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Any Port in a Pandemic: International Law and Restrictions on Maritime Traffic during the COVID-19 Pandemic

Published online by Cambridge University Press:  11 May 2021

JUSTIN OKERMAN  and
BARBARA VON TIGERSTROM
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Abstract

The current international framework that purports to regulate the spread of communicable disease in the context of maritime traffic is a fragmented, internally inconsistent, and inadequately enforced patchwork of treaties (including the International Health Regulations (2005)) and customary international law. The COVID-19 pandemic has tested the current framework and revealed it to be inadequate to deal with a major global health emergency. States have imposed or failed to impose varying control measures, the effects of which have been witnessed on board passenger vessels around the world. The cruise industry, in particular, has a significant global economic impact; therefore, appropriate, enforceable international regulation is necessary to ensure the adequate control of future communicable disease outbreaks.

Résumé

Résumé

Le cadre international actuel qui prétend réglementer la propagation des maladies transmissibles dans le contexte du trafic maritime est un patchwork fragmenté, incohérent et mal appliqué de traités (y compris le Règlement sanitaire international (2005)) et de droit international coutumier. Mis à l’épreuve par la pandémie COVID-19, le cadre actuel s’est révélé inadéquat face à une urgence sanitaire mondiale majeure. Les États ont imposé, ou non, diverses mesures de contrôle, les effets desquelles se sont manifestés à bord des navires à passagers du monde entier. L’industrie des croisières, en particulier, a un impact économique mondial important; par conséquent, une réglementation internationale appropriée et susceptible d’être appliquée est nécessaire pour garantir un contrôle adéquat de futures flambées de maladies transmissibles.

Keywords

COVID-19cruise shipsinternational health lawInternational Health Regulationsinternational maritime lawlaw of the seaport statesquarantinetravel restrictionsCOVID-19droit international de la santédroit maritime internationaldroit de la merétats portuairesnavires de croisièrequarantaineRèglement sanitaire internationalrestrictions de voyage
Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 58 , November 2021 , pp. 194 - 224
Copyright
© The Canadian Yearbook of International Law/Annuaire canadien de droit international 2021

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Footnotes

The authors gratefully acknowledge the valuable comments received from anonymous reviewers and from Robin Hansen (University of Saskatchewan College of Law). Funding support for this research was provided by the Canadian Institutes of Health Research (Canadian 2019 Novel Coronavirus (2019-nCoV) Rapid Research, Grant no. NFRF-2019-00013).

References

1 World Health Organization (WHO), Novel Coronavirus (2019-nCoV) Situation Report — 1 (21 January 2020) at 1, online: <www.who.int/docs/default-source/coronaviruse/situation-reports/20200121-sitrep-1-2019-ncov.pdf?sfvrsn=20a99c10_4>.

2 Ibid.

3 Ibid.

4 Chad O’Carroll & Nils Weisensee, “Tourism to North Korea Suspended amid China Coronavirus Concerns: Operator,” NK News (21 January 2020), online: <www.nknews.org/2020/01/tourism-suspended-to-north-korea-amid-china-coronavirus-concerns-ypt/?t=1579741235759>.

5 Samantha Kiernan & Madeleine DeVita, “Travel Restrictions on China Due to COVID-19,” Think Global Health (6 April 2020), online: <www.thinkglobalhealth.org/article/travel-restrictions-china-due-covid-19>; WHO, “Statement on the Second Meeting of the International Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV)” (30 January 2020), online: <www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)>.

6 United Nations World Tourism Organization (UNWTO), “100% of Global Destinations Now Have COVID-19 Travel Restrictions, UNWTO Reports” (20 April 2020), online: <www.unwto.org/news/covid-19-travel-restrictions>.

7 Ibid.

8 See generally Chinazzi, Matteo et al, “Effect of Travel Restrictions on the Spread of COVID-19 Outbreak” (2020) 368:6489 Science 395 Google ScholarPubMed; Habibi, Roojin et al, “Do Not Violate the IHR during the COVID-19 Outbreak” (2020) 395:10225 Lancet 664 Google ScholarPubMed.

9 Sofia Galani, “Persons at Sea, International Law and Covid-19,” EJIL Talk! (24 November 2020), online: <www.ejiltalk.org/persons-at-sea-international-law-and-covid-19/>.

10 Natalie Klein, “International Law Perspectives on Cruise Ships and COVID-19” (2020) 11 J Intl Humanitarian Leg Studies 282 at 283 [Klein, “International Law Perspectives”].

11 Domestic sources and legal frameworks, including internal regulations and standards, contracts between operators and their customers and employees, and insurance arrangements are also relevant, but this article will focus on relevant sources of public international law.

12 International Health Regulations, 23 May 2005, 2509 UNTS 79, art 2 (entered into force 15 June 2007) [IHR].

13 Hanako Jimi & Gaku Hashimoto, “Challenges of COVID-19 Outbreak on the Cruise Ship Diamond Princess Docked at Yokohama, Japan: A Real-world Story” (2020) 2:2 J-Stage Global Health & Medicine 63 at 63.

