Port Denials and Restrictions in Times of Pandemic: Did International Law Lose its North Star?

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Two months and a half after the World Health Organization declared the spread of the corona virus to be a public health emergency of international concern (PHEIC), the maritime world is facing a constantly increasing array of port restrictions and denials. States have adopted variously restrictive measures which range from indiscriminate prohibitions on access to ports to measures discriminating between ships on account of their nationality or based on objective considerations, like previous calls in infected areas. A more appropriate approach is specifically based on the health situation on the ship, assessed after appropriate testing. But very few States adopted it. As per today, Canada appears to be the only green spot on the globe, with its ports open for disembarkation and embarkation.

The cruise ships’ situation which attracted most media attention, but these restrictions apply equally to the merchant fleet with dire consequences. 90% of international trade is maritime. Its continuity is essential to most countries’ supply, including for basic commodities (energy, chemicals, food, consumables including health products). Port restrictions put a heavy burden on shipowners and ship operators, but also and especially on the crew. To cope with the emergency, seafarers have been required to keep working, way beyond the maximum duration of service periods, with no perspective of change, while they are being denied shore-leave, disembarkation with a view to repatriation or even for medical emergencies, if they are infected with the virus. Deep anxiety, psychological distress and extreme fatigue of the crew are bound to increase. This is an explosive cocktail in a confined space like a ship at sea. If the emergency regulations are to be extended all over the globe for several months (which is a likely hypothesis), States must find mechanisms to allow for ports to be open not only to the merchandise carried by the ships, but also to all these invisible workers thanks to whom trade is still possible. 

International law on access to ports is no black and white, as the rules leave a large margin of appreciation to States. But even then, they do not have free rein to repudiate all international rules and to confine themselves to a unilateralism seriously tainted by nationalism.

Freedom of Commerce and Non-Discrimination in Emergency Situations

By virtue of their territorial sovereignty, States may freely regulate access to their ports (Article 25.2 of the United Nations Convention on the Law of the Sea). But this principle does not confer upon States unfettered discretion to close ports even in the case of a pandemic.

The International Health Regulations (IHR 2005), which are binding upon all the 194 States member of the WHO, give a framework to respond to sanitary emergencies while avoiding “unnecessary interference with international traffic” (Art. 2 of the IHR). In relation to maritime transport, the principle is that of free pratique, meaning the “permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores” (Art. 1 of the IHR). Furthermore, Article 28.1 states that “a ship or an aircraft shall not be prevented for public health reasons from calling at any point of entry”. Article 28.2 specifies that a ship shall not be denied the embarkation and disembarkation of passengers either.

It is true that, in cases of PHEIC, States can adopt measures which are more restrictive than the recommendations made by the relevant international organizations (Art. 43 IHR). Yet, even then, States must comply with three requirements. Firstly, such measures “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives” (Art 43.1). This is the principle of reasonableness. Secondly, States must rely on scientific studies or WHO recommendations to justify these measures (Art.43.2). This is the principle of objective necessity and proportionality. Thirdly, they must convey these justifications to the WHO (Art 43.3). This is a corollary of the obligation of international cooperation, based on notification and sharing of information. The organization may hence request its members to “reconsider the application of the measures” (Art. 43.4).

Even if they have no general obligation to open their ports to foreign ships, States parties to the 1923 Convention on the International Regime of Maritime Ports are bound to treat equally the ships of all States, including their own (Art.2). It is true that the 1923 Convention has not been widely ratified, but the principle of non-discrimination was codified in Article 24.1.b of UNCLOS. It is equally recalled by the 1965 IMO Convention on Facilitation of International Maritime Traffic, specifically in relation to sanitary measures and health formalities (Art. 4.7 of the Annex to the FAL Convention; also Art. 42 of the IHR). According to this principle, there is no reason to discriminate between ships which fly the flag of the port State and other ships, or between seafarers according to their nationality, even in the case of a pandemic.

Duty of Assistance in Emergency Situations

The duty to render assistance at sea (Art. 98 UNCLOS, also referred to in Art. 18 UNCLOS) has ramifications in the field of access to ports. According to Rules 2.17-2.24 of the FAL Convention, States must allow disembarkation in the event of a medical emergency on board. If humanitarian evacuation is not granted, shipmasters may invoke distress as the ultima ratio to get permission to dock (Art. 28.6 of the IHR). But States can still appreciate which are the most appropriate means, short of access to ports, to respond to the medical emergency.

In the same vein, the duty to render assistance to people found in distress at sea (often invoked in cases of mass migration) ends with the disembarkation of the rescued persons in a place of safety. This creates an obligation for all interested States to provide for such a place as soon as reasonably practicable (Regulations 3.1.6, 3.1.9 and 4.8.5 of the SAR Convention). As a consequence of the COVID crisis, Malta and Italy declared their ports not to be places of safety. The emergency legislation adopted by France, which closes ports to all ships carrying passengers, still provides for an exception in cases of ships having rescued people at sea. The obligation of disembarkation after mass-rescue has too often been the victim of lack of solidarity among the Mediterranean States. With COVID, it completely disappeared from the agenda.

