Law of the maritime law sea Module-V.pptx

Module-V: High Seas and Sea Bed Area
High seas - concept of patrimonial sea &
common heritage - Piracy and hot pursuit
International sea bed - exploration and
exploitation - Role of Sea bed Authority

• Governed by the principle of freedom
• The legal order on the high seas is essentially ensured by the principle
of the exclusive jurisdiction of the flag State.
• Part VII of UNCLOS contains the provisions relating to High Seas
• As per Article 86, the High seas include all parts of the sea that are
not included in the exclusive economic zone, in the territorial sea or
in the internal waters of a State, or in the archipelagic waters of an
archipelagic State

Principle of the Freedom of
the High Seas

Article 87
The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by
this Convention and by other rules of international law. It comprises,
inter alia, both for coastal and land-locked States:
(a) Freedom of navigation;
(b) Freedom of overflight;
(c) Freedom to lay submarine cables and pipelines, subject to Part VI;
(d) Freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI;
(e) Freedom of fishing, subject to the conditions laid down in section 2;
(f) Freedom of scientific research, subject to Parts VI and XIII.

Limitations……….
• The freedom of the high seas is not absolute.
• Under Article 87(2), the freedom must be exercised ‘with due regard
for the interest of other States in their exercise of the freedom of the
high seas, and also with due regard for the rights under this
Convention with respect to activities in the Area’.
• The high seas shall be reserved for peaceful purposes (Art.88)
• No State may validly purport to subject any part of the high seas to its
sovereignty(Art.89)

Principle of the Exclusive
Jurisdiction of the Flag State
& Nationality of Ships

• On the high seas, which is comprised of those areas over which no state has
sovereignty, there is still a state with authority over the vessel i.e the flag state
• In other maritime zones the flag state’s jurisdiction will exist concurrently with
that of coastal states
• High seas are not subject to any national jurisdiction-there is no centralized
authority governing the high seas-the legal order on the high seas can be ensured
primarily by the flag State.
• Every State, whether coastal or land-locked, has the right to sail ships flying its flag
on the high seas (Art.90) and thus enjoys freedom of navigation
• Duty upon the flag State to effectively exercise its jurisdiction and control in
administrative, technical, social and environmental protection matters over ships
flying its flag.
• It is a rule of customary international law that on the high seas, vessels are subject
to the exclusive jurisdiction and control of the flag State
• This rule is codified in Article 92(1) UNCLOS, 1982

Article 92
Status of ships
1. Ships shall sail under the flag of one State only and, save in
exceptional cases expressly provided for in international treaties or
in this Convention, shall be subject to its exclusive jurisdiction on
the high seas. A ship may not change its flag during a voyage or
while in a port of call, save in the case of a real transfer of
ownership or change of registry.
2. 2. A ship which sails under the flags of two or more States, using
them according to convenience, may not claim any of the
nationalities in question with respect to any other State, and may
be assimilated to a ship without nationality.

Naim Molvan v. Attorney General for Palestine (The
“Asya”) 1948
Ship (Asya) with illegal immigrants on board sighted by British naval
vessel outside Palestinian territorial waters - Ship flying no flag when
sighted - Turkish flag hoisted later but hauled down when boarding
party approached, then Zionist flag was hoisted - Ship escorted to
Palestinian port, where passengers were landed and sent to clearance
camp -Application for forfeiture of ship granted by District Court of
Haifa -Decision upheld by Supreme Court of Palestine - Hence this
Appeal by owner

Privy Council held…
• “In the interest of order on the open sea, a vessel not sailing under
the maritime flag of a State enjoys no protection whatsoever, for the
freedom of navigation on the open sea is freedom for such vessels
only as sail under the flag of a State”.
• “Having no usual ship's papers which would serve to identify her,
flying the Turkish flag, to which there was no evidence she had a
right, hauling it down on the arrival of a boarding party and later
hoisting a flag which was not the flag of any State in being, the Asya
could not claim the protection of any State, nor could any State claim
that any principle of international law was broken by her seizure”

US v Marino-Garcia (1982)
• Unites States Court of Appeals held
“Vessels without nationality are international pariahs. They have no
internationally recognised right to navigate freely on the high
seas...Moreover flagless vessels are frequently not subject to the laws
of a flag State. As such they represent “floating sanctuaries from
authority” and constitute a potential threat to the order and stability of
navigation on the high seas.”
• This case is significant as it confirms (at least for the purpose of US
law) that a vessel will be deemed stateless for carrying multiple flags.

