Persons at Sea, International Law and Covid-19

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As the Covid-19 pandemic continues to affect people around the world, the scholarly debate on how to uphold the rule of law amid the crisis remains relevant. A significant aspect of this debate has focused on the impact of Covid-19 restrictions on human rights (see, for example, here, here and here). However, it is not only the human rights of people on land that have been affected by the pandemic. One of the measures that states adopted to contain the spread of the virus has been port restrictions which range from delayed port clearance and prevention of crew or passengers from embarking or disembarking to prevention of discharging or loading cargo, taking on fuel, water, food or supplies and imposition of quarantine. These restrictions have caused an unprecedented humanitarian crisis at sea affecting the human rights of almost all persons found at sea during the pandemic be it for employment, leisure, military purposes or migration. This short post puts a spotlight on the impact that port restrictions, as a Covid-19 precaution, have had on the human rights of persons at sea and explain how they have undermined the human rights obligations of states, weakening in this way the protection of human rights at sea.

Human Rights Violations at Sea and Covid-19

Violations of human rights at sea have been increasingly documented over the last years. This has given momentum to the recognition of the application of international human rights law at sea (A/74/350, Papanicolopulu, 2018, Galani, 2020) and to the adoption of initiatives to give it effect in practice (see, for example, Chapter 6, UNODC, The Geneva Declaration on Human Rights at Sea). The pandemic, however, has been a sad but much needed reminder of the ongoing violations at sea and of the obligation of states to end them.

Those most affected by port closures have been seafarers and fishers. Port restrictions have prevented crew changes forcing hundreds of seafarers to be abandoned or stuck on board commercial vessels, cruise ships or fishing boats in excess of their employment contracts. Many have been forced to remain on-board without access to medical supplies, medical care, Personal Protective Equipment (PPE), food or water. The lack of prospect of returning home, of seeing relatives who got sick or died of Covid-19 or of receiving medical treatment when they fall ill themselves have caused them severe anxiety and distress leading in some cases to attempted suicides. Sailors were also put at risk when the virus started sweeping through warships. The lack of hygiene protocols and delayed medical treatment caused a high number of infections and one death on board the USS Theodor Roosevelt and Charles de Gaulle. In containing the spread, long periods of quarantine and isolation were implemented adversely affecting the mental health of sailors. Passengers on board cruise ships found themselves in a similar position when Diamond Princess, became the place to account for more than half of the virus cases outside China in February 2020. States forced passengers to quarantine on board often resulting in the death of passengers who were denied medical treatment. Cruise ships transformed from leisure into virus hubs leaving passengers and crews in limbo. While the pandemic disrupted the migrant flows in the Mediterranean Sea, it never brought them to an end. People kept trying to reach Europe on boats and as the European States started closing their ports, many of them were left stranded at sea. Reported cases of suicides and unrest on board NGO-run vessels, such as the Ocean Viking incident, forced Italy and Malta to allow the transfer of those rescued on board quarantine vessels. Rescued persons have been forced to quarantine, often indefinitely, in poor conditions which fall short of the hygiene standards required to prevent the spread of Covid-19. Desperation and anxiety forced migrants to resort to hunger strikes or attempt suicides.

Port Closures in International Law

In light of the humanitarian crisis caused by port restrictions, an important question is whether states have acted lawfully in closing their ports in response to the pandemic. Ports are in internal waters that form part of a State’s territory over which States have sovereign rights under international law. This gives port States a sovereign right to control entry or deny access to their ports (Articles 8 and 25 1982 United Nations Convention on the Law of the Sea (LOSC), Nicaragua v United States of America, paras 212-13). Health and safety as well as the prevention of ships carrying passengers with contagious diseases from reaching a state’s shores constitute a lawful ground on which port states can deny entry to their ports (La Fayette, 1996). It therefore seems that port states did nothing more than exercising a sovereign right to protect public health amid an unprecedented crisis.

Human Rights at Sea and International Law

States, however, should not be condoned for their decision to close their ports leaving hundreds of people in danger. States have also assumed the obligation to protect human rights at sea under the international law of the sea, human rights law and labour law; an obligation which has been sidelined during the pandemic.

