The globalization of trade is not a new phenomenon, with historic examples as the silk route between the 2^nd and 14^th centuries. It should not be surprising that global trade and increased human mobility also brought pandemics. The practice of imposing quarantines on ships, goods and passengers dates back to the infamous plague epidemic, first adopted as a protective measure in in 1377 in Dubrovnik on Croatia’s Dalmatian Coast.  The current Covid-19 pandemic has struck even the most advanced economies in the world with still unknown impacts on the global economy. Cruise ships carrying thousands of passengers and crew, including those infected with Covid-19, have been stranded at sea unable to disembark at ports. Panama’s initial denial of passage through the Panama Canal to a cruise ship recalls European fears of the Suez Canal in the 19^th Century as a vector of infectious disease by ships travelling from India to Europe.  Beginning in 1851 until 1938 a total of fourteen International Sanitary Conferences were held to develop standardized measures against certain infectious disease.  The 2005 International Health Regulations adopted under the auspices of the World Health Organization provides the international framework for ships, aircraft and ports in taking measures against infectious diseases.  This essay gives a brief overview of the history of pandemics and shipping as well as the current international framework.  The Covid-19 pandemic reveals lacunae in the current international legal framework which will need to be addressed when the pandemic is no more.

Introduction

The globalization of trade is not a new phenomenon, with historic examples as the silk route between the 2^nd and 14^th centuries. It should not be surprising that global trade and increased human mobility also brought pandemics.[1]The infamous plague epidemic (1347–1352) is believed to have been introduced to Europe by way of the silk route and by ships arriving to Sicilian ports from the eastern Mediterranean. [2] The plague epidemic was followed by spread of cholera, yellow fever, typhus and tuberculosis and in the twentieth century- influenza. The 1918 influenza pandemic caused more people to die than during the First World War.  For the developed world in the 21^st Century, with the exception of influenza, these diseases are faded memories of the past, but played an instrumental role in developing the international sanitary framework, the eventual establishment of the World Health Organization and the legal foundation of how we govern and regulate pandemics today.   

The current Covid-19 pandemic has struck even the most advanced economies in the world with still unknown impacts on the global economy.  The Covid-19 pandemic will no doubt require us to reassess many aspects of our modern activities, including shipping practices. In particular, cruise ships and the thousands of passengers have found themselves stranded at sea unwelcome in ports around the world.[3] The recent case of the MS Zaandam, a Holland America cruise ship with multiple known cases of passengers infected with Covid-19 and four deaths was stranded at sea prevented from passage through the Panama Canal before the Panama Government allowed passage for humanitarian reasons.[4] The plight of thousands of passengers, as well crew members, locked in cruise ships unable to disembark raises many questions and perhaps more than this short essay can address. What is interesting is to examine the history shipping, of how ports and canals played a formative part in the development of international sanitary regulations and eventually the 2005 WHO International Health Regulations, a history that stretches from the dark years of the bubonic plague of the 14^th Century, and to query whether these regulations met the challenges of Covid-19?

The plague and the introduction of quarantine measures

The devastating bubonic plague was brought to European port from Asia transported on ships. And with it came new concepts, such as the term quarantine,[5] which has become a familiar part of our daily Covid-19 conversation. The first time quarantine was adopted as a protective measure in Europe was in 1377 in Dubrovnik on Croatia’s Dalmatian Coast.  Eugenia Tognotti describes the first measures taken against ships that may have been carrying the plague:

“In ports, lazarettos consisted of buildings used to isolate ship passengers and crew who had or were suspected of having plague. Merchandise from ships was unloaded to designated buildings. Procedures for so-called “purgation” of the various products were prescribed minutely; wool, yarn, cloth, leather, wigs, and blankets were considered the products most likely to transmit disease. Treatment of the goods consisted of continuous ventilation; wax and sponge were immersed in running water for 48 hours.” [6]