14 Ibid.

15 Government of New South Wales (NSW), Special Commission of Inquiry into the Ruby Princess (Sydney: State of NSW through the Special Commission of Inquiry into the Ruby Princess, 2020).

16 Ibid at 147.

17 Ibid at 265.

18 Ibid at 266.

19 Morgan Hines, “Exclusive: Zaandam Cruise Passengers’ Suit Calls on Holland America, Carnival Corp. to Reform,” USA Today (24 June 2020), online: <www.usatoday.com/story/travel/cruises/2020/06/24/holland-america-passengers-ms-zaandam-sue-bring-reform/3251851001/>.

20 Elida Moreno, “‘Help Us’: After Deaths on Coronavirus Hit Ship, Guests Clamor to Leave,” Reuters (27 March 2020), online: <www.reuters.com/article/us-health-coronavirus-cruise-zaandam/help-us-after-deaths-on-coronavirus-hit-ship-guests-clamor-to-leave-idUSKBN21E37C>.

21 Michael Smith et al, “The Pariah Ship,” Bloomberg Businessweek (11 June 2020), online: <www.bloomberg.com/features/2020-zaandam-pariah-ship/>.

22 Ibid.

23 Hines, supra note 19.

24 Rachel Humphreys et al, “Stranded at Sea: The Crew Members Trapped on Cruise Ships,” The Guardian (18 June 2020), online: <www.theguardian.com/news/audio/2020/jun/18/stranded-at-sea-crew-members-trapped-on-cruise-ships>.

25 Anish Arvind Hebbar & Nitin Mukesh, “COVID-19 and Seafarers’ Rights to Shore Leave, Repatriation and Medical Assistance: A Pilot Study” (2020) 71 Intl Maritime Health 217.

26 Wilhelmsen reports that Vietnam requires that all vessels be inspected at anchorage before berthing is permitted, regardless of any prior ports of call. See Ships Agency, “COVID-19 Global Port Restrictions Map,” Wilhelmsen, online: <https://wilhelmsen.com/ships-agency/campaigns/coronavirus/coronavirus-map/>.

27 The US Centers for Disease Control and Prevention’s “No Sail Order” prohibits embarkation of cruise ships. See US Centers for Disease Control and Prevention, Order under Sections 361 & 365 of the Public Health Service Act (42 USC 264, 268) and 42 Code of Federal Regulations Part 70 (Interstate) and Part 71 (Foreign): Second Modification and Extension of No Sail Order and Other Measures Related to Operations (Atlanta: Centers for Disease Control and Prevention, 2020).

28 Wilhelmsen reports that Australia and Vietnam have prohibited shore leave and that Argentina prohibits any kind of crew change. See Ships Agency, supra note 26.

29 The MS Zaandam was refused moorage and disembarkation of its more than twelve hundred passengers by Argentina and Chile, finally disembarking in Florida more than two weeks later, after an at-sea resupply by another ship. See Hines, supra note 19.

30 Though most ports have not directly prevented loading or unloading, some restrictions have had ripple effects that have negatively affected movement of cargo — for example, East Africa Community State partners, such as Kenya, Tanzania, and Uganda, imposed regulations on truckers to reduce spread in East Africa, but this resulted in the port of Mombasa banning drivers that were not tested and issued a certificate attesting to their absence of infection, affecting the efficacy of loading and unloading of cargo. See Shem Oirere, “COVID-19 Impacts Port Operations,” GreenPort (6 July 2020), online: <www.greenport.com/news101/africa/covid-19-impacts-port-operations>.

31 Wilhelmsen reports that Japan mandates that any ship be at sea for fourteen days following departure of any prior port before arrival. See Ships Agency, supra note 26.

32 The Canadian federal government has prohibited cruise ships with an overnight capacity of more than one hundred persons from entering its waters, with those under one hundred persons permitted only subject to provincial/territorial/municipal regulation. See Transport Canada, Interim Order No 3 Respecting Passenger Vessel Restrictions Due to the Coronavirus Disease 2019 (COVID-19) (Ottawa: Transport Canada, 2020), ss 3–4.

33 International Chamber of Shipping, Coronavirus (COVID-19) Guidance for Ship Operators for the Protection of the Health of Seafarers (2020) at 6.

34 Sarah J Tomlinson, “Smooth Sailing: Navigating the Sea of Law Applicable to the Cruise Line Industry” (2020) 14:1 Jeffrey S Moorad Sports LJ 127 at 134.

35 AV Lowe, “The Right of Entry into Maritime Ports in International Law” (1977) 14 San Diego L Rev 597; Louise de La Fayette, “Access to Ports in International Law” (1996) 11:1 Intl J Marine & Coastal L 1; Anthony P Morrison, Places of Refuge for Ships in Distress (Leiden: Martinus Nijhoff, 2012).

36 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, [1986] ICJ Rep 14 at paras 212–13.

37 Klein, “International Law Perspectives,” supra note 10 at 284; Karen Scott, “NZ Ban on Foreign Vessels within International Law Bounds, But Balance Essential” (2020), online: Australian National University (ANU) College of Law <https://law.anu.edu.au/research/essay/covid-19-and-international-law/nz-ban-foreign-vessels-within-international-law-bounds>; David Letts, “Can the Law of the Sea Remain Afloat during COVID-19?” (2020), online: ANU College of Law <https://law.anu.edu.au/research/essay/covid-19-and-international-law/can-law-sea-remain-afloat-during-covid-19>.