Despite the lack of direct references to human rights, LOSC imposes on flag and coastal States positive duties to protect the safety of life at sea (Articles 94 and 98 LOSC). The prevention of crew changes which have forced crews to work in unhealthy conditions without breaks way in excess of their employment contracts are incompatible with LOSC. The reason is that tiredness and fatigue have been key causes of on-board accidents putting the life of crews in danger. In addition, the denial of medical treatment to sick seafarers in ports and their forceful return at sea when they are unable to perform tasks essential for the safety of the vessel might cause a situation of distress (Klein, 2020). A situation of distress might well arise when states refuse to assist sick migrants at sea who might not be at risk of drowning but of dying by Covid-19 as well as when they refuse to take them to a place of safety where their life is no longer threatened and where their basic human needs, such as food, shelter and medical needs are met (Chapter 2 1979 International Convention on Maritime Search and Rescue, MSC Res. 167(78) Annex 34, 2004). LOSC, as a living instrument, has been the subject of evolutionary interpretation that has among others reflected the increasing need to protect human rights at sea. The ‘consideration of humanity’ dictum pronounced in M/V Saiga has been expanded to give effect to human rights guarantees at sea leaving little room for questioning the obligation of states to comply with international human rights law at sea, including during the pandemic (Petrig & Bo, 2019).

Besides LOSC, States have an explicit duty to protect human rights at sea when they exercise ‘directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law’ (CAT/C/41/D/323/2007). The Human Rights Council (General Comment No.6 and No.36) has indicated that the duty to protect life requires States to take appropriate measures, including to facilitate access to health care, in response to epidemics or life-threatening diseases. The European Court of Human Rights has also held that a violation of the right to life might arise when the authorities of a state knowingly put an individual’s life at risk by denying access to life-saving emergency treatment (see here, here and here). Accordingly, flag states have a duty to protect the right to life by making medical care readily available on-board and in life-threatening cases, port states have to provide access to medical treatment. States which failed to provide medical care on board or denied access to health care to persons critically ill in ports have violated their positive duty to protect the right to life. Further human rights violations have been committed by states which forced rescued persons to quarantine on board vessels in crammed and squalid conditions or pushed them back. Poor conditions of quarantine which might amount to torture as well as collective expulsions are incompatible with IHRL.

The treatment of seafarers during the pandemic has been incompatible with labour law standards. Cases of abandonment in which seafarers have been often forced to stay on board vessels without food, water, receiving their salaries or any prospect of returning home are incompatible with the duty of States to provide financial security and ensure that they are duly repatriated (Regulation 2.5, Maritime Labour Convention, 2006 (MLC) and article 21, ILO Work in Fishing Convention, 2007 (C188)). The prevention of crew changes and abandonment have also been in defiance of the guidance issued by the International Maritime Organization and the International Labour Organization urging states to designate seafarers as ‘key workers’ and exempt them from travel restrictions. The failure of certain states to make medical equipment and PPE available on-board as well as the prevention of medical staff and suppliers from boarding vessels in order to provide medical treatment or supply PPE to crews have put the life and safety of crews at risk in violation of labour law standards. The right to medical care and occupational safety on board vessels are guaranteed under labour law (Regulations 4.1 and 4.3, MLC and articles 29, 30 and 32, C188) and while enforcing these rights amid the pandemic has been vital for seafarers, States continue to overlook their duties and insist on rigid restrictions in their ports.

Persons at Sea and Lessons Learnt from the Pandemic

Persons at sea have been victims of severe human rights violations which often occur out of sight. This does not happen because of the lack of legal protection under international law. As this blog briefly showed, the rights of persons at sea are recognised under different legal regimes, such as the law of the sea, human rights law and labour law. Their violation rather occurs because of the way these regimes interact which often weakens each other’s application. Port restrictions is just one example of how states might lawfully exercise a right under the law of the sea while overlooking their human rights obligations. This demands revisiting the rights and duties of states at sea under international law in order to devise an approach that will enable the systematic protection of human rights at sea within and beyond the pandemic context.

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