The first set of systematic measures to prevent the entry of infectious diseases by ships was the introduction of bills of health that provided information on the sanitary status of a ship’s port of origin. [7]   Again, Eugenia Tognotti describes the maritime cordon established by Venice, an important port for global trade at that time:

“The arrival of boats suspected of carrying plague was signaled with a flag that would be seen by lookouts on the church tower of San Marco. The captain was taken in a lifeboat to the health magistrate’s office and was kept in an enclosure where he spoke through a window; thus, conversation took place at a safe distance…..the captain had to show proof of the health of the sailors and passengers and provide information on the origin of merchandise on board. If there was suspicion of disease on the ship, the captain was ordered to proceed to the quarantine station, where passengers and crew were isolated and the vessel was thoroughly fumigated and retained for 40 days (13, 17). This system, which was used by Italian cities, was later adopted by other European countries.”[8]

Later quarantines became standard measures taken by European countries against ships arriving from the East.  Statutes were adopted and some attempts made to standardize the practice.[9] However, similar to the debate today on the economic impact of social-distancing measures on trade and the economy, in the 18^th Century, as Harrison recounts, “…merchants involved in the export trade with the Levant grew increasingly critical of quarantine restrictions, which cost them a great deal through delays, charges and the destruction or damage of goods by fumigation in quarantine houses.”[10]  Nevertheless, the quarantine measures remained.

The Suez Canal

It was, however, the arrival of cholera on the shores of Europe from Asia in the 19^th Century that would eventually propel the holding of the first international conference in 1851 and eventually the adoption of an international treaty and regulations.  While today we focus on the geographic source of infectious disease in the past it was the vectors of transmission, which was global trade carried by the ships from the colonies in Asia that brought these diseases to Europe.  The opening of the Suez Canal in 1869 would be a new transport conduit of infectious disease.[11]

            A series of fourteen international sanitary conferences were held between 1851 and 1938. The first International Sanitary Conference to control epidemics was held on 23 July 1851 in Paris.[12]  It was international within the colonial and empire context of the 19^th century as reflected in the limited participation by today’s standards of only twelve countries: France, Turkey (Ottoman State), Britain, Spain, Toscany, Sicily, Portugal, Sardinia, Russia, Greece and Austria.[13]  But it was the first international effort to develop standardized measures against epidemics.  The conference was particularly concerned with standardization of quarantine measures, the discrepancy of which was believed to impact trade.  The French Minister of Foreign Affairs expressed this concern stating that “the imbalance created in the international system and trade by having separate sanitary regulations has to be eliminated.”[14]    

The 1851 Conference concluded with the adoption of a draft Sanitary Convention and annexed draft International Sanitary Regulations consisting of 137 articles.  However, with no subsidence of epidemics countries would continue to convene a series of international conferences seeking agreement on how to control infectious diseases.

The Sixth International Sanitary Conference held in Rome in 1885, with a record participation of twenty-eight countries, focused in particular on the Suez Canal, which then was under British control.    Most of the vessels using the Suez Canal, not surprisingly, were British, bringing goods and people from India to Europe.[15] Delegates charged that England was not adequately monitoring quarantine regulations on the route from India causing the spread of cholera.[16] A decision was taken at the Conference to set up an independent committee to monitor the entry of vessels to the Suez Canal.[17]  The committee recommended that in the case of an infected ship arriving to port with one or more cholera patients on board that they were to be , disembarked, isolated, and separated into as small as possible groups.[18] While India and Britain voted against these recommendation, 18 countries voted in favour. The British has disagreed with the practicality of disembarking hundreds of passengers because of a few cases of cholera was found on Board preferring the more limited approach of isolating those who were infected. [19]

