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Article contents
Does the Charter Float? The Application of the Canadian Charter of Rights and Freedoms to Canada’s Policing of High Seas Fisheries
Published online by Cambridge University Press: 09 March 2016
Summary
The majority judgment of the Supreme Court of Canada in R v Hape held that, in general, the Canadian Charter of Rights and Freedoms does not apply to Canadian government agents when they are acting in foreign state territory. This comment considers whether this rule should extend to high seas interdictions, by Canadian agents, of foreign-flagged vessels. In particular, it considers the potential application of the Charter to Canada’s policing of high seas fisheries. It concludes that the legal regimes governing high seas fisheries are sufficiently distinct from those pertaining to state territory, that the rule in Hape should not apply to high seas interdictions, and that the Charter should therefore apply to Canada’s high seas fisheries policing activities.
- Type
- Notes and Comments / Notes et commentaires
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 48 , 2011 , pp. 179 - 213
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2011
References
1 R v Hope, [2007] 2 SCR aga [Hope].
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), ig82, c 11 [Charter].
3 Ibid, ss 7–12.
4 Hape, supra note 1 at para 1.
5 Ibid at para 3.
6 Ibid at paras 5–7.
7 Ibid at para 7.
8 Ibid at para 9.
9 Ibid at paras 9, 10.
10 Ibid at para 11.
11 Ibid at para 183; R v Cook, [1998] 2 SCR 5g7 [Cook].
12 Hape, supra note 1 at paras 160–61, 174, 178, 179.
13 The majority in Cook, supra note 11 at para 48, held: “The Charter applies on foreign territory in circumstances where the impugned act falls within the scope of s. 32(1) of the Charter on the jurisdictional basis of the nationality of the state law enforcement authorities engaged in governmental action, and where the application of Charter standards will not conflict with the concurrent territorial jurisdiction of the foreign state.”
14 Hape, supra note 1 at paras 85, 91 , 92.
15 Ibid at paras 40–46, 57–65, 69. There are two types of jurisdiction under international law: prescriptive and enforcement. Shaw, Malcolm N, International Law, 6th edition (New York: Cambridge University Press, 2008) at 645.CrossRefGoogle Scholar Prescriptive jurisdiction is the capacity to pass laws regulating a subject or object (ibid at 645). It is usually based on territorial links, although it may also be based on other grounds, such as nationality (ibid at 646, 664, 666-68). Enforcementjurisdiction is the capacity to enforce laws, and its scope is typically restricted to state territory (ibid at 646). Some would add adjudicative jurisdiction as a third category. See, for example, Hape, supra note 1 at para 58.
16 Case of the SS “Lotus” (France υ Turkey) (1927), PCIJ (Ser A) No 10 [SS Lotus case].
17 Hape, supra note 1 at paras 65, 85, 105.
18 Ibid at para 90.
19 Charter, supra note 2, s 32 (1)(a).
20 Hape, supra note 1 at para 33.
21 Ibid at para 94.
22 Ibid at para 56.
23 Ibid at paras 41 , 45, 56.
24 Ibid at para 94; Charter, supra note 2, s 32 (1)(a).
25 Hape, supra note 1 at paras 91-92, 105.
26 Ibid at paras 52, 101.
27 Canada (Justice)v Khadr, [2008] 2 SCR 125 at para 18 [Khadr 2008]. See also Canada (Prime Minister) v Khadr, [2010] 1 SCR 44 at paras 16, 18 [Khadr 2010].