38 Lowe, supra note 35 at 610; Morrison, supra note 35 at 12, 126; Christopher F Murray, “Any Port in a Storm? The Right of Entry for Reasons of Force Majeure or Distress in the Wake of the Erika and the Castor” (2002) 63 Ohio State LJ 1465.

39 See generally Murray, supra note 38; Morrison, supra note 35. On potential claims of distress in the context of the COVID-19 pandemic, see Klein, “International Law Perspectives,” supra note 10 at 284–85.

40 Corfu Channel Case (United Kingdom v Albania), Merits, [1949] ICJ Rep 4 at 22; M/V Saiga (No 2) (St Vincent and the Grenadines v Guinea), Judgment, [1999] ITLOS Rep 10 at para 155. For discussion of this norm or principle and the history of its treatment in other cases, see Matthew Zagor, “Elementary Considerations of Humanity” in Karinne Bannelier, Theodore Christakis & Sarah Heathcote, eds, The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (London: Routledge, 2011) 264 (in relation to the law of the sea, specifically, at 287); Irini Papanicolopulu, International Law and the Protection of People at Sea (Oxford: Oxford University Press, 2018) at 162–66.

41 Papanicolopulu, supra note 40 at 187–88; Sophie Cacciaguidi-Fahy, “The Law of the Sea and Human Rights” (2007) 19:1 Sri Lanka J Intl L 85 at 88, 90. See also Bernard H Oxman, “Human Rights and the United Nations Convention on the Law of the Sea” (1998) 36 Colum J Transnatl L 399 at 415, describing a “universal duty to rescue at sea” as existing “since time immemorial” and finding “new support in modern international law in the increasing acceptance of humanitarian norms in state practice and conventional law.” On the duty to rescue and the obligation to respect and ensure the right to life, see e.g. Human Rights Committee, Views Adopted by the Committee under Article 5(4) of the Optional Protocol Concerning Communication No 3042/2017, UN Doc CCPR/C/130/D/3042/2017 (2021).

42 Papanicolopulu, supra note 40 at 160–61, 167.

43 See e.g. Klein, “International Law Perspectives,” supra note 10 at 286 (suggesting that incidents during the pandemic may reflect differing views on the balance between sovereign rights of port states, on one hand, and humanitarian considerations or flag states’ authority, on the other).

44 For discussion, see e.g. Klein, “International Law Perspectives,” supra note 10 at 288–91; Cleopatra Doumbia-Henry, “Shipping and COVID-19: Protecting Seafarers as Frontline Workers” (2020) 19 Western Michigan University J Maritime Affairs 279. Similarly, other areas of law, including international refugee law, are relevant to specific concerns relating to the impact of restrictions on refugees and asylum seekers. See e.g. Salvo Nicolosi, “Non-refoulement during a Health Emergency,” EJIL Talk! (14 May 2020), online: <www.ejiltalk.org/non-refoulement-during-a-health-emergency/>; Bríd Ní Ghráinne, “COVID-19, Border Closures, and International Law” (4 May 2020), online: <www.dokumenty-iir.cz/Publikace/Reflections/reflection_Br%C3%ADd%20N%C3%AD_04_2020_covid-19_DEF.pdf>.

45 International Maritime Organization (IMO), Circular Letter No 4203: Novel Coronavirus (2019-nCoV) (31 January 2020). See Oladunni Ladeinde-Babalola, Coronavirus onboard Cruise Ships (Lagos: University of Lagos Faculty of Law, 2020) at 3, online: <https://dx.doi.org/10.2139/ssrn.3587533>.

46 IMO, “Coronavirus Disease (COVID-19) Pandemic,” Media Centre, online: <www.imo.org/en/MediaCentre/HotTopics/Pages/Coronavirus.aspx>.

47 IMO, Coronavirus (COVID-19): Guidance on the Gradual and Safe Resumption of Operations of Cruise Ships in the European Union in Relation to the COVID-19 Pandemic, Circular Letter No 4204/Add. 26 (London: IMO, 2020).

48 IMO, Coronavirus (COVID 19): Personal Protective Equipment, Circular Letter No 4204/Add. 15 (London: IMO, 2020)Google Scholar.

49 IMO, Coronavirus (COVID-19): Singapore Crew Change Guidebook, Circular Letter No 4204/Add.22 (London: IMO, 2020)Google Scholar.

50 Ladeinde-Babalola, supra note 45 at 4.

51 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) [UNCLOS]; International Convention for the Safety of Life at Sea, 1 November 1974, 1184 UNTS 277 (entered into force 25 May 1980) [SOLAS Convention]; Convention on Facilitation of International Maritime Traffic, 9 April 1965, 591 UNTS 265 (entered into force 5 March 1967) [FAL Convention]; Convention and Statute on the International Regime of Maritime Ports, 9 December 1923, 58 LNTS 285 (entered into force 26 July 1926) [Geneva Convention and Statute]. Regional instruments may also be relevant, but this article will focus on international instruments of general application.

