International Maritime Law on Hot Pursuit - Report Example

INTERNATIONAL MARITIME LAW ON HOT PURSUIT By of the of the of the School Word count 2097 12 March 2015 Introduction International maritime laws are applicable in national and international courts in cases concerning vessels movements and operations in the open sea and states’ coasts. Quite a number of illegal activities like smuggling and Illegal Unreported Unregulated (IUU) fishing occur at protected territories of state coasts and international open waters. The law addresses numerous maritime crimes entailing maritime terrorism, illegal fishing, drugs and human trafficking and water environmental damage among others (CSCAP, n.d.). According to Chatterjee (2010, p. 15), “the United Nations Convention on the Law of the Sea, 1982 (UNCLOS III) provides that the right of hot pursuit may be extended to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations”. Considering that the international maritime conventions recognize the existence of maritime zones, it is the obligation of the coastal states to secure and exercise full sovereignty and ensure the state’s rules and regulations are adhered to by any local/foreign vessel within its internal waters. Ravin describes territorial sea as the “area extending seaward side up to 12 nm from the baseline of the coastal state,” which provides a right of innocent passage and which the state exercises sovereignty (2005, p.9).This paper addresses the case of hot pursuit of a foreign vessel on the Australian coast. The legal regime that regulates Australian coast where the Vulcan was spotted The Vulcan spotted within the Australian maritime zone was operating within an area under the Australian legal framework. The legal regime is entirely founded on the law of the sea, Commonwealth and internal States and territories governance. Since the ratification of UNCLOS in 1982 and adoption of the Australia’s Ocean Policy in 1998, the management of its maritime zone has been based on constituent rules and regulations. Internally, Australia has the Fisheries Management Acts of 1991(FMA) that support maritime law enforcement in areas like hot pursuit (Navy, 2006). Australia also has bilateral cooperation’s with countries like France and New Zealand, for management of its fisheries and surveillance. Arrest of foreign vessel within a national’s maritime zone Each coastal state has an obligation to protect its waters and land against any violation that comes through water transport. Therefore, maritime agencies from the specific states have to keep watch of any vessels within the state’s maritime zone. A foreign vessel, irrespective of the flag it flies, is subject to the laws of the land in the maritime zone it enters. Both the vessels and the crew can be arrested for violation of the law. A coastal state will exercise its civil jurisdiction and enforce legislation when a foreign vessel interferes with a state’s interest. Based on Article 28 of UNCLOS, a foreign vessel can be arrested for infringements of the coastal states’ local law (Bardin, 2002). Based on the case of the Vulcan and Australia, there are several issues to consider. The Vulcan was within the Australian maritime zone hence subject to the law and jurisdictions of Australia. Second, Australia had a local rule that imposed restrictions on fishing of surfer fish, unless licensed. Third, failure of the Vulcan to respond to a radio call, fly the contracted states flag and eventually escaping Pluto (Australian fisheries inspection vessel) all raised suspicion of crime by the coastal state. Irrespective of no evidence of illegal fishing at the time of arrest, the actions of Pluto were permissible to protect Australian fishing interests. Similarly, the Vulcan, subject to the legislation and authority of Australia, resisted boarding of the vessels. Within Australian maritime zone, the inspection crew had the right to board the Vulcan and conduct inspection. Interference with crew boarding and inspection of the vessel obstruct Australian law enforcement. Doctrine of hot pursuit Foreign vessels use states’ territorial sea of coastal states as an innocent passage to their destinations. Article 18 and 19 of UNCLOS provides that all vessels have the right to passage across territorial sea as long as it does not involve activities (e.g.illegal fishing and violations of coastal state customs) that threaten the good order, peace and security of the coastal state (Bardin, 2002). Therefore, in breach of the coastal states’ laws, either those governing the mainland, ports and coast, they warrant strong suspicions or reason to believe that a vessel or its crew have committed an offence. At this point, its passage within the territorial waters is no longer an innocent passage. In such cases, a hot pursuit to the vessel is given to the coastal state. The right of hot pursuit is a legitimate historical doctrine that has been a limit to the principle of the freedom in the high seas. More than fifty years to date, it is provided for in Article 23 of the 1958 Geneva high seas Convention and later adopted in article 111 (1) of UNCLOS (Baird, 2009). According to UNCLOS Article 111 (1), there must be a strong reason for competent authorities of the coastal state to believe a foreign vessel has infringed the state’s law and regulation, pursuit must commence when the foreign vessel is within the relevant maritime zone, and should be conducted across contiguous and territorial areas without interruption. From the Vulcan case, Jupiter was a competent authority, a coast guard vessel authorized to engage in hot pursuit as required in UNCLOS 111 (5). Jupiter was the first vessel summoned by Pluto after a six hour pursue and contributed to an uninterrupted continuous pursuit of the Vulcan into the high seas. It was in compliance to UNCLOS 111 (6b) which holds that “the aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit,” and responded to Pluto’s call after it placed the order for the Vulcan to stop and commenced the pursuit. One, Pluto had already attempted to communicate using auditory signals (the radio contact and loud hailer) both at a distance and in attempt to board the vessel. Though the Vulcan failed to respond, its interference (turning on powerful water horses) only to capsize the Australian’s authorities speedboat and sail away, provided a reasonable proof that the Vulcan heard and resisted order to stop. Panama’s protest that Australia should have ceased pursuit once the Vulcan entered high sea has no ground under international maritime law. UNCLOS 111 (3) requires that “the