28 Hape, supra note 1 at para 106.
29 Attaran, Amir, “Have Charter, Will Travel? Extraterritoriality in Constitutional Law and Canadian Exceptionalism” (2009) 87 Can B Rev 515 at 519.Google Scholar
30 Hape, supra note 1 at paras 91 , 108.
31 Ibid at para 108.
32 See Attaran, supra note 29; Currie, John H, “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law” (2007) 45 Can YB Int’l Law 55 Google Scholar; Rennie, Donald J et al, “The Canadian Charter of Rights and Freedoms and Canadian Officials Abroad” (2009) 47 Sup Ct L Rev 127 Google Scholar; Roach, K., “ R v. Hape Creates Charter-Free Zones for Canadian Officials Abroad” (2007) 53 Crim LQ 1.Google Scholar
33 Currie, supra note 32 at 87, n 138.
34 Attaran, supra note 29 at 525. Attaran points out that Lebel J., writing for the majority, cited the S.S. Lotus case for the principle that “jurisdiction ‘cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention,’” but it failed to consider the subsequent paragraph in the SS Lotus case where the Permanent Court of International Justice held: “It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law” (ibid; SS Lotus case, supra note 16 at 19.
35 See Attaran, supra note 29 at 521; Currie, supra note 32 at 63–69.
36 See Attaran, supra note 29; Currie, supra note 32 at 91.
37 Sullivan, Ruth, Statutory Interpretation, 2nd edition (Toronto: Irwin Law, 2007) at 241.Google Scholar
38 Canada’s Parliament and Constitution are not subordinate to international law. Rights and obligations found in international treaties must be transformed into domestic law by a legislature before they have legal effect in Canada. Currie, John H, Public International Law, 2nd edition(Toronto: Irwin Law, 2008) at 235 Google Scholar; Capital Cities Communications v CRTC, [1978] 2 SCR 141 at 172–73. In addition, pursuant to the principles of constitutional and parliamentary sovereignty, Parliament has the authority to enact legislation that is inconsistent with customary and conventional international law. Hape, supra note 1 at paras 39, 53, 68; Reference re Secession of Quebec, [1998] 2 SCR 217 at para 72. Conversely, it is generally accepted that customary international law may be incorporated into the common law, “so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.” Cheung Chi Cheung v The King, [1939] AC 160 at 168; Currie, supra note 32 at 234. This necessarily implies that Parliament has the authority to pass legislation that is inconsistent with customary international law (for further discussion of Hape and the reception of customary international law, see Currie, supra note 32 at 59–71 ). Thus, Parliament has the authority, under Canadian constitutional law, to decide if international law — whether conventional or customary — is received into Canadas domestic law. If legislatures are not subordinate to international law, neither is the Constitution that governs their authority.
39 Attaran, supra note 29 at 521.
40 See ibid; Currie, supra note 32 at 91 .
41 Hape, supra note 1 at para 32.
42 Fox, Hazel, The Law of State Immunity, 2nd edition (Toronto: Oxford University Press, 2008) at 462–64Google Scholar; Tritt υ United States of America (1989), 68 OR (2d) 284 at 287 (HCJ).
43 Hape, supra note 1 at paras 68–69, 97.
44 Roach, supra note 32 at 3–4.
45 Shaw, supra note 15 at 609; Klein, Natalie, “The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation” (2006) 35 Denv J Int’l L & Pol’y 287 at 291.Google Scholar The high seas consist of “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” United Nations Comention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 86 [UNCLOS]. The freedom of the high seas includes, inter alia, the freedom of navigation, overflight, laying of submarine cables and pipelines, construction of artificial islands and other installations, and the conduct of scientific research (ibid, art 87(1)). It also includes the freedom to fish, which must be exercised “with due regard for the interests of other states in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area” (ibid, art 87(1)–(2)).
46 Klein, supra note 45 at 291; SS Lotus case, supra note 16 at 25: “It is certainly true that — apart from certain special cases which are defined by international law — vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind ofjurisdiction over foreign vessels upon them.”