52 Dorota Pyć, “The Role of the Law of the Sea in Marine Spatial Planning” in Jackek Zaucha & Kira Gee, eds, Maritime Spatial Planning (Cham, Switzerland: Palgrave Macmillan, 2019) 375 at 376.

53 United Nations Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, United Nations Convention on the Law of the Sea: Overview and Full Text (2020); online: <www.un.org/depts/los/convention_agreements/convention_overview_convention.htm>.

54 The right of innocent passage also applies in certain circumstances in internal waters (UNCLOS, supra note 51, art 8(2)); innocent passage or archipelagic sea-lane passage in archipelagic waters (ibid, arts 52–53); and a right of transit passage or innocent passage in straits used for international navigation (ibid, arts 37–44, 45).

55 Ibid, art 18.

56 Ibid, art 98.

57 Ibid, art 86.

58 Note that the International Convention on Maritime Search and Rescue, 27 April 1979, 1405 UNTS 118 (entered into force 22 June 1985) [SAR Convention] could also be relevant if an outbreak on a ship at sea were sufficiently serious to compromise the safety of the vessel or persons on board. The convention’s obligations relate to organization and coordination of search and rescue operations. The recognition of the duty to rescue in customary international law also mitigates the limitations of the UNCLOS provision. See note 41 above and accompanying text.

59 Ladeinde-Babalola, supra note 45 at 1.

60 UNCLOS, supra note 51, art 94(1).

61 Ibid, art 94(3)(b).

62 Klein, “International Law Perspectives,” supra note 10 at 292; Papanicolopulu, supra note 40 at 132, 150; Galani, supra note 9.

63 United Nations Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements (2020), online: <www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea>.

64 United Nations General Assembly, Member States (2020), online: <www.un.org/about-us/member-states>.

65 Tomlinson, supra note 34 at 137–38.

66 Crawford, James, Brownlie’s Principles of Public International Law, 9th ed (Oxford: Oxford University Press, 2019) at 30CrossRefGoogle Scholar.

67 On which parts of UNCLOS are considered to be part of customary international law, see generally J Ashley Roach, “Today’s Customary International Law of the Sea” (2014) 45 Ocean Dev & Intl L 239. The United States and several other coastal states also remain party to the 1958 Geneva Conventions on the law of the sea, which contain some of the same provisions. See Roach, ibid at 252, n 4. Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the High Seas, 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966); Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964).

68 Papanicolopulu, supra note 40 at 96, 131.

69 IMO, Guidelines on Places of Refuge for Ships in Need of Assistance, Resolution A.949(23) (5 December 2003) [IMO Guidelines].

70 Ibid, s 1.2.

71 Ibid, s 1.18.

72 Ibid, s 3.9.

73 The preamble to the IMO Guidelines specifically “[i]nvites” governments to take them into account, acknowledging their non-binding status, and Appendix 1 lists the conventions and protocols that are applicable in the circumstances contemplated in the guidelines. IMO Guidelines, supra note 69 at Preamble, Appendix 1.

74 IMO, Amendments to the Annex to the Convention on Facilitation of International Maritime Traffic 1965, Resolution FAL.12(40) (8 April 2016), s 6.1 (entered into force 1 January 2018) [FAL Convention 2016 Annex].

75 IMO, Status of IMO Treaties: Comprehensive Information on the Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or Its Secretary-General Performs Depositary or Other Functions (18 August 2020) at 184–85; WHO, States Parties to the International Health Regulations (2005) (2020), online: <www.who.int/ihr/legal_issues/states_parties/en/>.

76 FAL Convention 2016 Annex, supra note 74, s 3.8. This section limits examination to passengers who are arriving from an area infected with a quarantinable disease within that disease’s incubation period, though additional examination is permitted in accordance with the IHR, supra note 12.

77 FAL Convention 2016 Annex, supra note 74, s 6.7.

78 Ibid, s 6.10.

79 Ibid, s 2.20.

80 Tomlinson, supra note 34 at 138–39.

81 Ibid at 138.

82 SOLAS Convention, supra note 51, ch XI-2.

83 Geneva Convention and Statute, supra note 51. Note that this convention has a relatively small number of parties and “limited acceptance.” Morrison, supra note 35 at 61.

84 Geneva Convention and Statute, supra note 51, art 2.

85 Ibid, art 16.

86 Morrison, supra note 35 at 59–60. The statute’s provisions, in fact, have been argued as evidence that no free right of access exists in customary international law. De La Fayette, supra note 35 at 4.

87 IHR, supra note 12, art 2.

88 Ibid, art 59.

89 Ibid, arts 59–63.

90 Ibid, arts 5, 13, 19, Annex 1.

91 Ibid, arts 19, 20, Annex 1B.

92 Andrea Renda & Rosa Castro, “Towards Stronger EU Governance of Health Threats after the COVID-19 Pandemic” (2020) 11:2 European J Risk Regulation 273 at 275; David P Fidler, “To Fight a New Coronavirus: The COVID-19 Pandemic, Political Herd Immunity, and Global Health Jurisprudence” (2020) Chinese J Intl L at 5.

