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Human rights at sea: Analyzing states’ responses to cruise ships during the COVID-19 pandemic

Published online by Cambridge University Press:  07 February 2025

Lixin CHEN
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Abstract

In the early stages of the COVID-19 pandemic, the treatment of cruise ships by coastal states was inconsistent, with some ships being allowed to dock while others were not. To that end, this Note focuses on the obligations that a coastal state owes to the individuals onboard the cruise ships in the context of the COVID-19 pandemic, including the rights to life and health. It further considers whether and how such rights are to be balanced with other countervailing considerations of such states, such as the risk of transmission to the local communities. This author concludes with the view that individuals onboard the cruise ships can, and should, consider turning to international human rights law for guidance and recourse. After all, the human rights regime is most suited for and accustomed to governing the relationship between individuals and a state, as compared to between states.

Keywords

human rightslaw of the seaextraterritorial jurisdictionright to liferight to health
Type
Notes and Comments
Information
Asian Journal of International Law , First View , pp. 1 - 10
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of The Asian Society for International Law.

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References

1 Justin OKERMAN and Barbara Von TIGERSTROM, “Any Port in a Pandemic: International Law and Restrictions on Maritime Traffic during the COVID-19 Pandemic” (2021) 58 The Canadian Yearbook of International Law 194 at 196; Andrew TIRRELL and Elizabeth MENDENHALL, “Cruise Ships, COVID-19, and Port/Flag State Obligations” (2021) 52(3) Ocean Development & International Law 225 at 233–234.

2 See for instance, European Convention of Human Rights, 4 November 1950, 213 U.N.T.S. 222, 5 I.L.M 166 (entered into force 3 September 1953) [ECHR], art. 4; see also International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M 368 (entered into force 23 March 1976 [ICCPR], art. 2(1).

3 J.H. BEALE, “The Jurisdiction of a Sovereign State” (1923) 36 Harvard Law Review 241 at 259–260; Bevan MARTEN, “Port State Jurisdiction, International Conventions, and Extraterritoriality: An Expansive Interpretation” in Henrik RINGBOM, ed., Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea (Leiden: Brill, 2015), 105 at 110; Francis NGANTCHA, The Right of Innocent Passage and the Evolution of the International Law of the Sea (London; New York: Pinter Publishers, 1990) at 38.

4 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3, 21 I.L.M. 1261 (entered into force 16 November 1994) [UNCLOS], art. 21(1); Marten, supra note 3 at 110.

5 Marko MILANOVIC, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press, 2011) at 53.

6 Ibid.

7 Ibid.

8 General Comment No. 31[80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, Human Rights Committee (HRC), U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (2004), para. 10.

9 ICCPR, supra note 2.

10 Karen DA COSTA, The Extraterritorial Applications of Selected Human Rights Treaties (Leiden; Boston: Martinus Nijhoff Publishers, 2013) at 58.

11 Urfan KHALIQ, “Jurisdiction, Ships and Human Rights Treaties” in Henrik RINGBOM, ed., Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea (Leiden: Brill, 2015), 324 at 351.

12 Adrian BRIGGS, Agreements on Jurisdiction and Choice of Law (Oxford: Oxford University Press, 2008) at 2.58–2.60.

13 Peter-Tobias STOLL, “State Immunity” in Rüdiger WOLFRUM, ed., The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) at 24.

14 ICCPR, supra note 2, art. 2; ECHR, supra note 2, art. 4.

15 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR].

16 Olivier DE SCHUTTER et al., “Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights” (2012) 34 Human Rights Quarterly 1084 at 1102.

17 General Comment No. 36: Right to Life, Human Rights Committee (HRC), U.N. Doc. CCPR/C/GC/36 (2019), para. 21.

18 Case of Hristozov and Others v Bulgaria, App. Nos. 47,039/11 and 358/12, Decision of 13 November 2012 at 106.

19 General Comment No. 36, supra note 17 at para. 21.

20 Sawhoyamaxa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 29 March 2006, Inter-Am. Ct. H.R. (ser. C) No. 146 at para. 155; Kiliç v Turkey, App. No. 22,492/93, Decision of 28 March 2000, paras. 62–63.

21 Sawhoyamaxa Indigenous Community v Paraguay, supra note 20 at para. 155.

22 This would depend on each coastal state’s regulations, which were strengthened upon the outbreak of the pandemic. See for instance the United States, where according to federal regulations, the Center for Disease Control and Prevention requires the master of a ship arriving from a non-US port destined for a US port to immediately report any death or illnesses of public health concern among the ship’s passengers or crew: Center for Disease Control and Prevention, “Guidance for Maritime Vessels on the Mitigation and Management of COVID-19”, 3 November 2022, online: CDC www.cdc.gov/quarantine/maritime/covid-19-ship-guidance.html.

