Was the Farley Mowat in International Waters?

Paul Watson of the Sea Shepherds is calling it an act of war. The Farley Mowat was seized by teams of “emergency response” mounties deployed in zodiacs from a pair of coast guard ice breakers. Nobody is yet saying exactly where it happened, but apparently they were somewhere in the Cabot Strait, between Cape Breton and Newfoundland. Watson says they were in international waters. The Fisheries Minister, Loyola Hearn, says they were in “internal waters”. That’s a giant difference in interpretation.

So without knowing just exactly where it went down, is either claim reasonable? At the wikipedia level of analysis, the answer is yes.

Territorial waters” are measured from the low-tide shore baseline 12 nautical miles out to sea. Within it’s territorial waters Canada has legal sovereignty, presumably similar to the legal status of national terrestrial territory. There is an exception requiring free “innocent passage” of vessels, but I doubt if the Farley Mowat could claim they were on a mission of good order and security.

There’s something else called a “contiguous zone” which countries can optionally claim out to 24 nautical miles. Canada does, but it doesn’t seem like it has much serious jurisdiction over that zone.

Here’s what I figure for the territorial waters and contiguous zone of the area, all other things being equal:

territorial waters off the coast of cape breton

By that measure it looks like the Farley Mowat would have had plenty of room for free sailing. Even if they needed to make passage into the Gulf of Saint Lawrence, they could have kept outside of Canadian sovereign terrority.

But as far as I can tell Minister Hearn hasn’t actually been directly quoted using the language of territorial waters. He’s talking “internal waters”. Internal waters are also sovereign territory. The wikipedia definition makes it sound like you pretty much need to inland to be internal. Interestingly, Canada makes a number of exceptional claims to “internal waters” that don’t seem to come even close to fitting that definition. Most controversial at the moment is a chunk of the newly-navigable northwest passage. Also however, the Gulf of Saint Lawrence. Once again, according to wikipedia, the Gulf estuary (the worlds largest estuary!) covers the area between Cape Breton and Newfoundland. By definition, from the looks of it:

wikipedia's take on the gulf of saint lawrence

It’s worth noting that within internal waters, there’s no right of even innocent passage.

So was the Mowat attacked by mounty pirates when she was boarded, or was it an legitimate arrest? If you accept Canada’s claim that the 1000s of square miles of heaving grey Atlantic in the Cabot Strait are “internal waters”, then it looks like this a purely internal affair. If you’re dubious of that claim, then it gets interesting.

But even if it was a high-seas boarding, it won’t rank as especially crazy on the Canadian-fisheries high-seas boarding scale of craziness. Back in 1995 the Coast Guard forcefully boarded a trawler that wasn’t in internal waters, wasn’t in territorial waters, and wasn’t even in the 200 mile economic zone.

From the federal court record:

“On the 9th of March, 1995, at or about 18:15 (6:15 p.m.)[1], armed boarding parties from three (3) or four (4) Canadian vessels boarded the Spanish deep-sea freezer-trawler ESTAI (the “ESTAI”) within the Northwest Atlantic Fisheries Organization (“NAFO”) Regulatory Area, which is to say outside Canadian fishery waters or, put another way, on the high seas. The boarding parties, which may have included members of a Royal Canadian Mounted Police (“RCMP”) emergency response team, arrested the ESTAI.”

(emphasis added)

From ever-trusty wikipedia:

On March 9 offshore patrol aircraft indicated a likely candidate and several armed DFO offshore fisheries patrol boats, along with Canadian Coast Guard and navy support, pursued the Spanish stern trawler Estai in international waters outside Canada’s 200 nautical mile (370 km) EEZ. The Estai cut its weighted trawl net and fled, resulting in a chase which stretched over several hours and ended only after the Canadian Fisheries Patrol vessel Cape Roger firing of a .50 calibre (12.7 mm) machine gun across the bow of the Estai. The Canadian Coast Guard Ship Sir Wilfred Grenfell used high-pressure fire-fighting water cannons to deter other Spanish fishing vessels from disrupting the enforcement operation. Finally, armed DFO and RCMP officers boarded the vessel in international waters on the Grand Banks and placed it and its crew under arrest.

(emphasis added)

19 comments:

i’m sure the feds will have GPS showing exactly where the ship was. some of those laws must be great for vessels wanting to unload drugs to smaller crafts.

