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Snapshot

  • The cruising industry has found itself at the centre of the global COVID-19 pandemic, with tens of thousands of passengers and crew left in international limbo.
  • While the existing rules of international law may not have been designed to deal with the extreme, urgent, unexpected and universal characteristics of the pandemic, they still provide an essential framework for the resolution of these disputes.
  • This article investigates the tension between States rights and the humanitarian needs of the passengers and crews.

Centuries ago, the international movement of plague and sickness led to the development of rules of quarantine. In the 14th Century, the practice of quarantine developed in Croatia, and then Italy. History records that the Master of a vessel arriving in Venice during this period was required to make a declaration through a window to a health magistrate, and if plague was suspected, the vessel and its crew and any passengers were required to lie at anchor for 40 days (quaranta giorni). In more recent history, countries including Australia and the United States of America maintained quarantine stations for arriving passengers. Quarantine has been used as a blunt instrument to meet challenges of disease including outbreaks of yellow fever, smallpox, cholera, Spanish flu and the SARS virus.

Around the world, cruise ships are in international limbo

The Covid-19 pandemic has brought issues of quarantine and sea transport to the fore. Globally, the sight of large cruise ships wallowing offshore, unable to land their crews (and in some cases passengers) despite ever-increasing numbers of sick individuals on board, has been a distressing and difficult sight. It seems clear that the contagious nature of Covid-19 has allowed transmission within cruise ship populations at a high level, with the Diamond Princess off Japan, being the first obvious example, resulting in a number of deaths. Protracted situations occurred around the world. The Zaandam with many sick, and some dead passengers, was stranded for some days off South American states before first rendezvousing with her sister ship the Rotterdam, before finally finding refuge in Florida. The Artania reached port in Fremantle in Western Australia and the majority of the passengers were transferred by air to Germany on 28 March 2020. Approximately 50 passengers were hospitalised on shore, and one subsequently died. The ship remained in port after being directed to leave despite having a number of very ill passengers still on board.

The world has been faced with the unedifying sight of many tens of thousands of cruise ship passengers and crew in a state of international limbo, unable to land, and in some cases being denied prompt access to ports for purposes of refuelling and reprovisioning, or even the provision of appropriate medical treatment for individuals on board.

The treatment of these vessels, and the people on board, is subject to established rules of international law. Those rules apply both to coastal states, and to the vessels concerned. Compliance with those rules by coastal states, and possibly in some cases by the masters of the vessels involved, has been stretched by the urgent and unexpected nature of the crisis, the speed and global reach of the virus, and by the extent to which the Covid-19 virus is now known to create serious or lethal illness. The fact that the virus is particularly lethal to older population groups, who are over-represented in the demographic of many cruise ships, adds to the pressing need for states to meet their humanitarian obligations to those on board.

Distress, innocent passage and safe havens: what can we learn from international maritime conventions?

Australia, like the majority of states, is a party to the United Nations Convention on the Law of the Sea 1982 (‘UNCLOS’). Article 2 of UNCLOS provides that a state exercises full sovereignty over its internal waters and the territorial sea (to a limit of 12 nautical miles). Similarly, customary international law does not require a coastal state to permit unconditional entry to its ports (A.V. Lowe, ‘The Right of Entry into Maritime Ports in International Law’, 14 San Diego Law Review 597 (1977)). On 16 March 2020, the Australian Government publicised a ban on all cruise ships from entering Australian waters other than those already in Australian waters, or en route to Australian waters at that time.

A number of vessels fell into those categories. On 27 March 2020, a Determination was made by the Minister of Health requiring all cruise ships to leave Australian waters other than any bearing the Australian flag, but allowing the vessels to request permission to remain in Australia. On 4 April 2020, the requests for permission that had been received were denied, and a further direction was issued that all foreign flagged cruise vessels were required to leave Australian waters.

In taking those steps, Australia sought to exercise its sovereign rights within the territorial sea. However the sovereign rights of a coastal state in the case of ships facing circumstances of distress are conditioned by established rules of customary international law and other more specific treaty provisions to which Australia is a party.

International state practice has long recognised a right of vessels to seek safe haven in a port in circumstances of distress. That customary right is not absolute. It is premised upon the nature of the distress being both urgent, and likely to result in the loss of the ship or its crew or passengers (The Eleanor [1809] Edwards’ Admiralty Reports 135).

The right is consistent with Article 98 of UNCLOS which requires all states to ensure that the master of any ship flying the flag of the state shall render assistance, to the extent that it is possible without endangering that ship or its crew and passengers, to any person in danger of being lost at sea. That international law obligation is given domestic effect in Australia by s 181 of the Navigation Act 2012 (Cth). Article 98(2) requires coastal states to maintain adequate and effective search and rescue services, necessarily implying a duty to rescue those in peril on the sea.

The obligations of the coastal state are also framed by reference to the International Convention on Maritime Search and Rescue (the ‘SAR Convention’) and the 1974 Convention on Safety of Life at Sea (the ‘SOLAS Convention’).

The SAR Convention defines a distress phase to include a situation of grave and imminent danger to a person requiring immediate assistance. The SOLAS Convention recognises in Chapter V regulation 34.1 the Master’s discretion to take any decision necessary to safe navigation.

The sight of several cruise ships around the world lying at anchor near, but not in, coastal ports, is consistent with Article 18(2) of UNCLOS. Article 18 codifies the customary right of a vessel to exercise the right of innocent passage through a territorial sea. Ordinarily, passage means just that – a continuous movement without anchorage. However Article 18(2) expressly provides an exception to the requirement that innocent passage through the territorial sea be continuous, by permitting anchorage in cases of force majeure or distress or the need to render assistance to persons in danger or distress.

