The Doctrine of Hot Pursuit

The doctrine of hot pursuit is a crucial principle in international law, particularly in maritime law. It allows a coastal state to pursue and apprehend foreign vessels that violate its laws within its territorial waters and flee to the high seas. This right to pursue across maritime boundaries is an exception to the general principle of freedom of navigation on the high seas. Codified in Article 23 of the 1958 Geneva Convention on the High Seas and expanded in Article 111 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the doctrine of hot pursuit strikes a balance between the sovereign rights of coastal states and the international community’s interest in preserving the free use of the seas.

The concept of hot pursuit evolved over centuries, originating from the need to combat piracy and smuggling, where coastal states had limited capacity to enforce their laws beyond territorial waters. Today, the doctrine serves broader purposes, from addressing illegal fishing and environmental crimes to combatting drug smuggling and terrorism.

Meaning of Doctrine of Hot Pursuit

The doctrine of hot pursuit is a principle in international maritime law that allows a coastal state to pursue and apprehend a foreign vessel that violates its laws within its territorial waters. If the foreign vessel tries to escape to the high seas, the coastal state may continue the pursuit beyond its territorial limits. The pursuit must start while the vessel is within the state’s jurisdiction, and it must be continuous and uninterrupted. Codified in Article 111 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the doctrine balances law enforcement with the principle of free navigation on the high seas.

Origins and Evolution of the Doctrine of Hot Pursuit

Historical Background

The doctrine of hot pursuit has its roots in customary international law, evolving primarily in response to the challenges posed by piracy and smuggling. These activities undermined state sovereignty and law enforcement, as offenders could easily escape by crossing into international waters. The concept of hot pursuit allowed coastal states to enforce their laws beyond their territorial waters, ensuring that offenders could not evade justice by simply reaching the high seas.

The early notion of hot pursuit is linked to the English common law doctrine of “distress damage feasant,” which permitted landowners to seize trespassing animals until compensation for damages was made. Over time, this principle was adapted to maritime law, where states sought to protect their coastal waters from violations such as illegal fishing, smuggling, and piracy.

By the early 20th century, hot pursuit had become a recognised practice among states, though it remained largely undefined in international treaties. The 1927 Case of the “Lotus” before the Permanent Court of International Justice is often cited as an early acknowledgement of the principle, where the court noted that states had the right to enforce their laws beyond their territorial waters under certain circumstances.

Codification in International Law

The first formal codification of the doctrine of hot pursuit came with the 1958 Geneva Convention on the High Seas. Article 23 of the convention recognised the right of a coastal state to pursue and arrest foreign vessels that violated its laws within its territorial waters, provided the pursuit was continuous and began while the vessel was within the state’s jurisdiction. This codification marked a significant step in solidifying the doctrine as a principle of international law.

The doctrine was further expanded and clarified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Article 111 of UNCLOS provides a comprehensive framework for the exercise of hot pursuit, detailing the conditions under which it may be initiated, the types of vessels that may engage in pursuit, and when the right of pursuit ceases. UNCLOS is now the primary legal instrument governing the doctrine, with over 160 states as parties to the convention.

Laws Governing of the Doctrine of Hot Pursuit

UNCLOS Article 111: Key Provisions

Article 111 of UNCLOS outlines several important requirements for the valid exercise of hot pursuit:

