Law of the Sea: Hot Pursuit - Coursework Example

Law of the Sea: Hot Pursuit Introduction This paper aims to provide a reasonable analysis of the challenges presented in a case study that features a number of sea vessels. It discusses the issue of territorial seas and the obligation and rights of coastal States. Moreover, the paper provides an analysis of right and privileges enjoyed by States in the EEZ and the high seas. In addition, the paper outlines the reasonable right of approach, and the use of force as well as the invocation of hot pursuit. Lastly, the paper discusses the flag state issue and conditions for arrest and release as well as policy issues between Australia, Panama, and New Zealand. Territorial Sea defines the region that a coastal state claim jurisdiction over its waters and other resources. The territorial sea extends to a limit of about 12 nm from a countries baseline (UNCLOS Article 3). Moreover, territorial seas include the air space, the seabed, and the subsoil, which are in control of coastal states. The UNCLOS convention establishes for the purpose of definition that the baseline include the shallow water along a States coastal line (UNCLOS Article 5). Right of Approach The paper discusses the case of Pluto, Vulcan, Jupiter, and New Zealand Navy. Vulcan was accused of illegal fishing in Australia territorial waters. Pluto, an Australian ship, spotted Vulcan, a Panama ship on its territory. And because it had no flag, it was thought to have been engaging in unlawful fishing. For this reason, Pluto had a right of approach to establish the identity of Vulcan. Vessels that are not flagged are always suspicious and violate International Maritime Laws (UNCLOS Article 94). The captain of Pluto did all that is required by UNCLOS laws to determine the activities that the foreign ship was engaged in Australian Waters. Therefore, it was reasonable for the captain to send a vessel to inspect its identity after Vulcan failed to respond to radio communications. Hot pursuit and the use of force Though the law does not allow the use of force, it allows for considerable search and verification of ships in the seas (UNCLOS Article 301). States and crew that use force are liable to compensate victims for damage that may have been caused by their actions (UNCLOS Article 110). The actions of the inspection vessel to send his crews on a speeding boat were reasonable; a move prompted by failed attempt to reach Vulcan using a radio communication (UNCLOS Article 110). If Pluto were able to arrest Vulcan, they would have the right to prosecute and enforce a reasonable penalty for disregard of Australian fisheries laws (UNCLOS Article 73). But the coastal State have authority to establish the identity and reach out to the flagged state to find out the destination of a given its vessels. Forceful attacks of vessels are not allowed under international laws (UNCLOS Article 39). For example, the case of United Kingdom and Northern Ireland v. Albania is a precedent for the use of force (CORFU Channel Case (Assessment of Amount of Compensation), 1949). Albania was found guilty of attacking U. K. vessels and was made to compensate for the damage. In this case, Vulcan violated the right of approach when it attacked Pluto prompting a hot pursuit. The fact that Vulcan was not flagged pre-empted blame on the Australian vessel. Nevertheless, there are precedents to this case that provide facts that help address the disputes arising from the use of force against other vessels. For example, the ICJ case of Nicaragua v. USA is a good example (Akande, 2011). ICJ prohibits the use of force on other vessels. It argues that the use of force jeopardize efforts in upholding peace. On the other hand, the UNCLOS does allow the use of force to specific circumstances. For example, in case of piracy in territorial waters and the high seas, States vessels are allowed to seize and arrest ships and crews. This is provided in Articles 102-106 of UNCLOS (Blank, 2014). The doctrine of hot pursuit allows States vessel to pursue ships engaging in illegal activities up to the high Seas (UNCLOS Article 111). An attack on seas vessel is an act of aggression disallowed by UNCLOS ((UNCLOS Article 301). Therefore, an attack on Pluto’s crewmembers justified the need for hot pursuit. Despite the fact that all ships are supposed to flag their identity at all time, Vulcan ignored this provision prompting pursuit by Pluto. The doctrine of hot pursuit requires that the coastal state pursue vessels at odds with its laws. Therefore, the actions by Pluto were justified (Allen, 1989, p. 309). The pursuit of Vulcan into the high seas is permissible by law for various reasons. One, Vulcan declined to respond to Plato right of