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.

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 nationality, 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) . 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) .

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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) ; Ben Doherty and Dom Phillips, ‘Coronavirus: Cruise Passengers Stranded as Countries Turn Them Away’, The Guardian (17 March 2020) . 7 Diane Taylor, Kate Proctor and Dan Collyns, ‘Britons on Virus-hit Ship Wait for Panama Canal Green Light’, The Guardian (30 March 2020) . 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.

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International Law Perspectives on Cruise Ships and covid-19 285 that widespread illness among crew such that the minimum crewing requirements 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) . 15 See Current Affair Staff, ‘Why Cruise Ships Refuse to Leave Australian Shores amid Coro- navirus Outbreak’ (9Now, 2 April 2020) <9now.nine.com.au/a-current-affair/coronavirus -cruise-ships-refuse-to-leave-australian-shores/068320bb-79db-4262-baa2-3dd37e9c- 8cf3>. 16 International Convention on Maritime Search and Rescue (adopted 27 April 1979, entry into force 22 June 1985) 1405 unts 97, Annex, ch 1.3.11. 17 See, eg, Andreas Schloenhardt and Colin Craig, “‘Turning Back the Boats”: Australia’s In- terdiction of Irregular Migrants at Sea’ (2015) 27 International Journal of Refugee Law 536. 18 See Violeta Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174, 195. 19 See Yoshifumi Tanaka, The International Law of the Sea (cup 2012) 81. 20 Erik Jaap Molenaar, ‘Port State Jurisdiction: Towards Mandatory and Comprehensive Use’ in David Freestone, Richard Barnes and David M Ong (eds), The Law of the Sea: Progress and Prospects (oup 2006) 192, 195. 21 Tanaka (n 19) 81.

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distress to enter ports and so remain subject to port State regulations. None- theless, the refusal of cruise ships to leave port when requested could be justi- fied on the basis of seeking to avoid creating a situation of distress. Greater danger to the ship, as well as those onboard (and possibly other ships in the region and the marine environment), may be posed if a vessel with insufficient crew capabilities is stuck out at sea. The rights of the flag State in regulating its vessels, including matters internal to the vessel, must be balanced against the rights of the port State in relation to its decisions protecting its sovereignty. This balance is recognised in Guidelines on Places of Refuge for Ships in Need of Assistance,22 which were adopted following an environmental disaster onboard a ship.23 In response to reported covid-19 cases on the Zaandam, Panama initially refused passage through the Panama Canal on the basis that its canal staff navigate ships through this passage and would have their health endangered; passage through the Canal was ultimately allowed on a humanitarian basis.24 The des- tination of the Zaandam, and the Rotterdam – which was sent to assist those on board the Zaandam – was Florida, and US officials similarly expressed concerns about crafting a ‘humanitarian solution’ for those onboard while main- taining ‘strong safeguards’ for the local community.25 This example reflects how each State may adopt differing views on what is the correct balance. In making these decisions, the key source of rights for port States over cruise ships carrying infectious persons on board is the World Health Organisation’s International Health Regulations, which are next discussed.

3 International Health Regulations (2005)

In 2005, in the wake of the sars epidemic, the World Health Organisation up- dated its International Health Regulations.26 These Regulations address the

22 Guidelines on Places of Refuge for Ships in Need of Assistance, imo Assembly Res A.949(23) (5 December 2003). 23 Namely, the Prestige oil disaster in 2002 off the coast of Spain. 24 Patrick Greenfield and Erin McCormick, ‘Coronavirus: Panama to Allow Cruise Liner Zaandam through Canal’, The Guardian (29 March 2020) . 25 Morgan Hines and Jayme Deerwester, ‘Holland America Ships Caught in covid-19 Pan- demic Dock in Florida; Here’s How Disembarkation Will Work’, usa Today (2 April 2020) . 26 International Health Regulations (2005), World Health Assembly Res wha58.3 (23 May 2005) (‘International Health Regulations’). These

