Introduction
On 31 December 2019, the World Health Organization (WHO) was made aware of pneumonia cases of unknown origin, detected in Wuhan, China.Footnote 1 As of 7 January 2020, the cause was established as a novel coronavirus (2019-nCoV),Footnote 2 and, in less than a week, on 13 January 2020, the first internationally imported case was reported by the Thai Ministry of Health.Footnote 3 Border closures started as soon as 21 January 2020, when North Korea banned all foreign tourists from entry.Footnote 4 In total, six countries had implemented some form of restriction on international travel before the WHO declared a public health emergency of international concern on 30 January 2020.Footnote 5 As of April 2020, every country in the world had imposed active border restrictions of some nature to attempt to control spread by reducing or eliminating the importation of cases through international border crossings.Footnote 6 Many of these controls focused on airports; as of 20 April 2020, 30 percent of countries in the world had either completely or partially suspended international flights.Footnote 7 Much literature has been published on international travel restrictions, particularly in regard to flights.Footnote 8 However, control measures also had significant effects on sea traffic, including both passenger and cargo vessels. The resulting impacts on passengers, crew members, and others have been described as an “unprecedented humanitarian crisis.”Footnote 9
It has been suggested that there is a “strong international law frame in place” to regulate and protect public health on ships.Footnote 10 However, though there are numerous, diverse relevant sources of law, including international conventions and customary law,Footnote 11 this framework falls short of providing a workable system that adequately balances passenger or crew rights with clear rules on control measures for the spread of communicable disease. The 2005 International Health Regulations (IHR), the main specialized instrument intended to regulate restrictions on international traffic for public health purposes, deal directly with such restrictions and require them to be justified, but they exist within a larger framework of international legal obligations that is, in the case of maritime traffic and port restrictions, particularly complex.Footnote 12 The framework’s fragmentation, internal inconsistency, and lack of adequate enforcement mechanisms mean that legal rights and responsibilities with respect to restrictions on maritime traffic are sometimes unclear, and, when states do not comply with the law, neither affected states nor individuals may have effective remedies.
Examples of Restrictions Imposed during the COVID-19 Pandemic
The restrictions on maritime traffic during the COVID-19 pandemic have resulted in real impacts on several large vessels that featured prominently in the media, including the Diamond Princess, the Ruby Princess, and the MS Zaandam.
The Diamond Princess incident in February 2020 resulted in an outbreak of COVID-19 on a cruise ship containing 3,711 passengers and crew, resulting in 712 infected persons, which, at the time, was the largest cluster outside China.Footnote 13 When the Diamond Princess reached the port of Yokohama, it was refused disembarkation by the Japanese government, and quarantine was mandated.Footnote 14
The Ruby Princess is a somewhat opposite example — a case where no significant restrictions were placed on disembarkation — which ended catastrophically, prompting an official inquiry by the government of New South Wales, where the ship docked.Footnote 15 The 2,700 passengers aboard were disembarked en masse, including passengers who had presented respiratory symptoms, only some of whom had been provided masks and hand sanitizer prior to disembarkation.Footnote 16 In the weeks following this incident, twenty-eight passengers of the Ruby Princess died of COVID-19.Footnote 17 There were also sixty-two confirmed secondary and tertiary cases as a result of the incident, and the source of 114 cases at a Tasmanian hospital is suspected to be one or both patients who acquired COVID-19 on the Ruby Princess. Footnote 18 The unregulated disembarkation of persons from a vessel suspected to be infected with disease is clearly not the appropriate answer to this issue.