visit ((UNCLOS Article 110). Second, on realizing that they were being trailed, Vulcan crews used force to attack Pluto’s vessel. Lastly, Vulcan had no flag. Thus, Pluto was justified for it action, but the action of Jupiter to pursue Vulcan on the high seas was in contravention of the doctrine of hot pursuit as explained in Article 111, Subsection 1 (UNCLOS, p. 63). The fundamental of international laws requires the ship to move freely on the high seas in cases where the pursuing ship is interapted. In the case of Ernest v. Prosper Everaert, the plaintiff claimed that the defendant pursued his vessel up to the high seas and thus breached UNCLOS laws at the time. The courts dismissed the prosecution claim on ground that the State parties did not ratify the doctrine of hot pursuit (Poulantzas, 2002, p. 81). Though the court argued against the doctrine of hot pursuit, it has been ratified and is a binding legal convention to its members today. In the high seas, vessels are under the jurisdiction of their flagged States (UNCLOS Article 94). Thus, when ships are in the high seas, they are exclusively under their States (UNCLOS Article 94). However, there are exceptions to this policy that allows vessels to arrest and prosecute captains and crews of ships violating international laws (UNCLOS Article 100). Therefore, Jupiter did not have authority to pursue Vulcan because the pursuits by Pluto have been interrupted ((UNCLOS Article 111). UNCLOS only allows warships, or government vessels to board and arrest vessels engaging in the illegal trade, trafficking, and acts of piracy. However, Vulcan had not committed any of these offences in high seas. Thus, Jupiter was not permissible to pursue Vulcan (UNCLOS, n.d., p. 63). Flag state issues, arrest, and detention Pluto had legal ground to arrest vessels that engages in illegal activities in its territorial waters. Therefore, the fact that Vulcan had no flag prompted Pluto to secure a right of approach (Admiralty and Maritime Law Guide, 1952). Moreover, the pursuit that ensued between Pluto and Vulcan was bidding because the doctrine of hot pursuit allows a coastal State to pursue foreign ships far from its jurisdiction. However, this is on condition that the foreign vessels are suspected or proved to breach coastal States laws (UNCLOS, n.d., p. 43). The Australia ships, therefore, had power to arrest Vulcan in its waters. The UNCLOS empower coastal States to guard and protect their Maritime Zone. Moreover, States are also bound to safegurd their EEZ from exploitation from foreign countries (UNCLOS Article 56). The UNCLOS provides that Coastal States have the prescriptive power to enforce laws on its sovereign waters (UNCLOS Article 142). Moreover, countries may exercise jurisdiction power within foreign countries but must have the consent of the Coastal States (UNCLOS Article 142). Thus, a State that may exercise pre-emptive jurisdiction over Australian territory must do so with its consent. Article 56 of the LOSC gives power to Pluto to confront Vulcan for fishing in its Exclusive Economic Zone (EEZ). Thus, for these reasons Plato has the right of the approach given that Vulcan had not flagged off. The claim by Panama does not hold in international laws. The UNCLOS does not allow the vessel to hide under the laws that govern the high seas (UNCLOS Part II Article 15). The Treaties that govern delimitation of territorial waters exempt vessels that engage in action prohibited by international laws (UNCLOS Part II Article 15). Under the doctrine of hot pursuit, States vessels are allowed to arrest errant vessels in territorial waters and the high seas. This is for all cases of international crime (Admiralty and Maritime Law Guide, 1952). Thus, the argument that Australia had acted against the law against Panama’s vessels is factual and is not supported by international laws. Policy issues/treaties Though New Zealand pursued Vulcan in the high seas, it ought not to obstruct it right in the way. The International Maritime Organization is tasked with regulating framework and legal issues in the right of passage. In this case, issues of obstruction and forceful arrest are prohibited. Thus, considering that Pluto failed to arrest Vulcan, International Convention Relating does not recognize its request for assistance from neighbouring States to Arrest of Sea Vessels. Thus, the involvement of New Zealand Navy to arrest Vulcan was out of order, and its acts violated international laws. Vulcan was not engaging in piracy, the slave trade or drug trafficking. Therefore, prosecuting Vulcan in New Zealand would be impartible and challenging to prove the crime (UNCLOS Article 111). To this end, the claim of Panama holds, as New Zealand cannot charge Vulcan