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International Law Perspectives on Cruise Ships and covid-19 287 public health risks posed by ships (‘conveyances’),27 and particularly the trav- ellers28 (rather than the crew29) on board. A public health risk refers to ‘a likeli- hood of an event that may affect adversely the health of human populations, with an emphasis on one which may spread internationally or may present a serious and direct danger’.30 A State may require information about the travellers and insist on medical examinations for public health purposes.31 The responses expected of States are set out in Article 27(1), which reads in relevant part:

If clinical signs or symptoms and information based on fact or evidence of a public health risk, including sources of infection and contamination, are found on board a conveyance, the competent authority shall consider the conveyance as affected and may: (a) disinfect, decontaminate, disinsect or derat the conveyance, as appropriate, or cause these measures to be carried out under its supervi- sion; and (b) decide in each case the technique employed to secure an adequate level of control of the public health risk as provided in these Regulations. … The competent authority may implement additional health measures, including isolation of the conveyances, as necessary, to prevent the spread of disease. …

In these circumstances, the affected ship can still take on fuel, food, water and other supplies.32 It is incumbent on a vessel that is entering port to advise the relevant port authorities of any cases of infectious diseases or other evidence of a public health risk on board.33 However, according to the International Health Regula- tions, a ship is not to be prevented from entering a port for public health reasons.34 This exception aligns with the customary international law obligations discussed previously in relation to distress.

Regulations entered into force in 2007 and have 196 State parties. World Health Organisa- tion, ‘Strengthening Health Security by Implementing the International Health Regula- tions (2005)’ . 27 International Health Regulations art 1(1). 28 A ‘traveller’ is defined as ‘a natural person undertaking an international voyage’. Ibid. 29 ‘Crew’ are defined as ‘persons on board a conveyance who are not passengers’. Ibid. 30 Ibid. 31 Ibid art 25(1)(a). 32 Ibid art 27(2). 33 Ibid art 28(4). 34 Ibid art 28(1).

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Moreover, ‘ships or aircraft shall not be refused free pratique by States Par- ties for public health reasons; in particular they shall not be prevented from embarking or disembarking, discharging or loading cargo or stores, or taking on fuel, water, food and supplies’.35 Free pratique refers to the permission typically accorded to vessels to enter port, as well as embark or disembark cargo or stores. It facilitates the movement of international shipping, and the World Health Organisation and the International Maritime Organisation have advo- cated its maintenance in the face of the covid-19 pandemic.36 For port States, an inspection of the vessel can still be required in this situation and decon- tamination measures put in place to remove the risk to public health.37 Foremost among State concerns to the presence of cruise ships with sick passengers and crew has been the additional costs incurred and resources required for local health systems.38 Under the International Health Regulations, there are limits to what charges a State may levy against travellers. Relevant for the covid-19 cases on cruise ships is that the State may not charge a traveller for medical examinations or ‘appropriate isolation or quarantine requirements of travellers’.39 Presumably hospitalisation and additional medical care would be payable by travellers. The financial situation is different to that of the crew and is discussed in the following section.

4 Shipping Law and the Maritime Labour Convention

Under the UN Law of the Sea Convention (losc), the flag State has the primary duty to exercise effective jurisdiction and control over ships flying its flag.40 In doing so, the flag State is to ensure that each ship has master and crew who are appropriately qualified and that the number of crew on board is appropriate in relation to the type and size of ship.41 Further, flag States must

35 Ibid art 28(2). 36 who and imo, ‘A Joint Statement on the Response to the covid-19 Outbreak’ (13 Febru- ary 2020) . 37 International Health Regulations art 28(2). 38 See, eg, Ha (n 14); Herlyn Kaur and James Carmody, ‘Coronavirus Cruise Ship Artania Could Swamp WA Hospitals with covid-19 Cases, WA Premier Fears’ (abc News, 2 April 2020) . 39 International Health Regulations art 40(1). 40 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 3 (losc) art 94. 41 Ibid art 94(4)(b).

