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COVID-19 Crisis Blog: Distress and Disease at Sea Access to Ports in a time of Pandemic

30 April 2020 - As we navigate a national and global public health crisis with the spread of Covid-19 Coronavirus, we hear from our research and policy fellows, and members of our research community in a new weekly blog which reflects on these new societal challenges. This week, Killian O'Brien from Trinity's School of Law will look at the refusal of states to allow cruise ships and other vessels entry to ports in light of Covid-19, with thousands of passengers and crew members stranded at sea.

Killian O'Brien, Assistant Professor and DAAD Lecturer with the School of Law, TCD

The Norwegian Jewel and the Ruby Princess cruise ships have gained notoriety during the ongoing Covid-19 pandemic. They have been the setting for extremely high infection rates and have seen thousands of passengers and crew members stranded at sea. The refusal of states to allow entry to ports despite the infection rate and public health situation onboard, has prompted many to question the rights and obligations of States to provide assistance in situations of distress or emergency at sea.

In terms of international law, the fundament of the legal framework is provided by the UN Convention on the Law of the Sea (LOSC). LOSC purports to regulate all legal questions arising in respect of the world’s seas. However, this “Constitution of the Oceans” does not expressly speak of access to ports or places of refuge. LOSC confirms sovereignty over internal waters (Artt. 2 & 8] and the territorial sea [Art. 8] and affirms the principle that it is generally up to the port State to prescribe and enforce conditions of access. When a foreign vessel voluntarily decides to enter a port of another State, prior approval of that same State is a prerequisite, due to its territorial sovereignty over its internal waters and all the infrastructures therein. But the situation is somewhat different when the conditions on board a ship are so perilous due to the presence of a highly contagious viral infection.

Customary international law generally accepts that ships in distress may enter a port as a place of refuge. The term “place of refuge” refers to a sufficiently sheltered area where a ship in need of assistance can stabilise its condition and reduce hazards to human life [IMO Guidelines]. It is unclear, however, whether this right of access is absolute or subject to certain conditions. The proponents of an absolute right of access point to humanitarian considerations as justification. State practice demonstrates numerous instances of this right being suspended, often on environmental grounds and, more recently, even in cases with a humanitarian protection element. This would seem to raise considerable doubt about the absolute nature of the right of access. Coastal State sovereignty would seem to suggest the inevitability of certain conditions being imposed.

A better approach to considering the nature of the right is to view it from the point of view of a typical exercise of balancing competing rights. Such a view presupposes a right of access prima facie but it allows the port State to consider the entirety of the situation and balance the interests involved. When permission to access a place of refuge is requested, there is no obligation for the coastal State to grant it, but the coastal State should weight all the factors and risks in a balanced manner and give shelter whenever reasonably possible [IMO Guidelines, para. 3.12]. These factors could be, on the one hand, the health and lives of those on board and, on the other hand, the public health, safety and possibly security concerns of the coastal/port State.

A central issue will be determining whether the presence on board a vessel of widespread contagious illness results in a situation of “distress”. LOSC is unhelpfully silent, but distress is defined in the SAR Convention 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”. As established in The Eleanor Case (1809), a case involving a ship charged with breaching the Navigation Laws, the distress must be urgent and something of grave necessity and there must be at least a moral necessity, such as a danger to the lives of the persons on board.

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This is indicative of the high threshold for distress and recent instances involving boat migration have confirmed this high standard and that the right of ships in distress to access ports of foreign States is an exception to coastal State jurisdiction. Hence, the term should be read in a restrictive manner to minimise abuses of the claim of distress. This was the approach followed by the Irish High Court, sitting as the High Court of Admiralty, in the M/V Toledo case. In that case, the vessel had been refused access to Irish ports despite significant damage having been suffered. The ship was subsequently lost and the owner of the vessel claimed damages for negligence and compensation on a number of grounds including that the decision to refuse access was in contravention of the vessel's right of refuge according to customary international law. The Court acknowledged the humanitarian foundation of the right, before suggesting that coastal States can refuse access where there is no issue of safety of life. Considering this point a contrario, where there is a danger to safety of life, for example in cases of outbreaks of highly contagious diseases on board, this would seem to strengthen the case for access to the port as a place of refuge. Barr J. in his judgment seemed to state that if safety of life is a factor, the coastal State cannot refuse to grant a place of refuge for ships, and these ships can enjoy the right to enter into foreign ports under customary international law.

Having established this, how does the apparent right of access sit with recent State practice refusing to allow ships to enter a port? The right itself is long established as part of customary international law. Nonetheless, the mere historical establishment of a rule is not sufficient condition to ensure its perpetuity in the modern legal context. Recent and not infrequent incidents in the Mediterranean Sea (and elsewhere), particularly in the context of vessels with rescued migrants on board, could be viewed as being indicative of a change in the relevant State practice, however, it is not yet clear that sufficient practice to the contrary has unseated the right. Moreover, in the context of the cruise ships mentioned at the outset, no such claim of distress has yet been made to advance a claim to access a port.

The fact that decision-making of coastal States to grant vessels in distress refuge is done on a case-by-case basis, combined with the lack of a global, comprehensive and legally binding instrument regulating the decision-making process provides some explanation for the lack of a definitive solution. Even in cases of a threat to life, only a qualified right of access applies and more recent State practice would seem to indicate an increasingly restrictive approach. In light of numerous statements from international courts reinforcing the respect for “considerations of humanity” traditionally prevalent in the international law of the sea, it seems almost unconscionable that coastal States would persistently refuse to allow vessels with multiple infected persons to enter their port. Mere port entry does not necessarily equate to a right to disembark and, depending on the best medical advice available, the situation may simply demand that the ship can be properly resourced so as to allow proper treatment of the afflicted passengers.

Killian O'Brien is an Assistant Professor and is also the German Academic Exchange Service (DAAD) Lecturer with the School of Law, Trinity College Dublin. His research primarily focuses on the international law of the sea and, in particular, issues related to environmental protection and the protection of life at sea. Killian has previously held positions with the European Asylum Support Office and as and Adviser to the German Federal Government.

Recent posts in the COVID-19 Crisis Blog:

Adapting in a Time of Crisis with Melanie Ní Dhuinn (28 April 2020)

Power in the Name of Emergency with Róisín Costello & Conor Casey (21 April 2020)

Human Rights in a Time of Crisis with Donna Lyons (14 April 2020)

Solidarity in a Time of Crisis with Rory Montgomery (6 April 2020)

Art in a time of Pandemic with Rita Duffy (1 April 2020)

Leadership in a time of Crisis with Mary Doyle (25 March 2020)

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