Public Health and International Obligations of States: The Case of COVID-19 on Cruise Ships
Round 1
Reviewer 1 Report
Your article is important given the challenges for cruise ships to keep their guest safe and healthy particularly during the Covid-19 pandemic. I have attached recommendations for editing to improve the paper due to quite a few run-on sentences and suggestions for English wording.
See attached file. I hope you find this helpful.
Comments for author File: 
Comments.pdf
Author Response
thank you so much, I accepted most of your suggestions and they are very meaningful. Please see the attachment.
Author Response File: Author Response.pdf
Reviewer 2 Report
The paper has a valid idea in mind: to explore international legal issues with respect to pandemics on cruise vessels. However, there are too many insufficiencies, contradictions and sloppy editing in the current version. This, along with the need for English revision, prevents me from recommending the paper for immediate publication.
The title promises a discussion on “international community interests”. This is not a consensual figure in either international law or international relations and the author should engage with it, should that stay in the title. What is the interest at stake? What is the “international community” the author alludes to? In the whole paper that concept is not even mentioned, even though the usage of the plural would suggest that a debate on the link between “interests” of the international community and public health would exist.
The introduction is rather short and also misleading. A reference is lacking in the first citation. The reference to a concern of “the international community” on specific problems brings us to fundamental doctrinal texts, but do not tell us where that perception of the author comes from exactly. Then it is not clear what “retrospect” means here. And what “obligations” is the author referring to? Why such an early presumption of violation? Shouldn’t the declared “inconsistency” be the conclusion and not the starting point of the analysis? All that gives the introduction a very insufficient and dubious scientific flavour.
The review of the case is thorough and brings about relevant facts for the legal analysis. The remark on the questioning of the international legal basis for on-board ship isolation is of interest and could deserve further analysis although that maybe escapes the remit of this paper.
In the analysis, it is also good to see some discussion on port state rights with respect to entry of vessels. The CSIROMP is not as relevant in this case as customary law, and the author fails to delve with literature on port state jurisdiction (e.g. Molenaar in MPEPIL). It would also be useful to find other cases where the sanitary laws in the contiguous zone were argued to restrict access of ships to port to show how the practice has evolved. Often times the author states that obligations were not fulfilled, without clarifying exactly what obligations, towards whom, and how they were violated. Does the author wish to say that there is an erga omnes obligation? Or ius cogens? Where is the “international community” appearing as a subject of rights in this analysis?
The analysis of the relevant IHR appears strong and well interpreted with the case data at hand. The reliance on media outlets is helpful to draw a picture of the situation but should not be used as evidence for a legal analysis, only for speculative remarks. And the adamant statement that Japan “did not fulfil its obligation” is too drastic for such a short paper which did not look specifically at that subject. In general, the reader gets the impression throughout the paper that there is an imbalanced analysis tilted towards reaching the conclusion that Japan has breached some obligation, the content of which remains vague. This is evidenced for example when the author qualifies actions of Japanese authorities as “untimely”, “unprofessional” or “untransparent” without directing the reader ever to a benchmark to assess what the ideal – and obligatory! – scenario would be.
The strongest point of the paper is perhaps the attempt to contribute to a solution. The discussion on genuine link is useful to put into perspective the role of private parties (could be expanded, as they also have rights and obligations under PIL), and the author makes a good point when looking into UK maritime law’s change in registering of vessels. Yet some of that analysis is compromised by unscientific phrases such as “it is obvious that the UK lacks political will”… The criticism to the margin of appreciation left to states is interesting and probably should be the key starting point of the whole paper as it is where failure stems from. Why is such margin there and which rights does it also aim to protect?
Another fine conclusion of the author is that there is no distinction between cruise ships and other ships. That should definitely deserve further development, not just looking at health law but maritime law in general. The proposal on “home ports” appears quite original. Expansion of this idea, and ways to operationalize it would be welcome. Does the author suggest an amendment to IHR? An IMO intervention on the matter? In 4.2 I am not sure what is “the IMO Third Item”… And a concluding remarks section would be a positive addition too.
