INTERNATIONAL CRIMINAL LAW OF THE SEA
4.5 THE RIGHT OF HOT PURSUIT
The right of hot pursuit is well established under customary law, as well as the 1958 Geneva Convention on the High Seas and UNCLOS.66It gives coastal States the right to pursue and arrest foreign vessels that have committed an offence within their maritime zones onto the high seas, as one of the exceptional measures departing from the rule of exclusive Flag State jurisdiction on the high seas. Before considering the details of this right, it is useful to scrutinise its justificatory basis. Under the relevant treaties, it is not only an exceptional measure; its exercise is also subject to certain limitations, such as that the pursuit must be continuous and uninterrupted.
Moreover, other sea-trafficking treaties stress the primacy of Flag State jurisdiction, the security of the foreign vessel, safety of life at sea, as well as the commercial interests of the Flag State.67On the other hand, hot pursuit operates as a right of necessity for the enforcement of the laws and regulations of the coastal State, which would otherwise be unpunished in accordance with the aforementioned general rule.68It
63 Op cit,Churchill and Lowe, note 53, p 212.
64 JF Meltz, ‘Rwandan Genocide and the International Law of Radio Jamming’, 91AJIL(1997), 628.
65 See I Bantekas,Principles of Direct and Superior Responsibility in International Humanitarian Law,2002, Manchester: Manchester UP, pp 57–62.
66 1958 Geneva Convention on the High Seas, Art 23; Art 111 UNCLOS; seeop cit,Churchill and Lowe, note 53, pp 214–16. States are increasingly concluding bilateral or regional multilateral treaties providing for co-operation in the exercise of the right of hot pursuit, such as the 1993 Conakry Convention on Sub-regional Co-operation in the Exercise of Hot Pursuit and Protocol.
67 1988 UN Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Art 17, 28 ILM (1989), 493; Council of Europe Agreement on Illicit Traffic by Sea, Implementing Art 17 of the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, ETS 156.
would seem that, unless otherwise explicitly permitted by new rules of customary law or unilateral acquiescence, hot pursuit must be exercised only in accordance with the strict requirements of UNCLOS.
It is clear from the text of Art 111 of UNCLOS, and thetravauxof the 1958 Geneva Convention on the High Seas,69that States are not restricted in the list of offences that may be subject to hot pursuit. This is a matter for the coastal State’s domestic law. This general freedom is subject to two limitations. First, hot pursuit may be exercised in any one of the coastal State’s areas of maritime jurisdiction—including the continental shelf—provided that the pursuit is in response to a violation for the protection of which the particular maritime belt was established. For example, since Art 33 of UNCLOS permits the establishment of a contiguous zone in order to prevent the infringement of the coastal State’s customs, fiscal, immigration or sanitary laws, hot pursuit is available only if the foreign vessel has, while in the contiguous zone, violated any such laws. Similarly, the non-prescribed but limited sovereign rights granted to coastal States under Art 56 of UNCLOS restrict hot pursuit to a small range of environmental, illegal fishing, and similar offences. Secondly, while international comity suggests that hot pursuit should be avoided with regard to trivial infringements,70violation of less serious offences such as illegal fishing has in the past given rise to legitimate pursuit.71Irrespective of whether a crime has in fact been committed by a foreign vessel in a maritime belt, hot pursuit is lawful only where the pursuing vessel ‘has good reason to believe’72that the particular violation has taken place. What is thus required is either actual knowledge or reasonable suspicion, but mere suspicion would not suffice.73This proposition that mere suspicion is an insufficient basis for asserting a right of hot pursuit was reinforced by the judgment in theM/V Saiga (No 2)case, where the International Tribunal for the Law of the Sea (ITLOS) stated that when the Guinean pursuing ship made its
‘initial decision to pursue, it had insufficient grounds for hot pursuit. Guinea could have had no more than a suspicion that theSaigahad violated its laws in the EEZ’.74 The argument that the flight of a foreign vessel to the high seas upon its visual or radar contact with a ship belonging to the authorities of the coastal State constitutes reasonable suspicion of committing a crime,75is incompatible with the justificatory principle of hot pursuit enunciated above. In any event, the test of reasonable suspicion should be interpreted to encompass particular criminal activity, as opposed to suspicion about general criminal activity.