The MS Zaandam was refused moorage, resupply, and disembarkation of its more than twelve hundred passengers by every port along the ship’s South American route.Footnote 19 The ship was initially denied passage through the Panama Canal, due to “sanitary reasons,” while COVID-19 ran rampant through the ship, ultimately resulting in the deaths of three passengers.Footnote 20 Forty-eight hours later, passage through the canal was granted,Footnote 21 and, three days later, passengers were finally permitted to begin disembarkation in Florida, twenty-five days after the ship’s departure from Buenos AiresFootnote 22 and after it was resupplied at sea by another of Holland America’s ships.Footnote 23
However, the resolution of issues aboard these particular vessels does not mean the industry has returned to status quo, nor are the impacts limited to just ship passengers — crew remained trapped aboard cruise ships, as ports refused disembarkation. A report from 18 June 2020 found that up to eighty thousand crew members worldwide were still stranded aboard cruise ships,Footnote 24 and a later study confirmed widespread reports of delayed repatriation, the denial of shore leave, prolonged contract extensions, and the deprivation of medical assistance among seafarers.Footnote 25 Specific restrictions that states have implemented in an attempt to control the introduction or spread of COVID-19 include delaying the issuance of clearances in port;Footnote 26 preventing the embarkationFootnote 27 and disembarkation of crewFootnote 28 and passengers;Footnote 29 preventing the loading and/or unloading of cargo;Footnote 30 imposing a mandatory quarantine;Footnote 31 and flatly refusing ships permission to enter port.Footnote 32 The impacts of these imposed restrictions have been significant.Footnote 33
International Law Relevant to Maritime Traffic and Pandemics
“International law and self-regulation largely govern the cruise industry.”Footnote 34 In terms of the law governing restrictions on maritime traffic for public health reasons, both customary international law and a number of international agreements are relevant. Generally, customary international law allows states to control access to their internal waters as well as land territory, and there is no general right of entry into maritime ports.Footnote 35 The right of states to regulate or restrict entry into internal waters and ports is considered to be an aspect of territorial sovereignty.Footnote 36 A limited right of entry or access to places of refuge for a vessel in distress has long been recognized,Footnote 37 based on “humanitarian considerations” and the protection of human life,Footnote 38 although the scope and limits of this right are contentious.Footnote 39 More generally, a customary norm of “elementary considerations of humanity,” obliging states to take steps to protect human life, is part of the law of the sea.Footnote 40 The obligation in customary international law to protect the life of persons at sea applies regardless of the nationality of those persons or of their ship and includes the long-recognized duty to rescue persons in distress at sea.Footnote 41 It has even been suggested that the requirement to take measures to protect people at sea is emerging as a general principle that should guide states’ actions and could inform the application of existing rules.Footnote 42 Eventually, detailed analysis of the actions and decisions of states during the COVID-19 pandemic — to grant or deny access to their ports under various circumstances — may provide examples of state practice and opinio juris that could inform our understanding of these sometimes ambiguous and contentious areas of customary international law.Footnote 43
Several international instruments govern different aspects of maritime traffic, some of which are relevant to public health-based restrictions. The IHR, which are binding on all WHO member states, are the instrument that most directly addresses public health measures affecting maritime traffic. International labour conventions are also relevant to the position of crew members, but a discussion of this distinct and substantial body of law is beyond the scope of this article.Footnote 44 A range of other non-binding sources, including guidance issued by the WHO, the International Maritime Organization (IMO), and others, can also be relevant. For example, the IMO released a circular letter on 31 January 2020 urging cooperation between state health authorities and industry to manage disease spread.Footnote 45 This was expanded with annexes over the following months, each containing considerations and recommendations for managing cases and outbreaks in different circumstances. In addition to the original circular letter, there have been at least twenty-six addendums posted,Footnote 46 covering topics from the resumption of cruise operations in the European Union,Footnote 47 to personal protective equipment,Footnote 48 to crew changes in Singapore.Footnote 49 Throughout these circulars, the IMO has stressed the importance of facilitating the movement of goods and the protection of the issuance of free pratique. Footnote 50
international law of the sea and maritime conventions
The most relevant of this category of treaties include the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS Convention), the Convention on Facilitation of International Maritime Traffic (FAL Convention), and the Convention and Statute on the International Regime of Maritime Ports (Geneva Convention and Statute).Footnote 51 All four conventions contain provisions relevant to some aspects of facilitating or regulating maritime traffic in ports and territorial seas. UNCLOS is considered foundational to the organization of the law of the sea.Footnote 52 It is intended to provide a “comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources.”Footnote 53 The treaty is therefore broad, but it does contain articles that are of some relevance to this analysis. It contains provisions requiring innocent passage to be permitted through a state’s territorial sea.Footnote 54 Passage is defined as including stopping and anchoring, where such action is “rendered necessary by force majeure.”Footnote 55 However, these articles do not stipulate any further obligations beyond permitting ships to stop and anchor where necessary.
On the surface, imposing a duty to render assistance pursuant to Article 98 of UNCLOS suggests that states are required to render assistance to ships in need of it.Footnote 56 However, this article’s application has a limited scope. Pursuant to Article 86, the duty to render assistance only applies to vessels on the high seas and not to vessels that are in exclusive economic zones, territorial seas, internal waters, or archipelagic waters.Footnote 57 Ergo, even if a ship requires assistance, say due to the outbreak of communicable disease, there is no duty imposed on states under UNCLOS to render assistance unless that ship is located on the high seas.Footnote 58 This article echoes a general theme of UNCLOS — namely, that coastal states maintain sovereignty and jurisdiction to regulate and enforce their laws in their own waters.Footnote 59
Another provision that is indirectly relevant to the question of port restrictions is Article 94, which obliges each state to “effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”Footnote 60 The flag state is also specifically required to take measures to ensure safety at sea, including through “the manning of ships, labour conditions and the training of crews.”Footnote 61 This requirement is understood to mean that the flag state is responsible for working conditions and more generally for conditions on board and, through its jurisdiction, will owe human rights obligations to both passengers and crew.Footnote 62 Although it is the port state that will make the decision whether to allow entry or disembarkation and what assistance to provide, the flag state still maintains some responsibility for matters such as working conditions and medical assistance to both passengers and crew.