The Suez Canal again featured prominently at the 1892 International Sanitary Conference held in Venice. The Canal was seen as a key vector for the cholera pandemic brought from India by ships which is described as having “spread like a wildfire”. [20]  Nonetheless, desirous of securing the participation of the super power of that time, the Austro-Hungarian government signed a protocol with England and invited other countries to follow it. The protocol guaranteed free passage through the Suez Canal to quarantined British ships. The only requirement was that during passage the ships be boarded by two sanitary guards to prevent contact between goods and persons with the shore. There was also a procedure for notifying other ports of the passage of the quarantine ship. The scope of the conference was also limited to cholera, as delegates such as Germany and Spain rejected including other diseases such as the plague and yellow fever. The key issue was the control of cholera brought by British ships traversing the Suez Canal.[21] The Venice conference concluded with the adoption of the first International Sanitary Convention.

Maritime transport and sanitary stations featured as one of the main topics of the International Sanitary Conferences held in 1903, 1912 and 1926.[22]  The 1912 International Sanitary Convention, was revised by the 1926 International Sanitary Convention.[23][24] In examining the importance of the 1926 Convention Ann Seal notes first its “increased reliance on epidemic intelligence rather than quarantine as the basis of international epidemic control” and second “[u]nlike the nineteenth century, when the debates over quarantine were framed in terms of trade and economic issues, debates over epidemic intelligence were framed in terms of international political arrangements and the growing importance of international institutions for great power politics.”[25]

  The last international sanitary conference was held in 1938. After which the Second World War broke. 

The Twentieth Century and the 2005 WHO Maritime sanitary regulations

The  International Office of Public Hygiene (Office international d’hygiène publique), was established in 1907 to oversee international rules regarding the quarantining of ships and ports to prevent the spread of plague and cholera, and to administer other public health conventions.  It was the predecessor to the World Health Organization (WHO), established in 1948 as the UN specialized agency for international public health.  In 1951, under the auspices of WHO, the Fourth World Health Assembly adopted the 1951 International Sanitary Regulations, which after a series of revisions have led to the current 2005 International Health Regulations (IHR). The purpose of the 2005 IHR is “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”

International shipping, in general, is regulated by the International Maritime Organization (IMO) which is also a specialized UN agency. In addition, passage rights of ships and the rights and obligations of coastal States are regulated by the 1982 United Nations Convention on the Law of the Sea[26] and rules of customary international law. It is generally accepted that States may determine the conditions of entry in their ports by foreign flagged vessels. However, in relation to shipping and the control of infectious diseases, the WHO is the responsible UN specialized agency and the 2005 IHR apply.  In fact, the 2005 IHR is cross-cutting in applying to different transport areas: shipping, air transport and rail.  The following provisions are relevant to shipping related activities.

            In regard to ports (which also include airports) the 2005 IHR article 20 sets forth some basic requirements for State parties that include inter alia:

• States Parties shall ensure that Ship Sanitation Control Exemption Certificates and Ship Sanitation Control Certificates are issued in accordance with the requirements in Article 39 and the model provided in Annex 3.
• Each State Party shall send to WHO a list of ports authorized to offer: (a) the issuance of Ship Sanitation Control Certificates and the provision of the services referred to in Annexes 1 and 3; or (b) the issuance of Ship Sanitation Control Exemption Certificates only; and (c) extension of the Ship Sanitation Control Exemption Certificate for a period of one month until the arrival of the ship in the port at which the Certificate may be received.

In addition, under article 22 of the 2005 IHR the competent authorities designated by the State party in so far as shipping is concerned are responsible:

– for monitoring baggage, cargo, containers, conveyances, goods, postal parcels and human remains departing and arriving from affected areas, so that they are maintained in such a condition that they are free of sources of infection or contamination, including vectors and reservoirs

–  to ensure, as far as practicable, that facilities used by travellers at points of entry are maintained in a sanitary condition and are kept free of sources of infection or contamination, including vectors and reservoirs

–  take all practicable measures consistent with these Regulations to monitor and control the discharge by ships of sewage, refuse, ballast water and other potentially disease-causing matter which might contaminate the waters of a port, river, canal, strait, lake or other international waterway;

