Thanks a wonderful lot, for this amazing insight on hot pursuit.

Good questions. I don’t think there is a consensus view on (1). I would suggest it can be regarded as a series of acts of piracy: i.e. attacking the vessel (without boarding) is one act; the entire period of detention until release is another, and so on. Much will depend on the national law of the prosecuting jurisdiction.

(2) Is trickier and views may vary. The definition of facilitation does not appear to require the facilitator act on the high seas. Your scenario could be considered as describing someone acting as an accessory after the fact. I would argue that the act does not lose its piratical character once the vessel is off the high seas (having commenced there and continued elsewhere), and one can facilitate that act after the fact.

In any event, you could still charge the kidnappers under the Hostage Taking Convention for the subsequent detention in territorial waters (unless you hold that the convention is limited to ‘terrorism’ cases – which is hard to sustain given the lack of a terrorist motive requirement in the definition of covered offenses). The Hostage Convention covers accomplices, but is silent on whether this covers those acting after the fact.

Does the international community have a common stance as to whether an act of piracy can be viewed as a continous act? For example, if pirates attack a vessel, succesfully board it, detain the original crew, and transit to the territorial waters of Somalia where they anchor and undertake ransom negotations at what point is the act of piracy complete? Is it when the pirates have control of the vessel, when they leave the High Seas and enter the TTW, or when the vessel is finally released and the original are no longer detained?

I would also be keen to learn views on the interpreation of UNCLOS Art 101 (c) in that is it read as meaning that someone is guilty of an act if they intentionally facilitate the entire act of priacy, or can they be guilty if they intentionally facilitate part of the act of piracy e.g if persons provide logistical support to a ship which has been successfully taken by pirates and is now being held awaiting a ransom this could be viewed as intentionally facilitating the detention of the original crew, which is an act detailed in sub para (a), therefore, does this example fulfil the criteria of being guilty of intention facilitaing? Finally(!) if the previous example does fulfil the definition of ‘intentionally facilitating’ does it make a difference where the pirate ship with hostages is located e.g. would it still be viewed as intentionally facilitating if the pirate ship with hostages is anchored in the TTW of a country rather than on the high seas?

Apologies for bombarding this forum with so many questions but it is a fascinating area of law.

Nonetheless, I would concur with the views of Professor O’Connell and the Harvard Research project (26 AJIL Sup 739) that national courts and legislatures – despite invoking piracy by law of nations – have tended not to make the clear and important distinction between offences committed in a territorial sea (subject to the jurisdiction of only that State) and offences on the high seas (subject to the jurisdiction of all) and have often used the same term for both.

As a point of interest, UK statute law now restricts the definition of piracy to events occurring on the high seas, through its incorporation of UNCLOS: s. 26(1) Merchant Shipping and Maritime Security Act 1997.

You are entirely correct that UNCLOS does not prohibit in terms what I have called “reverse hot pursuit”. As it does not mandate it either, we are left with a Lotus case question. On the basis of available State practice, I simply take the view outlined above.

Conceptually, if we were starting from a blank slate I would agree with you.

As a pragmatic matter though, no coastal State has ever to my knowledge excepted a right of “reverse hot pursuit” on any basis.

Every treaty, non-binding code, exchange of letters, etc dealing with subjects such as fisheries, drug smuggling, WMD counter-proliferation etc proceeds on the basis that the express authority of the coastal state is required to permit foreign law-enforcement vessels the right to take any action in their territorial sea.

You could, quite possible rightly, distinguish all of this as being perhaps evidence only of a general rule but not directly relevant to the case at hand.

However, all emerging instruments on piracy are entirely consistent with the general view on other subject-matters. The Djibouti Code of Conduct and the Asian Regional Agreement spring to mind as denying in express terms any right on the part of foreign warships to enter territorial waters to counteract piracy. Given that these are instruments concluded by the most specially affected regional states, they must be given some weight as evidence of the positive law.

Historically, the Harvard Codification project of the 1930s proposed that there be a treaty-based right of “reverse hot pursuit”. While other aspects of the Harvard approach did not find their way into the drafting of the High Seas Convention and UNCLOS, this did not. When I have more time I hope look into whether the ILC canvassed the issue in its debates in the 1950s. It would be interesting to know if this was expressly considered and rejected. My initial memory is that the point was simply not taken up in the early work.

