The Amalean Navys pursuit of Oscar de Luz into Ritanias EEZ, and his subsequent arrest, were in compliance

with international law.

Introduction The right of hot pursuit has a long history in the international law of the sea. It was codified in Article 23 of the 1958 Geneva Convention on the High Seas1 (High Seas Convention) , binding on Amalea and was adopted virtually unaltered in Article 111 of the United Nations Law of the Sea Convention (LOSC) binding on Ritania.2This heritage gives the doctrine legitimacy, the right as articulated in the High Seas Convention has remained unchanged for the past 50 years.
The right of hot pursuit under the international law of the sea

Geneva Convention on the High Seas (1958) (opened for signature 29 April 1958) 450 UNTS 82, entry into force 30 November 1962. 2 Article 111 is almost identical to Article 23, except that it allowed the right of hot pursuit from the EEZ as well as the continental shelf. Article 23 of the Geneva Convention did not address hot pursuit from the EEZ or the continental shelf, and as such, a right of hot pursuit from these areas did not exist under customary international law at that time.

The right of hot pursuit is based upon principles of customary international law3 It represents an exception to the principle of exclusive flag State jurisdiction on the high seas. It enables coastal States to enforce their laws upon the commission of an offence and to continue to pursue the offending vessel beyond coastal State maritime zones. One description of "Hot Pursuit" is to be found in "The International Law of the Sea" by O'Connell: "Hot pursuit may be defined as the legitimate chase of a foreign vessel on the high seas following a violation of the law of the pursuing state committed by the vessel within the pursuing state's jurisdiction, provided that the chase commences immediately and the vessel evades visit and search within the jurisdiction, and provided that the chase is carried on without interruption onto the high seas." By the law of nations, when a vessel within foreign territory commits an infraction of its laws either for the protection of its fisheries or its revenue or coasts, she may be immediately pursued into the open seas beyond the territorial limits and there taken.4
3

Nicholas Poulantzas, The Right of Hot Pursuit in International Law (2002, 2nd edition) 39-40 and generally Chapter II. 4 The King v. the Ship North, 37 S.C.R. 385 (1905-06)

A number of procedural conditions need to be satisfied in the valid exercise of hot pursuit, as listed in Article 111 of the LOSC. The International Tribunal for the Law of the Sea has stated that these conditions for the exercise of the right of hot pursuitare cumulative. Each of them has to be satisfied for the pursuit to be legitimate under the Convention.5 Amalea acted in fulfillment of the conditions laid down in Article 111, of the UNCLOS and in compliance with international law. Satisfying the elements of hot pursuit One of the fundamental requirements is that the pursuit be 'hot' or immediate.6 That is, the pursuit commences immediately upon the commission of an offence. The basis of allowing a pursuit is to place the alleged offender in the same position as if he had been arrested at the time of the commission of the offence.7 In addition to the requirement that the pursuit be immediate, the wording of Article 111 identifies a number of preconditions for the valid exercise of the right. These are:
5

M/V Saiga Case (No.2) (St Vincent and the Grenadines v Guinea) ITLOS Case No.2. 1 July 1999, paragraph 146. 6 In civil law countries the term in flagrante delicto (in the very act) is an analogous concept. The term fresh has also been used. 7 Glanville Williams, The Juridical Basis of Hot Pursuit, (1939) 20 British Year book of International Law 84.

the coastal State must have good reason to believe that the vessel has violated the laws and regulations of that State;8 the hot pursuit must be commenced when the foreign vessel is within the internal waters, archipelagic waters, territorial sea, EEZ or contiguous zone of that coastal State;9 the hot pursuit must not be interrupted;10 the right of hot pursuit ceases upon the vessel entering the territorial sea of its own State or/of a third State;11 hot pursuit can only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship;12 hot pursuit can only be exercised by warships or authorised government
8 9

LOSC, Article 111(1). LOSC, Article 111(1) and (2). 10 LOSC, Article 111(1). 11 LOSC, Article 111(3). 12 LOSC, Article 111(1) and (4).

vessel, which are clearly marked and identifiable.13 Good Reason Article 111(1) requires there be good reason to believe that a vessel has violated the laws of the State. This wording was adopted by the International Law Commission (ILC) in 1956 and is understood to provide for a distinction between a certainty that an offence has been committed and a mere suspicion. Hence, good reason to believe is founded upon strong indications and not on mere suspicion or suppositions that an offence has been committed.14

Daedalus, drew within about 23 nautical miles of Amaleas coastline and the Amalean Coastal Protection Service (ACPS), alert Captain Haddock received said Ritanian flagged yacht Daedalus last seen fleeing Excelsior Island towards Amalea, is stolen and persons on board are suspected of human trafficking.

Breach of coastal state law The laws and regulations alleged to have been violated must be within the scope and sovereignty of the coastal
13 14

LOSC, Article 111 (5). Poulantzas, above n. 14, 156-657.