I’ve no doubt they were in international waters. The current Canadian government has as little regard for international law as that of George W Bush and will lie through their teeth if need be. Kudos to the heroic crew of the Farley Mowat and the Sea Shepherd Conservation Society for bringing attention to the savage seal hunt currently underway in Atlantic Canada. Some 275,000 seal pups are being savagely clubbed and skinned by Canadian sealers subsidized and supported by the Canadian government. As a Canadian, I am ashamed and outraged.

OOOOOOPS ! I forgot to add that i support the seal hunt.

I certainly hope that The Gulf of St. Lawrence and Cabot Straight are Canadian waters as they are surrounded by Canadian land and we need to have control over whatever goes on there for administrative, environmental, and security reasons. If they were international waters the many ships that pass through there could dump oil from their bilges and pollute our waters and shores and we couldn’t prosecute them. A salvage company could tow a derelict ship into the area where it could leak oil or sink causing an environmental nightmare that we would have to clean up. Foreign sealing ships could come into the gulf and take as many seals as they wanted to using whatever methods they wanted to and we couldn’t stop them. Even Canadian sealers would have no laws regarding their operations. Ships loaded with drugs or illegal arms shipments would be able to operate there as well. The same thing would apply to the navy of a nation who wanted to move armed ships or troops into the gulf and threaten us. The possibilities are unlimited. Who would stop acts of piracy in the gulf?
The Sea Shepard Society would have no legal case against Canadian sealers as the gulf would be a free zone and they could ram and crush all of the sealing boats they want to and even run down ice packs with sealers on them.

@Jim: good points, I’m a big fan of people having some influence over what can wash up on their shores.

You mention foreign sealers. The entire estuary, and as far as I know, the full extent of the ice flow, is enclosed within the 200 mile “exclusive economic zone”. That’s *yet another* sea boundary, and it gives Canada control over fishing and other wildlife extraction.

It’s kind of a double edged sword though. My understanding is, if we don’t take our maximum harvest as defined by internationally accepted ecological models, we forfeit our ability to exclude the fishermen of other nations. I’m not sure if that applies to sealing or not, but it’s possible that legally, if we don’t take seals to the quota, other people will, and we won’t be able to do anything about it regardless of where it’s done.

Incidentally, I’m a little dubious about describing the Cabot Strait as being “surrounded by Canadian land”…

the cabot strait to me is just the stretch of ocean from cape ray,newfoundland to cape north,nova scotia. the nearest land to it not being in canadian jurisdiction would be the french islands of st. pierre and miquleon off newfoundlands south coast. (you can see nova scotia from newfoundland on a clear day.)

OK sure, (and pleased to have someone who knows the place commenting!) but the largest of the 4 sides of the Strait isn’t Canada, it’s the holy smokes Atlantic Ocean. Making the Strait, arguably, the Atlantic Ocean. Or at least not surrounded by Canadian land.

A minor point I grant you, but possibly important in this particular case.

I’m following this with great interest and perhaps Hugh or others might clarify what is said about “Marine Mammals” with respect to a clause in the UNCLOS laws. Specifically, Article 65 “Marine Mammals” states:

Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.
http://www.un.org/Depts/los/convention_agreements/texts/unclos/part5.htm

Canadian management of their fisheries are notorious for mismanagement, the last population survey of Harp seal pups having been done in 2004 and by all scientific accounts, in a shoddy manner. Further, they’ve not taken into account the recent, massive loss of sea ice in 2007, in which it is thought that fully a half million seal pups died for lack of ice.

By the looks of it, couldn’t the Sea Shepherd Org. claim a right as an “International organization” concerned with said “conservation, management and study”? They are an internationally funded conservation organization afterall.

Also, concerning the fact that they were boarded in Cabot Strait, Article 45, “Innocent Passage” (in straits) says:

1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation:

(a) excluded from the application of the regime of transit passage under article 38, paragraph 1; or

(b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.

2. There shall be no suspension of innocent passage through such straits.
http://www.un.org/Depts/los/convention_agreements/texts/unclos/part3.htm

Hugh, how would you interpret this?