Treaties under international law are, of course, only binding upon parties to those treaties. Though a total of 168 statesFootnote 63 are party to UNCLOS, this number is twenty-five states short of the 193 current United Nations (UN) member states.Footnote 64 One notable state that is not party to UNCLOS is the United States, despite the United States playing a significant role in the treaty’s developmentFootnote 65 and, on some occasions, attempting to rely on certain provisions contained within it.Footnote 66 To the extent that the substantive content of UNCLOS is also part of customary international law,Footnote 67 however, the significance of this fact is diminished. For example, the flag state’s jurisdiction over a vessel and the duty to render assistance to a ship in distress are both considered to be customary law obligations as well as being reflected in UNCLOS. Footnote 68
The IMO has adopted a resolution that, like UNCLOS, may appear relevant at first glance – the IMO Guidelines on Places of Refuge for Ships in Need of Assistance. Footnote 69 However, it is clarified under section 1.2 that this resolution likely is not equivalent to UNCLOS’s duty to render assistance, as it only applies when there is not a risk to human lifeFootnote 70 and where the situation “could give rise to loss of the vessel or an environmental or navigational hazard.”Footnote 71 This clarification is further supported by the resolution’s focus on seaworthiness, insurance, and legal authorities versus concerns relating to the health of crew or passengers.Footnote 72 Therefore, it is likely not feasible for a ship to invoke these guidelines as justification for docking, disembarkation, or resupply. Furthermore, the status of this guideline as a resolution adopted by the IMO means that it is not binding on states.Footnote 73
The IMO’s FAL Convention enshrines practices and standards referencing the IHR and requiring public authorities of states not party to the IHR to apply their relevant provisions.Footnote 74 However, there is currently no state that is party to the FAL Convention but not to the IHR. Footnote 75 The FAL Convention contains provisions on the medical examination of passengersFootnote 76 and on the fair and equitable application of sanitary measures,Footnote 77 and it prohibits authorities from preventing the discharge or loading of cargo or supplies from ships not infected with a quarantinable disease except in “an emergency constituting a grave danger to public health.”Footnote 78 Further, the FAL Convention compels states to allow disembarkation of passengers in cases of medical emergencies.Footnote 79 Note that the concept of pratique that was originally referenced in sections 3.16.1 and 4.4 of the first draft of the FAL Convention was adapted and expanded under the IHR and will be analyzed accordingly later in this article.
Another key international law instrument, the SOLAS Convention, was developed in response to the sinking of the Titanic. Footnote 80 The United States is a party to this convention, unlike UNCLOS. Footnote 81 However, the applicability of the SOLAS Convention to circumstances of communicable disease outbreak is limited; it predominantly covers health and safety requirements such as fire suppression, ship construction, life preservers, lifeboats, and communication equipment. Some provisions of the SOLAS Convention pertain to port security and passenger safety of passenger and cargo ships, insofar as they regulate whether and why a ship may be denied entry or expelled from a port.Footnote 82 However, the focus of the convention is on physical, not biological, hazards, so expulsion due to an outbreak of communicable disease would not be justified under the SOLAS Convention.
Finally, the 1923 Geneva Convention and Statute speaks to the issue of access to ports by foreign vessels.Footnote 83 It does not specifically provide for a right of access to ports, but it does require equality of treatment (as between one’s own vessels and those of other states parties as well as among vessels of other states), “subject to the principle of reciprocity,” with respect to freedom of access.Footnote 84 States parties may deviate from this obligation “in exceptional cases, and for as short a period as possible,” where they are obliged to take measures “in case of any emergency affecting the safety of the State or the vital interests of the country.”Footnote 85 The implications of these provisions for a general right of access to ports is said to be “the subject of dispute,” with the majority view being that they do not establish any such right but, rather, the more limited obligations of non-discrimination and reciprocity.Footnote 86
ihr
The IHR and their precursors address the rights and responsibilities of states in preventing or mitigating the international spread of disease. The objective of the IHR is to “prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”Footnote 87 The current version of the regulations, which were revised in 2005, was adopted by the World Health Assembly in May 2005 and came into force two years later.Footnote 88 All WHO member states are parties, subject to reservations or rejection by any particular state.Footnote 89
Under the IHR, states are required to develop and maintain certain core public health capacities.Footnote 90 These include specific capacities for points of entry, including ports.Footnote 91 The COVID-19 pandemic demonstrates the importance of maintaining such capacities, but compliance with core capacity obligations has historically been poor.Footnote 92 Other IHR provisions deal with health measures that can be applied to travellers,Footnote 93 the treatment of travellers,Footnote 94 and health documents (for example, vaccination certificates, maritime declarations of health, and ship sanitation certificates).Footnote 95 When a public health emergency of international concern is declared, as it was on 30 January 2020, the WHO director-general, on the advice of the Emergency Committee, will issue temporary recommendations regarding measures to be taken by states parties.Footnote 96 As is now well known, the WHO did not recommend any restrictions on international travel or trade in response to the COVID-19 pandemic, but this stance was disregarded by most states.Footnote 97 As will be discussed further below, “additional measures” (not authorized by the IHR’s provisions or recommended by the WHO) may be taken by states if certain requirements are met under Article 43 of the IHR.
