[Lee Jae-min] Hot pursuit, cold relations

Liquor smuggling was a lucrative business in the American Prohibition era of 1920-1933. A Canadian ship named “I’m Alone” was one of the vessels engaged in smuggling. In March 1929 the ship was approached by US Coast Guard cutters for inspection within the jurisdictional waters of the United States. Not surprisingly, it sped away. The Coast Guard cutters continued their chase for the next two days, and finally caught the ship on the high seas.

A dispute arose between Canada and the US since the ultimate arrest was made on the high seas. As the initial chase began from within jurisdictional waters, the apprehension on the high seas was found by an international arbitration court to be consistent with international maritime law.

Look at another more recent example. In 1997 an oil tanker of Saint Vincent and the Grenadines, named Saiga, was seized by a Guinean customs patrol boat on the high seas for allegedly violating customs regulation within the Guinean Exclusive Economic Zone. In this incident, the patrol boat originally initiated the chase but gave up and returned to the port. The next day the boat resumed its search and found Saiga in high seas and detained her.

Here, the International Tribunal for the Law of the Sea deemed the clear interruption of the pursuit to nullify the right to pursue and apprehend in high seas. So, Guinea was found to have violated the UN Convention on the Law of the Sea.

As long as a chase proceeds without interruption, it can continue for many more days. In August 2003, the Australian navy conducted the longest pursuit on record: it pursued a Uruguayan vessel Viarsa, which was engaged in illegal fishing, for 21 days over 7,000 kilometers. The vessel was near Cape Town, South Africa when captured, and escorted back to Australia for a legal proceedings. 

This concept of maritime law is called the right of “hot pursuit.” It is included in the UNCLOS as well. There are several conditions. A pursuit should be “hot,” meaning it should be continuous and uninterrupted. It should also be initiated from the jurisdictional waters such as an EEZ or territorial waters where a coastal state has jurisdiction. In addition, a visible and audible signal to stop must be provided first.

In many respects, the Oct. 7 incident in the Yellow Sea is a typical example of the right of “hot pursuit.” It was on the high seas that Chinese fishing boats rammed into a Korean Coast Guard patrol boat and sank it. The ensuing arrest of Chinese fishermen was made on the high seas.

The Chinese Foreign Ministry claimed that the arrest was illegitimate because it was made on the high seas and outside the Korean jurisdictional waters. As noted in the above examples, what matters is not the location of the ultimate arrest but whether laws and regulations were violated within the Korean jurisdictional waters before fishing boats started to flee and whether the pursuit was “hot” throughout the chase. The accounts of both countries apparently indicate that these requirements were satisfied here.

The ramming and sinking of the law enforcement boat marks a new high in the level of violence in the Yellow Sea. Seoul vowed to dial up the level of force in future altercations. It was not prudent, however, to mention specific types of weapons on board, such as cannons, to be employed in future confrontations. Such a statement may cater to the short-term feelings of the national audience but it can easily backfire, as the words can be interpreted as Korea’s unwillingness to pay due regard to the need to use reasonable force proportionate to specific situations at hand. A short, but stern statement would have been more effective.

Given the intensity of illegal fishing in the Yellow Sea, pursuits, clashes and arrests will continue. The two countries are now negotiating EEZ delimitation in the Yellow Sea. Any delimitation would be effectively vitiated if the likes of Oct. 7 stand to describe an archetypical environment in the Yellow Sea. 

By Lee Jae-min

Lee Jae-min is a professor of law at Seoul National University. He can be reached at jaemin@snu.ac.kr — Ed.