93 IHR, supra note 12, arts 23, 31. In all these provisions, “traveller” is defined as a person undertaking an international voyage, as per art 1(1).

94 Ibid, art 32.

95 Ibid, arts 35–39.

96 Ibid, art 15.

97 See generally Habibi et al, supra note 8; Barbara von Tigerstrom & Kumanan Wilson, “COVID-19 Travel Restrictions and the International Health Regulations (2005)” (2020) 5:5 British Medical Journal Global Health e002629.

98 IHR, supra note 12, art 23.

99 Ibid, art 25.

100 Ibid, art 25(a).

101 Ibid, art 27(1).

102 Leah F Moriarty et al, “Public Health Responses to COVID-19 Outbreaks on Cruise Ships: Worldwide, February–March 2020” (2020) 69:12 Morbidity & Mortality Weekly Report 347 at 347.

103 WHO, Operational Considerations for Managing COVID-19 Cases and Outbreaks on Board Ships, Doc WHO/2019-nCoV/Ships/2020.2 (2020).

104 WHO, Handbook for Management of Public Health Events on Board Ships, Doc WA 670 (2020) [WHO, Handbook].

105 IHR, supra note 12, art 27(1).

106 FAL Convention 2016 Annex, supra note 74, s 6.10.

107 IHR, supra note 12, art 27(2).

108 WHO, Handbook, supra note 104 at 6.

109 Ibid at 5.

110 Ladeinda-Babalola, supra note 45 at 5.

111 Ibid at 3; Smriti Mallapaty, “What the Cruise-Ship Outbreaks Reveal about COVID-19” (2020) 580 Nature 18 at 18; Yoshihiro Yamahata & Ayako Shibata, “Preparation for Quarantine on the Cruise Ship Diamond Princess in Japan Due to COVID-19” (2020) 6:2 Journal Medical Internet Research Public Health Surveillance e18821.

112 IHR, supra note 12, art 1(1).

113 Ibid, art 28(1).

114 Ibid, art 28(2).

115 See notes 37–39 above and accompanying text. Other international agreements that might be relevant include human rights treaties and the Geneva Convention and Statute, supra note 51, which imposes obligations of non-discrimination regarding access to ports.

116 IHR, supra note 12 .

117 Ibid, art 28(1).

118 Ibid, art 43(1).

119 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

120 IHR, supra note 12, art 32.

121 Ibid.

122 Ibid, art 43(2).

123 Ibid.

124 Reporting requirements are contained in the IHR, ibid, art 43(5); requirements for justification and sharing are contained in art 43(3).

125 Transport Canada, supra note 32, ss 3–4, enshrines a blanket provision prohibiting any passenger vessel from entering Canadian Arctic waters from any other open waters and prohibiting any passenger vessel certified to carry more than one hundred persons equipped with berths or cabins for overnight travel from navigating, mooring, anchoring, or berthing in Canadian non-Arctic waters.

126 Other states that have imposed similar bans include Australia (prohibition against any cruise ship capable of carrying more than one hundred passengers from operating in Australia; see Australian Border Force, News Release, “Cruise Ship Prohibition Extended” (22 May 2020), online: <https://newsroom.abf.gov.au/releases/cruise-ship-prohibition-extended>); New Zealand (ban on all foreign ships entering the country but permitting innocent passage pursuant to UNCLOS and allowing entry under several enshrined exceptions, including for loading and unloading of cargo and fishing vessels, for undergoing repairs or refitment, or if every person aboard a vessel is a citizen or otherwise permitted under section 14(1) of the Immigration Act 2009; see New Zealand Government Parliamentary Counsel Office, COVID-19 Public Health Response (Maritime Border) Order 2020 (Wellington: New Zealand Government, 2020)); as well as a number of small island developing states. See Walter Leal Filho et al, “Coronavirus: COVID-19 Transmission in Pacific Small Island Developing States” (2020) 17 Intl J Environmental Research & Public Health 5409.

127 Note that this approach differs from prohibiting entry of a vessel to state waters for the purposes of free pratique or resupply after that vessel’s initial departure, as was seen with the MS Zaandam, which, as discussed in this article, was refused entry to ports for resupply and free pratique of passengers and crew after its departure from Buenos Aires by every state along its route up the west side of South and Central America.

128 Klein, “International Law Perspectives,” supra note 10; Scott, supra note 37. See notes 37–39 above and accompanying text.

129 IHR, supra note 12, arts 43(3), 43(5).

130 This obligation applies to measures that “significantly interfere with international traffic” — that is, refusal of entry or delay for more than twenty-four hours, which includes measures discussed here. According to Habibi et al, supra note 8 at 1–2, at least two-thirds of countries that imposed such measures did not report them to the WHO, as required by the IHR, supra note 12.