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International Law Perspectives on Cruise Ships and covid-19 289 ensure that the manning of ships and labour conditions onboard are consistent with applicable international instruments. These instruments are pre- dominantly those adopted under the auspices of the International Maritime Organisation. In particular, the Safety of Life at Sea Convention sets out international standards on ship safety, human security and quality ship manage- ment.42 Also, in terms of the minimum requirements for a crew onboard a cruise liner, regard must be had to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.43 These standards must be borne in mind for the safe operation of the vessel when considering the health of the crew. While a cruise ship would have crew members who would provide services to passengers, other crew would be essential for the operation of the vessel. A ship would not be able to operate safely if vital crew members were too unwell to perform their duties.44 In this setting, it is understandable that some cruise ships have refused to leave ports even after passengers have been disembarked.45 If the crew responsible for the actual running of the vessel are sick and unable to perform tasks essential for the safety of the vessel, a situation of distress may well arise. Beyond the safety of international shipping, it is important to recall that crew members also have core rights that must be protected amidst the covid-19 pandemic. These rights are set out in the Maritime Labour Conven- tion, which came into force in 2013 and was adopted under the auspices of the International Labour Organisation.46 The Convention has 96 State parties, which encompasses 91% of the world gross tonnage of ships.47 This Convention establishes the working and living standards of seafarers at the international level. The Maritime Labour Convention is comprised of Articles, Regulations and a Code. The Articles and Regulations set out the core rights and principles

42 International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 unts 278. 43 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984) 1361 unts 2; 1362 unts 2. 44 See Ha (n 14). 45 This situation has arisen in relation to the Ruby Princess, which had over 1000 crew members onboard, and would not leave Australian waters (at time of writing). See Jessie Da- vies, ‘The Coronavirus Cruise Ship Ruby Princess Has Docked at Port Kembla in nsw – This Is What the Australian Authorities Will Do Next’ (abc News, 6 April 2020) . 46 Maritime Labour Convention (adopted 23 February 2006, entered into force 20 August 2013) 2952 unts 3. 47 International Labour Organisation, ‘Maritime Labour Convention, 2006’ .

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290 Klein and the basic obligations of Members ratifying the Convention whereas the Code contains details for the implementation of the Regulations. The Code is made up of mandatory Standards and non-mandatory Guidelines.48 For crew on cruise ships, the Maritime Labour Convention is important because it seeks to protect the health of seafarers, as well as ensuring their prompt access to medical care on board the ship and ashore.49 While the flag State has responsibility to ensure that seafarers have access to prompt and adequate medical care while working onboard its vessel, when the vessel is located within the territory of a State party, that party is to give access to its medical care available ashore.50 In relation to the standard of medical care to which a seafarer should have access, the aim is that the standard onboard should be as comparable as possible to the standard available on shore.51 In the context of crew on cruise ships who are suffering from covid-19, there are instances where crew members have been hospitalised for treatment.52 In relation to the Ruby Princess, Australia sought to send doctors on board while the ship was still at sea to be able to test crew members and deter- mine the extent the illness had spread among crew.53 Subsequently, the vessel was brought into port so that medical staff could board, assess and treat ill crew members.54 Only those crew requiring hospitalisation were initially allowed off the ship.55 As noted in the previous Section, a concern articulated by port State authorities in addressing covid-19 on cruise ships has been the cost associated with treating passengers and crew in addition to the financial burden for

48 See Maritime Labour Convention, Explanatory Note. 49 Maritime Labour Convention art iv(4) and title 4, reg 4.1.1. 50 Ibid reg 4.1.3. 51 Ibid reg 4.1.4. 52 See, eg, Mark Saunokonoko, ‘Ruby Princess Hospital is Drowning with “200 Sick Crew”’ (msn News, 6 April 2020) ; Beritasatu, ‘Indonesia to Send Navy Hospital Ship to Evacuate Diamond Princess Crew Members’, Jakarta Globe (22 February 2020) . 53 Yoni Bashan and Victoria Laurie, ‘Military Mission to End Cruise Stand Off’, The Austra- lian (2 April 2020) . 54 Davies (n 45). 55 Ibid. A small number were subsequently allowed off for repatriation. Mark Reddie, ‘First Ruby Princess Crew Members Disembark after Coronavirus Isolation, Hundreds Still Left on Board’, abc News (21 April 2020) .

