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On the Connotation and Practice of the Right of Hot Pursuit

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On the Connotation and Practice of the Right of Hot Pursuit View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Xiamen University Institutional Repository 556 China Oceans Law Review (Vol. 2006 No. 1) On the Connotation and Practice of the Right of Hot Pursuit ZHOU Zhonghai * Abstract: The right of hot pursuit is a national territorial jurisdiction derived from national sovereignty. It is an expansion and extension of the coastal State’s territorial jurisdiction as well as an exception to freedom of the high seas. As a main executive measure of the coastal State, the right of hot pursuit has some new developments. The United Nations Convention on the Law of the Sea of 1982 (UNCLOS 1982) has developed and expanded the right of hot pursuit, which can now start from the superjacent waters of the coastal State’s contiguous zone, archipelagic waters, exclusive economic zone and continental shelf. The right of hot pursuit is also the coastal State’s main means and form of effective maritime law enforcement. The illegal fishing events that happen in the coastal State’s territorial waters, contiguous zone, exclusive economic zone, and particularly, exclusive fishery zone have caused increasingly frequent exercise of the right of hot pursuit. The occurrence of other maritime cases has also resulted in the exercise of the right of hot pursuit. International crimes and international criminal cases have also involved the exercise of the right of hot pursuit, e.g. global smuggling, drug trafficking, stow-away, piracy and maritime terrorism in the Middle East, Asia, Africa, European countries, North America and Oceania. Key Words: Maritime right of hot pursuit; United Nations Convention on the Law of the Sea (UNCLOS); Connotation of the right of hot pursuit * ZHOU Zhonghai, law professor and international law doctoral supervisor of China Univer- sity of Political Science and Law (CUPL), director of CUPL International Law Research Center, vice chairman of Chinese Society of International Law, vice chairman of China Society for The Law of The Sea, part-time professor of Ocean University of China, part- time professor of Military Law Department of Xi 'an Politics Institute and professor of China Foreign Affairs University. © THE AUTHOR AND CHINA OCEANS LAW REVIEW On the Connotation and Practice of the Right of Hot Pursuit 557 The right of hot pursuit in international law can be divided into the right of hot pursuit on land, at sea and in the air. The maritime right of hot pursuit in international law on the sea refers to the right of hot pursuit of a foreign ship which may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. The right of hot pursuit is a national territorial jurisdiction derived from national sovereignty. It is an expansion and extension of the coastal State’s territorial jurisdiction as well as an exception to freedom of the high seas. The right of hot pursuit is a right in traditional international law and constitutes a rule in customary international law. As early as in the first half of the 19th Century, the right of hot pursuit has factually occurred in the practice of Britain, the United States, and other countries. By 1930 when the conference on the codification of international law was held in Hague, it had become a practice universally recognized by most countries, in which respect the I’m Alone Case (1935) was an example. However, the right of hot pursuit, a rule under the customary international law, had not been explicitly defined until the Convention on the High Seas was developed at the First Conference on the Law of the Sea. Then it became a rule in international law and was generally recognized and accepted by the international community. At that time, it was applicable only when a foreign ship has violated the laws and regulations of the coastal State in its internal waters and territorial sea. The right of hot pursuit in the international law of the sea had become a rule in international law, with binding effect on not only States Parties to the UNCLOS 1982 but also non-States Parties in the form of a rule in customary international law. This right has basically not changed since it was lastly compiled at the 1958 Geneva Conference on the Law of the Sea. Along with the gradual development of the international law of the sea during the Third United Nations Conference on the Law of the Sea, the marine right of hot pursuit has had some new developments in connection with the regions where the right of hot pursuit is exercised. I. The UNCLOS and New Developments of the Right of Hot Pursuit The right of hot pursuit refers to the coastal State’s right to pursue a foreign ship which has violated its laws and regulations, and is sailing from within the waters under the jurisdiction of that State to the high seas. The coastal State, when 558 China Oceans Law Review (Vol. 2006 No. 1) exercising the right of hot pursuit, should abide by the following rules: 1. The hot pursuit may be undertaken only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and officially authorized to that effect. 2. The hot pursuit can start from the internal waters, the territorial sea, the contiguous zone or the exclusive economic zone of a State. 3. The hot pursuit may 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. 4. The hot pursuit may only be continued into the high seas to complete the pursuit and take measures according to law if the pursuit has not been interrupted. 5. 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. According to the international law of the sea, in essence and in terms of legislative authority, the maritime right of hot pursuit is actually a national territorial jurisdiction derived from national sovereignty. It is an expansion and extension of the coastal State’s jurisdiction. What the coastal State exercises is its national sovereignty, its judicial power and its enforcement power such as hot pursuit, visit, inspection, capture, etc., which conform to the domestic law and regulation in international law. The rights of the coastal State mainly include: 1. a territorial jurisdiction derived from national sovereignty (the exercise of territorial sovereignty); 2. Exclusive jurisdiction of the coastal State in its exclusive economic zone and on its continental shelf as endowed by the UNCLOS (two sovereign rights and three exclusive jurisdictions); 3. Universal jurisdiction endowed to all States by the international law (in the high seas); 4. It is an expansion and extension of the coastal State’s jurisdiction as well as an exception to freedom of the high seas. Article 111 of the UNCLOS explicitly stipulates the application conditions of the right of hot pursuit:1 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the 1 United Nations Convention on the Law of the Sea (Chinese and English), Beijing: China Ocean Press, 1996, p. 52. On the Connotation and Practice of the Right of Hot Pursuit 559 contiguous zone if the pursuit has not been interrupted. 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 ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. 2. 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. 3. 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. 4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available 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. The pursuit may 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. 5. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
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