131 IHR, supra note 12, art 43(1).

132 Lowe, supra note 35; de La Fayette, supra note 35.

133 See generally Ali Tejpar & Steven J Hoffman, “Canada’s Violation of International Law during the 2014–16 Ebola Outbreak” (2016) 54 Can YB Intl L 366, which highlights Canadian violations of international law in response to the Ebola outbreak, where the government imposed travel restrictions in a way that was viewed as a measure to placate the populace rather than materially protect Canadians from communicable disease. See also generally Wendy Rhymer & Rick Speare, “Countries’ Response to WHO’s Travel Recommendations during the 2013–2016 Ebola Outbreak” (2017) 95:1 Bull World Health Organization 10.

134 Mallapaty, supra note 111 at 18. On the effectiveness of travel restrictions in controlling the spread of COVID-19 generally, see J Burns et al, “Travel-related Control Measures to Contain the COVID-19 Pandemic: A Rapid Review” (2020) 9 Cochrane Database Systematic Reviews, art no CD013717, online: <https://doi.org/10.1002/14651858.CD013717>.

135 Alina Miron, “Port Denials and Restrictions in Times of Pandemic: Did International Law Lose Its North Star?” EJIL: Talk! (22 April 2020), online: <www.ejiltalk.org/port-denials-and-restrictions-in-times-of-pandemic-did-international-law-lose-its-north/> [Miron, “Port Denials and Restrictions”].

136 Alina Miron, “Port Denials: What Are States’ International Obligations?” Maritime Executive (12 April 2020), online: <www.maritime-executive.com/editorials/port-denials-what-are-states-international-obligations>.

137 FAL Convention 2016 Annex, supra note 74, s 6.10, stipulates that authorities shall not prevent discharging or loading cargo or supplies from ships not infected with a quarantinable disease except in “an emergency constituting a grave danger to public health,” similar to the IHR, supra note 12, art 43. FAL Convention 2016 Annex, supra note 74, s 2.20, compels states to allow disembarkation of medical emergencies. Pratique was originally referenced in sections 3.16.1 and 4.4 of the first draft of the FAL Convention, supra note 51; it was adapted and expanded under the IHR, supra note 12.

138 FAL Convention 2016 Annex, supra note 74, ss 2.20–2.27.

139 Patrick Greenfield & Erin McCormick, “Cruise Companies Accused of Refusing to Let Stranded Crew Disembark Due to Cost,” The Guardian (5 May 2020), online: <www.theguardian.com/environment/2020/may/05/cruise-companies-accused-of-refusing-to-let-stranded-crew-disembark-due-to-cost-coronavirus>.

140 Galani, supra note 9; Klein, “International Law Perspectives,” supra note 10 at 292.

141 See notes 37–41 above.

142 IHR, supra note 12, art 32.

143 Guofu Liu, “COVID-19 and the Human Rights of Nationals Abroad” (2020) 114 AJIL Unbound 317 at 319–20; Frédéric Mégret, “Homeward Bound? Global Mobility and the Role of the State of Nationality during the Pandemic” (2020) 114 AJIL Unbound 322 at 324.

144 Moriarty, supra note 102 at 347.

145 Chris Baraniuk, “What the Diamond Princess Taught the World about Covid-19” (2020) 369 British Medical J 1. See also Eilif Dahl, “Coronavirus (Covid-19) Outbreak on the Cruise Ship Diamond Princess” (2020) Intl Maritime Health 5 at 7.

146 IHR, supra note 12, art 43(3).

147 WHO, Handbook, supra note 104 at 2.

148 Yamahata & Shibata, supra note 111 at 2.

149 Centers for Disease Control and Prevention, History of Quarantine (20 July 2020), online: <www.cdc.gov/quarantine/historyquarantine.html#:~:text=The%20Middle%20AgesThe%20practice%20of&text=Ships%20arriving%20in%20Venice%20from,giorni%20which%20mean%2040%20days>.

150 Yamahata & Shibata, supra note 111 at 4; Toyoaki Sawano et al, “Limiting Spread of COVID-19 from Cruise Ships: Lessons to Be Learnt from Japan” (2020) 113:5 QJM: Intl J Medicine 309 at 309–10.

151 Varvara A Mouchtouri et al, “Health Measures to Travellers and Cruise Ships in Response to COVID-19” (2020) 27:3 J Travel Medicine 1.

152 Ibid; Sawano et al, supra note 150 at 309.

153 See notes 62, 119–20, and 140 above and accompanying text.

154 Moriarty, supra note 102 at 350.

155 Ladeinde-Babalola, supra note 45 at 1.

156 Sawano et al, supra note 150 at 309.

157 IHR, supra note 12.

158 Ibid.

159 Ibid, art 43(3), (5). See note 130 above.

160 Gian Luca Burci, “The Outbreak of COVID-19 Coronavirus: Are the International Health Regulations Fit for Purpose?” EJIL: Talk! (27 February 2020) at 3, online: <www.ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are-the-international-health-regulations-fit-for-purpose/>; Ria Vaidya et al, “Travel Restrictions and Infectious Disease Outbreaks” (2020) 27:3 J Travel Medicine 7; Kumanan Wilson, “Populism and Pandemics: The IHR Was Meant to Address Outbreaks Like COVID-19, but Nations Have Ignored It,” CBC News (18 March 2020), online: <www.cbc.ca/news/opinion/opinion-international-health-regulations-who-covid-1.5500166>.