The politics of the seal hunt notwithstanding, the fundiamental issue here is whether the Canadian government has jurisdiction over the waters where the Sea Shephard was arrested or put another way, was the Sea Shephard subject to Canadian law. The answer is Yes, and probably Yes. This position will be supportetd by virtually every other country, as ,under international law, and more specifically the United NAtions COnvention on the Law of the Sea (UNCLOS) the rules are pretty clear.
1) No question, the Sea Shephard was within Canada’s 200 nautical mile EEZ. On that basis alone, since seals are marine mammals and hence a marine resource, Canada is within its rights to pass laws and enforce them against any vessel within the zone.
2) What’s a bit more controversial is whether the Sea Shephard was within CAnada’s Internal Waters. Internal Waters are the waters inside the straight baselines which a state is allowed to draw along its coast for the purposes of establishing maritime zones. If you read the appropriate sections of UNCLOS rules are quite clear. What Canada (and many other countries) have done is to apply the rules rather generously in thier favour, and also to recognize the right of other states to do the same. Canada (or the UK on our behalf) has been drawing baselines (or closing lines) since 1763. The situation now is that Canada has proclaimed straight baselines which enclose all of Canada, from the Maine/New Brunswick border completely around the entire country (we’ll ignore Alaska for a minute). This effectively puts the bay of fundy, gulf of st lawrence , and the entire Canadian Arctic inside the baseline, and hence ALL these waters are Canadian INTERNAL waters and not subject to the rules of innocent passage. The United States has continuously objected to these baselines and it is virtually the only country to do so. The Sea Shepherd is a Netherlands registered vessel, and thus it is the position of the Dutch goverment which counts, not Paul Watson’s . Since the Dutch are a party to UNCLOS, and have established a number of straight baselines of their own, I suspect that they will support CAnada’s claims for jurisdiction.
About the only support you might get for a contrary position would come from the United States, but for a number of reasons you might not want to go there.

There are a number of rational arguments which might be made against the seal hunt. Unfortunately the Sea Shepherd Society has never made them.

thanks Hugh for a most informative clarification of these issues.
The UNCLOS laws are intricate and very complicated in my eyes and now I understand them far better.
As far as Sea Shepherd, though one might not agree with their methods, they have been successful at bringing international light to this and the Japanese whaling hunts with some success.
The Japanese are now considering a ban against whaling altogether and the EU will now propose a ban on all seal products before the start of the summer.
Eco-tourism is a viable alternative to these hunts for the fishermen and I do believe Canadian taxpayers who subsidize these hunts would support such a move. For more information on how this would work, I refer you to the US Humane Society’s article on eco-tourism for these people.
Thanks again Hugh~
Mae

http://www.hsus.org/marine_mammals/marine_mammals_news/economics_04112008.html

Just to be clear, Hugh the Second (#9) is not me. I’m just Hugh the 1st and I know a great deal less about UNSCO regulation.

I’ve been poking around trying to find actual maps showing what Canada claims as “internal waters”. I haven’t succeeded, yet. There are some suspicious looking lines on this tiny thumbnail representation of a paper map, but there’s no way to know exactly what those lines represent without calling them for a paper copy:

http://www.lsd.nrcan.gc.ca/Images/CanadaIndex_Atl_Full.jpg

I suspect Hugh2nd is correct, and those may well be the “straight baselines” they are using to establish internal waters around here.

In case anybody missed it, the Sea Shepherds have made it clear what their position on the spatial question is: they say they were more than 12 miles out, therefore it was international. Apparently they can’t prove it until the mounties let them have their boat back, because that’s where they keep their GPS.

Watson hasn’t made any mention of “internal waters” yet, and from what Hugh2 et al are saying, I assume the internal waters angle renders moot the number of miles out they may or may not have been. Hearn has switched to “territorial waters” but I gather that’s a catch-all which can include internal waters among all the other waters.

Also, Watson paid much of the $10 000 bail for the arrested crew in toonies, to symbolize “doubloons” to keep with the piracy theme. Oh boy.

http://www.canada.com/topics/news/story.html?id=a6bf6cd6-15b0-4155-8b77-99256bb5ee30&k=99134

Firstly, I would say that the technical issue of law is of interest to me in this case. But I would say that the Canadian government is probably not that much interested in that issue and was simply trying to “make an example” of Watson’s Sea Shepard for other reasons almost certainly purely political.

I note in particular that his organization was referred to as “terrorists” and that Minister Hearn has seen fit to politically take this action on behalf of the great dolphin clubbing nation of Japan and others – our new international allies of the sea.