Hot pursuit represents enforcement action by the coastal State, and as such the use of force is permissible in two cases: (a) for the purposes of self-defence; and (b) in order to stop the offending vessel and arrest those on board. Force, however, must
68 RC Reuland, The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention’, 33Va J Int’l L(1993), 557, p 558.
69 YBILC(1956), Vol II, p 285.
70 Op cit,Reuland, note 68, p 558.
71 The Northcase, 11 Ex Rep (1905) 141, Canada.
72 UNCLOS, Art 111(1).
73 Op cit,McDougal and Burke, note 52, p 896; NM Poulantzas,The Right of Hot Pursuit in International Law(1969), p 155;op cit,Reuland, note 68, p 569.
74 Saint Vincent and the Grenadines v Guinea(TheM/V Saiga)(No 2),Judgment (1 July 1999) (Merits), 38 ILM (1999), 1323, para 147.
75 Op cit,Reuland, note 68, p 570.
conform with the principles of proportionality and reasonableness. In theI’m Alone case,76a Canadian ship was pursued by a US Customs vessel onto the high seas, and upon refusing to surrender, she was fired upon with more than 100 shots resulting in her sinking and the death of one crew member. The Mixed Committee of Arbitration ruled that the sinking of the pursued vessel must be incidental to the exercise of necessary and reasonable force. Similarly, in theM/V Saigacase, the ITLOS observed that considerations of humanity must apply in the law of the sea, pointing out that since theSaigawas fully laden and its maximum speed was 10 knots it could have easily been overrun and boarded by the Guinean warship, without excessive force.77 4.5.2 Commencement and continuous nature of hot pursuit
Under Arts 111 of UNCLOS and 23 of the 1958 Geneva Convention on the High Seas respectively, the right of hot pursuit commences where a foreign vessel has committed an offence in a maritime belt, is moreover present therein and the pursuing public ship has ordered the foreign vessel to stop at a distance which enables it to be seen or heard by the foreign vessel. Refusal to stop would give rise to pursuit onto the high seas. As Art 111 of UNCLOS speaks only in terms of ‘ship’ and not persons, hot pursuit would be available for offences committed by passengers on board a foreign ship only where they are acting under the authority of those in charge of the ship.
The coastal State may thereafter lay claim for the offenders to be tried before its courts on the basis of the law of extradition.78Moreover, although the wording of both UNCLOS and the 1958 Geneva Convention on the High Seas suggest that only a completed offence justifies pursuit, thetravauxto the 1958 Geneva Convention on the High Seas clearly illustrate that the special rapporteur perceived any reference to ‘attempts’ as superfluous, as they were implied in the text.79
Once the pursuit commences, it must remain continuous and uninterrupted. A pursuit is deemed to have been interrupted in the following cases: (a) where the pursued vessel has entered the territorial sea of a third State,80although other maritime belts are assimilated to high seas for the purposes of hot pursuit;81(b) where the warship has abandoned pursuit, pursuit cannot be thereafter resumed. Although UNCLOS is silent, case law suggests that only significant interruptions can invalidate a right of hot pursuit. Thus, if the warship momentarily stops to pick the mother ship’s dories, this should not terminate pursuit;82(c) finally, since UNCLOS requires
76 I’m Alonecase(Canada v USA)(1935) III UNRIAA 1609.
77 M/V SaigaJudgment (Merits), paras 153–57; see alsoThe Red Crusadercase (1962) 35 ILR 485, and 1995 Agreement for the Implementation of the Provisions of UNCLOS, Art 22(1)(f), Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM (1995), 1542.
78 Op cit,Reuland, note 68, p 570.
79 Op cit,Poulantzas, note 73, p 154.
80 InR v Mills(unreported), Croydon Crown Court adopted a more liberal view. See WC Gilmore,
‘Hot Pursuit: The Case ofR v Mills and Others’, 44ICLQ(1995), 949.