161 FAL Convention 2016 Annex, supra note 74, s 6.10.

162 IHR, supra note 12, art 28(1).

163 Ibid, art 28(2).

164 Ibid.

165 FAL Convention 2016 Annex, supra note 74, s 6.10.

166 Ibid.

167 IHR, supra note 12, art 43(1).

168 See Barbara von Tigerstrom, “The Revised International Health Regulations and Restraint of National Health Measures” (2005) 13 Health LJ 35 at 53, 55–56.

169 Rothwell, Donald R & Stephens, Tim, The International Law of the Sea (Oxford: Hart Publishing, 2016)Google Scholar at 55, 57; Morrison, supra note 35 at 55, 61–62; de La Fayette, supra note 35 at 3–4; Letts, supra note 37.

170 IHR, supra note 12, art 43(7).

171 IHR, supra note 12, art 56. On the possibility of International Court of Justice jurisdiction over violations of IHR obligations, see Mark Videler, “ICJ Jurisdiction over Obligations to Share Information with the WHO,” EJIL: Talk! (21 January 2021), online: <www.ejiltalk.org/icj-jurisdiction-over-obligations-to-share-information-with-who/>.

172 UNCLOS, supra note 51, art 287.

173 Klein, Natalie, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2003)Google Scholar [Klein, Dispute Settlement] at 364, citing Alan E Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997) 46 ICLQ 37 at 44–45.

174 Article 33 of the Charter of the United Nations, 26 June 1945, 1 UNTS 15 (entered into force 24 October 1945) could apply, requiring parties to seek resolution by peaceful means, if the situation were sufficiently serious that continuance of the dispute were “likely to endanger the maintenance of international peace and security.”

175 Tejpar & Hoffman, supra note 133; Lauren Tonti, “The International Health Regulations: The Past and the Present, but What Future?” (2020) Harvard Intl LJ, online: <https://harvardilj.org/2020/04/the-international-health-regulations-the-past-and-the-present-but-what-future/>.

176 UNWTO, supra note 6.

177 See generally Habibi et al, supra note 8. Benjamin Mason Meier, “Travel Restrictions Violate International Law” (2020) 367:6485 Science 1436 at 1436, argues, in relation to travel restrictions, that “necessity and benefits of this public health response are outweighed by its violation of international law.” Yair Daon, “Estimating COVID-19 Outbreak Risk through Air Travel” (2020) 27:5 J Travel Medicine 3, states it is often the case that airports that pose the greatest risk for the spread of communicable disease are those within a country. Chinazzi et al, supra note 8 at 3, considers international travel restrictions and the minimal effect they have on the reduction of disease spread: “[E]ven in the case of 90% travel reductions, if transmissibility is not reduced, the epidemic in Mainland China is delayed for no more than 2 weeks.” Initially, introductions of new cases are reduced, but this tapers off and eventually is nullified. Eskild Petersen et al, “COVID-19 Travel Restrictions and the International Health Regulations: Call for an Open Debate on Easing of Travel Restrictions” (2020) 94 Intl J Infectious Diseases 88 at 88, highlights the adverse impacts of restrictions, stating that “[t]ravel bans to affected areas or denial of entry to passengers coming from affected areas are usually not effective in preventing the importation of cases but have a significant economic and social impact.”

178 Burci, supra note 160 at 3, suggests that the WHO historically has preferred to rely on voluntary recommendations, undercutting the authority of the IHR. See also generally Steven Hoffman, “Making the International Health Regulations Matter: Promoting Compliance through Effective Dispute Resolution” in Simon Rushton & Jeremy Youde, eds, Routledge Handbook of Global Health Security (Abingdon, UK: Routledge, 2015) 239. See also Stephen Buranyi, “The WHO v Coronavirus: Why It Can’t Handle the Pandemic,” The Guardian (10 April 2020), online: <www.theguardian.com/news/2020/apr/10/world-health-organization-who-v-coronavirus-why-it-cant-handle-pandemic> (highlighting that generally, the WHO has little power with no ability to compel its members to act; it is less like an authority and “more like an underpaid sports coach” “who can only get their way by charming, grovelling, cajoling and occasionally pleading with players to do as they say”).

179 Robin Churchill, “The General Dispute Settlement System of the UN Convention on the Law of the Sea: Overview, Context, and Use” (2017) 48 Ocean Development & Intl L 216 at 230–31. Note also that the International Tribunal for the Law of the Sea has found ways to promote compliance — for example, in cases where provisional measures are sought, even in the absence of specific enforcement provisions (Klein, Dispute Settlement, supra note 173 at 79, 81) and that special provisions for prompt release of detained vessels have allowed alleged non-compliance with relevant obligations to be dealt with efficiently (at 85ff).

180 See e.g. Joseph E Vorbach, “The Vital Role of Non-Flag State Actors in the Pursuit of Safer Shipping” (2001) 32 Ocean Development & Intl L 27.

181 We are grateful to an anonymous reviewer for raising the possibility of using port state control memoranda of understanding to address challenges in this context.

