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Doctrine of Hot pursuit: International law

International law recognizes "The Doctrine of Hot Pursuit" as a state's legal rights. It was first enshrined in Article 23 of the 1958 Geneva Convention and later ratified by Article 111 of the 1982 United Nations Convention on the Law of the Seas (UNCLOS). The fundamental rule of freedom of the seas is an exception to the notion of hot pursuit.

It merely provides that if a foreign vessel engages in any criminal activity within the state's territorial waters, the pursuit of that vessel will begin immediately, may continue on the high seas, and will be legitimate if an arrest is made. It enables a law enforcement agent to pursue a suspect who may be evading capture by fleeing to international waters. Hot pursuit, as the word suggests, is the immediate or recent pursuit of a criminal suspect by those posing as law enforcement officers.

The idea of "hot pursuit" has been applied by the state for more than a century and is a reflection of customary international law. The clauses specified in the notion of hot pursuit international law are comparable to common law but were individually modified. During the early lengthy decades of the 20th century, it began to crystallize into an overarching pattern of international relations.

The idea of distress damage feasant, which granted the owner of the property the right to keep any animal that trespasses their property, land, and to ensure that the reimbursement was fully obtained for the damage caused, is where the principle of hot pursuit originated. With the development of the doctrine came a traditional understanding of the idea of "hot pursuit," which expanded the authority of peace officers to make arrests.

The Evolution of the Doctrine

Early jurisprudence helped shape the idea, with I'm Alone case being one of the most referenced. The doctrine of hot pursuit has its origins and legitimacy in more than centuries of state practice and can be defined as a reflection of customary international law.

A number of early private academic institutions, including the Institute de Droit International in 1894 and 1924, the International Law Association in 1894 and 1926, and the American Institute of International Law in 1926, and the Harvard Research in International Law in 1929, also codified the doctrine in various formulations.

According to the Institute de Droit International, although the pursuit was halted when the pursued vessel reached the territorial waters of another country, it did not end until the vessel arrived at its port. Colombo's 2 and 3 criticized this division between a state's territorial sea and its port with relation to the use of the right of hot pursuit, but it has not been incorporated into subsequent legal developments.

The Preparatory Committee of The Hague Codification Conference reported in 1930 that there was broad agreement that a state was permitted to continue a pursuit onto the continental shelf, despite some disagreement on the question of where zone the pursuit might be started from high sea.

By the time the International Law Commission (ILC) completed its reports on the law of the sea in 1956, it had likewise had little trouble reaching consensus on a draught item that was later added as art. 23 of the High Seas Convention in 1958. Therefore, by the middle of the 20th century, everyone had come to respect the right of hot pursuit.

In 1982, Article 23 of the High Seas Convention was added as Art. 111 of the UNCLOS. These procedural requirements are cumulative, according to the International Tribunal for the Law of the Sea (ITLOS), and "each of them must be satisfied for the pursuit to be valid under the Convention," as was stated in the M/V Saiga (No 2) case.

Hot pursuit doctrine

According to the doctrine of hot pursuit, a State has the right to pursue a foreign State's vessel that has broken a law inside its territorial waters and under its jurisdiction. In accordance with the doctrine, a vessel that violates the law may be pursued outside of territorial waters until it can be apprehended. All vessels have the right to unrestricted navigation on the high seas, according to the fundamental principle of maritime law.

However, according to conventional wisdom, the idea of hot pursuit is an exception to the rules governing freedom at sea. This customary doctrine emerged at a time when piracy and smuggling were on the rise, enabling a coastal state to pursue on the high seas a vessel that had broken its laws within its waters, denying the intruding vessel the chance to claim protection under the right of free navigation on the high seas, which had been intended to protect innocent vessels.

Importantly, this customary practice did not apply to a foreign state's territorial waters. This traditional approach was later incorporated into the 1982 United Nations Convention on the Law of the High Seas. Article 111 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) contains a codification of the maritime hot pursuit doctrine. It acknowledges that a vessel may be followed onto the high seas and confiscated if it violated the laws of a foreign state while in those state's sovereign or territorial waters.

Criteria for Hot Pursuit

For the practice of hot pursuit to be successful, certain considerations by the officials that are stated and governed by international law are required. Hot chase requires an immediate pursuit, which is one of its most fundamental components. It means that the run after shall start as soon as the foreign vessel commits the crime.

A few guidelines for the practice are outlined in Article 111 of the UNCLOS, and they are essentially as follows:
  1. The state must have "strong reason" to think that a foreign vessel has violated its territorial waters' laws.
  2. While the foreign vessel is present in the state's territorial waters, the chase must occur.
  3. The pursuit is ongoing in character. The pursuers acknowledge themselves as competent state authorities, and there should be no stoppage in the same.

