International Law Perspectives on Cruise Ships and Covid-19

journal of international humanitarian legal studies 11 (2020) 282-294 brill.com/ihls International Law Perspectives on Cruise Ships and covid-19 Natalie Klein Professor, Faculty of Law, UNSW Sydney, Sydney, Australia [email protected] Abstract Cruise ships have contributed to the spread of covid-19 around the world and State responses to the pandemic have needed to account for the presence of these ships in their ports and the medical treatment of both passengers and crew on board. This contribution outlines the key bodies of international law that must be brought to bear in deciding on State action in response to cruise ships and their covid-19 cases: the law of the sea, international health law, shipping conventions and especially treaties protecting the rights of seafarers, international human rights law and laws relating to consular assistance. While these laws tend to reinforce each other, it is argued that the need for humanitarian considerations to feature strongly in State decision-making is challenged by systemic weaknesses. Keywords covid-19 – cruise ships – port States – seafarer rights – International Health Regulations – human rights at sea – vessels in distress What men, what monsters, what inhuman race, what laws, what barba- rous customs of the place, shut up a desert shore to drowning men, and drive us to the cruel seas again. Virgil1 1 Virgil, Aeneid i, 593–594 quoted in Myres S McDougal and William Burke, The Public Order of the Oceans (Martinus Nijhofff 1987) 104, fn 35. © koninklijke brill nv, leiden, 2020 | doi:10.1163/18781527-bjaDownloaded10003 from Brill.com10/01/2021 11:59:46PM via free access <UN> International Law Perspectives on Cruise Ships and covid-19 283 1 Introduction In the early stages of the covid-19 pandemic, it became rapidly apparent that large cruise ships, each with approximately 3,000 passengers and between 500–1000 crew,2 were a significant source of cases and contributed to the spread of covid-19. This awareness was exemplified by the Diamond Princess, which docked in Japan and had the most cases of covid-19 outside mainland China in February 2020.3 The close confines of a cruise ship facilitated the spread of covid-19 among those onboard. After the Diamond Princess, there were estimates that at least another 25 cruise ships had cases of covid-19.4 Even when passengers were disembarked and returned to their home countries, the crew remained susceptible to the transmission of covid-19. In early April 2020, it was estimated that 15,000 crew members were stranded on 18 cruise ships around the Australian coast with concerns that coronavirus would take hold and spread.5 Within an international law framework, there are diverse actors involved, including the flag States of the cruise ships, the port States visited, the cruise ship companies, the passengers onboard the ships and their States of national- ity, as well as the crew who work on these cruise ships and their home countries. The international rules implicated by the situation include the law of the sea, international health law, shipping conventions and especially treaties protecting the rights of seafarers, international human rights law and laws relating to consular assistance. The purpose of this article is to explain how some of these various bodies of international law intersect in regulating the public health crisis prompted by covid-19 on cruise ships. It will be shown that there is a strong international law frame in place, which anticipates action by the aforementioned actors, to manage the protection of public health, but systemic weaknesses risk limiting responses to the current crisis. 2 ‘An estimated 30 million passengers are transported on 272 cruise ships worldwide each year’. Leah F Moriarty et al., ‘Public Health Responses to covid-19 Outbreaks on Cruise Ships – Worldwide, February–March 2020’ (Centers for Disease Control and Prevention, 26 March 2020) <www.cdc.gov/mmwr/volumes/69/wr/mm6912e3.htm>. 3 Ibid. 4 Smriti Mallapaty, ‘What the Cruise-ship Outbreaks Reveal about covid-19’ (2020) 580 Nature 18. 5 Anne Davies, Naaman Zhou and Matilda Boseley, ‘Coronavirus: nsw Government Considers Military-style Operation to Test Crew on Cruise Ships off Australia’s Coast’, The Guardian (2 April 2020) <www.theguardian.com/australia-news/2020/apr/01/coronavirus-calls-to -repatriate-15000-crew-members-from-cruise-ships-off-australias-coast>. journal of international humanitarian legal studiesDownloaded 11 from (2020) Brill.com10/01/2021 282-294 11:59:46PM via free access <UN> 284 Klein 2 Ports and Customary International Law Australia, New Zealand, and countries in the Pacific and Caribbean began ban- ning the entry of cruise ships in March 2020.6 Cruise ships were also denied entry into ports in South America, including restrictions on access through