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)


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 coöperate 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.

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 régime 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 régime 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.

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~


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:


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.


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.

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, Métis 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/​w​i​k​i​/​B​u​r​n​t​_​C​h​u​r​c​h​_​C​r​i​sis

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.


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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