Saturday, January 3, 2015

Interception and Hot Pursuit of a 'Terror' Boat

In the previous post, I discussed extra-territorial jurisdiction of law enforcement. International Law, ever since the decision in Lotus, restricts law enforcement by states to within their territories. A rather unpleasant situation would arise if states could send their agents to enforce their laws on foreign soil. Imagine the Delhi Police arresting Indian citizens in Colorado for engaging in homosexual activity [which would be an offence under the IPC]. This eventuality, thankfully, is prevented through this basic rule. But, like every other rule this also carries exceptions. A most notable exception to this rule is found in context of the Law of the Sea, evocatively labelled 'Hot Pursuit'. Contrary to what you may think, this is not always about a high-speed chase after cold-blooded criminals. In fact, most pursuits are over foreign ships violating fishing laws! 

But, two days ago the Indian media was covering a story of an alleged exercise of Hot Pursuit by the Indian Coast Guard of a vessel bearing a Pakistani Flag, which culminated with the suspect vessel sinking after explosions occurred on board probably killing the crew [see here, here and here]. The media has with near-uniformity accepted the theory of this vessel being engaged in terrorist activity, with the explosion being triggered by terrorists who sought to avoid capture. The veracity of these claims may never be proven, and therefore doesn't fit the 'Proof of Guilt' theme of the blog. What I am interested in is the interception and pursuit, which led to this alleged act of self-immolation. 

Crucial Facts
The alleged hot pursuit began nearly 365 KM South-West off the coast of Porbandar, when the suspected vessel refused to stop after being intercepted by the Coast Guard vessel Rajratan. It continued for nearly an hour with the suspected vessel moving further away from the Indian coast. The suspected vessel stopped after warning shots were fired from the Rajratan and the crew was allegedly seen to move below the deck. Soon after, there were explosions and the vessel caught fire. Due to bad weather conditions, rescue operations could not be conducted, but searches are currently ongoing.

Interception and Hot Pursuit of Vessels under International Law
Ships are considered exclusively subject to the enforcement jurisdiction of whichever state's Flag they fly: much like territory itself. So the interception of foreign ships at sea is an exceptional situation, which is determined by the Law of the Sea Convention 1982 [LOSC]. Interception and subsequent pursuit of ships is a rather technical subject, which requires a brief introduction on jurisdiction in the Law of the Sea. Every Coastal State today has a 12 nautical mile Territorial Sea [Article 3, LOSC]. This is considered an extension of territory itself, and a State has near-complete jurisdiction over affairs here [Articles 17-32, LOSC]. States may claim a Contiguous Zone [Article 33, LOSC], which continues for a further 12 nautical miles after the Territorial Sea. This confers limited jurisdiction relating to 'fiscal, customs, immigration, and sanitation' matters. Lastly, States may claim an Exclusive Economic Zone, that can extend to 200 nautical miles from the coast [Article  55, LOSC]. Jurisdiction within the EEZ is further restricted to enforcement of fisheries and similar resource-exploitation based legislation [Article 56, LOSC]. Beyond this, States have universal jurisdiction to deal with certain situations, such as piracy [Article 100, LOSC].

Suppose a foreign ship violates Indian criminal laws within our Territorial Sea. The Coast Guard intercepts but it flees, with the Coast Guard hot on its tail. Must the chase end before the 12 n.m. boundary, as criminal laws are not enforceable beyond? International Law has thankfully avoided conferring such impunity upon offenders through the right of Hot Pursuit, which permits the chase to continue out to the High Seas. In order to avoid its, States agreed upon inserting several conditions while recognising this right in both Article 23 of the Geneva Convention on the High Seas 1958 and Article 111 of the LOSC. Perhaps the most important of these is the restriction on what violations can give rise to Hot Pursuit from the specific jurisdictional zones. Any municipal law violations within the Territorial Sea can sustain Hot Pursuit. But to begin a Hot Pursuit from the Contiguous Zone or EEZ, the initial violation must be of laws that are enforceable there. So, a pursuit cannot begin in the EEZ for a violation of the State's criminal laws, as the corresponding enforcement jurisdiction is lacking. 

Triumphant, but Possibly Illegal?
Most comments in the aftermath of the operation are of triumph at having foiled a potential terror attack. Few, however, commented on the possibly illegal interception and Hot Pursuit that led to this. I have to admit, the information currently available leaves no doubt that the interception as well subsequent Hot Pursuit were not legal. 

What illegality am I referring to? The alleged interception occurred nearly 365 KM, or nearly 197 nautical miles from India's coast. This means the ships were in the EEZ, where the only bases for the Coast Guard to stop a foreign vessel is either violation of India's fishery laws, or suspicion that the Ship was a Pirate Ship. The suspected ship was confirmed as a Pakistani vessel in the Official Press Release, taking away any possible arguments of Piracy and a resulting universal jurisdiction. There are other bases relating to terrorism that the SUA Protocol of 2005 confers upon States, but India is not yet a Party. Therefore, legally, we had no basis to stop that ship in the first place. 

This brings me to the Hot Pursuit. Article 111 LOSC lays down several conditions, and the Law of the Sea Tribunal expressly clarified in the M.V. Saiga Case (No. 2) Judgment of 1999 that all of these must be cumulatively satisfied for Hot Pursuit to be legal [paragraph 146]. It appears that a most fundamental condition was not complied with, that of conducting a pursuit from the EEZ for violation of EEZ-specific laws. The Saiga Case had a similar pursuit from the EEZ, where Guinean authorities pursued and arrested the Saiga for evading customs laws. The Tribunal held such enforcement was without any lawful basis, as EEZ jurisdiction was limited under the Convention. 

Does it Matter?
India seems to have acted out of bounds, and the apparent illegality of the episode cannot be brushed aside by linking the suspected ship to terror operations. Instructive here is an incident involving the vessel So San, back in 2002. The ship left North Korea and was suspected by the United States as carrying Scud Missiles. The U.S. Navy intercepted the So San, but it refused to stop and a pursuit followed. Shots were fired and only after the So San was damaged did it stop. the Scud Missiles were there, hidden beneath the reported cargo. What happened next? After Yemen claimed ownership of the missiles, the United States let the So San go. It acknowledged that there was no basis under International Law to prevent the ship was proceeding to Yemen. In fact, it only intercepted the ship because it had no flag [read the New York Times report here]. 

This incident was slightly a year after the 9/11 attacks, but the U.S. respected the limits of International Law (something that certainly decreased with time). The interception and hot pursuit strike a harsh note not only for India-Pakistan relations, but also potentially harm the freedom of navigation enjoyed by ships of both States in an already troubled area

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