Utkarsh*
Introduction
As the world battles the menace of Covid-19, there have arisen several socio-economic implications that go beyond the public health issue. None of the sectors of modern-day nations has remained unaffected. Covid-19 pandemic is having deep repercussions on the global economic setup. The world while defending itself against the virus, is faced with an imminent recession. Agencies across the globe have been continuously monitoring the situation and have opined that we are heading towards an economic crisis.
The maritime world amidst of pandemic is constantly facing the issues of increase in amassing of ports restrictions and denials. Due to the contagion of the virus, States have adopted various restrictive measures, ranging from prohibition on the access of ports,based on objective considerations like infected areas, and specifically, health situation based on the ship. Also, 80% of the International trade in the world is through maritime channels. The flow is crucial for most countries supplies including for basic things like (medicines, chemical, food, health products). Port restrictions have put a massive drift on the ship-owners as well as on the seafarers’ crews. To subsist in the situation,the crew is being forced to work beyond the contracted period of their service period having no outlook of change. This has led to an increase in deep anxieties, psychological distress and extreme fatigue in seafarers and crew in confined spaces like ships in the seas. They are even being denied shore-leave disembarkation or even medical emergencies if they are affected by the virus. In a letter issued on 9th June 2020 by International Maritime Organisation, the Secretary-General expressed the concerns about the safety of the seafarers at sea.
International law on the ingress to the ports is not absolute as the rules leave an edge to the recognition of the state. Yet they don’t have free control to abjure all international laws and regulations to impound themselves to philosophical system solemnly befouled by chauvinism[i].
Deliverance from Discrimination and the Right to Commerce in an Emergency
With respect to their territorial jurisdiction countries may manage entry to their ports under Art 25.2 of the UNCLOS[ii]. Yet this proposition doesn’t give complete and unrestrained delicacy to limit or shut their docks even during the times of pandemic.
The International Health Regulations[iii] (IHR 2005) provides a framework to respond to the emergencies to circumvent any needless intervention with international traffic under (Art. 2 of the IHR). In addition Art 28. 1 provides that a ship or an aircraft shall not be prevented for public health reasons from calling at any point of entry unless the point of entry is not equipped with applying health measures.
Principle of Reasonableness, Proportionality and Review
During the times of pandemic,States can indeed implement rules which are more antagonistic than urged by the international agencies (Art. 43 IHR)even though the States must obey with the three principal obligations. First is that the rules must not be more constrictive of international traffic must not be extra intrusive to a person than required than passably available alternatives (principle of reasonableness). Secondly, States should depend upon on the research-based scientific facts and the recommendation given by the World Health Organisation to justify these measures (principle of proportionality). The third is that States must deliver these justifications to the WHO (Art. 43. 3 IHR). The Organisation may appeal its Members States to review the requisition of the rules made (Art. 43.4).
State does not have any universal chore to open their ports to foreign ships, but the countries which are signatory to the Convention on the International Regime of Maritime Ports 1923[iv] are under an obligation to serve equally the ships of all States, including their own. The Convention has not been widely ratified, yet the fundamentals of non-discrimination are codified in Art 24.1.b[v] of the UNCLOS and the IMO Convention on Facilitation of International Maritime Traffic[vi]relating to sterile measures and health protocols, it has been identically recalled. This principle states that there is no rationale to differentiate the ships based on flag States or between the seafarers based on their citizenship even during the times of epidemic.
Seafarer Crews on Verge of Humanitarian Crisis
Covid-19 pandemic is creating difficulties for the maritime industries in carrying out operations like changing crew which in turn is forcing the seafarers to stay aboard for longer than legally authorised while abandoning others onshore without pay. U.N Secretary-General described this as a humanitarian crisis, the situation has exacerbated despite various calls from international organisations and global maritime industries[vii].
Lives and Livelihoods
Each month more than 150,000 seafarers contract end in the world meaning that currently there are more than million seamen at the sea beyond their contract. During a virtual meeting organised by the IMO on 9th June 2020 to brief permanent representatives and IMO members States, it was being estimated that some 150,000 seafarers are urgently waiting to leave their ships since their contracts, as well as extensions, have been expired and they needed to be replaced by similar numbers.As in mid-June, more than 300,000 seafarers a month need international flights to enable changeover of crews according to IMO and United Nations Conference on Trade and Development (UNCTAD)[viii],
In March,the International Labour Organisation recommended that seafarers should be given key worker status, and they must free from any travel curtailments during corona virus pandemic. After that, in May, an alliance of industry associations including International Transport Workers Federations[ix], the International Chambers of Shipping (ICS) and the Federation of National Association of Ships Brokers and Agents (FONASBA) published a guideline instructing States to facilitate seafarers changes during the pandemic. The guidelines issued were also backed by the IMO and International Air Transport Association. Some countries complied with the guidelines as reported by the ICS while another refusal is putting lives at risks.