It follows that where a master of a cruise ship believes reasonably that remaining near to a coastal state port, presumably with access to medical facilities, is a proportionate and necessary response to the likelihood of danger to persons on board, the right to remain at anchor in a territorial sea is consistent with international law.

In so far as life threatening illness affects the crew of the vessel, the Maritime Labour Convention 2006, to which Australia is a party, requires that crew are provided with prompt and adequate medical care as comparable as possible to that available to workers on shore. A coastal state is obliged to ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to the member’s medical facilities on shore (regulation 4.1). Perhaps in compliance with these obligations, on 2 April 2020 Australia sent a medical team on board the Ruby Princess to assess the health condition of the almost 1,100 crew members on board. At least one crew member was evacuated to shore-based hospital following that assessment.

What rights does a coastal state have to protect its own interests?

A coastal state does have rights which enable it to protect its own interests, and it is in the application of these rights in the present circumstances that the stand-off between the cruise ships and coastal states has been played out. There is growing state practice limiting the right of refuge in cases of potential serious environmental harm in cases of damaged or distressed vessels, with some states refusing access to damaged vessels, or requiring financial bonds before granting access. It may be reasoned by analogy that the right of access is not unconditional when serious public health consequences to the coastal state may follow.

WHO Health Regulations: State parties legally bound

One attempt to deal with the situations is found in the World Health Organisation Health Regulations 2005. The World Health Organisation (‘WHO’) has been the focus of international co-operative efforts to meet the Covid-19 pandemic challenge.

The basis of that response is the International Health Regulations (the ‘Health Regulations’’) which were originally adopted in 1969. They are made under the authority of Articles 21(a) and 22 of the Constitution of WHO and are binding upon all WHO Member States who do not specifically choose to opt out after adoption by the Health Assembly of the WHO. The current version of the Health Regulations was adopted in 2005. They came into force for 196 States in June 2007. The Health Regulations provide a basis for international co-operation, in good faith, between States. The Health Regulations deal with the position of vessels in great detail, and State parties to the WHO are bound by legal obligation to comply with those provisions.

A distinction is drawn between ships ‘coming from an affected area’ and those which do not. Where a ship is not coming from an affected area, Article 25 requires that it be permitted to take on fuel, water and supplies, and that no health measure be applied to the vessel.

Given the global number of affected areas in the Covid-19 pandemic, the more significant provisions are those dealing with ships coming from affected areas. Such vessels are governed by Article 27 and Article 28. That Article permits a coastal State, if evidence of a public health risk or clinical signs of infection are observed, to disinfect the vessel, and take other steps within the scope of the Health Regulations to secure an ‘adequate level of control of the public health risk’. Importantly, the vessel may be allowed to depart and must be permitted to take on fuel, water, food and supplies before departure. It follows that even where a coastal state wishes to deny access to a port, it must at a minimum allow provisioning of the vessel.

By Article 28(1), a vessel must not be prevented from calling at any port of entry of a coastal State, although it may be directed to a port of entry which is more appropriately equipped to deal with the health crisis. By Article 28(2) vessels must not be refused free pratique (the ability to enter a port on assurance that the vessel is free from disease) on public health grounds, although the coastal State may grant free pratique on condition of inspection, decontamination or other necessary measures to prevent the spread of infection. This is a significant provision, as it requires the master of a vessel at international law either to provide an assurance that the vessel is free from disease, or to provide to the coastal state such information about the existence of disease as is available to the master.

The coastal State obligations under Article 28 to permit the taking on of fuel, water, food and supplies have been severely tested by the Covid-19 pandemic, given that it seems that with present medical science it is not easily possible to disinfect or otherwise deal with on board infection so as to prevent the spread of risk within the coastal State.

Notably, Article 28(6) permits an officer in command of a ship to take ‘such emergency measures as may be necessary for the health and safety of travellers on board’. It is not clear at the date of writing whether any ships’ captain has declared a mayday emergency or taken other forceful steps to ensure the health treatment of infected passengers and crew. The operation of Article 28 is expressly made subject to Article 43. Article 43, entitled ‘additional health measures’, permits a State to implement health measures consistent with international law in response to specific public health risks or public health emergencies of international concern which are otherwise inconsistent with (relevantly) Articles 28(1) or 28(2). Any measure which involves refusal of entry to international travellers or conveyances (including vessels) must be notified to the WHO together with the rationale for the restrictive measure.

However, Article 43 does not exclude the possibility of a ships’ captain taking emergency measures to secure the health and safety of those on board. That would clearly include the declaration by a master of a state of distress, triggering the coastal state emergency obligations discussed earlier. The Australian Government was clearly aware of that possibility in its actions, with the Minister for Home Affairs Peter Dutton stating on 2 April 2020 that: ‘We’ve also got to be cautious about the fact that if you force these boats to set sail, and they end up having people die or people who are seriously sick by the time they get a couple of hundred nautical miles off the coast, they’d turn around and come back. So we’ve got to deal sensibly with each of them.’

Conclusion

The balance to be struck between coastal State rights and humanitarian needs of passengers and crews in a global pandemic is evolving. Many thousands of passengers and crew boarded cruise vessels in the expectation of an enjoyable cruise or an interesting workplace. Many remain on board at the date of writing. Many coastal states have clearly attempted to manage the tension between providing refuge and humanitarian medical treatment to people on board and the protection of domestic medical services. The existing rules of international law were not designed to deal with the extreme, urgent, unexpected and universal characteristics of the Covid-19 pandemic. However they have provided at least the basis of a workable framework, without which many more ships may have been left cruising indefinitely with unbearable humanitarian consequences.


Dr Christopher Ward SC is a barrister in 6 St James Hall International Chambers, Adjunct Professor, ANU and President, International Law Association.