right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State” (UNCLOS, n.d., p.63). Similarly, based on section 87 of FMA, Australian officers can exercise power over a foreign vessel from a point within the Australian Fishing Zone and beyond, provided that it is not another State’s territorial sea (Navy, 2006). The high sea was no exception for Jupiter to cease pursuit; it could only end once Vulcan entered Panama’s territorial sea or that of another state like New Zealand. Hot pursuit entails an exception to the exclusive flag state jurisdictions on the high seas, enabling coastal states to pursue the offending foreign vessel outside its maritime zone, but only in the high sea (Baird, 2009). Jupiter had the right to pursue the Vulcan into the high sea considering that it violated Australian law while within its waters subject to Australian jurisdiction. According to Allen, this right of hot pursuit into the high sea ensures that the offending vessel does not escape punishment by assuming the right of free navigation intended to support innocent passage of vessels (1989). Jupiter’s actions were all in accordance to the doctrine of hot pursuit. Validity of claims The claims of Panama are based on the operation in the high seas and involvement of the third party in hot pursuit. Ravin describes high sea as an area beyond limits of any national jurisdiction, open to all global states and given a duty to prevent transnational crimes at sea level (2005, p. 18). Since the high sea is not part of a state’s territory, as earlier stipulated in UNCLOS 111, Australia retained the right to continue pursue for Panamanian Vulcan on the high sea for an offence committed within it territorial sea. Under UNCLOS (article 249), the law provides a coastal vessel to request assistance of a craft from its coastal state. However, in cases where two or more coastal states enter into treaty on cooperative fisheries enforcement, the law gets particular application between the parties. New Zealand has a cooperation to facilitate exchange of information on Southern ocean surveillance and enforcement (Parliament of Australia, 2013). Both Australia and NZ are members to NIUE treaty. Though a third party arrest is not recognized by UNCLOS laws, treaty obligations of NIUE members permit NZ to act as force multiplier to the defense of Australia, in cases entailing illegal fishing by unauthorized vessels. Article VI of NIUE provides that a party by way of provision can permit another party to extend its law enforcement activities within its relevant maritime zone (Forum Fisheries Agency, n.d.). This entails seizing of vessels in illegal fishing and authorizing officers of another party to execute certain functions on their behalf. Contrary to Panama’s claim, NZ had been authorized by Australia as parties in law enforcement cooperation to continue with the hot pursue. Third parties entry into hot pursuit was considered valid in case of South Tomi vessel, commenced by Australian patrolling southern supporter vessel and cooperatively supported by France and South Africa based on 1982 CCAMLR of Antarctic treaty (Forum Fisheries Agency, n.d.). NIUE treaty for the southern ocean does provide legal justifications for New Zealand’s Navy hot pursuit in support for parties’ cooperation to prevent IUU fishing. Panama is not a member state to the NIUE treaty. NIUE treaty provides for such law enforcement of a third party empowered by a state to execute the law enforcement activities only “to the territorial sea and archipelagic waters of that Party” (Forum Fisheries Agency, n.d.). A fact established is that arrest of the Vulcan occurred 250 miles off New Zealand’s coast, which was already out of Australian maritime zone into the high sea. UNCLOS does not provide for third party involvement in arrest of foreign vessel into the high sea. Panama claims stand valid in both cases. At the high sea, the Vulcan is free from all other national jurisdictions other than the flag state which the vessel flies (Ravin, 2005). In this case, Panama’s claim is valid as it had the jurisdiction over Vulcan at the time and point of arrest. However, it can still be pursued by a coastal state authority where it is identified to have breached its laws in its waters, even if the high seas are not within its jurisdiction. Detaining of a vessels and crew members There were no enforcement arrangements between Panama and New Zealand or Australia other than the agreement in UNCLOS. Following the law, only the Australian coast had authority to arrest the Vulcan and its crew while within its maritime zone. With the involvement of New Zealand under the NIUE treaty, if arrest occurred within territorial sea or archipelagic waters of party within the treaty, “the seized vessels and the persons onboard are handed over to the authorities of that party” (Forum Fisheries Agency, n.d.). New Zealand has a lot of ground on continuing to detain the vessel and crew because although they were arrested outside the Australian coast and not within, the act was a criminal one. New Zealand’s arrest is warranted in UNCLOS or NIUE provisions at the high sea. Panama can claim for prompt release of its vessel and crew under article 292 of LOS convention. Following M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea) Guinea was in violation of hot pursuit as the detention of the vessel was outside of guinea waters so does New Zealand in arrest of the Vulcan at the high sea. Conclusion Suppression of Unlawful Activities on Sea (SUA) act covers numerous maritime crimes entailing maritime terrorism, illegal fishing, drugs and human trafficking and water environmental damage among others. The Vulcan case resolution is dependent on international law of UNCLOS, signed treaties, and national laws of Australia. Pluto’s notification through radio and audio hailer meet the requirement for Vulcan’s arrest and Jupiter’s call for hot pursuit are permissible under UNCLOS. Existence of treaty supporting multi-lateral hot pursuit is legal and extends the current state of international laws. Pursuit by New Zealand navy is also justifiable under the NIUE treaty, and although the act was outside the maritime zones of member states to NIUE treaty, the arrest was valid. References Allen, C. H., 1989. Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practice. Ocean Development and International law, 20:p. 309-341. Baird, R. J., 2009.Arrests in a Cold Climate (Part 2) -Shaping Hot Pursuit through State Practice. Antarctic and Southern Ocean Law and Policy Occasional Papers, 13: pp. 1-21. ). [pdf] Available at: Read More