Article 91
1. Every State shall fix the conditions for the grant of its nationality to
ships, for the registration of ships in its territory, and for the right to
fly its flag. Ships have the nationality of the State whose flag they
are entitled to fly. There must exist a genuine link between the
State and the ship.
2. Every State shall issue to ships to which it has granted the right to
fly its flag documents to that effect.

• The flag State is sovereign in its decision to grant its nationality to ships.
• “Each State under international law may determine for itself the
conditions on which it will grant its nationality to a merchant ship,
thereby accepting responsibility for it and acquiring authority over it.
• Nationality is evidenced to the world by the ship’s papers and flag.
• The validity of a ship’s registration could be questioned only by the
courts of the registering State, not those of third States.”
• Decided in the case Lauritzen v Larsen 345 U.S. 571 (1953)
• The nationality of a ship is of central importance in order to establish
the juridical link between a State and a ship flying its flag.

Muscat Dhows (France / Great Britain)(1905)
Muscat quarantined five subjects who held French papers. The subjects
escaped and were recaptured by Great Britain. France demanded that
the men be released. In 1904, France and Great Britain agreed to
arbitrate the dispute on the condition that, among other things, the
rights of certain non-native ships to fly the French flag be included in
the arbitration. In 1892, the countries had ratified the General Act of
the Brussels Conference of 1890, which prohibited a country from
authorizing non-native vessels to fly its flag. The prohibition was agreed
to in an attempt to minimize the slave trade.

The award held that any country could grant its maritime flag to
anyone, subject only to treaties or agreements limiting that right.
In this specific case, the arbiters concluded that the right of France to
grant her maritime flag to native vessels was limited by the 1890 Act of
Brussels.
The arbiters stated that the French were correct in claiming that, in
general, they had the right to issue their flag to anyone they chose,
subject only to their own internal laws and decisions.

• Became a precedent for future years justifying the action of ship-owners seeking
to protect ships from the vicissitudes of war, labor legislation, embargoes,
immigration restrictions, environmental regulation or tax policies, by registering
a ship in a foreign country.
• As later interpreters would put it, the Hague Court had ruled that any sovereign
country could issue its merchant flag to anyone it chose, bound only by treaties
or by its own practices, which could not be challenged abroad.
• Flags of Necessity or Flags of Convenience or Open registries
• Under the various international conventions governing safety, environmental,
and working conditions aboard ship, enforcement of those rules is left to the
country of registration, not to the country of the ship-owner.
• Many of the open-registry nations had no facilities for inspection or did not
choose to secure the services of an international firm that would conduct
inspections.
• Port States took over inspection and enforcement activities

Genuine link between the State and the Ship
• Article 5 of the 1958 Convention on the High Seas and Article 91 of
the 1982 UN Convention on the Law of the Sea both provide that
there must exist a “genuine link” between a State and a ship to which
it has granted its nationality.
• No definition under the Conventions
• The Nottebohm case 1955- “nationality is a legal bond having as its
basis a social fact of attachment, a genuine connection of existence,
interests and sentiments, together with the existence of reciprocal
rights and duties.”

• Effective jurisdiction and control are indispensable elements of the
genuine link
• In The Barcelona Traction Case, the ICJ opined that
“If a State purports to confer its nationality on ships by allowing them
to fly its flag, without assuring that they meet such tests as
management, ownership, jurisdiction and control, other States are not
bound to recognize the asserted nationality of the ship.”

Magda Maria case (1986)
• Magda Maria flying Panamanian Flag was seized by the Dutch authorities on the high seas
nine miles off the Dutch coast because of unauthorized broadcasting from the high seas.
• The ship was brought into port at Amsterdam harbour and broadcasting equipment on board
was seized.
• Although the District Court of The Hague upheld the validity of the seizure by the Dutch
authority, the Supreme Court quashed the decision of the District Court and remitted the case
to the Court of Appeal of The Hague for retrial and decision.
• Before the Court of Appeal, the Procurator-General claimed that in view of the absence of a
genuine link as referred to in Article 5 of the Convention on the High Seas, the Magda Maria
had become stateless.
• Nonetheless, the Court of Appeal dismissed this claim. According to the Court, the concept of
the genuine link obliges Panama as the Flag State only to exercise its jurisdiction effectively.
However, ‘it does not imply that the Dutch Government has the right to recognise or otherwise
the right to fly the Panamanian flag which was granted to the ship by Panama’.
• Thus, the Court of Appeal held that ‘it cannot be said on the basis of the examination at the
sitting that the MS Magda Maria was stateless on account of the absence of a genuine link’ .

