NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION ( JULY - NOVEMBER 2022)

TOPIC -AN ANALYTICAL REVIEW OF THE DOCTRINE OF HOT PURSUIT

SUBMITTED BY - SUBMITTED TO -
NAME - GAYATRI LANGTHASA MS. VARSHA SINGH
ROLL NUMBER - 1884 ASSISTANT PROFESSOR
SEMESTER - V FACULTY OF LAW,
SECTION - A NATIONAL LAW
SUBJECT - PUBLIC INTERNATIONAL LAW UNIVERSITY, JODHPUR

A Assignment towards the fulfilment of Continuous Assessment

 ABSTRACT

The project talks about the doctrine of Hot Pursuit in the International System. It analytically
reviews the structure, function, elements and basis of the doctrine of Hot Pursuit. The 1st Chapter of
the project starts with Introduction where we have provided the basic information with respect to
Hot Pursuit. The second chapter analyses the elements of Hot Pursuit. The project finally ends with
conclusion. There are three chapters in total .

I. INTRODUCTION

The doctrine of maritime hot pursuit, outlined in Article 111 of the 1982 United Nations Convention
on the Law of the Sea (UNCLOS),1 recognises that a vessel may be pursued onto the high seas and
impounded if it has broken the laws of an alien state while in that state's sovereign or territorial
waters.2
The right to pursue a vessel and seize it on the high seas is an exception to two fundamental
principles of international law:
• First, the freedom of navigation upon the high seas; and
• Secondly, the principle that a ship is subject to the exclusive sovereignty of the state whose
flag it flies.3
As a result, since the right was first established more than a century ago, when the concepts of
freedom of navigation and exclusive flag state authority were of utmost significance, it has only
undergone a limited extension4

1United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16
November 1994) (UNCLOS).
2 C. J. Columbos, The International Law of the Sea 168 (Longmans, London, 6th ed., 1967).
3Randall Walker, “International Law of the Sea: Applying the Doctrine of Hot Pursuit in the 21st Century”, 17
Auckland University Law Review 194 (2011), available at: <http://www.austlii.edu.au/au/journals/AukULawRw/
2011/9.pdf> (last visited on 31st August, 2022).
4 Id

 II. ANALYSIS OF ELEMENTS OF HOT PURSUIT

Principle of hot pursuit as set out in Article 111 of UNCLOS prerequisites to be interpreted broadly
or functionally.5

1. OFFENCES JUSTIFYING THE EXERCISE OF HOT PURSUIT

A) Breach of Costal State Law
The coastal state must have "good reason to assume that the ship has violated the rules and
regulations of that State," according to Article 111(1) of UNCLOS.6 Therefore, it is clear from the
text of Article 111(1) that breaking any law or regulation may warrant hot pursuit. The coastal
state's authority in the territorial sea is "plenary, and restricted only by the right of innocent
passage."7 The other maritime zones, which give the coastal state relatively modest jurisdictional
rights, restrict that authority. Most people agree that a coastal state should only use its right to hot
pursuit when the crime involved is particularly serious.8
B) Good reason to Believe
Before hot pursuit is allowed, Article 111(1) states that the coastal state must have "reasonable
reason to believe" that a ship has broken one of its laws or rules. In a nutshell, it is generally
accepted that "good reason to believe" takes more than just a hint of suspicion but does not
necessarily imply actual knowledge.9
In Article 4, the Australia-France Treaty provides, among other things, that a “good reason to
believe” may comprise:
i. Direct visual connection with the fishing vessel or one of its boats by the lawful vessel; or
ii. Evidence attained by or on behalf of the sanctioned vessel by technical means.10
Such "technical methods" might include radar, satellite, and aerial photography that might track
movements compatible with fishing techniques in addition to showing the location of the vessel.