–  have effective contingency arrangements to deal with an unexpected public health event;

Importantly, the 2005 IHR requires that the WHO be kept informed of all measures taken under the 2005 IHR.  There is a specific provision that exempts the application of health measures for a State against ships (and aircraft) in transit passage. Specifically, no health measures are to be applied to:

• a ship not coming from an affected area which passes through a maritime canal or waterway in the territory of that State Party on its way to a port in the territory of another State. (Article 25.a)
• a ship which passes through waters within its jurisdiction without calling at a port or on the coast. (Article 25.b)

However, there are also exceptions to the “free pass”.   In the case that a ship in transit or its cargo is found to be infected with disease the 2005 IHR allows the competent authorities of the State Party to take measures such as to disinfect, decontaminate, disinsect or derat or any other technique to secure an adequate level of control of the public health risk as provided in these Regulations.  The competent authority can take additional measures including isolation (quarantine) as necessary, to prevent the spread of disease.[27]  However, additional measures are to be reported to the National IHR Focal Point. In the case that the competent authority  in the point of entry  is unable to take such protective measures,  the ship can depart but the evidence found and the control measures required shall be noted in the Ship Sanitation Control Certificate.[28]

The 2005 IHR were clearly drafted to protect the free flow of commerce and trade as under article 28 a ship or an aircraft shall not be prevented for public health reasons from calling at any point of entry.  If, however, the point of entry (e.g. port) lacks the capacity to apply the necessary health measures, the ship or aircraft may be ordered to proceed at its own risk to the nearest suitable point of entry available to it, unless the ship or aircraft has an operational problem which would make this diversion unsafe. This is subject to any other international agreement or additional health measures that can be taken by the State party under article 43.

            Moreover, the 2005 IHR provide that

“…ships or aircraft shall not be refused free pratique by States Parties for public health reasons; in particular they shall not be prevented from embarking or disembarking, discharging or loading cargo or stores, or taking on fuel, water, food and supplies. States Parties may subject the granting of free pratique to inspection and, if a source of infection or contamination is found on board, the carrying out of necessary disinfection, decontamination, disinsection or deratting, or other measures necessary to prevent the spread of the infection or contamination.”

In addition, officers in command of ships or their agents,  are required to notify the next port of destination of “any cases of illness indicative of a disease of an infectious nature or evidence of a public health risk on board as soon as such illnesses or public health risks are made known to the officer or pilot. “  The Master of the ship, before arrival at a port, must determine the state of health on board this ship, and provide a Maritime Declaration of Health[29] that is to be countersigned by the ship’s surgeon, if there is one board the ship, unless the State Party does not require it.[30]  Likewise, it remains at the discretion of State Parties whether or not to enforce measures provided for under article 27  for  ships arriving at port that fail to provide Ship Sanitation Control Exemption Certificate or Ship Sanitation Control Certificate, or when there evidence of a public health risk is found on board a ship.[31] The Regulations do not impose any obligation on States Parties to take measures to prevent the infected ship or cargo from proceeding, but only to notify the next port of call.

Of relevance to the thousands of cruise ship passengers who found themselves stranded in their cabins at sea for weeks, the 2005 IHR requires State parties to “treat travellers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures…”  And to, inter alia, provide or arrange “for adequate food and water, appropriate accommodation and clothing, protection for baggage and other possessions, appropriate medical treatment, means of necessary communication if possible in a language that they can understand and other appropriate assistance for travellers who are quarantined, isolated or subject to medical examinations or other procedures for public health purposes.”[32] 

The 2005 IHR also restrict State parties from requiring any other health documents than does WHO, unless these relate to travellers seeking temporary or permanent residence, nor shall it apply to document requirements concerning the public health status of goods or cargo in international trade pursuant to applicable international agreements.  But, at the same time, the Regulations do not prevent “States Parties from implementing health measures, in accordance with their relevant national law and obligations under international law, in response to specific public health risks or public health emergencies of international concern..” so long as the measures are consistent with the Regulations and cannot be restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.