IMCO case
• Advisory Opinion in the Constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative
Organisation (IMCO) of 1960.
• The ICJ was asked to answer to the question with regard to the validity
of the constitution of the Maritime Safety Committee of the Inter-
Governmental Maritime Consultative Organisation (IMCO).
• Under Article 28(a) of the Convention of the IMCO, the members of
the Maritime Safety Committee consisted of fourteen members
elected by the Assembly which included the world’s eight largest ship-
owning countries
• But Panama and Liberia though ranked within 8 with respect to
world’s largest tonnages, was not included

• The Court considered the meaning of the words "the largest ship-
owning nations“
• The conclusion reached by the Court was that the largest ship-owning
nations were those having the largest registered ship tonnage
• Consequently, in electing neither Liberia nor Panama, which were
included among the eight, the Assembly had failed to comply with
Article 28 (a) of the Convention.

M/V Saiga (No. 2) 1999
• In this case, Guinea claimed that there was no genuine link between the
Saiga and Saint Vincent and the Grenadines, and, consequently, it was
not obliged to recognise the claims of Saint Vincent and the Grenadines
in relation to the ship.
• ITLOS noted the fact that, in the legislative process of Article 5(1) of the
Geneva Convention on the High Seas, the proposal that the existence of
a genuine link should be a basis for the recognition of nationality was
not adopted.
• Article 91 of the LOSC followed the approach of the Convention on the
High Seas.
• Hence ITLOS concluded that the purpose of Article 91 was not to
establish criteria by reference to which the validity of the registration of
ships in a flag State may be challenged by other States.

UN Convention on Conditions for Registration
of Ships, 1986
• Adopted under the auspices of the United Nations Conference on
Trade and Development (UNCTAD)- to tighten a genuine link between
the flag State and the ships flying its flag.
• The preamble states that there must exist a genuine link between a
ship and the flag State and conscious of the duties of the flag State to
exercise effectively its jurisdiction and control over ships flying its flag
in accordance with the principle of the genuine link
• The State of registration shall require all the appropriate information
necessary for full identification and accountability concerning ships
flying their flag.

• A major drawback - it is not in force.
• To enter into force the Convention requires ratification by 40 States,
the combined tonnage of which amounts to at least 25 per cent of
world tonnage.
• So far only 15 ratifications
• Tomimaru case (2007)

• Every State, whether coastal or land-locked, has the right to sail ships
flying its flag on the high seas (Art.90) and thus enjoys freedom of
navigation
• Duty upon the flag State to effectively exercise its jurisdiction and
control in administrative, technical, social and environmental
protection matters over ships flying its flag.
• The duties of Flag state are given under Article 94 of the UNCLOS

Duties of Flag State
• Duty to effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag.
• Every State is obliged to maintain a register of ships containing the
names and particulars of ships flying its flags
• To assume jurisdiction under its internal law over each ship flying its
flag and its master, officers and crew in respect of administrative,
technical and social matters respecting the ship.

• Every State is obliged to take such measures to ensure safety at sea
with regard to:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews,
taking into account the applicable international instruments;
(c) the use of signals, the maintenance of communications and the
prevention of collisions.

• Each State is required to conform to generally accepted international
regulations, procedures and practices and to take any steps which may be
necessary to secure their observance.
• State which has clear grounds to believe that proper jurisdiction and control
with respect to a ship have not been exercised may report the facts to the flag
State and upon receiving such report, the flag State is obliged to investigate
the matter, and if appropriate, take any action necessary to remedy the
situation.
• Each State shall cause an inquiry to be held by or before a suitably qualified
person or persons into every marine casualty or incident of navigation on the
high seas involving a ship flying its flag and causing loss of life or serious injury
to nationals of another State or serious damage to ships or installations of
another State or to the marine environment.
• The flag State and the other State shall cooperate in the conduct of any inquiry
held by that other State into any such marine casualty or incident of navigation
.

