The Doctrine of Constructive Presence: The Emergence of the Scheme Theory

What is it about?

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. This is because 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. This article explores the impact of the Tribunal’s decision in the Arctic Sunrise case (2015) on constructive presence. It shows that the necessary link between the vessels is now found when there exists evidence of participation in an illegal scheme.

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Why is it important?

This articles tackles an important broader issue: how far should state competences apply? Who and what can be subject to the jurisdiction of states? Ought the freedom of the high seas allow for criminal activity to go unchallenged, even if such activity eventually harms states? I conclude that the doctrine of constructive presence, that treats vessels outside state jurisdiction as if they are not (and thereby are subject to the state's jurisdiction) has undergone rapid expansion. The traditional approach, characterised by an attention as to where the vessels came from is no longer accurate. The approach now seems to rely on the idea of broader illegal schemes.

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