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Tuesday, August 3, 2021

What if you're cruising on a plague ship?

Unclear laws had deadly consequences when ports turned cruise ships away during pandemic

Todd McLeish

When cruise ships around the globe were refused entry into dozens of ports in the early stages of the COVID-19 pandemic, the ports got away with it because applicable international laws are unclear and contain loopholes that allowed the ports to avoid responsibility. 

The unusual circumstances got University of Rhode Island ocean governance expert Elizabeth Mendenhall thinking about how to improve the situation in the future by clarifying international maritime laws and customs.

“There are no clear responsibilities for responding to a pandemic distress situation,” said Mendenhall, URI assistant professor of marine affairs. “It’s such a novel situation that we’re not sure who’s supposed to do what. And as a result, the response was inefficient and it might have caused more people to die or at least caused a delay in the provision of care.”

Mendenhall and colleague Andrew Tirrell of the University of San Diego analyzed all of the data and applicable laws they could find and published an article this month in the journal Ocean Development & International Law that outlined the problem and proposed solutions to better address the situation in the future.

They found 55 cruise ships that were turned away from ports in March, April and May 2020, and not all of them had COVID outbreaks aboard.

“It’s hard to blame the ports because they were just trying to protect their local population,” Mendenhall said. “Just like in shutting down air travel at the beginning of the pandemic, this was one more way to control their borders. But it left many people in a dangerous situation, because we know that if you get COVID, you’re better off in a hospital than in a cruise ship’s medical facility.”

Part of the problem, according to Mendenhall and Tirrell, is the concept of “flags of convenience,” in which ship owners fly the flag of a nation that theoretically takes responsibility for enforcing its laws on the ship. But most ship owners select a nation that has minimal environmental, labor and safety regulations, and most flag countries accept no responsibility for assisting ships at sea that are in need.

“It works great for the cruise lines and for the flag countries, but there have been no major disease outbreaks since the flags of convenience phenomenon has been around, so there’s no precedent for how flag states should act,” Mendenhall said.

International laws – both written treaties and customs established over time – outline the obligations of ports and coastal nations when ships are in distress, noting that those ships have a right of entry to any foreign port. But historically it has only applied to ships in danger of sinking or that have run out of fuel.

“Once again, there has been no clear development of the law, so we had chaos,” Mendenhall said. “And the World Health Organization’s health regulations seem not to have been followed.”

Those regulations, adopted in 2005 and legally binding, hold that ships “shall not be prevented for public health reasons from calling at any port” unless “the point of entry is not equipped for applying health measures.” The latter point was used by some ports to support their decisions to refuse cruise ships entry last year.

“The murkiness around state obligations to aid ships in distress under international law provided more than enough cover for many port states to turn vessels away during the pandemic,” wrote Mendenhall and Tirrell. “Because there is a limited history of state practice in this specific issue area, the actions of port states during the first half of 2020 may have a real influence on the development of customary international law regarding disease outbreaks, distress and ports of refuge.”

As a result of the lack of clarity of maritime laws and customary practices, Mendenhall and Tirrell suggested how the maritime industries and countries should proceed to create appropriate policies that clearly state the responsibilities of ports, coastal nations and flag nations during inevitable future pandemics.

“If I were a cruise passenger, I’d be a little worried about this,” Mendenhall said. “If there were another outbreak, I wouldn’t be confident that the ship would get help quickly.”

Her primary recommendation is to urge the International Maritime Organization to work closely with the World Health Organization and modify its current rules so they clearly define and articulate responsibilities in the case of major disease outbreaks.

“The IMO is good at creating new laws that are adopted and applied by the maritime industry,” she said. “It’s their job, and it’s something they could do better than any other intergovernmental organization.”

She notes that international health regulations put most of the burden of responsibility on ports, but she believes that those responsibilities should be rebalanced so that flag states, which currently have little responsibility or accountability, have a larger role.

“There hasn’t been a pandemic every decade, so there hasn’t been a strong urgency to develop flag state obligations,” Mendenhall said. “It’s unusual to clearly define flag state obligations because the system already benefits everyone.

“Mostly what’s needed, though, is to bring attention to the issue,” she added. “Customs are developed through what states do or what ships do and the reasons they do it. For customary international law to develop, we need to establish practices and specific intentions.”