Seafarers, the invisible essential workers

Every month, virtually 150,000 seafarers contract end somewhere in the world. This means that, at present, there is half a million of seafarers who stay at sea beyond their contract. Most of them come from The Philippines, China, India, Russia and Ukraine. Seafarers’ unions have sounded the alarm. On 17 March, the International Transport Workers’ Federation thus pointed out “the failure of flag states to protect seafarers’ and passenger’s health during this humanitarian crisis. On 31 March, the ILO also expressed its grave concern with the effects of these measures on seafarers and international trade.

Under the 2006 Maritime Labour Convention (Rule 2.5), seafarers have a right to repatriation or to be granted a safe stay in the country of disembarkation. It is the obligation of the shipowners to cover the related expenses. But shipowners cannot meet their obligations, even when they want to, if port States do not allow for crew changes. The flag State must ultimately ensure that seafarers rights are respected.

IMO calls for cooperation between flag State authorities, port State authorities and control regimes, companies and shipmasters. The flag State could provide medical equipment and prompt medical care on board the ship. Unfortunately, the flag States, especially the flags of convenience, demonstrate a guilty passivity in this respect.

Finally, the suspension of regular commercial flights in the context of COVID makes necessary the implication of the consular services of the State of nationality to coordinate the repatriation of seafarers. But so far, States of nationality have been more prompt to repatriate tourists than seafarers.

Is good faith cooperation gone with the wind?

Coordinated and safe disembarkation and embarkation can only be ensured through cooperation between States. On 13 Feb. 2020, the IMO and WHO adopted a joint statement insisting on the necessity to avoid severe disruption of maritime traffic. Since then, the IMO published several circular letters, providing guidance for States to reconcile public health concerns and the continuation of maritime activities. On 8 April 2020, the European Commission adopted Guidelines on protection of health, repatriation and travel arrangements for seafarers, passengers and other persons on board ships. The creation of a network of designated ports in which embarkation and disembarkation are made possible and safe is central to the EC’s proposals. Will States finally engage with the international and regional institutions?

In this crisis, multilateral cooperation is not an obligation of conduct. It is an obligation of result and the only sustainable response. It applies to access to ports, but also to scientific cooperation and share of information, to coordination for the production and distribution of medical equipment and one day of the vaccine. Never before were all States in the same boat as they are now. Alas, for the moment, the boat looks more like the Raft of the Medusa or, according to a more optimist view, the Titanic.

This contribution was written with the efficient help of Marie Boucher, Justine Guillemot and Ysam Soualhi, Master’s degree students at the University of Angers. Their researches on this topic can be found here

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Comments

prof. francesco munari says

April 22, 2020

Excellent and updated post! I am also involved in research and academic work on maritime and law of the sea matters, including migrations by sea. I have just written a critical post for the Italian Sidiblog on the decree declaring Italy as a non-POS for migrants rescued outside Italian SAR-Zone (which is mentioned in the pst). Happy to be in agreement with the Author's views and hope to have fruitful exchanges of view in future occasions.

Alina Miron says

April 22, 2020

Professor Munari, Thank you for your comments. And for your post on the Sidiblog, analysing the italian decree, which is most instructive. I was (and I'm still wondering) whether the distress/ state of necessity argument accepted by the Italian Courts in Carola Rackete case could be applied in the context of the Covid-19 crisis.

Michel Morin says

May 8, 2020

Thank you very much for this post, which summarizes the picture of the topic. I just want to add something on the European Commission Guidelines that are mentioned at the end of the post. There is something missing in the recommendations set out in these Guidelines, in particular concerning cruise vessels. These recommendations remind that the primary responsibility for arranging the repatriation of crew members rests with the cruise ship operator (§ 5) and, when the ship is flagged in an EU Member State, “the flag State should allow crew to disembark” in one of its ports (§ 6). From a more general point of view, it is said later that “the flag State should facilitate the repatriation of seafarers” (§ 21).
The flag State obligations go beyond that. In accordance with Rule 2.5 of the Maritime Labour Convention, “seafarers have a right to be repatriated at no cost” and “Each [ILO] Member shall require ships that fly its flag to provide financial security to ensure that seafarers are duly repatriated”. It appears that the European Commission has forgotten to consider that obligation in its Guidelines. This is not a theoretical issue for the EU. Let’s be clear, some EU Member States are flags of convenience. One example, Malta which is the third flag of convenience in the world for the number of vessels registered (see e.g. https://www.opensea.pro/blog/flags-of-convenience ). A number of cruise ships are flying the Maltese flag, for instance vessels owned by Celebrity Cruises, many of them currently anchored 5-10 NM off Bahamas (it can be checked from the websites www.vesselfinder.com or www.marinetraffic.com ).
One of these Maltese vessels, the Celebrity Apex, is in a very peculiar situation. Anchored in France, at a dock in Saint-Nazaire, it was delivered by the Chantiers de l’Atlantique shipyard to the cruise company on 27 March, just a few days after the outbreak of Covid-19 cases on board, with the crew having already been there for around three weeks. According to a local newspaper, several hundreds crew members were repatriated but more than 800 of them are still retained on board. What about these people? What Malta is doing?... (I have drafted a paper on this specific case in the e-journal Neptunus, available at https://cdmo.univ-nantes.fr/neptunus-e-revue/annee-2020/ )
Would it not be now the right time to launch or re-launch a debate about the nature of the requirement of the “genuine link” enshrined in Article 91(1) UNCLOS?

Michel Morin
Chercheur associé
Centre de Droit Maritime et Océanique (CDMO)
Nantes