The IHR contain a number of provisions pertaining to the processes of docking, the embarkation and disembarkation of passengers and crew, and the movement of cargo. States are permitted to apply health measures to travellers on entry or exit, including, for example, requiring information about travel history or contacts or requesting a non-invasive medical examination; where there is evidence of a public health risk, additional measures are permitted.Footnote 98 Health measures are generally not to be applied to ships that are in transit (that is, passing through waters within the state’s jurisdiction without calling at a port), although this is subject to Articles 27 and 43 as well as other “applicable international agreements.”Footnote 99 Ships in transit coming from an area unaffected by a disease shall not be prohibited from taking on fuel, food, water, or supplies.Footnote 100
Article 27 allows the “competent authority” to undertake measures of control, if clinical signs or symptoms are found on board a conveyance, but it is supposed to do so in an “adequate” manner under the IHR and follow any available WHO advice.Footnote 101 After the Diamond Princess outbreak on 7 February 2020,Footnote 102 the WHO released a document entitled Operational Considerations for Managing COVID-19 Cases and Outbreaks on Board Ships. Footnote 103 This document was intended to be used as a supplementary resource in addition to the existing Handbook for Management of Public Health Events on Board Ships published by the WHO in 2016.Footnote 104 Article 27 also permits the implementation of “additional health measures, including the isolation of affected conveyances, as necessary, to prevent the spread of disease,” provided measures are reported to the national IHR focal point.Footnote 105 It is important to note that Article 27, like section 6.10 of the FAL Convention,Footnote 106 stipulates that “[a]ny such conveyance shall be permitted to take on … fuel, water, food and supplies.”Footnote 107
Should an affected passenger ship call in to port, the WHO advises that the port should perform a risk assessment and that a decision may be made in consultation with the ship owner to end the voyage, at which point the vessel ought to be inspected and health measures such as cleaning and disinfection should be performed.Footnote 108 The WHO recommends as best practice that any close contacts of a suspected positive case be isolated, preferably in an onshore facility, and, should the suspected case be confirmed positive, all close contacts must undergo quarantine in an onshore facility, not on board a ship.Footnote 109 This recommendation tracks well with established science, which has found the removal of suspected cases can substantially reduce disease spread.Footnote 110 Controlling and reducing the spread of communicable disease on cruise ships in general is difficult; environmental and human factors make them ill-suited as quarantine facilities, as close proximity and a generally aged population make them ideal grounds for disease propagation.Footnote 111 It is important to note that the WHO document does not differentiate between passengers and crew, suggesting that roles are irrelevant when isolation, quarantine, or contact tracing is required.
Regardless of whether there is a suspected or confirmed case of disease on board a ship, the concept of free pratique applies. According to the IHR, free pratique is the permission granted to enter a port and take actions such as embarkation, disembarkation, or the loading or unloading of cargo or stores.Footnote 112 Generally, under the IHR, vessels cannot be refused calling at any port of entry,Footnote 113 or free pratique,Footnote 114 for public health reasons. This basic right may be limited by either international agreements or by measures permitted under Article 43, although in situations of distress or imminent loss of life, at least, customary international law would further constrain states’ right to exclude vessels.Footnote 115 Further, free pratique may be granted subject to inspection and appropriate control measures due to infection or contamination found as a result of that inspection, but free pratique may not be flatly refused without justification.Footnote 116 If a port lacks the capacity to apply necessary health measures, the ship may be required to proceed to the nearest suitable point of entry, unless an operational problem of the vessel would make this unsafe.Footnote 117
As mentioned, the relevant parts of Articles 25 and 28 are subject to Article 43. The latter article allows states to implement additional health measures that achieve the same or a greater level of protection as the WHO’s recommendations or are otherwise prohibited under specific IHR articles. These additional measures, however, must be taken in accordance with states’ obligations under international law and be otherwise consistent with the IHR;Footnote 118 the former would include, importantly, obligations under relevant human rights treaties,Footnote 119 in addition to the obligation within the IHR themselves to treat travellers in a way that respects their human rights and minimizes discomfort and distress when implementing any health measures, including by “providing or arranging for adequate food and water, appropriate accommodation, … [and] appropriate medical treatment.”Footnote 120 Article 43 also requires that such measures not be “more restrictive of international traffic” or “more invasive or intrusive to persons than reasonably available alternatives” that would have the same effect.Footnote 121