The Nature of the pursuit
  1. Craft that May be utilized in the Pursuit
    According to UNCLOS Article 111(5), the following types of craft may be used in hot pursuit: "Only warships or military aircraft may exercise the right of hot pursuit." The right of hot pursuit may also be used by "other ships or aircraft clearly marked and recognized as being on government service and authorized to that effect," according to Article 111(5). The vessels of other governmental organizations, such as the coast guard, customs, fisheries, or police that could potentially be involved in the protection of a coastal state's maritime zone would appear to be covered by this new category of authorized vessels. It is crucial that the boats in this extra category have permission to act on behalf of the coastal state and are specifically authorized to carry out enforcement actions.

  2. Pursuit Must Be Taken Immediately
    Even while the phrase "hot pursuit" implies that the pursuit must closely follow a breach of the rules or regulations of the coastal state, the immediacy of the pursuit is not a rigid necessity. "It needs to be taken "in a broader sense." The coastal state's decision to start the pursuit is an important factor. Before beginning a pursuit, a vessel may need approval from superiors or a land-based headquarters; alternatively, a vessel that is more suited and crewed to perform an arrest at sea may need to be summoned. No pursuit should be compromised by these delays. Apart from these general rules however, the determination of whether the pursuit was urgent or not should be made solely based on an evaluation of what is "reasonable" in the specific situation.

  3. A Stop Signal Must Be Given to the Pursued Vessel
    The signal to stop is of utmost importance, according to UNCLOS art. 111(4), because hot pursuit doesn't start until after the direction has been issued. "Therefore, the infringing vessel must be signaled to halt when it is under the control of the coastal state. However, it has been decided that the duty to signal may be waived in situations where it is clear that the guilty vessel is aware it is being pursued. It has been argued that in order to prevent abuse, it is necessary to notify the offending vessel that it has been found, identified, and instructed to stop "in order to prevent surprises when the enforcement vessel closes in.

  4. The Investigation Must Continues
    The condition that the pursuit be ongoing presents another challenge when attempting to apply the idea of hot pursuit in contemporary circumstances. The chase "may only be continued if has not been interrupted," according to UNCLOS art. 111(1). The non-flag state is able to intervene on the high seas thanks to this continued pursuit's jurisdictional link to the evading vessel. Additionally, the criterion makes sure that the vessel being followed is always positively identified and that enforcement action is not initiated against the incorrect vessel as a result of misidentification. The right to pursue is forfeited and cannot be reinstated after it has been halted.

  5. A chase may be conducted in relay.
    A ship taking over the pursuit from an aircraft is clearly covered under Article 111 (6)(b), and it is an uncontroversial extension to permit one ship to take over from another. There may be no policy justification for these cooperative or multinational hot pursuits to be illegal as long as they are conducted in accordance with the procedural requirements of article 111 and the enforcement craft of the coastal state whose laws or regulations were violated remains a part of the pursuit.

When does right to Hot pursuit ceases

The pursuit ends when it is significantly interrupted, as already mentioned. The right of hot pursuit also expires when the chased ship enters the territorial sea of its own state or that of a third state, according to UNCLOS Art. 111(3). However, UNCLOS does not contain any restrictions stating that the chase also ends the moment the ship enters the exclusive economic zone or even the contiguous zone of its own or a third state.

Because continuing the right of pursuit there would be an infringement on the other state's sovereignty, the rule states that it ends the moment the chased vessel enters its territorial sea. The right of innocent passage across a foreign state's territorial sea is something that all ships are entitled to, but it does not apply when a ship is being pursued or when active enforcement action is being taken there.

The jurisdictional relationship between the coastal state and the pursued vessel should not be severed only because the ship enters the territorial waters of another state because the exclusive nature of the flag state's jurisdiction has already been lost at the moment the hot pursuit properly begins.

When entering a third state's territorial sea on purpose to evade capture, according to Baird, the fleeing vessel "should be denied the protection given by Article 111." A coastal state may, of course, allow the pursuit through its territorial sea, and this has happened in many cases. 'However, the flag state of the detained vessel could contest the legitimacy of the arrest, and the state making the arrest would have to make the case that art. 111(3) should be interpreted broadly and purposefully rather than strictly and narrowly.

Use of force
Using force while being pursued International law recognizes that a coastal state may employ force in an effort to seize a suspect vessel. Indeed, the right of hot pursuit "would be a nullity" if there were no matching right to employ force to carry it out." The coastal state will be held accountable for any excesses, although the force employed must be appropriate under the circumstances.

According to the Commission's ruling in the I'm Alone case, "The United States was allowed to use necessary and reasonable force for the purpose of effecting the objects of boarding, searching, seizing, and bringing the suspected vessel into port; and if sinking should incidentally occur as a result of the exercise of necessary and reasonable force for such purposes, the pursuing vessel might be entirely blameless." However, the coastal state should utilize every practical tool at its disposal to make the arrest without resorting to violence, and any use of force should be gradual and start with, for instance, a warning shot.