On 15th June after the continual calls for governments to take measures, the International Transport Workers’ Federations(ITF), the Global Federation of Transport Union, declared their support for seafarers in their right to stop working and leave ships. The ITF warned that it may disrupt the global supply chain as shipping covers 80% of the world trade.
Under the Maritime Labour Convention 2006[x], the seaman has the right to deportation and also to be allowed a sheltered stay in the country of disembarkation. The ship-owners must make up for the related expenses, for that States should allow for crew changes, the States must aim and ensure that seafarers’ rights are respected.
Unheralded Workers
In the year 2010, the International Maritime Organisation (IMO), designated June 25, as the International Day of the Seafarers to promote and acknowledge the invaluable contribution of the seafarers to the world economy and civil societies[xi] as well as to draw global attention towards the risks and issues involved in their working atmospheres and lives, such as mercurial raw weathers, and various kinds of maritime crimes including armed robbery and piracy[xii]. This year marked the tenth anniversary of the International Day for seafarers.
Conclusion
Shipping is indispensable for the continuation of universal supply chains, but the present conditions are unsupportable for the safety and well-being of ship crew and safe functioning of maritime trade.Because of the continuous limitations, composed and safe disembarkation and embarkation must be guaranteed through participation between States. The formation of a system of assigned ports in embarkation and disembarkation is made conceivable and safety ought to be the focal point for the considerable number of States. Governments need to critically act to guarantee Ships’ groups’.Changeover can occur to keep world exchange streaming and helpfully forestall a boat wellbeing emergency. The administrations should permit delivery to keep moving and for the sailors to come back to their homes. Driving depleted sailors to keep working past the finish of their agreement is unsuitable. It imperils their wellbeing and jeopardizes oceanic security. Activity is required currently to guarantee OK work for sailors, keeping away from oceanic mishaps and ecological debacles, the administration must cooperate to roll out these improvements occur in wellbeing.
About the Author
*Utkarsh is a third year student at NUSRL, Ranchi.
[i]AlinaMiran, Port Denials and Restrictions in Times of Pandemic:Did International Law Lose its North Star?, EJIL, Apr 22, (2020).,https://www.ejiltalk.org/port-denials-and-restrictions-in-times-of-pandemic-did-international-law-lose-its-north/comment-page-1/
[ii] Article 25, Rights of Protection of the Coastal State, United Nation Convention on the Law of the Sea, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[iii] International Health Regulations (2005), World Health Organisation.
[iv] Convention and Statute on the International Regime of Maritime Ports, Dec 9, (1923).
[v] Article 24, Duties of the Coastal State, United Nation Convention on the Law of the Sea.
[vi] Convention on Facilitation of International Maritime Traffic, International Maritime Organisation, Mar 5, (1967).
[vii] Ilaria Grasso Macola, Why more needs to be done to protect seafarers during Covid-19, Jun 24, (2020) https://www.ship-technology.com/features/why-more-needs-to-be-done-to-protect-seafarers-during-covid19/
[viii] Kate Whiting, Stuck at sea: How to save the world’s seafarers and the supply system they support, World Economic Forum, Jun 9 (2020). https://www.weforum.org/agenda/2020/06/shipping-seafarers-covid-19-mental-health-supply-systems/
[ix] International Transport Workers Federation, Flag states must protect seafarers and passenger’s health during coronavirus crisis, Mar 17 (2020)., https://www.itfglobal.org/en/news/flag-states-must-protect-seafarers-and-passengers-health-during-coronavirus-crisis
[x] Maritime Labour Convention, International Labour Conference, (2006).
[xi] International Chambers of Shipping, Shipping and World Trade, https://www.ics-shipping.org/shipping-facts/shipping-and-world-trade.
[xii] World Maritime University, Day of Seafarer 2019, https://www.wmu.se/news/day-of-the-seafarer-2019
Centre for Maritime Law 