1. Reasonable Grounds: A coastal state must have “good reason” to believe that a foreign vessel has violated its laws within its territorial waters or other maritime zones, such as the contiguous zone or Exclusive Economic Zone (EEZ).
2. Commencement in Territorial Waters: The pursuit must begin while the foreign vessel is within the jurisdiction of the coastal state, whether in its internal waters, territorial sea, archipelagic waters, or other zones. Once the vessel escapes to the high seas, the pursuit may continue, but it must have started within these maritime zones.
3. Signal to Stop: Before initiating pursuit, the coastal state must give the foreign vessel a clear signal—either auditory or visual—to stop. This signal is crucial for establishing that the vessel was aware of the pursuit and chose to flee. However, in situations where the vessel is clearly evading capture, the signal requirement may be waived.
4. Continuous Pursuit: The pursuit must be uninterrupted from the moment it begins until the vessel is apprehended or enters the territorial waters of its own state or a third state. If the pursuit is interrupted for any reason, the right is forfeited and cannot be resumed.
5. Authorised Vessels: Only warships, military aircraft, or other vessels clearly marked and authorised for law enforcement purposes may engage in hot pursuit. This includes vessels from coast guard, customs, and fisheries enforcement agencies, provided they are officially authorised to carry out such operations.
6. Termination of Pursuit: The right to pursue ceases once the foreign vessel enters the territorial sea of its own state or a third state. This provision ensures that the sovereignty of other states is respected, and coastal states cannot infringe upon the territorial waters of another state under the guise of hot pursuit.

Scope of Application of the Doctrine of Hot Pursuit

The doctrine of hot pursuit applies primarily to violations of a coastal state’s laws within its maritime zones, such as:

• Illegal fishing in a state’s EEZ.
• Smuggling and drug trafficking.
• Environmental violations, such as marine pollution.
• Piracy and terrorism.

The doctrine has also been invoked in cases involving migrant smuggling and human trafficking, where coastal states seek to prevent the illegal transportation of people across their borders.

Craft Involved in Hot Pursuit

As per Article 111(5) of UNCLOS, only warships or military aircraft are explicitly authorised to engage in hot pursuit. However, other vessels and aircraft that are clearly marked and recognised as being on government service may also pursue foreign vessels. This includes coast guard ships, customs vessels, and other law enforcement craft.

The use of non-military vessels reflects the practical needs of coastal states, many of which rely on their coast guards or other agencies to enforce laws in their maritime zones. These agencies play a critical role in policing illegal activities such as illegal fishing, smuggling, and environmental violations.

Conditions for Initiating and Maintaining Pursuit

Immediate Pursuit

The doctrine of hot pursuit requires that the chase begin immediately after the offence is committed. There must be no delay between the detection of the violation and the commencement of the pursuit. This immediacy ensures that the pursuit is directly linked to the offence, preventing states from claiming the right to pursue vessels for past violations.

However, UNCLOS allows for some flexibility in the interpretation of “immediate pursuit.” In practice, a coastal state may need time to deploy a suitable vessel or obtain authorisation to begin the chase. As long as the delay is reasonable and the pursuit remains closely tied to the offence, the right to pursue remains valid.

Continuous Pursuit

The pursuit must be continuous and uninterrupted from the moment it begins. If the pursuit is interrupted for any reason, such as losing sight of the vessel or temporarily disengaging, the right to pursue is forfeited. This requirement ensures that the pursued vessel is constantly within the coastal state’s jurisdiction, maintaining a clear connection between the offence and the pursuit.

Continuous pursuit is a key element of the doctrine, as it prevents states from resuming pursuit after a break, which could lead to abuses of the principle. In practice, coastal states often rely on aircraft or surveillance systems to maintain visual or radar contact with the fleeing vessel, ensuring that the pursuit remains uninterrupted.

Exceptions and Limitations of the Doctrine of Hot Pursuit

Cessation of Pursuit

The right of hot pursuit ceases under several conditions:

• When the pursued vessel enters the territorial waters of its own state or a third state.
• If the pursuit is significantly interrupted or abandoned.
• If the coastal state fails to give a clear signal to stop.

Once the vessel enters the territorial sea of another state, the coastal state must respect the sovereignty of that state and cannot continue the pursuit without permission. This limitation is crucial for maintaining the balance between the enforcement rights of coastal states and the territorial sovereignty of other nations.

Use of Force

The use of force in hot pursuit is a contentious issue in international law. While the UNCLOS does not explicitly regulate the use of force in hot pursuit, it is generally accepted that any force used must be proportional and necessary to achieve the legitimate objectives of the pursuit.

In practice, coastal states may use force to compel a foreign vessel to stop, but they must exhaust all other options before resorting to violence. Warning shots, for example, are commonly used to signal a vessel to stop before more forceful measures are taken. Excessive or unnecessary force is considered a violation of international law, and the coastal state may be held responsible for any damage or loss caused.