• Duty to render assistance (Article 98)
• Every State shall require the master of a ship flying its flag to render
assistance to any person found at sea in danger of being lost.
• Duty to render assistance, after a collision, to the other ship, its crew and
its passengers and, where possible, to inform the other ship of the name of
his own ship, its port of registry and the nearest port at which it will call.
• Should be done without serious danger to his ship, the crew or the
passengers.
• Every State shall take effective measures to prevent and punish the
transport of slaves in ships authorized to fly its flag and to prevent the
unlawful use of its flag for that purpose (Art 99)

The Lotus Case (France vs Turkey)(1927)
• A collision occurred on the high seas between a French vessel – Lotus –
and a Turkish vessel – Boz-Kourt which sank and killed 8 Turkish
nationals on board.
• Negligence by the watch officer of the Lotus ship-10 survivors of the Boz-
Kourt (including its captain) were taken to Turkey on board the Lotus. In
Turkey, the officer on watch of the Lotus (Demons), and the captain of
the Turkish ship were charged with manslaughter.
• Dispute on the jurisdiction referred to PCIJ- whether Turkey violate
international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey.

Court held……
• There is no Law in the International Law under which a State, whose
ship is affected by a collision of ships, cannot prosecute an offender.
• The Turkish Court has the right to try the offence, and therefore it has
not infringed the International Law.
• France's argument about their flag in the vessel on high seas also did
not apply here as there was no international law that could compel
Turkish negotiation as their ship was destroyed.

• Lotus judgment was criticised because penal proceedings before
foreign courts in the event of collision on the high seas may constitute
an intolerable interference with international navigation.
• 1952 Brussels Convention for the Unification of Certain Rules relating
to Penal Jurisdiction provided for the exclusive jurisdiction of the flag
State or of the State of the nationality of an offender in the event of a
collision or any other incident of navigation concerning a sea-going
ship.
• This rule was echoed in Article 11 of the Geneva Convention on the
High Seas 1958 and Article 97 of the LOSC.

• Article 97 deals with penal jurisdiction in matters of collision or any
other incident of navigation
• No penal or disciplinary proceedings may be instituted against master
or any other person in the service of the ship involved in a collision or
any other incident of navigation concerning a ship on the high seas
except before the judicial or administrative authorities either of the
flag State or of the State of which such person is a national.
• No arrest or detention of the ship, even as a measure of investigation,
shall be ordered by any authorities other than those of the flag State.

Exceptions to the exclusive jurisdiction of the
Flag State
• Under Article 92, ships shall sail under the flag of one State only and,
save in exceptional cases, shall be subject to its exclusive jurisdiction
on the high seas.
1. Right of Visit (Art.110)
2. Right of Hot pursuit (Art.111)
3. Regulation of illicit traffic in narcotic drugs or psychotropic
substances (Art.108)
4. Self Defence

Right of Visit
• The right of visit is exercised by a warship or a military aircraft pursuant to Article
110
• Article 110 (1) Except where acts of interference derive from powers conferred by
treaty, a warship which encounters on the high seas a foreign ship, other than a ship
entitled to complete immunity in accordance with articles 95 and 96, is not justified
in boarding it unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy; (Art. 100-107)
(b) the ship is engaged in the slave trade; (Art. 99)
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship
has jurisdiction under article 109; (Art. 109)
(d) the ship is without nationality; or (Art. 92)
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the
same nationality as the warship

• Acts of interference derive from powers conferred by specific treaties.
States Parties to relevant conventions are entitled to exercise the right of
visit on vessels flying the flag of other States Parties. (fishery treaties
allow a State Party to board and inspect vessels of other Parties on the
high seas)
• The right of visit concerning activities of foreign vessels enumerated in
Article 110(1)
• When found under any activities as above, the warship may send a boat
under the command of an officer to the suspected ship to verify the
ship’s right to fly its flag
• If suspicion remains after the documents have been checked, it may
proceed to a further examination on board the ship (Article 110(2))
• If the suspicions prove to be unfounded, however, it shall be
compensated for any loss or damage that may have been sustained
(Article 110(3))

PIRACY
• Piracy and armed robbery against ships are serious problems endangering the
welfare of seafarers and the security of sea communication.
• Traditionally pirates have been considered outlaws, hostes humani generis or
‘enemies of all mankind’.
• The suppression of piracy is a well-established exception to the exclusive
jurisdiction of the flag State.
• At UNCLOS I, a British proposal to include attempts in the definition of piracy
was defeated by twenty-two votes to thirteen, with seventeen abstentions.
• Art. 100-107 UNCLOS III deals with Piracy
• All States shall cooperate to the fullest possible extent in the repression of
piracy on the high seas or in any other place outside the jurisdiction of any
State (Art.100)
• The definition of Piracy is given under Art. 101

Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation,
committed for private ends by the crew or the passengers of a
private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in
subparagraph (a) or (b).

