VOL. 8

Global Health Administration and Maritime
Transport: Port State Authority and theIssue of Crew Change for Vessels in Port_____________________________________________
Kentaro Nishimoto
Professor, Graduate School of Law, Tohoku University
In February 2020, the outbreak of COVID-19 infections on the Diamond Princess cruise ship
drew a great deal of attention in Japan at a time when the disease was beginning to show signsof becoming a global pandemic. This case illustrated the difficulty of responding to anoutbreak of infectious disease on board a cruise ship carrying a large number of passengers,
and it highlighted the challenges of international coordination in dealing with an outbreak on
board a foreign ship in port. Moreover, the spread of COVID-19 has created problems for theoperation of ocean-going cargo ships, which support international logistics, in terms of
preventing infections among the crew and ensuring that crew changes can take place during
an infectious disease outbreak.
In building a global health administration regime during and after COVID-19, there is a needfor a discussion on how to create a better international system for maritime traffic based on
the experiences gained in responding to COVID-19. As a country that has an interest inensuring reliable maritime transport, Japan is expected to actively participate in the cominginternational discussions. While the issue of ships being denied entry into ports is attracting
more attention,1 Japan could provide valuable input to future international discussions basedon its experience and awareness of the issues gained from responding to the Diamond Princess
in the port of Yokohama.

1Infectious Disease Countermeasures by Port States for Ships in Port
Under international law, when a ship is in port, both the state of nationality of the ship (the“flag state”) and the state in which the port is located (the “port state”) have authority overthat ship. It is one of the fundamental principles of the law of the sea that the flag state of aship has authority over the ship regardless of where the ship is located (the principle of flagstate jurisdiction). In addition, although there is some disagreement as to the scope of authoritythat a port state may exercise over the internal matters of a foreign vessel in port, there is nodispute that it has authority over matters that have an effect on their port. However, there areno established rules for coordination between concurrent authorities. This also applies to theobligation to prevent the spread of infectious diseases. The flag state is obliged to effectively
exercise its jurisdiction over and regulate its vessels (Article 94 of the United Nations
Convention on the Law of the Sea), while the port state has certain obligations as a territorialstate with respect to vessels located in its ports, including those under human rights treaties.
As the government of Japan indicated in a debate in the Diet,2 neither of the two states is
uniquely obligated to take preventive measures under international law.
In such a situation, the exercise of authority may need to be coordinated among the states
involved: the flag state, the port state, and possibly the country of nationality of the ship’soperator. Fortunately, no significant jurisdictional obstacles were encountered in responding
to the Diamond Princess. However, since states involved could adopt different policies, whichmay take time to coordinate, it is advisable to establish new international rules to clarify theallocation of authority among the states concerned for countermeasures against serious
infectious diseases. The review of the International Health Regulations (IHR) conducted by
the World Health Organization (WHO) also suggests that consideration should be given toclearly defining the responsibilities of party states with regard to various measures, including
isolation and quarantine.3
Existing literature on this issue points out that, among the states concerned, the role of theport state should be emphasized.4 As a practical matter, only the port state in which the vessel
is located has the capacity to take concrete measures against the vessel in port. Therefore, oneof the most promising directions for coordination among nations is to stipulate that the port
state has the primary authority, and to require each concerned state to ensure that private
persons and businesses under its jurisdiction comply with the measures adopted by the port
state. Specifically, this can be best accomplished by clarifying the measures to be taken by theport states and other relevant states in the form of legally binding rules, through means suchas amending the IHR. However, if this is difficult to achieve, practical guidelines could beestablished by formulating standard procedures that are not legally binding. With regard topractical responses to COVID-19, the International Maritime Organization (IMO) has issued
a number of guidelines, 5 including recommendations to coastal and port states on theprovision of medical care to infected crew members6 that can serve as reference.