Where additional health restrictions are implemented by a state, any such controls are to be implemented: (1) in accordance with scientific principles; (2) in response to evidence or available information of a risk to human health; and (3) in accordance with guidance or advice from the WHO.Footnote 122 These three requirements must also be met for additional measures taken under Article 27(1).Footnote 123 Any additional measures that result in refusal of entry or departure or delays of more than twenty-four hours, which are considered to be a significant interference with international traffic, must be reported and justified to the WHO and shared with other states.Footnote 124
Discussion: Implications and Concerns
compliance with existing legal framework
Several questions could be raised about measures taken by states to limit access to their ports and to deal with affected vessels. Canada,Footnote 125 and several other states,Footnote 126 have imposed broad restrictions on access to their ports or internal waters by foreign vessels, in addition to denying entry to many or most foreign nationals.Footnote 127 As discussed above, generally the right to control entry into their territory is claimed by states as an aspect of territorial sovereignty and, in customary international law, is understood only to have limited exceptions such as vessels in distress.Footnote 128 The IHR and other instruments, however, impose some constraints on the situations in which, and the reasons for which, international traffic can be restricted for public health purposes. In the COVID-19 pandemic, both general restrictions on the entry of foreign nationals and more specific restrictions on access by foreign vessels would be considered “additional measures” under Article 43 of the IHR since they were not recommended by the WHO, nor are they authorized by any provision of the regulations. As such, the measures are required to be notified to the WHO, along with the health rationale for them,Footnote 129 but compliance with this obligation has been poor.Footnote 130
Whether additional measures are justified depends, first, on whether they are “more restrictive of international traffic … than reasonably available alternatives that would achieve the appropriate level of protection.”Footnote 131 Denying entry to foreign vessels and nationals is the most restrictive measure that can be taken — subject to the breadth of any exceptions — and so would be justified only if other measures (for example, testing, quarantine) would not be reasonably available or provide sufficient protection. This is likely to be increasingly in question as the pandemic goes on and as new methods of testing and, eventually, vaccination become available. Given that other alternative measures would place a greater burden on the point of entry and its state, the meaning given to the phrase “reasonably available” could also be important. The scope of the order closing ports could also be an issue: it seems reasonable to refuse entry to a foreign vessel carrying passengers from another state who intend to disembark since those individuals would in most cases be denied entry (if foreign nationals) or required to quarantine (if nationals of the port state) in any case — that is, of course, assuming those restrictions on travellers are themselves justified. Denying entry to a foreign vessel in other circumstances might be more difficult to justify: although there is no general right of entry into maritime ports, when a state does restrict entry, it must do so in a way that respects its legal obligations, including under the IHR. Footnote 132
Decisions about imposing additional measures must also be based on scientific principles, scientific evidence or available information from the WHO or other relevant bodies, and guidance or advice from the WHO. Unlike some travel restrictions imposed in previous outbreaks,Footnote 133 COVID-19 travel restrictions, including closing ports to some vessels for periods of time during the pandemic, do not seem to be entirely without a rational scientific basis, given what is known about the transmission of the virus, especially given the close proximity of older, at-risk populations aboard vessels such as cruise ships.Footnote 134 Again, the scope of an order restricting access to ports could be relevant since it is the actual health situation on a ship or at least travel history (as a proxy for exposure and risk) that is relevant, not the nationality of the vessel or its passengers or crew.Footnote 135
As mentioned earlier, states have denied entry, or permission to disembark, to vessels already en route, usually because of confirmed or suspected cases on board. But states have also refused entry to all manner of ships, from cruise vessels, to cargo ships, to navy and government vessels, sometimes on nothing more than the suspicion of possible COVID-19 cases, likely reflecting the fact that they see themselves as having an entitlement to do so pursuant to their sovereign rights over their territory.Footnote 136 This situation is also the subject of distinct obligations in the IHR, but it raises somewhat different issues from longer-term, blanket port closures. As explained above, the IHR confirm the right to free pratique and generally prohibit states from preventing a ship from calling at a port of entry for public health reasons. Although free pratique, of course, can be subject to necessary measures to prevent the spread of disease if a source of infection is found on board, denying the right to enter port at all may be difficult to justify.