47 Rayfuse, Rosemary Gail, Non-Flag State Enforcement in High Seas Fisheries (Boston: Martinus Nijhoff Publishers, 2004) at 21 Google Scholar; Brownlie, Ian, Principles of Public International Law, 7th edition (New York: Oxford University Press, 2008) at 318.Google Scholar In contrast, see Wright, Asia N, “High Seas Crimes” (2009) 7 Loy Mar LJ 1 at 26.Google Scholar
48 Klein, supra note 45 at 296; Reuland, Robert CF, “Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag State Jurisdiction” (1989) 22 Vand J Transnat’l L 1161 at 1196.Google Scholar
49 Guilfoyle, Douglas, “Interdicting Vessels to Enforce the Common Interest: Maritime Countermeasures and the Use of Force” (2007) 56 Int’l & Comp LQ 69 at 80–81 Google Scholar; Shaw, supra note 15 at 611. See also Reuland, supra note 48 at 1164; Klein, supra note 45 at 291.
50 Guilfoyle, Douglas, Shipping Interdiction and the Law of the Sea (New York: Cambridge University Press, 2009) at 9.CrossRefGoogle Scholar
51 Ibid. See also Vicunña, Francisco Orrego, The Changing International Law of High Seas Fisheries (New York: Cambridge University Press, 2004) at 252.Google Scholar
52 Guilfoyle, supra note 50 at 9. See also Vicunña, supra note 51 at 252.
53 Guilfoyle, supra note 50; Rayfuse, supra note 47 at 17; Reuland, supra note 48 at 1163; Bardin, Anne, “Coastal States’ Jurisdiction over Foreign Vessels” (2002) 14 Pace Int’l L Rev 27 at 46Google Scholar; Joyner, Daniel H, “The Proliferation Security Initiative: Nonproliferation, Counter Proliferation, and International Law” (2005) 30 Yale J Int’l L 507 at 536.Google Scholar
54 Rayfuse, supra note 47 at 17; Reuland, supra note 48 at 1163; Bardin, supra note 53 at 46.
55 Reuland, supra note 48 at 1169; Brownlie, supra note 47 at 232; Rayfuse, supra note 47 at 62.
56 Reuland, supra note 48 at 1170.
57 UNCLOS, supra note 45, art 110(1). The right of visit of a foreign ship, originally a belligerent right, has an uncertain status under customary international law. Brownlie, supra note 47 at 232; Rayfuse, supra note 47 at 63; Reuland, supra note 48 at 1170.
58 UNCLOS, supra note 45, art 110(2).
59 Ibid, art 110.
60 UNCLOS, supra note 45, art 105, and customary international law provide all states with universal jurisdiction to stop, seize, arrest, and prosecute a ship and its crew involved in piracy on the high seas (see SS Lotus case, supra note 16 at 70 (per Judge Moore in dissent)). Article 109 provides some non-flag states with concurrentjurisdiction over a vessel engaged in unauthorized broadcasting. The flag state (or the state of registry for the installation making the unauthorized broadcast), a state receiving the broadcast, a state whose radio communication is suffering interference from the unauthorized broadcast, and the state of which the unauthorized broadcaster is a national all have jurisdiction to prosecute the unauthorized broadcasting (UNCLOS, supra note 45, art 109(3)). Piracy and unauthorized broadcasting do not result in loss of nationality for the vessel (ibid, art 104). Rather, the flag state loses its exclusive jurisdiction over the vessel in favour of one or more additional states sharing concurrent or parallel jurisdiction over the vessel (ibid, art 109(3)); Guilfoyle, supra note 50 at 9, 297–98.
61 UNCLOS, supra note 45, art 111.
62 Rayfuse, Rosemary, “Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts” (2005) 24 Aust YB Int’l L 181 at 183 Google Scholar; Klein, supra note 45 at 303. UNCLOS, supra note 45, art 110, both anticipates state consent to non-flag state enforcement and is an example of such consent. Guilfoyle, supra note 50 at 276; Joyner, supra note 53 at 537.