5Craig H. Allen, “The Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law
Enforcement Technologies and Practices” 20 Ocean Development & International Law 309 at 310 (1989).
6 United Nations Convention on the Law of the Sea, 1982, art. 111 (1).
7D. P. O’Connell, The International Law of the Sea: Volume II 1077 (Oxford University Press, Oxford, 1st ed.,
1982-84).
8 Supra note 5
9Rachel Baird, “Arrests in a Cold Climate (Part 2) - Shaping Hot Pursuit through State Practice”, 13 Antarctic and
Southern Ocean Law and Policy Occassional Papers 1 6 (2009).
10Agreement on the Cooperative Enforcement of Fisheries Laws between the Government of Australia and the
Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories
and Heard and McDonald Islands (Australia-France Treaty), 2007, art. 4.

2. MARITIME ZONES IN WHICH PURSUIT MUST COMMENCE

Article 111(2) extends the right mutatis mutandis to violations occurring in the exclusive economic
zone or on the continental shelf therefore the right may only be invoked for offences that occur
within these zones.11
Article 33 provides that the coastal state may, in its contiguous zone, exercise the control necessary
to prevent infringement of its customs, fiscal, settlement or sanitary laws within its territory or
territorial sea, and punish infringement of those laws and regulations committed within its territory
or territorial sea.12 That hot pursuit can begin in the contiguous zone only for offences relating to
the coastal state’s customs, fiscal, immigration or sanitary laws that have occurred within the coastal
state’s internal waters or territorial sea.13 As such, an incoming vessel that is yet to reach the
territorial sea is also yet to commit an offence while the coastal state may take measures to prevent
infringements.14
The particular drafting of Article 33 of UNCLOS is unfortunate when compared to Article 111(1)
and that, until the inconsistency is resolved, arguments in favour of the narrow interpretation are
likely to linger.
A) Doctrine of Constructive Presence
Conventional and customary law have long acknowledged the constructive presence theory.15 The
wide notion of constructive presence is crucial to modern law enforcement, particularly in light of
the IUU fishing carried out by fleets of factory ships, catcher ships, and bunkering vessels.
The notion of constructive presence is based on the idea that even though an act may have
physically taken place outside of the boundaries of a state, it is nonetheless thought to have done so
if its effects are felt within that state. Therefore, if factors like the boats' frequency of association
and dependence on the "mother ship" were deemed to be important, this policy would be rejected.
B) Ascertaining the Vessel’s Location Within the Coastal State’s Sovereign Waters
In accordance with UNCLOS Article 111(4), the pursuing ship must confirm that the target ship or
one of its boats or other vessels is within the appropriate coastal state maritime zone before
launching the chase.

11 Supra note at 3

12 United Nations Convention on the Law of the Sea, 1982, art. 33 (1).
13 Supra note 10 at 1083.

14 Id.
15 Supra note at 5

 As coastal states adjust to the vast oceanic areas they are now responsible for and have enforcement
authority over, they are becoming more and more dependent on emerging technology, such as over-
the-horizon radar, military satellites, or unmanned aerial vehicles (UAVs) that can provide real-time
visual footage and accurate positional information.16
3. CHARACTER OF PURSUIT
A) Craft that may be employed in the pursuit
According to UNCLOS Article 111(5), "The right of hot pursuit may be implemented solely by
warships or military aircraft," where "warship" has been defined under Article 29.17
Other ships or planes that are "clearly designated and identifiable as being on government duty and
authorised to that end," as stated in Article 111(5), may likewise exercise the right of hot pursuit.
The vessels of other governmental agencies, such as the coast guard, customs, fisheries, or police,
that may conceivably be involved in the protection of a coastal state's maritime zone, appear to be
covered by this extra category of authorised vessels.18
B) Pursuit must be Immediate
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 larger meaning."
However, determining whether the pursuit was immediate or not should only be based on what is
deemed "reasonable" in the given situation.
C) The Pursued Vessel must be given a signal to stop
Due to the fact that hot pursuit does not begin until after the instruction has been given, the signal to
stop is of utmost importance. Therefore, the infringing vessel must be signalled to stop when it is
under the control of the coastal state.
It has long been accepted that the use of radio is not permitted since the transmission must be either
visual or audible. Once more, the main goal in doing this was to prevent abuse. Therefore, signals
like as sirens, loudspeakers, those listed in the International Code of Signals, and even cannon shots
were to be utilised.
The signal is crucial because it shows when the coastal state found the offending ship and started
pursuing it.

