This was a claim for judicial review in relation to decisions by the Director of the National Disaster Management Office (NDMO) and Director of Immigration of Vanuatu to refuse entry into Vanuatu of the claimant's vessel, the Vanuatu Cargo, and its crew. The vessel was a Vanuatu-flagged ship. In March 2020, it went to Australia for slipway services. In the same month, a state of emergency was declared for Vanuatu due to the Covid-19 pandemic. The claimant repeatedly wrote letters to Government entities seeking approval for the vessel's return to Vanuatu. No response was received until 2 July 2020, when the Directors refused entry to the vessel and crew.

On 15 July 2020, the claimant wrote to the Prime Minister and the Director of Health requesting their support, as the crew had spent 21 days in quarantine after a seven-day passage, and there was insufficient food and water on board. The claimant also requested that the crew be tested for Covid-19 to allow them to return to their homes and families. On the same day, the claimant wrote to the NDMO confirming that the crew had no water or provisions left, that the claimant would pay for Covid tests, and requesting clearance to disembark. Despite numerous emails and the best endeavours of the claimant, the authorities denied the delivery of food and water to the crew. On 22 July 2020, the claimant sent a further email to the Ports and Marine Department requesting permission to place provisions aboard the vessel. On 22 July 2020, at 13h25, the Ports and Marine Department emailed the claimant confirming that permission would not be given to allow provisions to be handed to the crew.

On 22 July 2020, urgent Court orders were obtained to permit the vessel and crew's return into Vanuatu. The claimant now seeks judicial review of the decisions made by the defendant.

Held: Judgment for the claimant. The following declarations are made:

• The decision of the defendant, through its Director of the NDMO, of 2 July 2020 by reliance on Orders No 71 and 77 of 2020 or otherwise to refuse to allow the claimant's vessel to enter Vanuatu, was unlawful;
• The decision of the defendant, through its Director of Immigration and Passport Office, of 2 July 2020 to refuse entry for all passengers on board the Vanuatu Cargo to enter Vanuatu, was unlawful; and
• Orders No 71, 77 and 94 of 2020 with reference to locally-registered ships are of such unreasonableness as to warrant the Court’s intervention under Wednesbury principles, and are unlawful.

Vanuatu is a signatory to UNCLOS, ratified on 10 August 1999, and reflected in the Maritime Act (Cap 131). Vanuatu is bound by the articles of the Convention. The provisions of the Convention include art 94 (Duties of the Flag State) which provides, among other things:

3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: ...

(b) the manning of ships, labour conditions ..., taking into account the applicable international instruments; ...

5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. [Judge's emphasis.]

Vanuatu joined the World Health Organization (WHO) as a member State on 7 March 1983. The International Health Regulations 2005 (IHR) are binding upon all the 194 member States of the WHO. Accordingly, Vanuatu is bound by the articles of the IHR. The IHR provide a framework to respond to sanitary emergencies while avoiding 'unnecessary interference with international traffic and trade' (art 2 of the IHR). In relation to maritime transport, the principle is that of 'free pratique', meaning 'the permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores' (art 1 of the IHR). Furthermore, art 28.1 of the IHR states that 'a ship or an aircraft shall not be prevented for public health reasons from calling at any point of entry'. Article 28.2 specifies, among other things, that a ship 'shall not be refused free pratique by State 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'.

In the circumstances, the defendant's refusal from 15-22 July 2020 to permit food and water to be delivered to the vessel’s crew constituted a breach of its obligations under art 94 of UNCLOS to ensure the safety of crew members at sea. Accordingly, its refusal was unlawful. The defendant's decisions also breached art 28 of the IHR.