Additional measures to be applied to an affected conveyance are subject to some of the same obligations as other additional measures under Article 43: they must be based on scientific principles, scientific evidence or information, and WHO guidance. It is also important to briefly acknowledge the requirements under the FAL Convention, the provisions of which broadly mirror the above requirements under the IHR and which therefore also call into question the legality of some measures states have taken to slow the spread of COVID-19.Footnote 137 According to the FAL Convention, states must permit disembarkation of sick or injured crew or passengers for medical treatment,Footnote 138 yet crew members who have tested positive for COVID-19 have been unable to disembark, and several have died.Footnote 139 This specific obligation, applicable to parties to the FAL Convention, would supplement the provisions of the IHR, which are binding on all WHO member states. These provisions, in turn, would be reinforced and supplemented by a port state’s human rights obligations — notably, to respect and protect the rights to life and health, among othersFootnote 140 — and the customary law duties of humanitarian assistance, at least in the most serious cases.Footnote 141 Even if there is some question as to the extent of the port state’s human rights obligations to foreign nationals in their ports, recall that WHO member states, as parties to the IHR, are bound to show respect for travellers’ human rights when implementing any health measures.Footnote 142 These provisions specifically apply to a port state implementing restrictions (for example, denying entry or disembarkation), although, of course, the effects of these restrictions, such as the conditions on board and the availability of medical assistance, are not the sole responsibility of the port state: the flag state, by virtue of its jurisdiction over the ship and people on it, as well as the state of nationality of passengers and crew, share these responsibilities.Footnote 143
Inconsistencies in the development of procedures, and a lack of foresight in their application, have manifested issues as seen on board the Diamond Princess. In this instance, the crew were not restricted to their cabins,Footnote 144 and a study has found that transmission of COVID-19 was greater among the crew partly as a result of their inability to quarantine.Footnote 145 This factor highlights a significant issue with “additional measures” under Article 43 of the IHR specifically pertaining to cruise ships. Enforcing isolation of a large number of people on board constitutes a delay in disembarkation under Article 43, which requires justification,Footnote 146 but it is not a denial of entry to port, nor would it likely be considered unreasonable; quarantine of infected vessels while phased testing and risk assessment are performed is permitted as per WHO documentation.Footnote 147 The procedures followed by the Japanese government in response to the Diamond Princess were not only in accordance with permitted procedures,Footnote 148 but they have substantial historical precedent — the very term “quarantine” is derived from the middle ages when ships arriving in Venice from ports infected with plague were required to anchor for quaranta giorni (forty days).Footnote 149
The issue materializes when considering that, generally, cruise ships are not appropriate isolation vessels; cruise ship cabins are not equipped to be lived in around the clock,Footnote 150 and this is further complicated when considering that quarantining crew is difficult, if not impossible, when the isolation of passengers on board a ship is mandated by a state’s government. A certain number of crew are required for the safe operation of a ship, the delivery of food, and the management of logistics.Footnote 151 The nature of cruise ships makes it exceedingly likely that a certain threshold will be met where too many crew have been exposed to a confirmed case and require quarantine, necessitating sudden, rapid disembarkation for which the port may be inadequately prepared, as the vessel becomes unsafe or unfeasible to maintain with passengers aboard.Footnote 152 At the very least, it is reasonable to require crew to undergo isolation just the same as passengers; however, this renders it impossible to also maintain passengers on board, as they rely on the crew to deliver food and other supplies. The health and safety of crew cannot be sacrificed to facilitate the isolation or quarantine of passengers — the rights of both groups are the responsibility of the flag state, and of the port state, with neither group having clear priority.Footnote 153 This is especially vital considering the case of the Grand Princess, where crew became the vectors for transmission across several different voyages, introducing the virus to passengers and crew not just aboard the Grand Princess but also on board other cruise vessels.Footnote 154
When considering the justification of additional measures, such as refusal of entry to port, mandatory quarantine, or isolation of passengers from uninfected vessels, such measures are often presented by states as necessary to prevent the introduction or control spread of illness into the country.Footnote 155 However, considering the Diamond Princess, the quarantine of thousands of passengers was disproportionate to the hundreds of thousands of tourists who travelled to Japan from various regions in China, including Hubei Province after the first cases in early December; at the time of the Diamond Princess incident, COVID-19 was already in Japan.Footnote 156 Reasonable controls and due diligence are permissible under the IHR; inspection of vessels for determination of sources of infection is permissible under Article 27, and the performance of a medical examination of passengers to determine whether that passenger poses a risk to public health is permissible with conditions under Article 31.Footnote 157 The isolation of passengers who test positive, the quarantine of close contacts pending test results of their close contacts, and the observation of passengers for justifiable protection against the spread of communicable disease are all permissible under Article 31.Footnote 158 However, it is questionable whether the current international framework justifies flatly prohibiting the free pratique of unaffected vessels out of fear, denying resupply, or isolating passengers in facilities inappropriate for that function and placing certain persons at greater risk of infection — additional measures that are claimed to be intended to prevent the introduction or spread of disease. As noted above, where such additional measures significantly interfere with international traffic and trade, states are bound to report them to the WHO, providing the public health rationale for the measures and relevant scientific information, but, in practice, many states do not comply with this obligation, making it even more difficult to determine whether measures are justified.Footnote 159
limitations of the existing legal framework
The analysis and discussion thus far show that the international legal framework does address many of the issues that have arisen during the COVID-19 pandemic but not adequately. The current framework is fragmented and internally inconsistent, and it is not always clear which norm prevails. There is also the concern regarding the lack of effective enforcement mechanisms — a recurrent theme of any discussion pertaining to the WHO and the IHR. Footnote 160 Issues of collective action, capacity, and economic factors are also inadequately addressed in the current framework. Finally, that framework does not directly reach some of the most powerful actors in this context: ship owners, cruise ship lines, and their industry associations.