Elements of Piracy
1. There must be ‘any illegal acts of violence or detention, or any act
of depredation’
(Attempts to commit illegal acts are not included in the definition)
2. Unlawful offences must be committed for ‘private ends’
• any illegal acts of violence for political reasons are excluded from the
definition of piracy.
• all acts of violence that lack State sanction or authority are acts undertaken
for private ends
• The private ends requirement should be examined by taking various factors
into account, such as motives, ends, specific acts of offenders, the
relationship between offenders and victims, the relationship between the
offenders and the legitimate government, and reactions of third States.

3. Private ship requirement: Committed by the crew or the passengers of
a private ship or a private aircraft against another ship or aircraft, or
against persons or property on board such ships or aircraft
• Piracy cannot be committed by vessels or aircraft on military or government
service
• Under Article 102, the acts of piracy committed by a warship, government ship
or government aircraft whose crew has mutinied and taken control of the ship or
aircraft are also considered as acts committed by a private ship or aircraft.
• A ship or aircraft is considered a pirate ship or aircraft if it is intended by the
persons in dominant control to be used for the purpose of committing one of
the acts referred to in Article 101 (Art.103)
4. Two vessels requirement: Piracy involves two ships or aircraft, that is
to say, pirate ship and victim ship
• Internal hijacking is not regarded as a piratical act.

5. Piracy must be directed on the high seas or in a place outside the
jurisdiction of any State.
• Article 101 contains no reference to the EEZ, it seems that illegal acts of
violence committed in the EEZ may also be qualified as piracy
• Article 58(2) states that Articles 88 to 115 and other pertinent rules of
international law apply to the EEZ
• Illegal acts of violence committed in the territorial sea or internal
waters of a coastal State cannot be regarded as acts of piracy. Those
acts are often called ‘armed robbery’.

Armed Robbery
• ‘Armed robbery against ships’ means any of the following acts:
1. any illegal act of violence or detention or any act of depredation, or threat
thereof, other than an act of piracy, committed for private ends and
directed against a ship or against persons or property on board such a ship,
within a State’s internal waters, archipelagic waters and territorial sea;
2. any act of inciting or of intentionally facilitating an act described above.
The definition given under the IMO Code of Practice for the
Investigation of the Crimes of Piracy and Armed Robbery against Ships
(adopted on 2 December 2009)

Definition of a pirate ship or aircraft (Art. 103)
• A ship or aircraft is considered a pirate ship or aircraft if it is intended
by the persons in dominant control to be used for the purpose of
committing one of the acts referred to in article 101.
• The same applies if the ship or aircraft has been used to commit any
such act, so long as it remains under the control of the persons guilty
of that act.

PIRACY AND UNIVERSAL
JURISDICTION

• A State invoking the universal jurisdiction claims to exercise jurisdiction
over an offender, irrespective of his or her nationality or the place of
commission of the offence, and without any link between that State and
the offender.
• The rationale for such jurisdiction is the nature of certain offences, which
affect the interests of all States, even when they are unrelated to the
State assuming jurisdiction
• Under international law, piracy on the high seas is the only one such
crime, over which claims of universal jurisdiction are undisputed.
• Piracy jure gentium which means that any State could try and punish a
pirate regardless of whether injury had been caused to such State or its
nationals.
• The principle of universal jurisdiction concerning piracy has been codified
in the UNCLOS, 1982 under Art. 105

Article 105
Seizure of a pirate ship or aircraft
On the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft, or a ship or aircraft
taken by piracy and under the control of pirates, and arrest the persons
and seize the property on board.
The courts of the State which carried out the seizure may decide upon
the penalties to be imposed, and may also determine the action to be
taken with regard to the ships, aircraft or property, subject to the rights
of third parties acting in good faith.