the Panama Canal.7 Under the law of the sea, States have sovereignty over their ports and can control port access,8 including the possibility of closing ports. Access to ports is frequently governed by treaty, especially for the purposes of promoting international trade. States may close ports ‘when the vital interests of the State so require’.9 In practice, de la Fayette has noted the closure of ports ‘for various reasons related to the protection of public health and safety; to ships carrying explosives; to ships carrying passengers with contagious diseases; to ships carrying dangerous cargoes, such as hazardous wastes; for general coastal pollution protection; to substandard ships; and to ships presenting hazards to maritime navigation’.10 While port closures are permissible, there are excep- tions that apply. When a vessel is in distress, it is allowed to enter a port of refuge.11 What constitutes ‘distress’ has been discerned from national court decisions, which more commonly dealt with the consequences of the vessel’s entry rather than the situation of distress itself.12 Distress relates to a situation that clearly threatens the safety of persons aboard a ship, or a danger to the ship, cargo or crew that risks their loss.13 In the context of cruise ships, it would seem evident 6 ‘Coronavirus and International Cruises’ (Smartraveller, 20 March 2020) <www.smartravel ler.gov.au/news-and-updates/coronavirus-and-international-cruises>; Ben Doherty and Dom Phillips, ‘Coronavirus: Cruise Passengers Stranded as Countries Turn Them Away’, The Guardian (17 March 2020) <www.theguardian.com/world/2020/mar/16/cruise-ships -scramble-to-find-safe-harbour-amid-covid-19-crisis-as-countries-turn-them-away>. 7 Diane Taylor, Kate Proctor and Dan Collyns, ‘Britons on Virus-hit Ship Wait for Panama Canal Green Light’, The Guardian (30 March 2020) <www.theguardian.com/world/2020/ mar/29/britons-on-virus-hit-ship-wait-for-panama-canal-green-light>. 8 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) [1986] icj Rep 111, para 213. 9 Saudi Arabia v Arabian American Oil Company (Aramco) (1958) 27 ilr 117, 212. 10 Louise de la Fayette, ‘Access to Ports in International Law’ (1996) 11 International Journal of Marine and Coastal Law 1, 6 (emphasis added). 11 Anthony P Morrison, Places of Refuge for Ships in Distress: Problems and Methods of Reso- lution (Martinus Nijhoff 2012) 126. 12 See ibid 76. Morrison also examines bilateral treaties and multilateral agreements that have bearing on the meaning of distress. Ibid 80–107. 13 See ibid 76. Churchill and Lowe also recognise a right of entry to port where human life is threatened. See Robin Churchill and A Vaughan Lowe, The Law of the Sea (3rd ed, Man- chester University Press 1999) 63. journal of international humanitarian legal studiesDownloaded 11from (2020) Brill.com10/01/2021 282-294 11:59:46PM via free access <UN> International Law Perspectives on Cruise Ships and covid-19 285 that widespread illness among crew such that the minimum crewing require- ments for the operation of the vessel cannot be met would endanger the over- all safety of the vessel and create a situation of distress.14 Equally, a master of the ship should not be expected to put back out to sea until the situation of distress has been alleviated.15 Nonetheless, the threshold to establish ‘distress’ can be set quite high by States seeking to prevent the entry of vessels into their ports. The Search and Rescue Convention describes the ‘distress phase’ as ‘[a] situation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance’.16 In the context of boat migration, States have considered ‘distress’ triggering an obligation to rescue is only established when the vessel in question is sinking rather than mal- functioning.17 Arguably the standards being used in response to boat migration are not consistent with general practice,18 and distress is established when the seaworthiness of the vessel cannot be maintained due to the absence (or inability caused by illness) of crew to perform their duties. It typically falls to the vessel claiming distress to prove that such a situation of distress exists to warrant entry into a port that is otherwise closed to it.19 When assessing the rights of States in relation to cruise ships that have entered into port, it is important to recall that the flag State of the cruise ship maintains its authority over the internal workings of the vessel.20 A ship that has entered a port in distress generally enjoys immunity from local laws.21 On the information available, it does not seem that cruise ships are relying on 14 See, eg, F Oanh Ha, ‘Stuck at Sea, Cruise Ship’s Sick Crew Must Keep Vessel Going’ (Bloom- berg, 31 March 2020) <www.bloomberg.com/news/articles/2020-03-30/sick-crew-keeps -cruise-ship-running-risking-spread-of-virus>.

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