The technical issue is of interest but who knows if we will ever know whether the Sea Shepard was in Canada’s territorial waters or not in this incident when the Sea Shepard was seized? I know the Law of the Sea refers to a three hundred mile plus “Exclusive Economic Zone” – but that does not refer to an area where nations can enforce national laws. I know that back in the 1990s that Canada had not signed this proposed Law of the Sea but it may have since then.

Here’s the best on-line map I could find of the area in question.
http://www.mar.dfo-mpo.gc.ca/oceans/e/essim/atlas/jpb-e.html

The yellow line between Cape Breton and Newfoundland is the straight baseline in question. If they were inside that line then, according to CAnada, they were in internal waters.

The issue is more than just technical as , at its heart, is the whole question of CAnadian sovereignty over historical waters including the north west passage. This has major implications on CAnada’s ability to control access and regulate shipping (and hence marine pollution , among other things) in these waters. If the Sea Shephard can enter the Gulf, then anyone’s nuclear-powered ballistic-missle carrying submarine can go through the CAnadian arctic archipelago, or into Hudson’s bay for that matter, or a supertanker loaded with crude oil could charge through the ice filled north west passage. Same rules would apply. The issues here are much bigger than just the seal hunt.

… and just to clear up the piracy issue. Piracy, as defined by international law, is violence on the high seas carried out by private individuals for private means. If a STATE carries out an act of violence against a vessel of another state is is essentially an act of War. I can go into consideralby greater detail on these issues, but simply put, Paul WAtson and the Sea SHephard could be guilty of the international crime of piracy if they attacked or rammed another vessel (or arguably the sealers while they were on the ice flows) while on the high seas , but not the CAnadian government. If the acts were committed in the territorial seas or internal waters then it would be an offence under the various Canadian statutes. Again, look at the provisions concerning piracy in UNCLOS.

the small sealing vessel that the farley mowat was harasing at the time may also show the location of where the event happened.

“Fanatic – someone who won’t change their mind -and won’t change the subject”

I’ve worked in law of the sea for a number of years ,so I may be guilty of fanaticism, but I think it might be worth while briefly going over a few of the principles involved. Nothing distroys a good arguement faster than getting some of the fundiamental facts wrong.

UNCLOS, the United NAtions COnvention on Law of the Sea is the major set of rules which determine who can do what, and where in or on the oceans. It’s an international TREATY, and most of the countries around the world have signed and RATIFIED (that means they formally accept it and will follow it). Canada signed in 1982 along with the rest of the world, and raftified in 2003. The USA never signed or ratified , but does accept most of the provisions of UNCLOS as customary international law.

THE ZONES: under UNCLOS a state ( “state” means a country) can declare certain maritime zones off its coast, and enforce its law against its own, or other citizenery. These zones are measured seaward of a BASELINE. The NORMAL BASELINE is the low water mark (ie follows the coast), however, under certain circumstances a state can draw a STRAIGHT BASELINE (ie straight line along off-shore islands, reefs etc).

a) INTERNAL WATERS are any water inside the BASELINE. These waters have the same legal status as the land territory of a state (ie all the State laws apply).

b) TERRITORIAL SEA is measured from the BASELINE out to a maximum of 12 nautical miles (NM. In the TS a state may enforce ALL its laws, but other states have a right of INNOCENT PASSAGE. This means that their ships may go through the territorial sea as long as they are just transiting and behaving themselves.

c)Beyond the Territorial sea a State may have a CONTIGUOUS ZONE out to 24 NM (beyond the BASELINE) where it can enforce customs , immigration , fiscal and sanitary laws. It’s an anti-smuggling zone.

d)Out to 200 NM a state may have an EXCLUSIVE ECONOMIC ZONE (EEZ) where it has the right to manage and regulate fishing and other economic activities. It is NOT an “economic exclusion zone” as there is not right to exclude other countries. However, other countries (and that would mean their ships as well) must repect the coastal (EEZ) state’s resources and pollution laws.

So, it really matters where they were , and what they were doing. SInce the Sea SHephard is a Dutch registered vessel, it only comes under Canadian jurisdiction when:
a) it enters into internal waters, or
b) it ceases to be in INNOCENT PASSAGE while in the TERRITORIAL SEA, or
c) it engages in a fisheries, resource or pollution matter while in the EEZ.