State to legislate. There is coastal State jurisdiction i.e. Amalean jurisdiction over criminal offences beyond the breadth of the territorial sea and as such a murder on board a foreign flagged ship within the Amalean EEZ does give rise to the right of hot pursuit under Article 111, UNCLOS, 1982. It might be argued that one does not sail into an adjacent sea states contiguous zone for a pleasure cruise. Article 111 (2) states that: The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones. In its original form the right of Hot Pursuit could be exercised only if the offence itself had taken place in territorial waters. An example of such a situation is to be found in the Canadian decision of The Ship North v-the King 15 in which case the North had been observed fishing within Canadian territorial waters, was chased out into the high sea and there arrested. The arrest was upheld. This is
15

1906 37 Canadian SCR

reflected in Article 23 (1) which provides that the hot pursuit must commence when the foreign ship or one of its boats is present within territorial waters. Commencement within the coastal State zone The pursuit must be commenced whilst the vessel is still within the relevant coastal State zone. Establishing this as a matter of fact is not without problems. Hot pursuit may be commenced when a foreign vessel has committed a violation while physically or constructively present in waters over which the enforcing state may exercise jurisdiction. As the Daedalus drew within about 23 nautical miles of Amalea's coastline, it was picked up on radar by the Icarus, an Amalean Navy Fast Response Cutter, under the command of Captain Walter Haddock. Captain Haddock, who had followed the ACPS alerts set out at full speed to intercept the Daedalus. Both the 1958 and 1982 conventions recognize a right of hot pursuit for violations by a foreign vessel physically present within a coastal states internal waters, territorial sea or contiguous zone.16 If the pursued vessel was
16

1958 Convention on the High Seas art. 23(1); 1982 UNCLOS art. 111(1). In a widely reviewed 1974 case, the United States exercised its right of hot pursuit against a japanese fishing vessel found within the then existing

subject to coastal state jurisdiction, as in the case of Daedalus, when the vessel was first hailed or commenced its flight upon approach of the enforcing vessel, hot pursuit is authorized.17 Visual or auditory signal to stop The LOSC clearly states that the signal is to be visual or auditory and to be given at a distance that enables the signal to be seen or heard by the foreign ship.

When the Icarus was within visual range, Captain Haddock issued an order over several different radio frequencies commonly used by vessels in the Strait of Malachi, ordering the Daedalus to stop.
The ILC has also noted in the year of 1956, that, the important point was the fundamental right to give the order to stop and to undertake hot pursuit, not the specific means by which the right was exercised.18

United States 12-mile contiguous fishing zone, in violation of the Barlett Act. United States v. F/V Taiyo Maru No. 28, 395 F. Supp. 413 (D.Me.1975). The Federal Court upheld the United States claim of authority to establish a twelve mile contiguous fisheries zone and to enforce it by hot pursuit. Id. At 419-421. The case is analyzed in a number of articles; e.g., Fidell, Hot Pursuit from a Fisheries Zone, 70 Am. J. Intl L. 95 (1976); Note, The Right of Hot Pursuit from Exclusive Fishery Zones, 15 Colum. J. Transnatl L. 336 (1976). 17 th The Vinces, 20 F. 2d 164 (E.D.S.C.1927), affd by, Gillam v. United States, 27 F. 2d 296 (4 Cir.), cert. denied, 278 U.S. 635 (1928); cf. D.OConnell,, The International Law of the Sea 1063-65(1982). 18 [1956] Year Book of the International Law Commission, Vol 1, 54

Two particular maritime problems, drug trafficking and patrolling the EEZ to enforce fisheries laws, highlight the need for a functional hot pursuit doctrine. Hot pursuit is the critical legal mechanism that will allow these detection and enforcement resources to be used in coordination in cases where the offending vessel attempts to flee to the high seas upon being detected.19 When the

Icarus was within visual range, Captain Haddock issued an order over several different radio frequencies commonly used by vessels in the Strait of Malachi, ordering the Daedalus to stop. Instead, Luz turned the Daedalus and sped due east, towards Ritania.20
Continuous and uninterrupted pursuit Article 111 requires that the pursuit be continuous and uninterrupted. The term interrupted has not been defined in the LOSC however a substantial interruption such as diverting the pursuing vessel from the path of pursuit to attend a vessel in distress call would seem to qualify as an "interruption". After receiving Captain Haddock's several different frequencies, Luz turned the
19

For a description of the Caribbean chokepoints, see General Accounting Office, Large Amounts of Illegal Drugs Not Seized by Federal Authrities, GGD-87-91, at 26-27 (June 12, 1987). For a history and current assessment of U.S. maritime drug interdiction operations. 20 Compromis, Paragraphs 45 and 46.

Daedalus and sped due east, towards Ritania. Haddock pursued the Daedalus, crossing into Ritania's uncontested EEZ north of the Erebus Gas Field.

Amalea, will establish that, it has fulfilled all the conditions written in Article 111 of the UNCLOS, 1982, before commencing with the hot pursuit and Ritania, is bound by the UNCLOS, 1982, as it ratified the same in April,1983. The criteria for the lawful pursuit of Oscar de Luz and his subsequent arrest, has also been fulfilled by Amalea, establishing the compliance with international law.
Coastal states, like Amalea, have a number of protected interests in their adjacent waters. The 1982 UN Convention on Law of the Sea recognizes, a coastal states right to enforce civil and criminal laws within its internal waters21 and territorial sea22; to enforce laws designed to prevent infringements on its customs, fiscal, immigration and sanitary laws within its contiguous zone23; to exclusively manage natural resources within its exclusive economic zone (EEZ)24 and continental shelf25
21

Internal waters include all waters lying landward of the states baseline. 1982 UNCLOS art.8; 33 C.F.R. & 2.05 20(a) (1988). States have sovereign control over their internal waters
22 23 24 25

and to enforce laws designed to protect against damage by marine pollutants.26

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