As discussed in the previous section, passenger rights, the rights of crew, and the operation of ships are all at stake when measures are imposed by port states and, thus, are all affected by the inconsistency between these international frameworks. The FAL Convention prohibits authorities from preventing uninfected ships from discharging or loading cargo or supplies except in “an emergency constituting a grave danger to public health.”Footnote 161 Under the IHR, vessels cannot be barred from calling at any port of entryFootnote 162 or free pratique Footnote 163 for public health reasons unless an additional health measure can be justified under Article 43.Footnote 164 What is unclear is how these different frameworks mesh together. For example, when deciding whether a vessel should be allowed to call at port or take on supplies, the qualifier of a “grave danger to public health” under the FAL Convention seems to set a high threshold for refusal.Footnote 165 What happens if a state can therefore justify an additional health measure under the IHR, but the vessel claims that a “grave danger” is not present?Footnote 166 The current text of the IHR exacerbates these difficulties. Article 43 allows states to take additional measures subject to certain specific requirements, but it is also subject to the qualification that states’ health measures must be “in accordance with their … obligations under international law.”Footnote 167 Article 57(1) also explicitly states that the IHR’s provisions “shall not affect the rights or obligations of any State Party deriving from other international agreements.” While these provisions aim to prevent conflicts between states’ legal obligations,Footnote 168 they could increase the potential for fragmentation and uncertainty in this context. Nor do provisions in other instruments necessarily settle questions of priority — for example, Article 311 of UNCLOS provides that it does not alter rights and obligations in other agreements that are “compatible with this Convention” and does not affect states parties’ enjoyment of rights and performance of obligations under the convention, but the implications of this are unclear given that UNCLOS itself is silent on key questions such as access to maritime ports and speaks only indirectly to control over internal waters.Footnote 169
If there is a disagreement, it is also unclear under which legal instrument it should be resolved. Under the IHR, a state affected by “additional health measures” imposed by another state party can request consultations with it;Footnote 170 a dispute between states parties pertaining to interpretation or application should be settled by negotiation or other peaceful means and, if unresolved, can be referred to the WHO director-general or go to arbitration, while disputes between states parties and the WHO would go before the World Health Assembly.Footnote 171 For the settlement of disputes concerning the interpretation or application of UNCLOS, parties to the convention have a choice between the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, or an arbitral tribunal in accordance with Annex VII.Footnote 172 It has been noted that the way a case is formulated can be critical to “whether a court or tribunal constituted under the Convention has jurisdiction.”Footnote 173 The FAL Convention contains no provisions on dispute resolution.Footnote 174
Dispute settlement and enforcement could be a factor in the historically poor compliance with international law mechanisms such as the IHR. This is not a new issue; during the Ebola outbreak in West Africa, and the H1N1 pandemic, countries ignored the IHR and advice of the WHO and imposed travel restrictions.Footnote 175 During the COVID-19 pandemic, states have again ignored the IHR and the WHO, imposing travel restrictions on international travel by air, by sea, and by land,Footnote 176 despite a multitude of concerns raised by the legal and scholarly communities.Footnote 177 One likely reason for this is the lack of an enforcement mechanism in many international legal instruments. There is well-established literature on the lack of effective enforcement or dispute resolution in the IHR. Footnote 178 UNCLOS lacks provisions on enforcement, and though parties have followed its dispute resolution process, there have been problems with non-compliance at least in relation to certain types of matters, and the absence of an enforcement mechanism sets it apart from some other dispute settlement fora, at least in theory, bearing in mind that those have not always been used or effective in practical terms.Footnote 179 In addition, of course, as a treaty, UNCLOS is not binding on non-party states, although most coastal states are parties, and others are bound by whatever aspects of UNCLOS are also part of customary international law (though not by its provisions on dispute settlement). A system of port state control memoranda of understanding helps to compensate for gaps in capacity and enforcement on issues such as shipping safety or maritime pollution,Footnote 180 and could perhaps provide a model for the coordination of public health restrictions on maritime traffic.Footnote 181
The COVID-19 pandemic, given its exceptional severity and global reach, has also tested the adequacy of the legal framework in other ways. As one expert has explained, “whilst the closure of ports and harbours is not exceptional, especially during severe weather or wars, the pandemic has seen the near simultaneous closure of ports and harbours at the same time meaning that in a number of instances cruise ships had nowhere to dock.”Footnote 182 A framework that allows individual states to close or restrict access to their ports, and to require a ship to proceed to another suitable point of entry if a port is not equipped to apply necessary health measures, may work under normal conditions. In a pandemic, however, each individual port might be justified in refusing access on public health grounds or because it lacks the adequate capacity to deal with an affected ship, but, collectively, the action of multiple ports doing so can create a serious problem, such as in the case of the MS Zaandam. Some port must eventually give access, if only on humanitarian grounds, taking into account obligations of humanitarian assistance to vessels or persons in distress at sea,Footnote 183 once the situation becomes urgent — but which one? It appears to be only once the situation becomes sufficiently serious, perhaps once loss of life has already resulted, that the nearest port must offer refuge regardless of its capacity, which is not an ideal outcome. Furthermore, the disembarkation and repatriation of passengers and crew is then only possible through international cooperation.Footnote 184 The overlapping jurisdiction and obligations of the flag state, port state, and states of nationality can also compound these difficulties. Although, in theory, it could be an advantage to have multiple states with responsibility for the welfare of passengers and crew, in practice, this can lead to uncertainty and inaction, as each might expect the others to take responsibility.Footnote 185 As Natalie Klein notes, “[t]here are no specific rules that explain which of the flag State or port State has primary responsibility for the human rights of individuals on board vessels in port.”Footnote 186