63 Klein, supra note 45 at 303; Rayfuse, supra note 62 at 183; Guilfoyle, supra note 50 at 9.
64 Guilfoyle, supra note 50 at 9.
65 Ibid.
66 Ibid.
67 Guilfoyle, supra note 50 at 16. Each state determines the conditions necessary for it to grant its nationality or flag to a ship. UNCLOS, supra note 45, art 91. While UNCLOS dictates that “[t]here must be a genuine link between the State and the ship” for a state to grant its nationality to the vessel, custom provides states with discretion in choosing ships to which to accord their nationality and a tenuous link does not render a vessel stateless (ibid, art 91 (1); Reuland, supra note 48 at 1202, 1204; Shaw, supra note 15 at 611). Nevertheless, a ship may only sail under one flag at any given time and risks being treated as a stateless vessel if it sails under two or more flags (ibid, art 92).
68 UNCLOS, supra note 45, art 92(2).
69 Rayfuse, supra note 47 at 133.
70 M/V “Saiga” (No 2) Case (Saint Vincent and the Grenadines v Guinea), (Merits) ITLOS Case no 2, Judgment of 1 July 1999 at paras 76, 82 [M/V Saiga case]. In the M/V Saiga case, Guinea argued that a state is not required to recognize the exclusive jurisdiction of the flag state over a vessel if the flag state cannot exercise its jurisdiction as required by UNCLOS. UNCLOS, supra note 45, art 94, requires flag states to, inter alia, exercise their jurisdiction over vessels flying their flag. Article 94(6) establishes what a state may do if it believes another state is not properly exercising its jurisdiction as required and the acquisition of enforcement jurisdiction is not included. The International Tribunal on the Law of the Sea held that Article 94(6) is conclusive on the matter and that a state’s failure to exercise jurisdiction does not render a vessel stateless. It should be noted, however, that some states take jurisdiction over crimes committed against their nationals aboard a foreign-flagged vessel on the high seas. Wright, supra note 47 at 27. Such exercises ofjurisdiction fall under the passive personality principle. Shaw, supra note 15 at 664. This does not mean, however, that the state claiming jurisdiction ceases to recognize the nationality of the vessel.
71 Mohan v Attorney-General for Palestine, [1948] AC 351 at 369-70 [Asya case]; Brownlie, supra note 47 at 228; Klein, supra note 45 at 295; Bardin, supra note 53 at 49.
72 Asya case, supra note 71. See also Meyers, Herman, The Nationality of Ships (The Hague: Martinus Nijhoff, 1967) at 318, 320–21.CrossRefGoogle Scholar A stateless vessel is also not entitled to many of the rights, benefits, and freedoms prescribed by the law of the sea. Shaw, supra note 15 at 611.
73 Guilfoyle, supra note 50 at 296. This view is also held by Caron, David D, “Ships, Nationality and Status,” in Bernhardt, Rudolf, ed, Encyclopedia of Public International Law, vol. 4 (New York: North-Holland, 1992) at 404.Google Scholar Meyers also recognizes that non-flag states may exercisejurisdiction over flagged vessels but questions whether two states can maintain concurrent jurisdiction over a vessel. Meyers, supra note 72 at 41–42.
74 Guilfoyle, supra note 50 at 296.
75 Ibid at 297. Guilfoyle, supra note 50, prefers the term “parallel jurisdiction” but does not explain the significance of the difference, if any, between the two terms in the context of interdictions.
76 Agreement for the Implementation of the Promisions of the United Nations Comention on the Law of the Sea of 10 December 1982 Relating to the Conserυation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3 (entered into force 11 December 2001) [Fish Stocks Agreement].
77 Rayfuse, supra note 47 at 34–35.
78 Ibid at 34.
79 Ibid at 24.
80 Ibid.
81 Fisheries and Oceans Canada, “Illegal, Unreported and Unregulated (IUU) Fishing,” online: <http://www.dfo-mpo.gc.ca/international/isu-iuu-eng.htm>.
82 Vicunña, supra note 51 at 240.
83 Guilfoyle, supra note 50 at 25. Guilfoyle notes that this is likely to do with states’ distrust about who may do the enforcing against whom.
84 Vicunña, supra note 51 at 241.
85 Ibid.
86 Coastal Fisheries Protection Act, RSC 1985, c C-33 [CFPA].
87 Guilfoyle, supra note 50 at 103. Seventy-eight states, including Canada, are parties to the Fish Stock Agreement. United Nations, “Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 15 November 2010,” online: <http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm>.