23 There have yet to be cases, whether under the ICCPR or the regional human rights treaties, where the court is asked to consider an individual’s right to life alongside another individual’s right to health. That said, I am of the view that the framework under General Comment No. 36 is adequate, given that the question of disproportionality takes into account the coastal state’s public policy considerations, which could encompass the risks of transmission to the local communities and/or the need to properly allocate scarce medical resources, amongst others.

24 Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2348/2014, Human Rights Committee (HRC), U.N. Doc. CCPR/C/123/D/2348/2014 (2018).

25 Ibid., at 10.9.

26 Ibid.

27 Nell Toussaint v Canada, supra note 24 at paras. 11.3–11.5.

28 Ibid., at paras. 11.3–11.4.

29 Ibid., at para. 11.3.

30 Ibid., at paras. 11.7–11.8.

31 Ibid., at para. 11.8.

32 Shigenori MATSUI, “Pandemic: COVID-19 and the Public Health Emergency” (2021) 38(2) Arizona Journal of International and Comparative Law 139 at 159–161; Zhengliang HU and Wenwen LI, “Global Health Governance on Cruise Tourism: A Lesson Learned From COVID-19” (2022) 9 Frontiers in Marine Science Article 818140 at 6.

33 Hanako JIMI and Gaku HASHIMOTO, “Challenges of COVID-19 Outbreak on the Cruise Ship Diamond Princess Docked at Yokohama, Japan: A Real-world Story” (2020) 2(2) J-Stage Global Health & Medicine 63.

34 World Health Organization, “COVID-19: symptoms and severity”, 18 April 2022, online: WHO www.who.int/westernpacific/emergencies/covid-19/information/asymptomatic-covid-19.

35 It is not the author’s case that it is reasonably foreseeable that all individuals onboard the ships could risk a loss of life, given that COVID-19 only presents mild to moderate symptoms for the majority of the infected individuals: “Coronavirus disease (COVID-19)”, online: WHO www.who.int/health-topics/coronavirus#tab=tab_1.

36 General Comment No. 36, supra note 17 at para. 61.

37 Ibid., at para. 61.

38 General Comment No. 36, supra note 17 at para. 63.

39 World Health Organization, “COVID-19 Overview and Infection Prevention and Control Priorities in non-U.S. Healthcare Settings”, 6 December 2021, online: WHO www.cdc.gov/coronavirus/2019-ncov/hcp/non-us-settings/overview/index.html; Rahmet GÜNER et. al., “COVID-19: Prevention and control measures in community” (2020) 50(3) Turkish Journal of Medical Sciences 571.

40 General Comment No. 14: The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights (CESCR), U.N. Doc. E/C.12/2000/4 (2000), paras. 8–9.

41 Ibid., at para. 30.

42 Ibid., at para. 43.

43 Ibid., at para. 43(a).

44 Ibid., at para. 44(c).

45 Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights, Committee on Economic, Social and Cultural Rights (CESCR), U.N. Doc. E/C. 12/2020/1 (2020) at para. 12.

46 Organization of American States, “IACHR and OSRESCER Urge States to Guarantee Comprehensive Protection for Human Rights and Public Health during the COVID-19 Pandemic”, 20 March 2020, online: OAS www.oas.org/en/iachr/media_center/preleases/2020/060.asp.

47 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at 191–192.

48 General Comment No. 14, supra note 40 at para. 49.

49 Ibid., at para. 28.

50 Ibid.

51 Ibid.

52 Ibid.

53 The IHR has the concept of free pratique, which it defines under Article 1(1) as the “permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores”. This concept of free pratique is thus broader than the concept of innocent passage under the UNCLOS, as the latter only allows entry into the territorial sea, but not the port. More significantly, the general rule under Article 28(2) of the IHR is that “ships or aircraft shall not be refused free pratique by States Parties for public health reasons”.

54 General Comment No. 14, supra note 40 at para. 28.

55 Ibid., at para. 9.

56 Ibid., at para. 12(b).

57 Ibid., at para. 43(a).

58 The Office of the Special Rapporteur on Economic, Social, Cultural, and Environmental Rights is an autonomous office of the IACHR, specially created to support the IACHR in fulfilling its mandate to promote and protect economic, social, cultural, and environmental rights.

59 Organization of American States, supra note 46.

60 CESCR, supra note 45 at para. 14.

61 General Comment No. 14, supra note 40 at paras. 12(b), 18, 40, 62, 65.

62 CESCR, supra note 45.

63 Benoit MAYER, International Law Obligations on Climate Change Mitigation (Oxford: Oxford Academic, 2022) at 143–147.

64 UNCLOS, supra note 4, art. 94.

65 Natalie KLEIN, “International Law Perspectives on Cruise Ships and COVID-19” (2020) 11 Journal of International Humanitarian Legal Studies 282 at 292.

66 There have been a few articles discussing flag States’ responsibilities during the COVID-19 pandemic, see for instance, Tirrell and Mendenhall, supra note 1 at 225–238; LIU Chenhong, “Public Health and International Obligations of States: The Case of COVID-19 on Cruise Ships” (2021) 13 Sustainability 11604.