International and domestic legislative and political agendas have been, and will likely continue to be, dominated by issues associated with the response to the COVID-19 pandemic. The law of the sea is no exception. A large number of states have banned cruise ships from entering their ports and have imposed restrictions on the operation of other ships in order to try and stop the spread of COVID-19, to protect vulnerable communities and to ensure that their medical facilities are not overwhelmed.
In response to the risk posed by cruise ships and other vessels, New Zealand adopted interim measures on 31 March, and on 26 June 2020 replaced these measures with the much more comprehensive COVID-19 Public Health Response (Maritime Border) Order 2020 (2020/134) adopted under the newly enacted COVID-19 Public Health Response Act 2020. The purpose of the 2020 Maritime Border Order is to "prevent, and limit the risk of, an outbreak, or the spread, of COVID-19 by – (a) restricting which ships may arrive in New Zealand; and (b) putting in place isolation or quarantine requirements for people who arrive in New Zealand by sea." (section 3) This Order introduces the most restrictive regime on foreign vessels seeking to enter New Zealand ports in peace time.
The Order permits New Zealand ships and New Zealand warships to arrive in New Zealand (defined as including land territory, internal waters and the territorial sea) (section 4) provided that every person onboard is a New Zealand citizen or a person who holds a valid visa to enter New Zealand under section 14(1) of the Immigration Act 2009 (section 8(1)). Foreign ships however, are not permitted to arrive in New Zealand unless they meet one or more exemptions. The rights of foreign vessels to innocent passage through the territorial sea or transit passage through straits used for international navigation are confirmed by the Order (section 9(2)). The 1982 UN Convention on the Law of the Sea (LOSC) is silent on the question of whether a foreign vessel has a right to access ports, but Molenaar has argued that "[a]s ports lie wholly within a State’s territory and fall on that account under its territorial sovereignty, customary international law acknowledges that a port State has a wide discretion in exercising jurisdiction over its ports." Although Article 28(1) of the 2005 International Health Regulations stipulates that "a ship or an aircraft shall not be prevented for public health reasons from calling at a point of entry", it is generally accepted that foreign vessels do not have a general right of access to ports unless in distress. New Zealand is therefore within its rights to close its ports to foreign vessels and its practice, and indeed that of other states in closing their ports to foreign vessels during the COVID-19 crisis, provides additional clarity on the extent of that right.
Unsurprisingly, the 2020 Maritime Border Order provides for a number of exemptions to this ban. First, the ban does not apply to foreign vessels where every person on board is a New Zealand citizen or a person who may travel to and be in New Zealand under section 14(1) of the Immigration Act 2009 (section 10(1)). Second, a ship is exempt if it falls into the class of one of six categories of ship (section 10(2)): (1) an Antarctic ship; (2) a cargo ship that is arriving in New Zealand for the purpose of loading or unloading cargo; (3) a fishing ship that is unloading its catch, reprovisioning or refuelling or embarking or disembarking crew; (4) a foreign ship that has been granted diplomatic clearance; (5) a ship for which there is a compelling need to arrive in New Zealand for reprovisioning, refuelling or for the purpose of delivering the ship to a business for the purpose of repair or refit and for which permission has been granted; and (6) a ship that has permission to arrive in New Zealand for humanitarian reasons or other compelling needs. Ships in distress or where it is necessary to preserve human life are also permitted to enter New Zealand ports (section 11). The effect of sections 9 and 10 of the 2020 Order is that ships which are not exempt, and these largely include pleasure vessels, cruise ships and ships carrying out scientific research or activities associated with minerals exploitation, are not permitted to enter New Zealand ports for the foreseeable future.
Although the intention of sections 8 to 11 of the 2020 Order is clear, the text of section 9(2) appears to introduce an unfortunate ambiguity into the regime. It states:
Despite subclause (1) [that foreign ships are not permitted to arrive in New Zealand], a foreign ship is permitted to arrive in New Zealand if it is exercising, in accordance with the United Nations Convention on the Law of the Sea, the right of –
(a) innocent passage through the territorial sea; or
(b) transit passage through straits used for international navigation.
While, as noted above, the purpose of this section is arguably to confirm that New Zealand does not intend to interfere with a vessel’s right to freedom of passage through its territorial sea, the phrase "a foreign ship is permitted to arrive in New Zealand" could be interpreted to mean that where a vessel is exercising its right of innocent passage, which, as defined in LOSC Article 17(1)(b), includes "proceeding to or from internal waters or a call at such roadstead or port facility", it is permitted to enter a New Zealand port. It is unlikely that the drafters intended section 9(2) to operate as an exemption to section 9(1) and the ambiguity arises, in part, from the definition of ‘New Zealand’ for the purposes of the Order, which includes the territorial sea as well as New Zealand’s land territory and internal waters (section 4). Clearly, section 9(2) should not be read so as to undermine the object and purpose of the order (which is, in part, to restrict the access of foreign vessels to New Zealand ports). Moreover, it is not disputed that under international law, a state has discretion to refuse a vessel entry into a port. Nevertheless, the conflation of territory, internal waters (including ports) and the territorial sea in this Order and the use of the term ‘arrive’ unfortunately fails to distinguish clearly between a vessel’s right of innocent passage to traverse the territorial sea and its right (or otherwise) to enter a New Zealand port.
New Zealand has also adopted a strict approach of mandatory quarantine for all new arrivals into New Zealand by air fully funded by the New Zealand government until at least August 2020. The COVID-19 Public Health Response (Maritime Border) Order clarifies these arrangements as they apply to maritime arrivals and implements New Zealand’s right to isolate and quarantine vessels under Article 27(1) of the International Health Regulations.
New Zealand has a strong track record of applying stringent biosecurity and information-related conditions in respect of vessels entering its ports and waters, including its exclusive economic zone. For over 30 years, New Zealand has also banned the entry of nuclear and nuclear-powered vessels into its ports. The COVID-19 Public Health Response (Maritime Border) Order 2020 continues and contributes to this practice of robust port state control over vessels (and now people) that pose an environmental or health risk to New Zealand. While the scope of the Order is unprecedented in peacetime, New Zealand has confined its measures to foreign vessels seeking to enter ports and to all vessels within New Zealand ports and thus remains firmly within the bounds of international law. Importantly, the practice of New Zealand and indeed other states in closing their ports to all foreign vessels other than those granted exemptions, albeit on a temporary basis, confirms the customary rule that foreign vessels have no right under international law to enter ports. If there were any doubt as to the discretion of coastal states to close their ports, this has been emphatically dispelled by the practice of these states in the first half of 2020, and that practice provides useful clarification of this right in the absence of clear direction to port states under the LOSC. Nevertheless, measures that close ports and restrict the movement of seafarers such as those adopted by New Zealand undoubtedly have implications for the human rights and welfare of seafarers. Getting the balance right between protecting a ship (and its crew) and territory (and people) will become more challenging the longer the pandemic continues for New Zealand and for other states that have introduced similar measures.