88 Guilfoyle, supra note 50 at 103.
89 Fish Stocks Agreement, supra note 76, art 8(1).
90 Ibid, arts 8(3), 8(4).
91 Ibid, art 19(1); Vicunña, supra note 51 at 237.
92 Fish Stocks Agreement, supra note 76, arts 20(1 )–(6).
93 Ibid, art 21.
94 Ibid, art 21(1).
95 Ibid, art 21 (5).
96 Ibid, art 21(6).
97 Ibid, art 21(16). Investigators must comply with certain procedures and safety standards, either the default procedures under the Fish Stocks Agreement or procedures set out under the RFMO conventions (ibid, arts 21(2), 21(10), 22).
98 Vicunña, supra note 51 at 254.
99 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 24 October 1978, Can TS 1979 no 11 (entry into force 1 January 1979) [NAFO Conention]; International Comention for the Conseration of Atlantic Tunas, Can TS 1969 no 18 (entry into force 21 March 1969) [ICCAT Convention]; Conventionfor the Conseration of Anadromous Stocks in the North Pacific Ocean, 11 February 1992, Can TS 1993 no 13 (entry into force 16 February 1993) [NPAFC Comenton].
100 The NAFO parties are: Canada, Cuba, Denmark (with respect to the Faroe Islands and Greenland), the European Community, France (with respect to Saint Pierre and Miquelon), Iceland, Japan, Korea (Republic of), Norway, Romania, the Russian Federation, Ukraine, and the United States. See online: NAFO <http://www.nafo.int/about/frames/about.html>. The NAFO area covers the Atlantic Ocean’s waters north of 35 degrees north and west of 42 degrees west to Cape Farewell, Greenland, and the Gulf of Saint Lawrence. NAFO Conention, supra note 99, art 1; Rayfuse, supra note 47 at 225. NAFO manages eleven species, totalling nineteen stocks. See online: NAFO <http://www.nafo.int/fisheries/frames/fishery.html>.
101 NAFO Conseration and Enforcement Measures 2011, NAFO/FC, Doc 11/1 (2011), Serial no N5867 [NAFO CEM]. Historically, NAFO parties have been active in non-flag state inspections, particularly in the 1980s and early 1990s. In 1990, there was a total of 807 inspections by non-flag states, while there were only 193 in 2000. Rayfuse, supra note 47 at 246, Table 1. The average between 1987 and 2001 was 389. Although the number of inspections decreased throughout the 1990s, the percentage of “apparent infringements” (AI) per inspection increased overall, ranging from a low of 1 percent in 1990 to a high of 27.5 percent in 2000 (ibid at 246, Table 1). The average AI per inspection was 10 percent between 1990 and 1995 and 14 percent between 1996 and 2001. Boardings of non-NAFO party vessels also varied, as did their presence in the NAFO area. In 1989, forty-seven non-NAFO party vessels were reported in the NAFO area, while none were reported in 2000 (ibid at 252, Table 5). Boardings of vessels flagged by non-NAFO parties reached a high in 1993 when thirty-three nonparty vessels were boarded a total of seventy-six times (ibid.). From the early 1990s through 2001, Canada conducted the majority of non-flag inspections (ibid at 248, Table 4). The most recent data on inspections is for 2008. NAFO, Annual Compliance Reiiew 2009, NAFO/FC, Doc 09/16 (2009). Between 2004 and 2008, non-flag state inspections of NAFO party vessels continued. In 2004, the 134 NAFO-flagged vessels in the NAFO area were boarded and inspected by other NAFO parties a total of 401 times, with twelve vessels cited for one or more AIs. NAFO, Annual Compliance Review 2008, NAFO/FC, Doc 08/20 (2008), Table 5-2004, Part 1. In 2007, the total number of NAFO vessels in the area and the number of non-flag state inspections fell to seventy-six and 294 respectively (ibid, