Are States in breach of UNCLOS and IHR when they impose restrictions on vessels preventing them from entering its ports because of COVID-19 outbreak? Supreme Court of Vanuatu, an archipelagic State in the Pacific recently had to decide on this issue in The Vanuatu Cargo [2021].
The vessel was flagged with Vanuatu. While she was in Australia, a state of emergency was declared in Vanuatu due to COVID-19 and borders were open only to vessels providing international relief supplies. Owners wrote to authorities to let the vessel return to Vanuatu, its Flag State but the request was denied even though the crew had completed a 14 day quarantine period at sea. As time passed by, the vessel also ran out of fresh water and provisions but a request to replenish these was also denied. Owners had to seek court orders to get the vessel in port at the end. They then approached the highest Court saying that the Vanuatu failed to discharge its obligations as a Flag State in ensuring the safety of crew at sea.
The starting point here was that Vanuatu being a signatory of UNCLOS was bound by its provisions, and being a member state of WHO, Int’l Health Regulations (IHR) were also binding. The relevant provisions here were Art 94 of UNCLOS where duties of a Flag State were laid down (such as in relation to labour conditions onboard), and Art 28 of IHR which mentioned that a vessel can’t be denied free pratique nor refused entry for public health reasons. In short judgement, the Court had little hesitation in finding that the State had clearly breached these two provisions.
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