2Strengthening Infectious Disease Countermeasures by Flag States
While any serious outbreak of an infectious disease on board a ship will inevitably have to bedealt with at a port, it will also be necessary for flag states, which have overall responsibilityfor ship operations, to strengthen their infectious disease control measures in the post-COVID
era. This is particularly important for cruise ships with large numbers of passengers, but it isalso true for other types of vessels. Under existing international law, there seems to be noproblem with infectious disease countermeasures being included in the obligations of flagstates, at least in the abstract. However, in order to ensure the effectiveness of measures byflag states in normal times, specific standards and mechanisms to ensure their implementation
are necessary.
In Japan, the Enforcement Regulations of the Maritime Transportation Act were amendedin November 2020 to add to infectious disease prevention measures to the list of items to beincluded in the “Safety Management Regulations” that must be submitted under the Maritime
Transportation Act, making it mandatory for cruise ship operators to formulate and submit amanual on measures to prevent infectious diseases.7 In addition, each of Japan’s ocean-goingcruise ship companies are receiving third-party certification from the Nippon Kaiji Kyokai(ClassNK) for the manuals they have prepared and the measures they have taken. Since
infectious disease countermeasures are not something that can be ensured by simply requiring
compliance with certain rules, it is reasonable to require the establishment of a system toaddress infectious disease risks, through the preparation of a manual tailored to real-world
conditions, the effectiveness of which is to be ensured by third-party certification.
Such measures can be applied to the international regulatory framework for maritime
transport and are also a viable option to strengthen international measures to combat infectious
diseases by flag states. Under the Safety of Life at Sea Convention (SOLAS Convention), theInternational Safety Management (ISM) Code has been adopted (1994 amendments to theSOLAS Convention, chapter IX) to address the safety of ships against human elements,
mandating those in charge of ship operations to develop and implement a safety management
system and prepare a safety operation manual. Infectious disease countermeasures can alreadybe considered a matter concerning the safe operation of ships, but if explicit provisions onrequired measures could be incorporated into the existing treaty framework, it would
strengthen the requirements for infectious disease response as a part of the international rules
and standards to be implemented by ship operators.

Crew Changes during a Pandemic
The spread of COVID-19 has also caused problems concerning the treatment of crew,including crew changes. The Maritime Labour Convention stipulates that the maximum periodof service at sea for seafarers is less than 12 months, with the right to be repatriated at the endof the contract period. However, the spread of COVID-19 has led to situations such as
restrictions on disembarking for crew changes at ports of call, forcing the crew to remain on
duty for long periods of time. This situation is problematic in terms of the crews’ working
3conditions and human rights, and various international forums have called for action, including
UN General Assembly Resolution 75/17, which called on countries to designate crew andother maritime workers as “key workers” and to allow for their safe change and movement.
Moreover, relevant international organizations such as the IMO and the International Labour
Organization (ILO) have responded by providing various guidelines, including practicalguidance8 on managing the risk of infection related to the change and movement of crews.
This issue is related to the larger, long-standing question of securing crew rights under theMaritime Labour Convention. However, if the discussion is limited to issues regarding eachcountry’s infectious disease countermeasures, the question is how to address the restrictions
imposed by states owing to the public health risks posed by the disembarkation and entry into
the port state of crew members so that they can return to their home nations. Underinternational law, it is generally up to the discretion of the state whether or not to allow foreign
nationals to enter a country. The Maritime Labour Convention also provides for therepatriation and change of crew on ships calling at a state’s port, but falls short of establishinga right of entry for this purpose, merely providing an obligation to “facilitate” repatriation andchange (Standard A2.5, paragraph 7). The IHR, which aims to “avoid unnecessary interferencewith international traffic and trade” and to respond to the international spread of disease inways that are commensurate with public health risks (Article 2), is limited to treating thedisembarkation of crew members as part of the free pratique granted to a vessel, including
disembarkation from a vessel. It does not envisage the occurrence of problems peculiar to crew
members, such as preventing the disembarkation of crew members from a vessel in port orpreventing the entry of replacement crew. Amendments to the Maritime Labour Convention
have been proposed in the ILO.9 However, due to the nature of the convention, they are moreconcerned with the treatment of crew, such as ensuring access to medical care and providing
clarity on limitations on the length of service. If the IHR is to be amended, it will be necessary
to consider the scope of health measures regarding crew changes, based on the premise thatinternational shipping cannot take place by simply permitting ships to come and go.

