COVID-19: The obligation of States to rescue vessels at sea

Juan Pablo Hernández*
*Founder of The Treaty Examiner and Moot coach at Universidad Francisco Marroquín (Guatemala).
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The Treaty Examiner, Issue 1 (April 2020), pp. 13-17.

PUBLIC INTERNATIONAL LAW

Since the COVID-19 crisis erupted, many cruise ships have become breeding ground for new cases of infection. The most publicized example is the Diamond Princess, a cruise ship scheduled to tour throughout Southeast Asia (1). On 2 February 2020, the Japanese ministry of health announced that the cruise ship had been quarantined at sea with 10 COVID-19 positive cases (2). Similar horror stories were announced as time went on. Australia’s case has garnered attention recently: about 18 cruise ships haunt its coasts like ghostly apparitions, carrying potential COVID-19 cases (3). Does Australia (or any other State, for that matter) have the obligation under international law to allow such ships to dock?

The duty to rescue vessels in distress

This question is mainly governed by the international law of the sea, composed of international custom and codified in a number of treaties including the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1974 International Convention for the Safety of Life at Sea (SOLAS) and the 1979 International Convention on Maritime Search and Rescue (SAR Convention).

Under international maritime law, States have an obligation to rescue ships and vessels at sea if they are ‘in distress’. This obligation is recognized by regulation 33 of SOLAS, Article 98 of UNCLOS and Article 2.1.1 of the SAR Convention, as well as the customary international law of the sea (4).

‘In distress’

A central question is whether being infected with COVID-19 qualifies as being in distress. The SAR Convention defines ‘distress’ in Article 1.3.13 as a ‘situation wherein there is a reasonable certainty that a vessel or person is threatened by grave or imminent danger and requires immediate assistance.’ It must be a situation that causes well-founded fear that the vessel or the lives of the crew may be imminently lost (5).

COVID-19 can cause justified fear for the wellness or even life of the crew. There is always the statistical risk that an infected person develops severe disease, which usually involves respiratory distress that requires immediate hospitalization (6). One could argue that the ‘distress’ status attaches once severe cases arise on the vessel. On the other hand, the statistical probability of developing severe illness may satisfy the definition. The SAR Convention merely requires ‘reasonable certainty’ that the person onboard the vessel is ‘threatened by grave or imminent danger’ and that ‘immediate assistance’ is required. Once a person onboard develops severe COVID-19, the ‘grave danger’ prong is satisfied. Any latent case has the risk of being severe, possibly satisfying the ‘imminent danger’ prong – although such determination needs to be made on a case-by-case basis (see below the relevant factors to grant exception). In both cases, there is ‘reasonable certainty’ that the danger could require immediate assistance.

‘Rescue’

The duty to rescue vessels in distress is based on the duty to save life at sea (7). The SAR Convention defines ‘rescue’ as ‘[a]n operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’ (8). This duty applies without distinction, including nationality.

Therefore, States have the obligation to assist the people on board and take them to a safe place – presumably, the shore. However, the hesitation to allow cruises to dock is precisely due to the risk of contagion presented by allowing the passengers of the cruise (possible COVID-19 carriers) to roam freely in the State’s territory. Does the international law of the sea obligate States to bring possible COVID-19 carriers to shore?

Implications for COVID-19

Assuming that COVID-19 infection on board qualifies as ‘distress’, Australia may be under an obligation to rescue the distressed vessels around its coasts and provide them the assistance mandated by international law. The same applies for any State facing similar odds. The COVID-19 pandemic, however, may give States a cause for exception.

Under Article 98 of UNCLOS, an exception is made if the rescue mission would endanger the rescuing vessel, its crew or its passengers. Regulation 33.1 of SOLAS provides exception if the rescuing ship considers it ‘unreasonable’ to assist – in other words, if under special circumstances it cannot be expected of the rescuing ship to fulfil the duty, even if objectively possible (9). COVID-19’s contagious behavior could endanger crew and passengers if rescue is undertaken. If being infected with COVID-19 is cause for ‘distress’ under customary or treaty law of the sea, then exposing the crew to infection should also trigger the exception. Some factors to consider to determine ‘distress’ or the applicability of the exception are as follows:

  • the degree of certainty that the cruise ships’ passengers are COVID-19 positive,
  • the demographics of the crew and passengers (both rescuing and rescued ships),
  • the possibility of implementing sanitary measures to prevent infection in the rescuing ship,
  • the statistical probability that the crew may develop severe cases of COVID-19 or infect others in Australian territory,
  • etc.

This should be balanced against the rights of the people on board the vessels and considerations of international human rights law and international health law. In protecting the rights of people on board the quarantined cruises, States may opt for alternative measures, such as bringing the necessary medical attention and relief to the cruise, without risking the possibility of contagion on land. Depending on the arguments wielded, the resources available and the severity of illness, this could even satisfy the rescue duty under maritime law.

It appears that the issue of allowing people on shore during a pandemic of this magnitude, and the concerns involving spread of the disease, are a somewhat novel issue not extensively dealt with in case law and legal literature. In the end, whether denying assistance or rescue is justified may have to be determined by a court of law (such as the International Court of Justice) once this crisis ends.

For further reading

PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 18 April 2020.

Endnotes

1. Princess Cruises, 2019-2020 Australia & Asia Trip Brochure, 2nd Edition, available at: https://www.princess.com/html/global/brochures/au/au-aus-asia-2019-2020.pdf

2. Ministry of Health, Labor and Welfare (Japan), On the New Infectious Coronavirus Disease Confirmed in a Cruise on Yokohama Port, available at: https://www.mhlw.go.jp/stf/newpage_09276.html (in Japanese).

3. The Conversation, Explainer: What are Australia’s Obligations to Cruise Ships off its Coast under International Law?, 2 April 2020, available at: https://theconversation.com/explainer-what-are-australias-obligations-to-cruise-ships-off-its-coast-under-international-law-135428.

4. Irini Papanicolopulu, The Duty to Rescue at Sea, in Peacetime and in War: A General Overview, International Review of the Red Cross (2016), p. 494.

5. Daniel O’Connell, The International Law of the Sea (volume II), Oxford University Press (1984), p. 855.  

6. United States Center for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): What to Do If You Are Sick, available at https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html, see section When to Seek Medical Attention, listing breathing difficulty, confusion, bruising lips and chest pain as emergency warnings for COVID-19, which are signs of acute respiratory distress syndrome (ARDS); see American Lung Association, Acute Respiratory Distress Syndrome (ARDS), available at: https://www.lung.org/lung-health-diseases/lung-disease-lookup/ards.

7. See supra note 4.

8. Article 1.3.2 of the SAR Convention.

9. See supra note 4, p. 497.

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