Legal Eye Columns

Legality of doctrine of hot pursuit

Jay Manoj Sanklecha

Jay Manoj Sanklecha  

If the Myanmar incident marks a shift in India’s counter-terrorism policy, India's legal position may be better served by invoking the expanded doctrine of self-defence rather than the much-criticised policy of hot pursuit.

In the wake of the >gruesome attack by militants on the Indian Army in Manipur on June 4, and intelligence reports warning of more such imminent attacks on Indian soil, the special forces wing of the >Indian Army launched a covert military offensive, allegedly deep inside Myanmar. The bold move successfully destroyed two militant camps. While details of the operation remain unclear, perhaps rightly so, fundamental questions as to whether the prior consent of the Myanmar government was obtained remain unanswered.

Assuming that such consent was either neither requested nor forthcoming, India’s justifications for such extra-territorial incursions assume significant importance, not least because India sees itself as a pivotal player in the international legal order, and has for some time now been clamouring for a permanent seat in the United Nations Security Council. Therefore, it is imperative that India be seen, within the community of nations, as a country that appreciates and respects the international legal system.

In the wake of the operation, perhaps prompted by stray statements made by government officials, a cross-section of the media has reported that the operation was justified under the self-standing ‘doctrine of hot pursuit’ under international law. The application of this doctrine to land-based extra-territorial incursions has a somewhat chequered history, and is generally seen as having been rejected.

Expanded doctrine

The doctrine of hot pursuit owes its origin to the law of the seas, and emerged as an exception to the fundamental principle of freedom of the high seas — the rights of vessels of all nations to navigate freely on the high seas. At a time when smuggling and piracy were rampant, this customary doctrine emerged to empower a coastal state to pursue on to the high seas a vessel that had violated its laws within its waters. This denied the intruding vessel the opportunity to escape punishment by claiming protection under the right of free navigation on the high seas, which had been designed to protect innocent vessels. Importantly, this customary doctrine did not extend to the territorial waters of a foreign state. Decades later, this customary doctrine was codified in the 1982 United Nations Convention on the Law of High Seas. Apart from imposing procedural restrictions, the Convention clearly spelt out that the right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or a third state.

Over the years, some countries have sought to introduce an expanded doctrine of hot pursuit on land, to justify the breaches of territorial sovereignty of foreign states as part of the ongoing pursuit of offenders. For instance, in 1986, South Africa sought to justify its incursions into neighbouring African states on the basis of the doctrine of hot pursuit, inviting the condemnation of the United Nations Security Council. More recently, Kenya sought to justify its military actions against Al-Shabaab militants in Somali territory on the basis of this adapted doctrine of hot pursuit, again inviting criticism from the international community.

It is thus clear that the so-called right of hot pursuit on land is a highly controversial one, and has been generally rejected. Instead of relying on a self-standing doctrine of hot pursuit, India’s legal position may be better served by invoking the expanded doctrine of self-defence, which has witnessed a normative evolution, particularly in relation to non-state actors, following the events of September 11, 2001.

This expanded doctrine, which has gained significant acceptance in Western scholarship, permits states to use force against non-state actors and breach the territorial sovereignty of foreign states in response to an accumulation of terrorist attacks. While this expanded doctrine of self-defence is not altogether unquestionable and has its own set of critics, it is certainly more palatable within the international community than the much condemned doctrine of hot pursuit on land.

After all, it is, in India’s own interest, particularly if this incident marks a shift in India’s counter-terrorism policy, to understand and evolve a sound legal basis for extra-territorial military operations.

(Jay Manoj Sanklecha is a graduate of the West Bengal National University of Juridical Sciences, Kolkata, and is working with a law firm in Mumbai. The views expressed are personal.)

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Printable version | Feb 17, 2020 9:01:57 PM | https://www.thehindu.com/opinion/columns/legality-of-doctrine-of-hot-pursuit/article7315481.ece

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