Legal Issues On Port States’ Response To PHEIC On International Cruise Ships

The public health risk of international cruise ships has become a core issue that the port States need to solve in developing the cruise economy during COVID-19 pandemic,and it is not only important but also urgent for the port States to establish and improve the regime of responding to the PHEIC onboard the international cruise ships.Based on the characteristics of the PHEIC onboard the international cruise ships,combined with the practice of port States in this regard during the COVID-19 pandemic,this dissertation discusses the legal issues of port States’response to the PHEIC onboard the international cruise ships by virtue of international law of the sea,international health law,international human rights law and domestic law of port States.This dissertation uses value analysis method,comparative research method and interdisciplinary analysis method to explore the legal issues of port States in responding to the PHEIC on cruise ships.This dissertation consists of six parts.In addition to the introduction and conclusion,this dissertation first puts forward the idea and basic principles that port States should follow in response to the PHEIC on international cruise ships.Secondly,this dissertation analyzes whether port States have the power of refusing international cruise ship’s calls under PHEIC situation.Thirdly,this dissertation analyzes the legitimacy of additional health measures implemented by port States on international cruise ships under PHEIC situation.Finally,this dissertation puts forward suggestions on the legalization of protection for passenger and crew’s right of repatriation under PHEIC situation.The main contents of each part are as follows:The Introduction briefly introduces the background and significance of the topic,literature review,research content and research methods,and defines the meaning of keywords applied in the dissertation.Chapter 1 "The idea and basic principles to be followed by port States in responding to the PHEIC onboard the international cruise ship" first proposes that the response to public health emergencies of international cruise ships should follow the idea of human public health community,and the three policies of preventing the risk of overseas epidemic import,taking the needs of cruise passengers as the starting point and promoting the development of cruise economy.Then this Chapter puts forward the basic principles that port States should follow,that is,the principle of international sovereignty,the principle of international human rights protection and the principle of international cooperation.This Chapter also clarifies the connotation of these basic principles and solve possible conflicts between these basic principles.Chapter 2 "Port States’ power of refusing international cruise ship’s call and its restrictions under the PHEIC" first analyzes the conflict of jurisdiction when the flag State and the port State of an international cruise ship are inconsistent.The jurisdiction of port States over international cruise ships is the basis for port States to exercise their rights over cruise ships.Then this Chapter analyzes whether port States can refuse international cruise ships’calls and proposes to normalize the port access rights of port States’ and improve their capacity to monitor public health emergencies in international cruise ships,in view of the fact that some port States have refused international cruise ships’ calls improperly.This Chapter finally discusses the feasibility and specific path of establishing the regime of places of refuge for ships in distress regarding the difficulties faced by international cruise ships in their calls at ports in practice.Chapter 3 "Legal regulation of port States’ health measures under the PHEIC" first concludes that some port States’ refusal to grant "free pratique" to ships violated Article 43 of IHR 2005.Then this Chapter analyzes whether a cruise ship can be an appropriate place for quarantine,then analyzes the illegality of some port States’ implementation of quarantine onboard.Base on this,this Chapter concludes that it will fiscally overburden the port States regarding the great amount of costs incuured due to the health measures taken by the port States,then proposes the solutions to this problem.Chapter 4 "Repatriation of Passengers and Crew in the PHEIC Situation and Responses thereto" first analyzes the legal basis and institutional guarantee of the right to repatriation of passengers and crew on international cruise ships.Then this Chapter analyzes the source of port States’ obligations to guarantee the right to repatriation of passengers and crew.After that,this Chapter presents the existing shortcomings of the legal guarantee for the repatriation of passengers and crew shown in China in the PHEIC situation,and analyses how to realize the legalization of the right to repatriation of passengers and crew in the PHEIC situation.Chapter 5 "Legal Regulation of Port State’s Cost Burden in the PHEIC Situation" first analyzes the types of costs borne by a port State in response to international cruise public health emergencies and the significance of solving this issue.Then this Chapter analyzes the shortcomings of the legal system of the port State’s cost burden,including the unclear subject of cost burden and the lack of guarantee for the realization of advance payment.Finally this Chapter proposes how to improve the legal system of port States’ cost burden by clarifying the subject of cost burden,establishing the guarantee mechanism for cost realization,and clarifying the responsibility of flag States for passenger health measures.The Conclusion briefly sums up the core ideas in this dissertation.The main points of innovation in the dissertation can be summarized as follows:1.This dissertation innovates in the consideration factors.The traditional way of researching the legal response to public health emergencies on international cruise ships is to examine the provisions of international conventions and domestic law of various countries.Most of the existing studies follow this approach without considering the policy orientations of countries in implementing the law.This dissertation makes innovations in consideration factors,that is,on the basis of international conventions and domestic law of the port State,bringing into consideration of China’s policy on preventing the risk of imported pandemics from abroad,cruise passengers’ needs target,and promoting the development of the cruise ship economy,proposing a Chinese path for port States’ legal response to public health emergencies on international cruise ships.2.The dissertation also innovates in the theories.The existing literature on whether the port States have the right to refuse international cruise ship’s calls has mainly focused on the analysis of the right of refusal to the ship’s access to port,while less attention has been paid to the basic rights of passengers and crew on international cruise ships.This dissertation makes innovation in theoretical pattern,arguing that the basic human rights of passengers and crew should be balanced with State sovereignty of the port states,and the right of refusal to access to port and the freedom of ship’s navigation should be coordinated.Regime of ship’s access to port for public health concern should be established on the basis of the port State’s right of refusal to access to port so as to ensure the public heath safety of passengers and crew.3.The dissertation also innovates in the research perspective.In regard to whether port States can implement on-board quarantine measures on passengers and crew on international cruise ships,the existing research haven’t gone beyond the theoretical level,that is,the analysis of legal norms and the design and structure of cruise ships,while the actual effects derived from the aforesaid measures are examined with subjectivity and one-sidedness.This dissertation innovates in the research perspective by comparing the actual effects of three international cruise ships undergone on-board quarantine during the pandemic,analysing whether international cruise ships can be suitable as quarantine places from the perspective of public health,and concluding the conditions to be met by when making cruise ships as quarantine places,so sa to provide a reference for port State’s decision on whether to make cruise ships as quarantine places.