On 27 March 2020 the IMO issued a circular on the Covide-19 pandemic.[33] The circular emphasized the importance of maintaining the flow of commerce by sea, further emphasizing that the safety of life at sea and protection of the marine environment remain paramount. The Circular further recognized “the hundreds of thousands of seafarers on ships…. unwittingly, on the front line of this global calamity. Their professionalism ensures that the goods we all need are delivered – safely and with minimal impact on our precious environment. These are people, usually far from home and family. Their own health and welfare is as important as that of anyone else,” further urging “a practical and pragmatic approach, in these unusual times, to issues like crew changeovers, resupply, repairs, survey and certification and licensing of seafarers.” The circular provided a number of recommendations to States to provide for berths for ships to dock, to provide for measures that would facilitate crew changes in port, such as designating professional seafarers and marine personnel, and port workers, as “key workers” providing an essential service, and additional measures to ensure health safety in ports.

Conclusion

This brief overview of the history of pandemics and shipping and the current 2005 IHR shows that for centuries we have been grappling how to control spread of infectious diseases while seeking to protect the free flow of global trade.  Quarantine measures against ships at ports of arrival were predominant in the past, it is clear that such strict measures were abandoned by the time of the 20^th century, as reflected in the 2005 IHR.   Indeed, the provisions under the 2005 IHR are clearly drafted to ensure the smooth flow of trade and shipping.  Nonetheless, the Covid-19 pandemic has had impacts on shipping, most notably for cruise ships and passengers and crew, locked in their cabins for weeks with an active contagion on board. But less reported has been the situation of seafarers unable to embark from commercial ships and return home.[34]  This pandemic has revealed lacunae in the existing international framework. How is it that thousands of people were stranded in ships for extended period of time exposed to infectious disease?  While port States have rights to determine conditions of entry, but does this mean people can be abandoned at sea?  One of the oldest rules of international law is the duty to rescue persons in distress at sea.[35] But many ports denied access to these ships placing human lives at risk, indeed in some cases tragically ending with fatalities. The right of States over entry to their ports seems to have clashed with 2005 IHR requirement that States treat travellers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures. It would appear that existing measures provided by the 2005 IHR did not adequately prepare States (ports) and the international shipping community for dealing with the Covid-19 pandemic.    It may be this is a once-in-a-century event but then it may not be. History has shown the pervasiveness of infectious disease and the integral relationship with shipping. The Covid-19 pandemic reveals possible lacunae in the current international legal framework which will need to be addressed when the pandemic is no more.