81 YBILC(1956), vol I, p 52.Op cit,Poulantzas, note 73, p 580 argues that a short stay of passage through a third State’s territorial waters, with the aim of evading the law, does not preclude the resumption of hot pursuit. He notes, however, that in all other instances, where the fleeing vessel has entered the territorial waters of a third State, at that moment the jurisdictional link between the pursuing and pursued vessel has been broken.
82 The Northcase, 11 Ex Rep (1905), 141, Canada.
that the foreign vessel be given an audible or visual signal to stop, it is necessary that the pursuing ship maintain some sort of visual observation of the foreign vessel.
This requirement of visual observation would have to be fulfilled despite the existence of radars which make observation possible without the need for visual proximity.83 Pursuit is possible by either a warship or aircraft duly authorised. UNCLOS permits a warship to take over the pursuit from an aircraft, but is silent on whether an aircraft can continue the pursuit commenced by a warship. Juristic opinion generally takes the view that this is possible.84Furthermore, in accordance with UNCLOS, it is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the warship or aircraft giving the order be within the territorial sea or the contiguous zone.
A pursuit is lawful only where, as already stated, the foreign vessel does not respond to a clearly audible or visual signal to stop. InUSA v Postal,85the fifth circuit court ruled that the arrest of a foreign vessel on the high seas was unlawful because, inter alia,the giving of visual or auditory signals to stop did not occur until after a second boarding of the fleeing vessel, by which time the foreign vessel was outside US territorial waters. It is argued that since the signal requirement is intended to give the foreign vessel time to heave and await inspection, it may be dispensed with where the foreign vessel attempts to flee upon sighting the warship or aircraft.86 Although Art 111(4) of UNCLOS allows only visual or auditory signals, recent case law has accepted the use of signals given by radio.87
4.5.3 The doctrine of constructive presence
The practice of States has, at least since the latter part of the 19th century, accepted that the presence of a mother ship beyond the crucial maritime belt—or on the high seas—
would still give rise to a right of hot pursuit against it where boats belonging to, or associated with, the mother ship commit offences in the coastal State’s maritime zones of jurisdiction.88This is known as the doctrine of constructive presence, whereby for the purposes of hot pursuit the mother ship, otherwise not lawful prey, is deemed to be within the enforcement jurisdiction of the coastal State.89The doctrine has been codified in both UNCLOS and the 1958 Geneva Convention on the High Seas, and Art 111(4) of UNCLOS provides that hot pursuit is not deemed to have commenced:
…unless the pursuing ship has satisfied itself…that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf.
Although the doctrine of constructive presence was born to challenge situations involving a mother ship and smaller boats operating from the mother ship (eg,
83 Op cit,Poulantzas, note 73, p 212.
84 Op cit,Churchill and Lowe, note 53, p 215.
85 589 F 2d 862 (1979).
86 The Newton Baycase, 36 F 2d 729 (1929). The recent Judgment (Merits) in theM/V Saigacase, however, supports a stricter view, para 148.
87 R v Mills(unreported);R v Sunila and Soleyman,(1986) 28 DLR 450.
88 Araunah(1888) Moore,Int Arb824;Grace and Ruby,283 F 475 (1922).
89 See WC Gilmore, ‘Hot Pursuit and Constructive Presence in Canadian Law Enforcement’, 12Marine Policy(1988), 105.
Araunahinvolved canoes engaged in sealing within Russian territorial waters and operating from a British Columbian schooner on the high seas), in recent years it has become common practice for a number of large vessels to be co-operating in illegal activities (especially drug-trafficking and smuggling) without the existence of a mother ship in the traditional sense. Thus, in the case ofR v Mills,a ship registered in St Vincent was smuggling cannabis into the UK by transferring the drugs through the high seas to Ireland and from there to a British trawler which subsequently sailed into British waters. Croydon Crown Court was not troubled by the fact that the British trawler was not one of the boats of the pursued St Vincent vessel. Although this case does not conform to the spirit of Art 111 of UNCLOS, its evolution will undoubtedly depend on relevant State protests and consensus emanating from recent international criminal co-operation initiatives in the spheres of organised crime, drug-trafficking and terrorism.