In re Piracy Jure Gentium[1934] A.C. 586
• On January 4, 1931, on the high seas, a number of armed Chinese nationals
were cruising in two Chinese junks- pursued and attacked a Chinese cargo
junk - master attempted to escape and a chase ensued during which the
pursuers came within 200 yards of the cargo junk-shots were fired by the
attacking part.
• While it was still proceeding, the steamship Hang Sang approached and
subsequently also the steamship Shui Chow-the officers in command of
these merchant vessels intervened and through their agency, the pursuers
were eventually taken in charge by the Commander of H. M. S. Somme -
brought as prisoners to Hong Kong and indicted for the crime of piracy.
• The jury found them guilty

“Whether an accused person may be convicted of piracy in
circumstances where no robbery has occurred.”
Privy Council held “Actual robbery is not an essential element in the
crime of piracy jure gentium. A frustrated attempt to commit a piratical
robbery is equally piracy jure gentium.”

United States v. The Malek Adhel [43 U.S. 210
(1844)]
“if he wilfully sinks or destroys an innocent merchant ship, without any
other object than to gratify his lawless appetite for mischief, it is just as
much a piratical aggression, in the sense of the law of nations, and of
the Act of Congress, as if he did it solely and exclusively for the sake of
plunder, lucri causa. The law looks to it as an act of hostility, and being
committed by a vessel not commissioned and engaged in lawful
warfare, it treats it as the act of a pirate, and of one who is
emphatically hostis humani generis.”
• The Ambrose Light (United States V. The Ambrose Light (1885)
• United States v. Smith [18 U.S. 153 (1820)]

S.S. "Santa Maria" Seizure (1961)
• The Santa Maria, Portuguese liner, was taken over by offenders on
board under the leadership of a Portuguese political dissident,
Henrique Galvão
• The flag State Portugal, designated the seizure of the vessel as piracy.
• The ship was taken by the offenders to Brazil, and Captain Galvão and
his followers were given asylum in Brazil
• The illicit acts by organised groups for the sole purpose of achieving
some political end cannot be characterized as piracy.
• private ends requirement missing

Castle John v NV Babeco (1986)
• Members of the environmental group ‘Greenpeace’ took action on
the high seas against two Dutch vessels engaged in the discharge of
noxious waste with a view to alerting public opinion.
• The action included boarding, occupying and causing damage to the
two ships.
• In this case, the Belgian Court of Cassation ruled that the acts were
committed for personal ends and consequently, Greenpeace had
committed piracy.

Achille Lauro Incident (1985)
• On 7 October 1985, four members of a Palestinian group, the PLF,
aboard the Italian passenger ship, the Achille Lauro
• They held the ship’s crew and passengers hostage, and threatened to
kill the passengers unless Israel released 50 Palestinian prisoners.
• They also threatened to blow up the ship if a rescue mission was
attempted.
• The United States characterized the seizure as piracy but it cannot be
considered as an act of piracy - maritime terrorism

Alondra Rainbow incident (1999)
• A Japanese-owned, Panama-registered ship, the MV Alondra Rainbow, was
hijacked by Indonesian pirates.
• The ship was repainted and renamed MV Mega Rama by the pirates.
Within days, it was apprehended by the Indian Coast Guard off the
Mumbai coast in the Arabian Sea.
• First Indian case
• The Mumbai Sessions Court tried and convicted the pirates under various
sections of the IPC. However, the Mumbai High Court overruled the lower
court’s decision and partly allowed the appeal of the all convicts and they
were deported to Indonesia in 2005
• Maritime Anti-Piracy Act, 2022.

• The doctrine of hot pursuit means a State has the right to pursue a foreign
State's vessel that has broken a law inside its territorial waters and under
its jurisdiction.
• It is an expansion and extension of the coastal State’s territorial jurisdiction
as well as an exception to freedom of the high seas and exclusive
jurisdiction of flag state on high seas
• The right of hot pursuit is a right in traditional international law and
constitutes a rule in customary international law which seeks to safeguard
the interests of coastal States.
• Article 23 of the Geneva Convention on the High Seas and Article 111 of
UNCLOS 1982 deals with the Right of hot pursuit

Elements of Hot Pursuit under Art. 111
• 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.
• 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
• It 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 contiguous zone if the pursuit has not been interrupted.
• 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.
• 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

• If the foreign ship is within a contiguous zone, the pursuit may only be
undertaken if there has been a violation of the rights for the protection of
which the zone was established, that is to say, customs, fiscal, immigration or
sanitary laws (Art 111(1))
• The right of hot pursuit is to apply mutatis mutandis to violations of the laws
and regulations of the coastal State in the EEZ or on the continental shelf,
including safety zones around continental shelf installations (Article 111(2)).
• The pursuit must be hot and continuous. The aircraft giving the order to stop
must itself actively pursue the ship until a ship or another aircraft of the
coastal State arrives to take over the pursuit, unless the aircraft is itself able
to arrest the ship pursuant to Article 111(6)(b)
• Where the hot pursuit was unjustified, compensation shall be paid for any
loss or damage that may have been sustained thereby (Article 111(8)).