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[1] Robert Peckham, Epidemics in Modern Asia (CUP 2016), 44-94
[2] Eugenia Tognotti, “Lessons from the History of Quarantine, from Plague to Influenza”, 19 Emerging Infectious Diseases  (2013) 254-260  See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3559034/pdf/12-0312.pdf
[4] Coronavirus: Cruise ship off Panama coast transfers passengers, BBC News, 29 March 2020 seehttps://www.bbc.com/news/world-latin-america-52072703
[5] Mark Harrison, “Disease, diplomacy and international commerce: the origins of international sanitary regulation in the nineteenth century”, Journal of Global History, (2006) 1, pp. 197–217
[6]  Tognotti, supra note 2
[7] Id.
[8] Id.
[9] Mark Harrison, “Disease, diplomacy and international commerce: the origins of international sanitary regulation in the nineteenth century”, Journal of Global History, (2006) 1, pp. 197–217, p. 199
[10] Id., at pp. 199-200
[11]Nermin Ersoy, Yuksel Gungor and Aslihan Akpinar, “International Sanitary Conferences from the Ottoman perspective (1851–1938),”    Hygiea Internationalis An Interdisciplinary Journal for the History of Public Health · ( 2011) 53-79, See  file:///C:/Users/nilufer/Downloads/International_Sanitary_Conferences_from_the_Ottoma.pdf p. 61
[12] Mark Harrison, “Disease, diplomacy and international commerce: the origins of international sanitary regulation in the nineteenth century”, Journal of Global History, (2006) 1, pp. 197–217
[13] Ersoy, Gungor and Akpinar, supra note 11
[14] Id., at p. 57
[15] Norman Howard-Jones, “The Scientific Background of the International Sanitary Conferences: 1851-1938” (WHO 1975), 56  See https://apps.who.int/iris/bitstream/handle/10665/62873/14549_eng.pdf?sequence=1
[16] Id., p. 56;  Ersoy, Gungor and Akpinar, Supra note 11 at p. 62.
[17] Ersoy, Gungor and Akpinar, Id., at p. 64.
[18] Howard-Jones, supra note 15 at p. 56.
[19]Id., at p. 57 The British  Cholera Regulations of 1883 reflected this view and required that ships from cholera-infected areas arriving at British ports were medically inspected on arrival. Any cholera cases were admitted to hospital and any passengers with suspicious symptoms could be detained for up to 48 hours. All other passengers were free to disembark on giving their names and exact destinations, after which they would be kept under surveillance by the local health authorities.
[20] Ersoy, Gungor and Akpinar, supra note 11 at p. 65
[21] Howard-Jones, supra note 15 at p. 63
[22] Ersoy, Gungor and Akpinar, supra note 11 at p.  71
[23] Sealey, Anne. ‘Globalizing the 1926 International Sanitary Convention’, Journal of Global History, vol. 6/no. 3, (2011), pp. 431-455, 431.
[24] Signed by Afghanistan, Albania, Argentina, Belgium, Brazil, Bulgaria, Czechoslovakia, Chile, China, Cuba, Denmark, the Dominican Republic, Ecuador, Egypt, England, Finland, France, Germany, Guatemala, Haiti, the Kingdom of the Hejaz, India, Greece, Habeshistan, Honduras, Hungary, Iran, Ireland, Italy, Japan, Liberia, Lithuania, Luxemburg, Mexico, Monaco, Morocco, the Netherlands, Norway, Paraguay, Peru, Poland, Portugal, Rumania, San Marino, Spain, Switzerland, Sudan, the USSR, Tunisia, Turkey, the USA, Uruguay and Venezuela;  Ersoy, Gungor and Akpinar, supra note 11 at p. 71; Sealey, Anne. ‘Globalizing the 1926 International Sanitary Convention’, Journal of Global History, vol. 6/no. 3, (2011), pp. 431-455
[25] Sealey, Anne. ‘Globalizing the 1926 International Sanitary Convention’, Journal of Global History, vol. 6/no. 3, (2011), pp. 431-455, 431, p. 432.
[26] 1833 UNTS 397, adopted 10 December 1982, entered into force 16 November 1994
[27] Article 27, which applies to ships and aircraft in transit as well conveyances.
[28] Article 27 (b)
[29] Article 37. The Maritime Health Certificate Maritime Declaration of Health must conform to the model provided in Annex 8
[30] Article
[31] Article 39 (2)
[32] Article 32
[33] Circular Letter No.4204/Add.6 27 March 2020. See
[34]  Matt Apuzzo and Selam Gebrekidan, Trapped at Sea by Covid-19 Lockdowns, Crew Members Plead for Help, NYT 25 March 2020, see https://www.nytimes.com/2020/03/25/world/europe/coronavirus-ship-crews-trapped.html
[35] Irini Papanicolopulu, “The Duty to rescue at sea, in peace time and in war: a general overview,” 902 International Review of the Red Cross (2017), see https://international-review.icrc.org/articles/duty-rescue-sea-peacetime-and-war-general-overview