16 Supra note at 3
17 The United Nations Convention on the Law of the Sea, 1982, art. 29.
18Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law 193 (Martinus Nijhoff Publishers, The
Hague, 2nd ed., 2002).

 Therefore, whether or not a signal is sent should be the primary factor. This is especially important
when the infringing vessel has been located by satellite or other comparable technology and the
enforcement ship of the coastal state is not yet within visual range.
D) Pursuit must be Continuous
The continuity of pursuit provides the jurisdictional link to the fleeing vessel that permits the non-
flag state to interfere on the high seas.19 The requirement also ensures that the pursued vessel is
identified positively at all times and that enforcement action is not taken against the wrong vessel
due to misidentification. Once the pursuit is interrupted, the right to pursue is lost and cannot be
resumed.20
But what constitutes an interruption is not defined in UNCLOS. It is generally considered that the
interruption must be significant,21 and that short gaps in the pursuit - such as when the pursuing
vessel stops to pick up evidence,22 when the pursuing vessel suffers a mechanical fault,23 or when
observation is lost due to inclement weather conditions24 - are acceptable.
The key consideration in determining whether pursuit is continuous should simply be whether the
suspect vessel was positively identified and tracked throughout the pursuit, regardless of the method
used to achieve this outcome. This interpretation does not offend Article 111 in any way and is
instead a reflection of the law evolving to remain effective in a modern context.
E) Pursuit in Relay and Multilateral Hot Pursuit
It's possible to pursue someone 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.
It is debatable whether there is a policy justification for these multinational or cooperative hot
pursuits to be illegal, so long as they are conducted in accordance with Article 111's procedural
requirements and include the enforcement craft of the coastal state whose laws or regulations were
broken. The "adaptation of state practise to an evolving environment and in distinguishing their
validity, hot pursuit remains a cogent right in the 21st century" is demonstrated by such cooperation,
in fact.

19 Id .

20 Robert C. Reuland, “The Customary Right of Hot Pursuit onto the High Seas: Annotations to Article 111 of the Law
of the Sea Convention”, 33 Virginia Journal of International Law 557, 560 (1993).

21 Id.
22 Supra note 5
23 Supra note 18 .
24 Supra note 9 at 12.



 III. CONCLUSION

The doctrine of hot pursuit has entered the 21st century essentially unchanged from its original
formulations. However, this traditional notion of hot pursuit, as reflected in Article 111 of
UNCLOS, “was better suited to a time where the seas were largely subject to a laissez-faire regime,
most states asserted only a three-mile territorial sea, and fisheries were confined to local waters”.25
The operational maritime environment that the doctrine regulates - and, consequently, the uneasy
balance that exists between the rights of coastal and maritime states - has changed dramatically
since the time when UNCLOS was negotiated.
But it's not entirely clear whether Article 111 of UNCLOS will convince be robust sufficient to
satisfy the stress of up to date day admiralty law enforcement procedures. For instance, there are
doubts on whether Article 111 will permit a coastal state to detect an offending vessel using satellite
or other imagery while an enforcement craft isn't yet within visibility, or to trace a vessel using this
technology when the enforcement vessel has lost visual sight of the fleeing ship. Neither is it clear
whether Article 111 will permit the coastal state to use radio or other modern satellite
communications to supply the offending vessel with the requisite signal to prevent. Only period of
time will tell whether the law will prove flexible enough to stop an offending vessel from exploiting
the rigid requirements of Article 111 and thereby avoiding arrest by entering a 3rd state’s territorial
sea.

25Vasilios Tasikas, “Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit: A New Era of Coast Guard Maritime
Law Enforcement Operations”, 29 Tulane Maritime Law Journal 59 at 80 (2004).