This collective action problem is exacerbated by widespread limitations on capacity, both at points of entry and in public health systems more generally. Even countries like Australia struggled to cope with the impact of large numbers of cases arriving in its ports;Footnote 187 those challenges would only be greater for smaller countries with more limited resources, like many small island states that are common cruise ship destinations. Japan struggled to provide an adequate level of care during the Diamond Princess outbreak.Footnote 188 If it had happened aboard a ship calling at, for example, the small Caribbean island of Tortola (a popular cruise destinationFootnote 189 ), which has just two hospitals with a combined fifty-two bedsFootnote 190 servicing the entirety of fifty islands comprising the British Virgin Islands, the result could have been catastrophic. Managing an affected vessel could also impose significant economic costs on a state that allows access to its port, given that the IHR limit the state’s ability to charge fees to recover the costs of quarantine, testing, or other necessary measures.Footnote 191
Capacity is accounted for, to some extent, in the IHR. First, as previously noted, it imposes obligations to develop and maintain capacity, including at points of entry, but many states still lack the requisite capacities.Footnote 192 Local capacity could be considered indirectly in the Article 43 obligation to use health measures that are no more restrictive than “reasonably available alternatives,” but, again, this would depend on the interpretation of this provision. These issues could then be raised when states report their additional measures to the WHO as part of the justification for measures taken. These provisions, however, do not adequately address the problems created by widespread limitations on capacity in a severe global pandemic.
There are also broader economic impacts to consider. The current international framework fails to account for the disparate bargaining power between cruise ship lines and states, and the resulting impacts on economies. The legal framework cannot protect against cruise lines forcing the hand of states, despite their legal authority to take action under international law to protect their citizens.Footnote 193 This is a concern particularly with the cruise industry and small island states in the Caribbean or South Pacific. Cruise companies operate on a budget greater than the gross domestic product (GDP) of many of these small states. Consider, for example, the Carnival Corporation. In 2019, its total revenue was US $20.8 billion.Footnote 194 This is greater than the 2019 GDP of at least twelve states in the Caribbean.Footnote 195 Where states’ economic well-being relies on tourism, including the docking of cruise ships, and cruise companies threaten to remove ports of call from their itineraries, those companies effectively are engaging in economic hostage taking, forcing affected states to allow disembarkation regardless of whether they may be able to justify limits under international law. The Carnival Cruise Line has done just this: in March 2020, it threatened to cease doing business with Jamaica, the Cayman Islands, and Turks and Caicos, where it controls half the market share and where tourism is a substantial source of income and economic viability.Footnote 196 Similar accusations predate the COVID-19 pandemic,Footnote 197 but they have been brought under a brighter light when states attempting to implement controls to protect the health of their citizens have been prevented through economic coercion from applying measures that may be permitted under international law, with no recourse for their own protection or the protection of their citizens. Conversely, one might question whether a larger, more economically powerful state with greater capacity would be justified in denying port access in order to protect its local population, despite having reaped the economic benefits of cruise ship traffic and related tourism for many years.
Finally, as is typical of public international law, the rights and obligations in the sources considered in this article are addressed to states and do not directly bind the non-state actors that play important roles in this context.Footnote 198 For example, individual cruise ship lines made decisions about who to allow on board, some of which would not have passed basic standards of scientific justification.Footnote 199 The main cruise ship industry association, Cruising Lines International Association, made decisions about when to suspend or resume operations.Footnote 200 Although there has been some cooperation between industry associations and international organizations regarding travel during the COVID-19 pandemic,Footnote 201 most of these decisions are beyond the direct reach of international norms or enforcement mechanisms. Mechanisms that may be available in domestic law are likely to be difficult for individuals to use, given the multiple jurisdictions that are often involved, and would not provide meaningful remedies to affected states.
Conclusion
The COVID-19 pandemic has served to illustrate the inadequacy of the current international framework purporting to regulate and control the spread of communicable disease, specifically insofar as that framework pertains to maritime traffic. This framework is fragmented, internally inconsistent, and lacks adequate enforcement mechanisms. As a result, some states arguably have overstepped in their actions to control the spread of the pandemic, as seen with the MS Zaandam, and others have failed to implement adequate controls, resulting in the spread of disease and unnecessary deaths, as seen with the Ruby Princess. Neither of these approaches is acceptable. Even with better compliance, the existing framework does not appear adequate to address the challenges of a widespread emergency. A mechanism to clarify and coordinate the overlapping responsibilities in this context may be needed. The ultimate victims of these shortcomings are the persons who utilize these vessels as well as the economies and residents of the countries in which they dock. The need for a robust, consistent, and enforceable international framework is needed now more than ever, as international travel, including cruising, begins to resume.