for offences committed outside its jurisdiction (UNCLOS Article 94). In the case of Saint Vincent v. Guinea, the judges argued for the release of vessel M/V Saiga which was arrested by Guinea ship in Sierra Leone territorial waters (M/V "Saiga", 1982). This was contrary to the international laws. The ICJ ruled that the vessel to be released together with all the crews. This case support Panama argument that the arrest by New Zealand Navy was unlawful. For this reason, the case exonerates Panamas of any wrongdoing and secures a release of its vessel. For this case, faces a penalty of wrongful arrest and obstruction (UNCLOS Article 111, 8). Panama has exclusive jurisdiction over its vessels when they are flagged. However, this is subject to vessels under its territorial waters or within the high seas. However, when Panama ships are in foreign territorial waters, it falls short of its authority to arrest and prosecute. Thus, the arrest of Vulcan on the high seas by New Zealand was lawful because it was not flagged. Therefore, Panama has no authority-claiming jurisdiction of its vessel given the circumstances. However, the issues of the arrest exonerate Vulcan of any wrongdoing given that it had not committed a crime in New Zealand. For example, in the case of Abundantia Ridge v. Urusus, the court concluded that the claimant be compensated of the arrest as it did not satisfy the demand for a hot pursuit. Therefore, Maria and her crewmembers had been unlawfully detained thereby violating international laws (Rosmarus v. Urusus, 2009). According to international treaties on Maritime, New Zealand did not have the legal authority to arrest Vulcan and its crew. The international laws required that a vessel could only be arrested and charged by foreign States where it has committed a crime. Therefore, New Zealand cannot prosecute Vulcan unless for suspicions of piracy. For example, the ITLOS argued for the release of vessel and crews in the case Russian Federation v. Australia (Russian Federation v. Australia, 2002). The case arose as a result of Australian arrest of Volga in Southern Ocean. Volga was accused of illegal fishing in an EEZ claimed by Australia. Russia was thus supposed to pay compensation for disregarding Australia laws. Therefore, considering this case, New Zealand cannot claim illegality upon Vulcan because it committed the offence in Australia territorial waters. For this reason, New Zealand ought to have released Vulcan and the crews or face penalty for unlawful arrest and disruption of the right of the way. The political relations between the three countries also determine the outcome of the case. Close political ties between Australia and New Zealand would suggest that the two countries have ratification that guides their territorial waters. Moreover, the inclusion of Panama in the territorial policies would suggest that Panama would be guilty of an offence committed on the coast of Australia. The international laws recognize consent ratification between States in safeguarding their interests and in maintaining world peace. Moreover, a political relation that establishes common laws among States would mean that Panama would be found guilty and liable to compensation determined by New Zealand on behalf of Australia for illegal fishing and forceful attack. References Admiralty and Maritime Law Guide, 1952. International Convention Relating to the Arrest of Sea-Going Ships. [Online] Available at: http://www.admiraltylawguide.com/conven/arrest1952.html [Accessed 28 March 2015]. Akande, D., 2011. The Contribution of the International Court of Justice and the Law of the Use of Force. [Online] Available at: http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/ [Accessed 28 March 2015]. Allen, C. H., 1989. Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime law Enforcement Technologies and Practices. Ocean Development and International Law, Volume 20, pp. 309-341. Blank, L. R., 2014. The Use of Force Against Pirates. [Online] Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2430307 [Accessed 28 March 2015]. CORFU CHANNEL CASE (ASSESSMENT OF AMOUNT OF COMPENSATION) (1949) International Court of Justice. Harris, D., 2010. Cases and Materials on International Law. 7 ed. London: Sweet and Maxwell. M/V "Saiga" (1982) Saint Vincest and The Grenadines. Poulantzas, N. M., 2002. The Right of Hot Pursuit in International Law. New York: Martinus Nijhoff Publishers. Rosmarus v. Urusus (2009) The State of Urusus. Russian Federation v. Australia (2002) International Tribunal for the Law of the Sea. UNCLOS, n.d. United Nations Convention on the Law of the Sea. [Online] Available at: http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf [Accessed 28 March 2015]. Read More