At bottom though we are, I suspect, in furious agreement: normatively there is potentially a gap, and normatively a right of reverse hot pursuit could be desirable.

Our only point of difference arises from my stance as an old-fashioned positivist who likes to see concrete expressions of state practice and opinio juris before concluding an exception to a well-established rule (exclusive competence of the coastal state in their territorial sea) exists.

At present, the closest to express support for such a right I can find is the (in my view) lukewarm drafting of the Commander’s Handbook.

This is not my field, so what follows may be a somewhat naive comment: Upon looking at most of your references, it seems to me that there is a slight gap in the legal scheme here. Arts. 22 and 23 of the High Seas Convention and Arts. 110 and 111, UNCLOS, are essentially identical, and seem to be tailored to an enforcement situation in which a foreign flag vessel is sought to be detained within coastal waters by a warship of the coastal state; in this context, the right of “hot pursuit” covers the apprehension of the suspect vessel in international waters when the elements of “hot pursuit” are met. This appears to be functionally an exception to the notion that a warship of one state has no jurisdiction over a “merchant” vessel flying the flag of another state on the high seas; it also seems to envision a situation in which the law sought to be enforced is that of the coastal state.

The principle of universal jurisdiction applicable to vessels reasonably suspected of piracy, engaging in the slave trade, and certain other jus cogens violations is an independent exception to the normal rule of jurisdiction on the high seas. The gap seems to be that there is no formal “hot pursuit” doctrine tailored to the situation of a pursuit from the high seas into territorial waters to assert universal jurisdiction. Arguably, respect for territorial sovereignty should require, at lease, “best efforts” on the part of the pursuing warship to obtain consent to pursue from, or to hand off the pursuit to, the territorial sovereign. But conceptually, if this is not possible, or the sovereign lacks the capacity to apprehend, I would argue that universal jurisdiction ought not be deemed to have been defeated or trumped by territorial sovereignty — if for no other reason than that, conceptually, the pursuing vessel’s original jurisdiction on the high seas is not based on its own sovereign flag, but on serving as the agent of all nations, including the territorial sovereign into whose waters the pirate has fled. The sticky case would be if the territorial sovereign lacked the capacity or the will to apprehend, yet affirmatively withheld consent — at that point, it seems to me that the law becomes a bit thin.

I would distinguish the Security Council resolutions you referenced on the grounds that they represent a programmatic effort to resolve these issues in the particular case of Somalia — an approach which is, of course, preferable to the ad hoc circumstances in which “hot pursuit” could be argued.

My citations to the British admiralty court decision and the U.S. code do not reflect merely national law. The High Court of Admiralty was addressing the law of nations governing piracy. And, the relevant sections of Chapter 7 of Title 33 of the U.S. Code codified the law of nations on piracy. Furthermore, UNCLOS and the High Seas Convention do not prohibit pursuit of piratical vessels from the high seas into territorial waters. Only the U.S. Naval Commander’s Handbook states that pursuit must be broken off upon request of the coastal state, but I think that is merely a policy statement.

I would be hard pressed, however, to find much academic or official government support for such a right.

In current international practice, the Djibouti Code of Conduct on Countering Piracy 2009 (non-binding, but reflecting a consensus as to the law) requires express permission before foreign law-enforcement vessels may enter the territorial seas of a foreign coastal State.

The most liberal position is that taken in the US Naval Commander’s Handbook (as above), which suggest that while – in exceptional circumstances – you might conduct such a pursuit, one should ordinarily never conduct such an operation without seeking and receiving coastal state consent.

Such a right would also be inconsistent with the general proposition in international law that hot pursuit may not be continued into a foreign State’s territorial sea (absent permission or a special treaty arrangement). See Art 23, High Seas Convention; Art 111, UNCLOS.

Significant portions of UNSCR 1816 and 1846 would also be otiose if States had a pre-existing right of entry into Somalia’s territorial waters to conduct counter-piracy actions.