Conclusion
International traffic at sea is, by its very nature, an activity that can be significantly affectedby measures taken by countries to prevent the spread of infectious diseases. The IHR, the main
existing international legal framework relating to shipping and infectious diseases, sets out
rules concerning restrictions on international traffic, including maritime traffic, which are tobe commensurate with public health risks to “avoid[ing] unnecessary interference withinternational traffic and trade.” In the area of maritime transport, the issue of denial of entry
into port is a major problem related to the balance between the realization of internationaltraffic and infectious disease control under the IHR, but the problem is not limited to that issue.
As discussed in this paper, it has become clear that there are a number of issues that have notbeen adequately addressed under the IHR or related international conventions. Furtherdiscussion on each of these points is required as we work toward an international agreement.

4Additional References
Kanehara, Atsuko. 2021. “The Law of the Sea in the ‘International Law of Pandemics’: Port State
Measures on the Diamond Princess.” Kokusai Mondai [International Affairs], no. 699: 5–16 (inJapanese).
Kawano, Mariko. 2021. “Protection and Regulation of the Rights and Interests of ‘Persons’ in theInternational Law of the Sea: Certain Reflections on the Protection of Seafarers during theCOVID-19 Pandemic.” Kokusaiho Gaiko Zasshi [Journal of International Law and Diplomacy]
120, no. 1/2: 212–23 (in Japanese).
Nishimura, Yumi. 2021. “Toward Safe Operations of Vessels under the COVID-19 Pandemic: The Roleof Flag States.” Kokusaiho Gaiko Zasshi [Journal of International Law and Diplomacy] 120, no.
1/2: 110–19 (in Japanese).
Higuchi, Eka. 2021. “The Problem of Seafarer Replacement Arising from the COVID-19 Pandemic
and Japan’s Response: From the Perspective of the 2006 Maritime Labour Convention.” OPRI
Perspectives, no. 19. https://www.spf.org/opri-intl/globaldata/report/perspectives/20210827133007789.pdf.
This policy brief series is the product of a joint research project conducted by the Japan Center forInternational Exchange (JCIE) and the Tokyo University Institute for Future Initiatives (IFI) toprovide analyses on global and regional health governance systems and structures and to offer
concrete recommendations about the role Japan should play in the field of global health.

1See Yurika Ishii, “Global Health Administration and Maritime Transport: The Significance and Limitations ofthe World Health Organization System,” Policy Brief: Japan’s Global Health Strategy in the Post COVID-19 Era, vol. 9.
The 201st Session of the Japan House of Representatives, Budget Committee, 3rd Division, Meeting Minutes#1, 37 (Statement by Masataka Okano, Director-General, International Legal Affairs Bureau, Ministry ofForeign Affairs, February 25, 2020).
3
Report of the Review Committee on the Functioning of the International Health Regulations (2005) during
the COVID-19 response, Doc. A74/9 Add.1, para. 98.
4International Academic Forum, “Toward Safe and Healthy Trans-border Cruises: International Challenges for
Building Resilient and Trusted Ships and Ports,” 18–19; Makoto Seta, “Coastal State Responses against
Foreign Cruise Ships in Internal Waters during the Pandemic: Towards a New System,” Kokusaiho GaikoZasshi [Journal of International Law and Diplomacy] 120, no. 1/2 (2021): 126–27 (in Japanese).
5
IMO, Advice via Circular Letter for IMO Member States, Seafarers and Shipping,https://www.imo.org/en/MediaCentre/HotTopics/Pages/C19CLs.aspx.
6
IMO, Coronavirus (COVID-19)—Recommendations for Port and Coastal States on the Prompt
Disembarkation of Seafarers for Medical Care Ashore during the COVID-19 Pandemic, Circular Letter
No.4204/Add.23.
7
Ministry of Land, Infrastructure, Transport and Tourism, “Safety Measures for Resumption of Cruises,”
https://www.mlit.go.jp/maritime/maritime_tk2_000017.html (in Japanese).
8IMO, Industry Recommended Framework of Protocols for Ensuring Safe Ship Crew Changes and Travel
during the Coronavirus (COVID-19) Pandemic, Doc. MSC.1/Circ.1636/Rev.1.
9 ILO, Fourth Meeting of the Special Tripartite Committee of the MLC, 2006, as amended—Part II, Proposals
for amendment to the Code of the Maritime Labour Convention, 2006, as amended in accordance with Article
XV, https://www.ilo.org/global/standards/maritime-labour-convention/special-tripartitecommittee/WCMS_827572/lang--en/index.htm.
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