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International Law Perspectives on Cruise Ships and covid-19 291

treating covid-19 patients within their territory.56 As mentioned in relation to the passengers and their rights under the International Health Regulations, the costs of some medical treatment is to be borne by the port State.57 For crew, the key purpose is to ensure that they are protected from financial liability for illnesses suffered in connection with their employment.58 Instead, the ship- owners are responsible for the health protection and medical care of all seafarers working on board their ships.59 In particular, for those crew who are sick and hospitalised with covid-19, it is the shipowner who is ‘liable to defray the expense of medical care, including medical treatment and the supply of the necessary medicines and therapeutic appliances, and board and lodging away from home until the sick or injured seafarer has recovered, or until the sickness or incapacity has been declared of a permanent character’.60 How this obligation might work in practice would entail a government providing medical assistance and seeking compensation from the relevant shipping company. This recovery might be difficult if the shipping company has no presence in the port State’s jurisdiction.

5 Human Rights and Consular Rights

As discussed above, the International Health Regulations and the Maritime Labour Convention provide protections for the health of passengers and crew, respectively, on cruise ships. These specific rules are then supplemented by additional rights enjoyed by all individuals. While human rights are discussed in more detail in other contributions to this special issue, the discussion in this section focuses on the application of human rights at sea, as well as additional assistance that may be afforded by the States of nationality of the individuals concerned, given that these States may be different to the flag State or the port State that otherwise have authority over aspects of the cruise ship’s operations and responses to covid-19. Although the issue has not been without controversy, human rights obligations can apply at sea when a State exercises effective control over a vessel, area or person. This standard applies in relation to the International Covenant

56 See above n 38. 57 See above n 39 and accompanying text. 58 Maritime Labour Convention title 4, reg 4.2. 59 Ibid standard A4.2.1. 60 Ibid standard A4.2.1(c).

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292 Klein on Civil and Political Rights,61 the Convention against Torture,62 and was fol- lowed by the European Court of Human Rights in Hirsi v Italy, which examined Italy’s obligations in relation to boat migrants rescued at sea.63 Whether the requisite level of control is established is a question of fact and must be deter- mined objectively, rather than by reference to the intention of the State undertaking the actions.64 For cruise ships, the starting position would be that the flag State exercises effective control and owes human rights obligations to passengers and crew because of the flag State duty to ensure the effective exercise of jurisdiction and control over its vessels, as mentioned previously.65 When a cruise liner enters the territorial sea and port of another State, the coastal State’s sovereignty over this maritime area would trigger that State’s human rights obligations towards the individuals onboard the vessel. There 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. The flag State might maintain that human rights are part of the internal affairs of the ship (which would prevent higher human rights standards that might apply in diverse countries compared to the flag State), or the port State might argue that it has responsibility for human rights by dint of its sovereignty over the port. Equally, either State might seek to absolve itself of responsibility by expecting the other State to act. The human rights at stake for individuals on cruise ships during the covid-19 pandemic include the right to the highest attainable standard of health, the freedom of movement and right to non-discrimination. Under the International Health Regulations, when State authorities deal with travellers, they should do so ‘with respect for their dignity, human rights and fundamen- tal freedoms and minimize any discomfort or distress associated with such measures’, including through the provision of appropriate medical treatment.66 Article iv of the Maritime Labour Convention sets out the core rights of seafarers as including the right to decent working and living conditions on board ships and the right to health protection and medical care.

61 UN Human Rights Committee, ‘General Comment No 31: Nature of the General Legal Ob- ligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc ccpr/C/21/ Rev.1/Add.13, para 10. 62 UN Committee against Torture, ‘Concluding Observations: United States of America’ (2006) UN Doc cat/C/USA/C/2, para 20. See also jha v Spain (21 November 2008) UN Doc cat/C/41/D/323/2007. 63 Hirsi Jamaa v Italy, App no 27765/09 (ECtHR, 23 February 2012) para 73. 64 Ibid para 81. See also Irini Papanicolopulu, ‘Hirsi Jamaa v Italy’ (2013) 107 American Jour- nal of International Law 417, 420. 65 See above n 40 and accompanying text. 66 International Health Regulations art 32.