The I’m Alone (1935) case is a notable example of the use of force in hot pursuit. In this case, the U.S. Navy pursued and sank a Canadian vessel suspected of smuggling. The sinking of the vessel was later deemed excessive, as the pursuit should have been limited to apprehending the ship rather than destroying it.

Case Law on Hot Pursuit

Several cases have shaped the legal interpretation and application of the doctrine of hot pursuit. Some of the most significant cases include:

1. The I’m Alone Case (1935): A Canadian vessel suspected of smuggling was pursued by U.S. authorities and eventually sunk after a prolonged chase. The case highlighted the limits of the use of force in hot pursuit, with an international commission ruling that the sinking was an excessive use of force.
2. The Arctic Sunrise Case (2013): In this case, the Netherlands brought a claim against Russia for the detention of the vessel Arctic Sunrise, which had been protesting against oil drilling in the Russian EEZ. While not strictly a case of hot pursuit, the dispute raised questions about the enforcement of coastal state laws beyond territorial waters and the right to protest on the high seas.
3. The Case of the “Lotus” (1927): This early case before the Permanent Court of International Justice established that states have the right to enforce their laws beyond their territorial waters under certain circumstances, laying the groundwork for the later development of the doctrine of hot pursuit.
4. Church v. Hubbart (1804): This U.S. Supreme Court case involved the seizure of a vessel by Portuguese authorities outside the territorial waters of Brazil. The case is often cited as an early recognition of the principles underlying hot pursuit, though the doctrine was not formally established until later.
5. The Anna (1805): A British privateer seized a Spanish-flagged vessel just beyond U.S. territorial waters during hostilities between Britain and Spain. The case is often regarded as one of the earliest instances of hot pursuit, as the British vessel had chased the Spanish ship after it attempted to flee from boarding.

Contemporary Challenges and Applications

In modern times, the doctrine of hot pursuit is used to address a wide range of challenges in maritime law enforcement, including:

1. Illegal Fishing: Coastal states frequently invoke hot pursuit to combat illegal fishing in their EEZs. Countries such as Australia, New Zealand, and Norway have used the doctrine to apprehend foreign vessels engaged in illegal, unreported, and unregulated (IUU) fishing.
2. Drug Smuggling: The doctrine is also used to combat drug trafficking across maritime borders. The U.S. Coast Guard, for example, regularly uses hot pursuit to intercept vessels suspected of smuggling drugs from South America into U.S. waters.
3. Environmental Protection: Coastal states may use hot pursuit to enforce environmental laws, such as preventing marine pollution or illegal dumping. The doctrine allows states to apprehend vessels that violate environmental regulations within their maritime zones.
4. Human Trafficking and Migrant Smuggling: The doctrine has been invoked to combat human trafficking and migrant smuggling across maritime borders. Coastal states use hot pursuit to intercept vessels carrying migrants or trafficked persons in violation of their laws.
5. Piracy and Terrorism: Hot pursuit is also used to combat piracy and terrorism on the high seas. International naval coalitions, such as those operating in the Gulf of Aden, have employed the doctrine to apprehend pirate vessels attempting to evade capture by fleeing into international waters.

Conclusion

The doctrine of hot pursuit remains a vital tool in international maritime law, balancing the enforcement rights of coastal states with the freedom of navigation on the high seas. Codified in Article 111 of UNCLOS, the doctrine allows states to pursue and apprehend foreign vessels that violate their laws within their territorial waters, provided certain conditions are met.

While the doctrine has evolved from its origins in combating piracy and smuggling, it continues to play a crucial role in addressing contemporary challenges such as illegal fishing, environmental violations, and drug trafficking. The principle of continuous and uninterrupted pursuit ensures that states can enforce their laws effectively while respecting the sovereignty of other nations.

However, the application of the doctrine must be carefully managed, particularly regarding the use of force and the cessation of pursuit. International case law has provided valuable guidance on these issues, ensuring that the doctrine is applied fairly and proportionally.