The Doctrine of Constructive Presence and the Arctic Sunrise Award (2015): The Emergence of the “Scheme Theory”

Abstract

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.