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International Law Perspectives on Cruise Ships and covid-19 293

For individuals who find themselves on cruise ships and need assistance to return to their home country, they may turn to consular assistance. The primary international law instrument dealing with consular rights and duties is the Vienna Convention on Consular Relations.67 Consular functions include ‘helping and assisting nationals’,68 and may entail the repatriation of passengers from cruise ships that have cases of covid-19 on board. This action was taken by countries for their nationals on board the Diamond Princess.69 Simi- larly, passengers deemed well enough on the Zaandam and the Rotterdam had chartered flights back to their home countries.70 The emphasis in consular assistance has been on the return of passengers to their States of nationality, but it is also important to recall that crew members may also need to be repatriated. The crew of the Zaandam and the Rotterdam were not allowed to disembark in Florida.71 Repatriation is becoming increas- ingly difficult because of travel restrictions in place in the home States of the crews.72 The Maritime Labour Convention reinforces the consular rights enjoyed by all individuals under the Vienna Convention on Consular Relations, noting that States should facilitate access to consuls when seafarers are in for- eign ports.73

6 Concluding Remarks

This analysis has explained some of the different bodies of international law that have bearing on the impact of covid-19 on cruise ships. These international laws seek to provide different rights and responsibilities in relation to the myriad of actors with interests at stake. In many instances, the rules do work together and are mutually reinforcing. However, the flexibility that is understandably accorded to States to deal with public health crises may not necessarily protect the interests of the most vulnerable (namely, in this in- stance, the sick crew members). This outcome may not be surprising when

67 Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 unts 469. 68 Ibid art v(e). 69 Beritasatu (n 52). 70 Madeleine Carlisle, ‘Passengers Disembark Two Coronavirus-Impacted Cruise Ships in Florida After Weeks at Sea’, Time (3 April 2020) . 71 Ibid. 72 See, eg, Robert Wright, ‘Virus Hampers Repatriation of 4,000 Crew on Cruise Ships off UK’, Financial Times (7 April 2020) . 73 Maritime Labour Convention title 4, guideline B4.4.6(1).

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294 Klein parallels are drawn with the situation of boat migrants rescued at sea in distress and being prevented from disembarking.74 Port States may not want to recognise lower thresholds of ‘distress’ or be more facilitative in assisting sick persons at sea if there is any perception that these responses reflect a prece- dent for the treatment of other vulnerable people at sea, including boat migrants. Given the harshness of the maritime domain, it is not surprising that the International Court of Justice referenced the importance of ‘elementary considerations of humanity’ in assessing State responsibility for actions taken at sea.75 The International Tribunal for the Law of the Sea also posited in the MV Saiga (No 2) that ‘[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law’.76 The president of one of the cruise ship companies seeking to find ports for its covid-19 stricken ships is- sued a statement pleading:

The Covid-19 situation is one of the most urgent tests of our common humanity. To slam the door in the face of these people betrays our deep- est human values.77

Despite his initial response to the arrival of the Diamond Princess in California, even US President Donald Trump urged Florida to allow for the entry of the Zaandam and the Rotterdam on the basis that it was ‘what’s right, not only for us but for humanity’.78 Such humanity needs to extend to passengers and crew equally. Humanitarian considerations should be the overriding concern in operationalising the legal rights and responsibilities relevant for the operation of cruise ships during the covid-19 pandemic.

74 See Natalie Klein, ‘Explainer: What Are Australia’s Obligations to Cruise Ships off Its Coast under International Law?’ (The Conversation, 2 April 2020) . 75 Corfu Channel (Albania v United Kingdom) [1994] icj Rep 4. 76 M/V Saiga (No 2) (Saint Vincent and the Grenadines v Guinea) (Admissibility and Merits) (1999) 38 ilm 1323, para 155. 77 Greenfield and McCormick (n 24), citing the President of the Holland America Line, Or- lando Ashford. 78 Dave Graham et al., ‘Trump Urges Florida to Welcome Cruise Ship with Deadly Coronavi- rus Outbreak’ (Reuters, 1 April 2020) .

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