…and them’s the rules (grossly oversimplified)

I would just like to point out that that was the most satisfying discussion of sea laws I have ever been privy to. I am glad to live in world where when you need marine legal geeks, they show up and help you out.

Great discussion of UNCLOS. I have learned a lot and many of the issues related to the Northwest passage are much clearer now. I still wonder why it is that the US refuses to sign the agreement. Is it b/c they believe they have the right to enter any and all territorial waters due to its military might?

On the topic of the seal hunt, as a Newfoundlander I can’t accept the simplistic claim that fishermen can become eco-tourist operators instead of sealers. From the beginning of the anti-seal hunt campaign in the late 1970s and early 80s seal clubbing has been the main focus of criticism with no regard at all for cultural or livelihood issues for the Settler, Metis and Inuit fishing communities involved.

The overall number of animals killed and the scale of the fishing boats involved (inshore small scale vs. large scale industrial) has not been prominent in the debate. The anti-sealing ENGOs have found a very effective fund raising tool and the solutions on offer for rural communities facing massive outmigration are trite. There has been very little ongoing engagement between ENGOs and fishing communities in Newfoundland and Labrador, Nova Scotia, Quebec and PEI. Instead, every year we are faced with these media stunts and overreaction on the part of the Canadian government. The best that can be said about ENGOs and the anti-seal hunt industry is that it effectively put an end to the argument that seals were responsible for the cod collapse and that a massive cull would be the answer.

In terms of violent Canadian state intervention on the water I would rank the Burnt Church dispute in New Brunswick over lobster resources as a much more important intervention spurred on by a supreme court decision in favor of First Nation use rights of marine resources. In that dispute DFO officers rammed and sank several native fishing boats. It was a miracle nobody was killed. See the wiki again for details: http://en.wikipedia.org/wiki/Burnt_Church_Crisis

There is no doubt that the science on seals and other marine resources in the Canadian EEZ are underfunded (sealers and fishermen have been saying this for years). In fact, the department of fisheries and oceans has seen its science budget cut by 40% since 1992. Similar cuts have occurred across other government agencies as the welfare state model gave way to a neoliberal workfare model and the department has been asked to do a lot more with a lot less. Thats as far as I will go defending DFO.

Dean

Hugh² are both correct. I want to add that UNCLOS also gives the nation involved enforcement rights according to that nation’s rules. Thus, the “baseline” or 12 miles rules are not applicable related to the specific criminal charges that were filed against the crew, and the boat, which are “fisheries act” regulations enforceable out to 200 miles. Actually, there are another handful of charges that could be filed but the ones that have been filed are serious enough to handle the issue. In addition, depending on underwater topography, the 200 mile “marker” is subjective at best as the “originating point” for that measurement is usually NOT the nearest shoreline but some specific underwater geographical feature (Hugh does sort of mention this in his baseline definition). This underwaters features issue is a critical aspect of the Northwest Passage claims that are developing as Russia is getting creative (Thanks to Dean for reminding me to mention this). In addition, certain selected areas of international concern that are outside of the “200 mile” zone have been designated by designated UN approved bodies with selected countries, usually the nearest, being designated to assist with international enforcement for those areas (Watson has a stated problem with Australia on this issue). So what what about the Canadian sizure of the Spanish boat? Well the International Court of Justice declined to hear an appeal from the Spanish. For Wayne, the smaller boat is a well know local boat and its charts are available. For anyone who is interested in this aspect, the Fisheries Ministry has a nice picture taken by aircraft of this incident posted on its web site. Note that this boat also has it booms “out”. This is standard working procedure when working nets, trailing line, or if crew is in the water, or on the ice. This is also international accepted notice of “in work / stay clear” and sort of similar to a scuba divers flag. As the wake, with curve, of the pirate vessel is quite clear, it is quite apparent as to the intentions of the pirate vessel. Thus, other legal aspects apply. Last, for Hugh, nice abbreviated pirate definition. I do note that the Japanese folks did “mast” the two guys that climbed on board, for a couple minutes. Thus, the technical requirements concerning judgment were actually observed. I commend the Japanese Capt. for conducting proper procedure and for also realizing that the two folks were either misguided, disturbed, or developmentally challenged folks and that the standard penalty for pirates should not apply.

Who the hell is this Mae and what language does she speak?
This is our waterway and no one has the right to change it!

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