For all these reasons, the author is suggested to improve the manuscript with a view to clarify the objective, identify the problem, and relate it more evidently with PIL debates on jurisdiction and community interests (see for example Ryngaert’s book “Selfless Intervention” for an analogy with what seems to be behind the original idea of the paper).
Author Response
thank you so much, I accepted most of your suggestions and they are very meaningful. Please see the attachment.
Author Response File: Author Response.pdf
Round 2
Reviewer 2 Report
Thank you for taking into consideration my previous input. However, I find that the revisions are not yet sufficient for publication level. The way the shortcomings of the paper were addressed are too superficial, simple add-ons that do not lead to a fundamental change of the core message of the paper. Here are some of the parts I take issue with:
- The introduction still mentions “inconsistencies” that I do not detect anywhere. Also, what is the “above analysis”? The first paragraph of a paper could not really be considered an “analysis”, possibly as an hypothesis. And still, what is the hypothesis? Treaties are inconsistent with each other, that is not a novelty in itself. Are those inconsistencies the root cause of why flag States failed to comply with their obligations? In that case can we say those obligations even existed in the terms you put? As it stands, the introduction is too vague to be so brief; either you decide to narrow down the problem to a specific argument, or you expand on the research problem/question/method.
- Very obscure language here: “the Yokohama Port may to some extent did not develop a public health emergency contingency mechanism which was commensurate with its status endowed by WHO”. What is this status? What does it oblige a port to do? How does this differ from what other ports have done?
- What do you mean with "the berthing of the epidemic cruise ship"? You mean a ship with ill people on board? Does that change the legal nature of the vessel?
- Very obscure language here: “it may lacked “genuine link” for UK to exercise jurisdiction over the cruise ship when the epidemic outbroke”. Challenging the existence of a genuine link is tremendously difficult, and it should not be brushed away in one sentence with very little further evidence provided. This discussion alone would be enough for a whole different paper. It is good to raise the hypothesis for further discussion, but normally this sort of claim would be useful in case there is a conflict of claims to exercising jurisdiction, which I understand was not the case here.
- Very obscure and superficial here: “Additionally, WHO may adopt new appendix to direct the construction of the IPC Mechanism of the Home Ports of Cruise Ships.” When I proposed delving into this as a proposal, I mean an actual reflection beyond one single sentence. How can this be introduced? Has this been discussed before? Is this feasible? What are the limitations of this model? Considering that this is perhaps the sole original contribution of the paper to scholarship, it should not only be central, but also receive much more attention throughout the analysis. Perhaps even start the paper with this as a potential solution to a problem of "legal inconsistency", as long as that problem is demonstrated clearly. And also, if this is a problem in itself, the focus has to be shifted away from compliance with international obligations to some more systemic issue in global ocean governance.
Overall, I find that the paper tries to cover too many issues at once, going over important details very superficially and not delving with actual legal interpretation. In a sense, this is more of a policy analysis rather than a legal one and thus it is suggested that the author avoids legal language as much as possible. For example the title should instead state something along the lines of "Public Health and Global Cruise Shipping Governance", for "governance" is, more than obligations or rights" the core remit of these sort of proposals. By attempting to deliver a legal analysis enmeshed with policy proposals, the reader is confused on whether the author is making a point on what the law is or what the laws should be.
Finally, a conclusion is still lacking. I am not sure that this is the standard in this journal, but it would really help the reader to have at least one paragraph with the key take home message the author wishes to send...
In general the English level remains poor despite some improvement that seems to have been implemented prior to the author's revisions. This leads to some confusion on what the ideas of the author truly are to a point where it compromises the quality of the paper. As such, I find that despite the existence of an improvement, more improvement is necessary.
Author Response
Thank you for your comments, I accept most of them and please see the attachment.
Author Response File: Author Response.pdf
This manuscript is a resubmission of an earlier submission. The following is a list of the peer review reports and author responses from that submission.