Violations of the hot pursuit doctrine and appropriate actions under it:

It is presumed that whatever law the coastal state wants to enact will be implemented, provided it is legal, because neither of the conventions that took place name any specific infringement that justifies the hot pursuit. The state must have a very strong feeling that the foreign vessel is committing the crime before a hot chase can start. The seriousness of the infraction is crucial in determining whether it is acceptable to violate the foreign vessel's freedom of navigation.

There aren't many crimes that actually give you the right to pursue someone directly. One such offence that poses a serious risk to all of the nations is smuggling, which calls for vigorous action to address the problem. Another circumstance where the state may defend the rules and norms by engaging in hot pursuit is to protect a nation's coastal areas from marine contamination and bio-degradation by foreign vessels.

According to international law, using force in hot pursuit is acceptable as long as it only extends to the point where it is necessary. Applying force is also preserved as a last option. The force used by the coastal state may go beyond what is necessary and may restrict the foreign vessel's freedom, but this is not acceptable if it is not essential.

In case of Unnecessary and unjustifiable Hot Pursuit

According to UNCLOS art. 111(8), a ship "must be reimbursed for any loss or damage that may have been consequently inflicted" if it has been halted in circumstances where the right of hot pursuit was not justified. Additional recourse is also conceivable under Articles 110(3) and 304. It has been asserted that these clauses make coastal states less likely to misuse their authority to engage in hot pursuit.

'The owners of the vessel would first need to persuade its flag state to initiate proceedings because these remedies are only available to states, not to natural individuals. They would also need to use all available local options. Therefore, the entire process is probably going to be costly and time-consuming. Additionally, it hasn't stopped some coastal states from bringing criminal charges against the perpetrators or impaired the admissibility of any evidence gathered as a result of the illegal exercise of the right of hot pursuit.

Relevant case law

The I'm Alone (1935) case:

Continuous Hot Pursuit is required without any stoppage.

A Canadian-registered ship called "I am alone" was smuggling into the US territorial sea in 1929. When the US Naval Police signal it to stop, it begins to flee for the open sea. The USA Naval Police then launched a Hot Pursuit with their ship Wolcott and opened fire on the "I'm Alone" ship. Once they realized their Wolcott wouldn't be able to capture "I'm Alone," they sent out another ship, the Dextar.

After 200 nm, Dextar began a close pursuit and opened fire on the "I Am Alone" ship, causing it to hit a boom and sink. The Question in this case was whether the USA have a right to pursuit or not? And Whether or not Dextar's Hot Pursuit was authorized? The ruling was upheld by the court on behalf of Canada. And the Reasoning was, since hot pursuit must be ongoing, the engagement of Dexter was unlawful under the USA's right to pursue it.

Church v. Hubbart

The US Supreme Court took into account the Portuguese authorities' detention of a vessel outside of Brazil's national waters. Church v. Hubbart contained an early acknowledgment of a burgeoning hot pursuit, despite the fact that the case is better recognised for its remarks on jurisdictional protections. Hot pursuit would not be developed until much later as a result of the analysis done in Church v. Hubbart, even though the case did not specifically authorise it. In this case, the state in question was a colonialist state, and the judgement did emphasise the right of a state to make laws that are enforceable outside of territorial waters.

Anna [1805] High Court of Admiralty

The Anna, which entailed the seizure of a vessel amid hostilities between Britain and Spain, is frequently recognized as the first instance of hot pursuit. Just over three nautical miles from the US coastline, which the Spanish deemed to be on the high seas, a British privateer captured the Spanish-flagged Anna.

By measuring the place of capture to be three nautical miles from a baseline that started at Mississippi mud islands, the US, on the other hand, contended that the captured vessel was within its neutral seas. British representatives claimed that once the ship resisted being boarded and searched, fled onto the high seas, and was eventually apprehended, it was the subject of a legitimate chase.

The theory of hot pursuit is a deeply ingrained idea that is crucial to international law. The concept is an exception to the fundamental norm of free passage in the high seas, hence it should be used with extreme caution as there are many variables involved in exercising this right. The idea enables coastal nations to defend their own sovereignty by discouraging or halting an alien or foreign vessel from breaking the law on their soil.

The doctrine's underlying principles continue to be based on the norms and practices of a previous era when complex machinery and technology were not utilized in national administration. If the doctrine of hot pursuit is to remain relevant and enforceable over time, it must also change with the times. It is crucial to include these new technologies and mechanisms within the scope of any growth of maritime rules, regulations, and laws because they have grown to be an integral part of society.

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