The Doctrine of Hot Pursuit: Was Nigeria Right in the Repatriation And Arraignment Of Rogue Vessel(Mt Heroic Idun)?
The Nigerian media space went agog on Monday the 14th of November, 2022 when the news of the arrest and arraignment of the crew of Rogue Vessel also Known as MT Heroic Idun broke. This is coming at a time when the country is facing a lot of Economic Hardship and dwindling Economy which is not unconnected to oil theft amongst other vices that robs off Nigeria of the enjoyment of her Natural resources by suspected foreign and local Economic saboteurs. Federal Ministry of Justice, yesterday, said the 27 crew members of rogue vessel, MT Heroic Idun, were arraigned at the Federal High Court Five, Port Harcourt, Rivers State capital. The Nigerian Navy also said the vessel attempted to load Liquefied Natural Gas (LNG) at the Akpo Oil Terminal without authorization.
The offences alleged to have been committed by the vessel to include attempt to deal in export crude oil without license or authorization; entering a restricted zone around an oilfield without authorization and thus violating Nigeria’s Exclusive Economic Zone regulations, falsely accusing a Nigerian Navy Ship of piracy on International Maritime reporting platforms after having communicated with the Nigerian Navy Ship without ambiguity about her identity, therefore violating sections of the Suppression of Piracy and Other Maritime Offences (SPOMO)Act 2019.
The vessel is also alleged to have violated all lawful instructions at sea from Maritime Law Authorities as well as Nigeria’s Miscellaneous Act and other associated national and international laws ascribed to by Nigeria and violation of Custom and Immigration Laws as acceded by Nigeria regarding the operations of Akpo Oil Terminal being an Oil installation in the Nigerian Exclusive Economic Zone.
Since this article seeks to examine whether Nigeria acted according to law in the repatriation and arraignment of MT Heroic Idun, it is pertinent to establish that the Suppression of Piracy and Other Maritime Offences (SPOMO)Act 2019 gives effect to the provision of The United Nation Convention on the Law of the Sea(UNCLOS) and the Convention for the Suppression of Unlawful Act(SUA) against the Safety of Maritime Navigation 1988 and its protocols.
General View: The law and practice of ship arrest in maritime law are subject to two basic notions. First, it is an action in rem. The second is that state admiralty law primarily governs its rules and processes. In essence, there is no real worldwide standardization of ship arrest regulations. In truth, Article 6 of the 1952 Arrest Convention states that the legislation of the contracting state in which the arrest is made or requested shall regulate the norms of procedure relating to the arrest of a ship. However, a ship or vessel that escapes may create new jurisdictional issues.
How is a ship arrested? Is there a right to re-arrest a ship that is trying to escape jurisdiction? If so who can pursue, from whence and how far? These are questions that beg for answers.
Arrest & Prevention of Escape.
It is pertinent to give a background concept of arrest and prevention of a ship from escaping from Jurisdiction. The primary purpose of arrest is to obtain security for satisfaction of an ensuing judgement in the action in rem. This arrest in fact constitutes the ship or property as security in the hands of the court for the claim in the action. As Esher M.R. put it, “the moment that the arrest takes place, the ship is held by the court as a security for whatever may be adjudged by it to be due to the claimant ”.
Certain features are commonly observed in the current procedure of ship arrest in various jurisdictions. (1) Upon the issue of the warrant of arrest, the Admiralty Marshal immediately contacts the relevant officer of Customs and Excise or Port Authority as the case may be. (2) An Official of government then arrests the ship. In Britain this is done by the personal assistance of the Marshals office who attaches the note of action to the ship In the United States only a Federal District Marshal can arrest a vessel (Admiralty Rule 3)
The arrest may be physically accomplished by the marshal tacking a copy of the arrest warrant in a conspicuous place on the vessel [Admiralty Rule E (4)(b)]. In Germany, a court’s registrar or the bailiff is responsible for the enforcement of the arrest upon a separate application. In other words, if a ship owner by some ingenious means learns that steps are being taken to arrest his ship, he can proceed to expeditiously remove the ship from the jurisdiction. As long as the normal rules and regulations concerning the arrival and departure of ships in the particular port are observed, nothing inherently illegal would have taken place. The morality of the matter is another issue. It is a different ball game when it involves vessels of other jurisdiction and the steps to arrest.
The Doctrine of Hot Pursuit.
Hot pursuit is the right of a coastal state to continue, outside its territorial sea, contiguous zone, or certain adjacent areas, the pursuit of a foreign vessel that has violated its laws and regulations while in its internal waters or territorial sea, contiguous zone, or certain adjacent areas. The pursuit must, however, have started as soon as the violation occurred and not been aborted.
The main goal of the right of hot pursuit is to prevent vessels that have broken the laws of a coastal state from sailing off into open waters. By virtue of the theory, a coastal state effectively has the right to chase, seize, and accompany the offending ship back to its port. The concept achieves a balance between the principles of open seas navigation and coastal nations’ interests in effective management and defense of their maritime zones.
The freedom of free navigation, which is intended to safeguard innocent vessels, cannot be used as a cover by a foreign vessel to carry out nefarious purposes. Therefore, the concept aims to prevent conflicts between sovereign states in order to maintain public order. The right of hot pursuit is only used against vessels that have broken the rules of a coastal state, notwithstanding the fact that it interferes with the principle of freedom of navigation.
If the evading ship is captured again while traveling within the 12-nautical-mile territorial sea. There can be no doubt about the coastal state’s authority to rearrest it (see Art. 3 of the U.N. Convention on the Law of the Sea). The escape ship, however, might have navigated to other maritime zones. In this situation, a pursuit that began in the territorial sea may be continued across the contiguous zone, the exclusive economic zone, and then out to the high sea. The 1982 Convention on the Law of the Sea’s Article III codifies the theory of hot pursuit, which emerged from customary international law.
It means in essence that if there are reasonable grounds to believe that a foreign ship or one of its boats in internal waters, territorial sea, exclusive economic zone, continental shelf, has violated the laws or regulations of the coastal state or infringed on rights conferred on it under international law, such a ship may be pursued by the coastal state by any of its state vessels well into the high seas. The principle of hot pursuit is designed to ensure that an erring vehicle cannot escape jurisdiction by making a fleeting dash for the high seas. If it does so, the doctrine of hot pursuit will operate to allow an extension of the jurisdiction of the coastal state even on to the high seas in order to pursue and seize the escaping ship. If apprehended, the ship may be escorted back to port for investigation and trial.
Conclusion: From the foregoing, it is a fact that a state does not fold her hands for evaders of her territory to successfully evade and cart away the resources of the coastal state. If the state is docile in protecting her natural resources within her territory that state may well be described as an irresponsible state who has failed in her responsibility.
Nigerian government acted responsibly in pursuing, capturing and repatriating the Rogue Vessel known as MT Heroic Idun to Nigeria for possible prosecution. This arrest and repatriation of the Vessel in all ramifications falls under the doctrine of hot pursuit which empowers a state to do in the manner that Nigeria has just done though not undermining the fundamental rule of free navigation in the high seas.
This doctrine allows coastal states to protect their own sovereignty by preventing or stopping an alien or foreign vessel from committing an offence in the coastal state’s territory. Whilst we commend the government of Nigeria especially the Nigerian Navy for this gallant act, we advise that Nigeria government should assure all International Community involved that it will ensure consular access would be granted, using diplomatic channels.