The right of hot pursuit is now well established under international law as
indicated earlier.
29 The right is however subject to a number of conditions which
the coastal State must take regard of. These include:
i. The pursuing state exercising the right of hot pursuit must pay due regard to the
equality of States principle enshrined in Article 2(4) of the United Nations
Charter.
ii. The ship may only pursue the suspected offending ship to a distance of 12 nautical miles from its territory.
iii. The pursuit may only be continued outside the territorial sea or the contiguous
zone if it has been continuous and uninterrupted.
iv. An order to stop must have been declined or refused.
v. Pursuit may only be exercised by warships, military aircraft, or ships or aircraft
clearly marked as being on governmental service.
vi. Pursuit should cease when the ship enters its territorial waters or the territorial
waters of another state.
As pointed out by Lord McNair, “when a foreign ship outside territorial waters
sends boats into territorial waters which commit offences there, the mothership
renders herself liable to seizure by reason of these vicarious operations”. Apart
from customary international law, the right of the coastal State whose territory is
infringed upon is also protected by the UNCLOS
30 and the principle applies perforce
to the contiguous zone and the exclusive economic zone.
It is important to note that within the EEZ,
31 the coastal State is enjoined by the
provisions of UNCLOS to promote the optimal utilization of the living resources in
the EEZ. The provisions of UNCLOS also set rules for the coastal State with respect
to anadromous stocks, catadromous species and highly migratory species.
32 The
coastal State is also enjoined by UNCLOS to protect and preserve the marine
environment
33 and the convention provides measures to prevent and control pollution of the marine environment.
34
Where a coastal State requests a warship to leave its territorial waters and the
warship disobeys, the coastal State can take the necessary steps, including “a degree
of force proportionate to the threat which the continuing presence of the ship
represents” to compel them to leave. Indeed as pointed out by Churchill and
Lowe, “States enjoy a general right of self - defence in international law and if
they are facing imminent attack from foreign vessels in their territorial sea and have
29 UNCLOS Article 111.
30 UNCLOS Article 111 (1) and (4).
31 UNCLOS Article 61.
32 UNCLOS Articles 66 and 67.
33 UNCLOS Article 192.
34 UNCLOS Articles 194 and 211(1).
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
505
indicated earlier.
29 The right is however subject to a number of conditions which
the coastal State must take regard of. These include:
i. The pursuing state exercising the right of hot pursuit must pay due regard to the
equality of States principle enshrined in Article 2(4) of the United Nations
Charter.
ii. The ship may only pursue the suspected offending ship to a distance of 12 nautical miles from its territory.
iii. The pursuit may only be continued outside the territorial sea or the contiguous
zone if it has been continuous and uninterrupted.
iv. An order to stop must have been declined or refused.
v. Pursuit may only be exercised by warships, military aircraft, or ships or aircraft
clearly marked as being on governmental service.
vi. Pursuit should cease when the ship enters its territorial waters or the territorial
waters of another state.
As pointed out by Lord McNair, “when a foreign ship outside territorial waters
sends boats into territorial waters which commit offences there, the mothership
renders herself liable to seizure by reason of these vicarious operations”. Apart
from customary international law, the right of the coastal State whose territory is
infringed upon is also protected by the UNCLOS
30 and the principle applies perforce
to the contiguous zone and the exclusive economic zone.
It is important to note that within the EEZ,
31 the coastal State is enjoined by the
provisions of UNCLOS to promote the optimal utilization of the living resources in
the EEZ. The provisions of UNCLOS also set rules for the coastal State with respect
to anadromous stocks, catadromous species and highly migratory species.
32 The
coastal State is also enjoined by UNCLOS to protect and preserve the marine
environment
33 and the convention provides measures to prevent and control pollution of the marine environment.
34
Where a coastal State requests a warship to leave its territorial waters and the
warship disobeys, the coastal State can take the necessary steps, including “a degree
of force proportionate to the threat which the continuing presence of the ship
represents” to compel them to leave. Indeed as pointed out by Churchill and
Lowe, “States enjoy a general right of self - defence in international law and if
they are facing imminent attack from foreign vessels in their territorial sea and have
29 UNCLOS Article 111.
30 UNCLOS Article 111 (1) and (4).
31 UNCLOS Article 61.
32 UNCLOS Articles 66 and 67.
33 UNCLOS Article 192.
34 UNCLOS Articles 194 and 211(1).
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
505