Can the law of the sea remain afloat during COVID-19?

COVID-19 has resulted in States imposing exclusions from ports and other internal waters, raising questions about the rights and duties for flag states of these vessels. Photo: Federico Rostagno/Shutterstock
Associate Professor, ANU School of Legal Practice
Wednesday 27 May 2020

In late 1973, the first meeting of the Third UN Conference on the Law of the Sea took place in New York City. Over the next nine years, delegates from more than 160 States met for more than 90 weeks of negotiations that ultimately resulted in the 1982 UN Convention on the Law of the Sea (LOSC) being opened for signature on 10 December 1982 in Montego Bay, Jamaica. In the nearly 40 years that have followed, 168 states have become party to the LOSC and the Convention certainly qualifies as one of the foundational documents of the international legal system through its place in setting out the key principles of international law that govern the world’s ocean spaces.

During recent months, the world has experienced some extraordinary challenges to the previously well-established international global order, and the law of the sea has not been immune to these challenges. From a law of the sea perspective, the most notable challenges have revolved around cruise ships and the impact of the COVID-19 pandemic on the passengers embarked in these vessels, as well as the responses from coastal and port communities where the cruise ships have tried to berth. A number of these issues have been surveyed in an earlier article, but one topic that has not yet been addressed is whether the LOSC itself is capable of dealing with the immediate challenges that are presented to coastal states by COVID-19 in their harbours, ports and associated waterways (such as the Panama Canal).

The LOSC uses the term ‘internal waters’ to describe waters that are on the landward side of the ‘baselines’ that mark the commencement of the territorial sea. The legal status of internal waters is largely uncontested, except in those situations where internal waters are claimed through the drawing of improperly constructed baselines. The coastal state has complete sovereignty and control over internal waters, which means that foreign flagged vessels do not have any particular right to enter internal waters, except perhaps a customary international law right to seek temporary shelter in a situation where a vessel is in immediate danger. Nevertheless, entry into internal waters is a normal and necessary aspect of maritime traffic and trade, as such entry is usually required to embark and disembark passengers (in the case of cruise ships) and cargo in the case of the numerous different commercial vessels that carry the large volumes of cargo that are transported by sea each day.

However, access to internal waters and port facilities therein is not specifically addressed in the LOSC. During the past few decades, a number of States have restricted access to their ports for certain types of vessels, such as New Zealand’s decision in the 1980s to prevent nuclear armed or powered vessels from entering its ports. Australia has similarly banned some vessels from entering its ports, most notably whaling vessels since the late 1970s, and the somewhat notorious refusal to allow the cargo vessel MV Tampa to offload the 433 persons it had rescued at sea in August 2001.

Fast-forward to 2020 and consider the impact of the COVID-19 pandemic on shipping, where once again States have imposed exclusions from ports, and other internal waters. One situation that received considerable media attention recently was the initial decision by Panama to prevent the cruise ship MS Zaandam from undertaking a transit through the Panama Canal so that the vessel could disembark its passengers in Florida. After representations were made by the ships’ owners and the United States government, the vessel was finally allowed through the Canal so that it could conclude its voyage. It is noteworthy that the provisions of the LOSC do not regulate passage through the Panama Canal, or any of the world’s other inter-oceanic canals, and so the Panamanian authorities were acting within their legal authority over the Canal when transit was initially denied.

In relation to the current situation that States are facing with COVID-19 and its impact on port entry and passage through international canals, it is clear that the LOSC does not provide a comprehensive legal framework for dealing with the issues that have arisen.

Some decisions to exclude a vessel from entering a port have been the subject of subsequent scrutiny once the facts that exist on the vessel have been clarified. For example, contemporaneous news reports regarding the health status of the passengers onboard the cruise ship MSC Magnifica prior to its entry into the port of Fremantle suggested there were approximately 250 cases of COVID-19 in the ship. However, this fear differs markedly from a more recent news report that appears to paint a very different picture of a vessel that was completely free from COVID-19 and only wished to obtain fuel and supplies in Fremantle without any passengers disembarking or needing medical assistance.

In both the case of the MS Zaandam and MSC Magnifica, the coastal states involved would have been acting within their legal authority to deny passage, or port entry, to each vessel. In doing so, the LOSC provides no help for either the coastal states or the operators of the cruise ships as it simply does not regulate the circumstances in which passage through the Panama Canal, and port entry for vessels, can be allowed or denied.

This then raises the question of what rights and duties exist for the flag states of these vessels in the present circumstances, and whether the LOSC adequately addresses this topic. The LOSC does clearly require vessels to have a ‘nationality’ and stipulates there ‘must exist a genuine link between the State and the ship’. Additionally, ships are required to ‘sail under the flag of one State only’. Having set out these requirements, the LOSC then lists certain ‘duties of the flag state’ which include ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.’ The difficulty that has recently been experienced with COVID-19’s impact on vessels is that flag states are not explicitly required to ensure that health measures are adopted or enforced on vessels that fly their flag. While it can be implied that ‘social matters’ would include a requirement for the health and welfare of those onboard a vessel, the LOSC does not specifically impose this obligation on a flag state. Further, the LOSC does not address the situation when a vessel is denied entry to a port or a waterway like the Panama Canal.

So, what does this all mean? In relation to the current situation that States are facing with COVID-19 and its impact on port entry and passage through international canals, it is clear that the LOSC does not provide a comprehensive legal framework for dealing with the issues that have arisen. It is perhaps true that the LOSC was never intended to cover such issues in detail, with other international law instruments dealing with these topics instead. Nevertheless, the Convention’s status as a foundational international legal instrument could be considered diminished insofar as it does not adequately regulate some important contemporary challenges.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team