Multilateral Hot Pursuit
• Multilateral Hot Pursuit is when the enforcement ship of a third state
joins the enforcement vessel of the injured coastal state
• Provided the pursuit is carried out following the procedural
requirements of Art 111 and the enforcement ship of the coastal state
whose laws or regulations were breached remains part of the pursuit,
it is arguable that there is no policy reason why these multinational or
cooperative hot pursuits should be unlawful.

Doctrine of extended
Constructive Presence

• The doctrine of constructive presence allows a coastal state to pursue
and arrest a vessel on the high seas, even though that vessel may
have never entered the state's jurisdiction.
• The vessel’s presence can be “constructed” inside the state’s
jurisdiction when a connection can be found with other craft,
suspected of having committed an illegal act there.

R. v Mills and Others
• The Poseidon, a ship registered in Saint Vincent and the Grenadines,
transferred 3.25 tons of cannabis to a British-registered fishing
trawler, the Delvan, on the high seas.
• The Delvan had set out from Cork in the Republic of Ireland for this
purpose and headed to the United Kingdom
• Later, it arrived in the south-coast port of Littlehampton and after
unloading was arrested
• Poseidon was arrested by the British task force on the high seas.

• Whether the relationship between the Poseidon and the Delvan was
such as to satisfy the requirements set out in Article 23(3) of the
Convention on the High Seas, namely team work and the existence of
a mother ship relationship?
• On this issue, Judge Devonshire took the view that there was the
existence of a mother ship relationship.

• MV Saiga case
• I’m Alone case
• Tenyu Maru case 1910
• The "Arctic Sunrise" Case (Kingdom of the Netherlands v. Russian
Federation)
• Randall Walker, International Law of the Sea: Applying the Doctrine of
Hot Pursuit in the 21st Century

Deep Sea Bed beyond national
Jurisdiction or
The Area

• “Area” means the seabed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction (Art.1)
• Part XI of UNCLOS designates all resources in the Area as “the common
heritage of mankind” and that “Activities in the Area shall, as specifically
provided for in this Part, be carried out for the benefit of mankind as a
whole”.
• The area of the seabed and ocean floor and the subsoil thereof, beyond the
limits of national jurisdiction, as well as its resources, are the common
heritage of mankind, the exploration and exploitation of which shall be
carried out for the benefit of mankind as a whole, irrespective of the
geographical location of States
• The International Seabed Authority (ISA) has been assigned a special role
under UNCLOS for implementing the CHM principle.

• Art. 137 includes the essence of the CHM principle
• No State shall claim or exercise sovereignty or sovereign rights over
any part of the Area or its resources, nor shall any State or natural or
juridical person appropriate any part thereof. No such claim or
exercise of sovereignty or sovereign rights nor such appropriation
shall be recognized. (Res nullis)
• All rights in the resources of the Area are vested in mankind as a
whole, on whose behalf the Authority shall act. These resources are
not subject to alienation. The minerals recovered from the Area,
however, may only be alienated in accordance with this Part and the
rules, regulations and procedures of the Authority. (res communis)

The International Seabed Authority
• Article 156 deals with the establishment of the Seabed Authority
• All state parties to the UNCLOS are ipso facto members of the ISA and
the seat of the ISA is in Jamaica.
• The ISA organize and control activities in the Area, particularly with a
view to administering the resources of the Area.
• The principal organs of the Authority comprises of an Assembly, a
Council and a Secretariat

FUNCTIONS OF ISA
• Main function of ISA is to regulate deep sea-bed mining, it also has
several equally important ancillary functions. These include:
• promoting and encouraging marine scientific research concerning the
Area and its resources and potentially even carrying out such research
(Art. 143);
• promoting and encouraging the transfer to developing countries of
technology and scientific knowledge relating to activities in the Area
(Art. 144) and
• promoting international cooperation regarding activities in the Area
(Art. 143(3)).

• Donald R Rothwell, The International Law of the Sea
• John Norman Keith Mansell: An Analysis of Flag State Responsibility
from a Historical Perspective: delegation or derogation?

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