182 Donald Rothwell, “International Law and Cruise Ships: Sailing into Stormy Waters” (2020), online: ANU College of Law <https://law.anu.edu.au/research/essay/covid-19-and-international-law/international-law-and-cruise-ships-sailing-stormy>.

183 See notes 37–39 above.

184 Miron, “Port Denials and Restrictions,” supra note 135.

185 Others have made similar points in this context. See Galani, supra note 9; Klein, “International Law Perspectives,” supra note 10 at 292; Jaemin Lee, “IHR 2005 in the Coronavirus Pandemic: A Need for a New Instrument to Overcome Fragmentation?” (12 June 2020), online: AJIL Insights <www.asil.org/insights/volume/24/issue/16/ihr-2005-coronavirus-pandemic-need-new-instrument-overcome-fragmentation>.

186 Klein, “International Law Perspectives,” supra note 10 at 292.

187 Ibid.

188 Yamahata & Shibata, supra note 111 at 6.

189 See generally “Cruise to Tortola, British Virgin Islands” (2020), online: Royal Caribbean <www.royalcaribbean.com/cruise-to/tortola-british-virgin-islands>; “Tortola, British Virgin Islands” (2020), online: Carnival <https://www.carnival.com/cruise-to/caribbean-cruises/tortola-cruises.asp>; “Cruises to Tortola, British Virgin Islands,” Celebrity Cruises (2020), online: <www.celebritycruises.com/ca/ports/british-virgin-islands>. All three lines make several stops at this island.

190 Pan American Health Organization, Health in the Americas: Countries, vol 2, Scientific and Technical Publication No 622 (2007) at 162.

191 IHR, supra note 12, arts 40–41. See also Klein, “International Law Perspectives,” supra note 10 at 288.

192 Renda & Castro, supra note 92 at 275.

193 In theory, at least, this might be mitigated to some extent by flag states’ exercise of jurisdiction to regulate ships’ operation, but it is not clear how far those obligations extend in this context or whether flag states would have the power to effectively exercise their jurisdiction in this respect, and, during the pandemic, key decisions about continuing or suspending operations were made by industry actors. See note 200 below.

194 Carnival Corporation & PLC, 2019 Annual Report (2019) at 2, online: <www.carnivalcorp.com/static-files/9ba84dfd-b96a-486f-8617-34e49820077a>.

195 World Bank, GDP (current US$): Caribbean Small States (2020), online: <https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?locations=S3&most_recent_value_desc=false>.

196 Alleen Brown, “The Cruise Industry Pressured Caribbean Islands to Allow Tourists onto Their Shores Despite Coronavirus Concerns,” The Intercept (14 March 2020), online: <https://theintercept.com/2020/03/14/coronavirus-cruise-ships-caribbean/>; Christopher Serju & Carl Gilchrist, “CRUISE CLASH: Late-Night Talks Appear to Falter As Carnival Threatens to Pull Vessels over Coronavirus Protocols,” The Gleaner (3 March 2020), online: <http://jamaica-gleaner.com/article/lead-stories/20200303/cruise-clash-late-night-talks-appear-falter-carnival-threatens-pull>.

197 James Ellsmoor, “Call for Caribbean Destinations to Unite against ‘Predatory‘ Cruise Lines,” Forbes (28 August 2019), online: <www.forbes.com/sites/jamesellsmoor/2019/08/28/call-for-caribbean-destinations-to-unite-against-predatory-cruise-lines/#18dc508341e0>.

198 The possibility that relevant principles of customary international law could be relied on to pursue remedies against non-state actors in domestic courts might help to address this gap in some cases. See Nevsun Resources Ltd v Araya, 2020 SCC 5.

199 Royal Caribbean banned all Chinese nationals from all its cruise ships in February. See Kenya Evelyn, “Coronavirus: Royal Caribbean Bans All Chinese Nationals from Its Cruise Ships,” The Guardian (7 February 2020), online: <www.theguardian.com/world/2020/feb/07/coronavirus-royal-caribbean-cruise-bans-chinese-nationals#:~:text=The%20US%20cruise%20ship%20company,centre%20of%20the%20coronavirus%20outbreak>.

200 Cruise Lines International Association, CLIA Announces Voluntary Suspension of Cruise Operations from U.S. Ports (19 June 2020) online: <https://cruising.org/en/news-and-research/press-room/2020/june/clia-announces-voluntary-suspension-of-cruise-operations-from-us-ports>.

201 The UNWTO and the WHO called for coordination and cooperation to ensure minimal interference with international trade and traffic. See WHO, A Joint Statement on Tourism and COVID-19: UNWTO and WHO Call for Responsibility and Coordination (27 February 2020), online: <www.who.int/news-room/detail/27-02-2020-a-joint-statement-on-tourism-and-covid-19---unwto-and-who-call-for-responsibility-and-coordination>. The Tourism Industry Association of Canada has also launched a recovery campaign for the post-pandemic tourism industry in Canada and is working with partner associations. See Tourism Industry Association of Canada, COVID-19 Impact on Tourism (2020), online: <https://tiac-aitc.ca/_Impact_on_Tourism.html>.