sea’s resources.

The law of the sea convention is based on the aspirations of developing countries to create a new international economic order, and Prof. Attard believes they found in him, perhaps, someone who understood the need for equitable distribution.

Another reason was his “commitment” to training lawyers, chief justices, attorneys general and presidents of states.

Prof. Attard was originally nominated by Justice Minister Carm Mifsud Bonnici and was supported by Prime Minister Lawrence Gonzi and Foreign Affairs Minister Tonio Borg.

“The day-to-day lobbying was done by a very efficient team of diplomats,” he says.

So what does his election mean for Malta?

“It would seem to me that the election of a Maltese judge does have a number of ramifications,” he says.

“It is significant that a Maltese judge will now be deciding disputes between states.”

But Prof. Attard is not Malta’s representative on the tribunal.

“As a judge you have to be independent. But obviously each judge is a reflection of his legal tradition.”

Prof. Attard will not have to withdraw if there is a case involving Malta. Instead, the other countries involved in the dispute will have the right to appoint an ad hoc judge to balance things out.

In every case, the countries concerned can appoint an ad hoc judge to ensure a sense of balance, but even this judge must act independently and it is not the first time a judge has ruled against the country which appointed him.

Prof. Attard’s appointment means he cannot have any conflicts of interest and therefore some of his advisory work with the Maltese government may have to be suspended.

“There are some things we can do. I can continue to teach. You can have advisory positions but clearly there cannot be any conflict of interest.” The court will soon issue very strict rules about this, he says.

What Malta loses in advice, however, it gains in having one of its nationals getting a deeper insight into the judicial process. And Prof. Attard is not one to shy away from sharing his expertise and thoughts.

He quickly draws attention to the fact that the convention of the sea is somewhat outdated in parts.

“It’s a wonderful document, so don’t understate it. I call it the Constitution of the Oceans. The world is undoubtedly far better off today with it than it was without it.

“However, given the long gestation period and given that the draft was essentially the product of work in the 1970s, by the time it came into force it failed to deal with important contemporary issues.”

This theme was recently mentioned by Dr Gonzi in his speech to the UN general assembly.

Prof. Attard says there were three categories of issues which need to be addressed: those issues which existed in the 1970s but were not included in the convention because they were not priorities; issues which were included but have since changed so drastically they need to be readdressed; and issues which only arose after the convention was settled.

The convention, for example, does not deal with contemporary marine problems like immigration because these issues were not serious problems at the time the law was drafted.

Migration, illegal trafficking of human beings, has since become a major priority, certainly of the Mediterranean, Prof. Attard says, but was not so at the time.

My election is also a tribute to the Maltese diplomatic effort

Piracy is one issue which, though included in the convention, has increased so much in magnitude and sophistication that the provisions in the law are inadequate.

Piracy, as Prof. Attard points out, has been with mankind since humans sailed the ocean. The convention allows any warships to arrest pirate ships, which is what still happens in places like Somalia.

“But what do we do when we have the pirates?”

He recalls a time when Malta was requested by a warship to deliver pirates that had attacked a Maltese ship off Somalia. But in those days, some six years ago, piracy was not an offence under criminal code of Malta. (It became one in 2008.)

Malta had a similar problem with the infamous 1985 Egyptair hijacking – which resulted in 58 deaths and several injuries while the aircraft was parked on the apron at Malta’s international airport – where aerial hijacking per se was not a crime under Maltese law.

In other cases, the convention must now begin dealing with issues that back then did not even exist, such as climate change.

When the law was being drafted, the environmental focus was on oil spills, not sea-level rise and pollution emitted by gases from vessels, he says.

Although he acknowledges that revising the convention is a mammoth task, he says some of these issues can be dealt with through protocols or treaties.

“There are areas of the convention that need to be either supplemented, or else there are lacunae or gaps which need to be filled. This can be done by states... political authorities meeting, discussing and adopting treaties, as was done with fisheries and the common heritage of mankind.”

What is not decided politically, by states, will have to be decided by the tribunal through judge-made law.

Judges like Prof. Attard will have to take into consideration things like the spirit of the law to rule on issues that are not specifically mentioned.

This is the process used for almost all the rules relating to the establishment of maritime boundaries, he says, pointing to an area of great interest to Malta.

Malta has several pending disputes about maritime boundaries, which hamper the island’s oil exploration activities.

The problem is that while part of Malta’s boundary has been established by the International Court of Justice in relation to Libya, the rest of the boundaries are yet to be established. This leaves disputed areas around Malta, including with Libya, Italy, Tunisia and Greece.

But Prof. Attard is hopeful that it won’t be him or his tribunal who would have to rule on these matters.

He believes the changes taking place in the Arab world, particularly in North Africa, will create an atmosphere of “good neighbourliness” which will lead to satisfying political solutions.

“I think the democratic wind blowing in the Maghreb and other North African countries augurs well for good neighbourliness and understanding.

“Bear in mind that all states will always protect their national interests. But if you look at other areas, such as the North Sea, where there is a long tradition of good neighbourliness, they agreed to their boundaries some four decades ago, and have been exploiting oil since then.”

Although it is still too early to have a clear picture, he believes “sooner or later” there will be efforts to reach a breakthrough in relations between Malta, Libya and Italy.

Stability in the region will also make the Mediterranean more attractive to invest in, particularly in sectors like oil, Prof. Attard says, arguing that in recent months and other periods in history, things were more difficult.

“Let’s say that the unsettling political events to our south did not encourage investment until there was a settled solution.

“This is certainly better news. History has shown that Malta is concerned with developing good neighbourly relationships... not just economic, but humanitarian.”

Despite being a judge, Prof. Attard argues that political solutions are a better way of resolving disputes than through court.

“This does not mean there is no use for the court. But there should be a settled solution, and there are models worldwide which have shown the benefits of political solutions.

“Because when you have such a solution, nobody gets exactly what they want, but there is agreement which gives stability,” he says, citing as an example the dispute between Libya and Tunisia where a court judgment was disputed until a political solution was found.

As Prof. Attard leaves his institute for another meeting, students, coming from all over the world, salute him with enthusiasm and admiration.

In his relatively small academic kingdom, he seems to have gained a thorough appreciation for reaching compromise through educated and level-headed discussion.

The impact of his work is far-reaching, since, though graduate by graduate, he ensures longevity for his ideas.

Now, as he prepares to take his optimism to the international tribunal, at a time when a new dawn is rising in the Arab world, his sense of youthful excitement about the prospects is palpable.

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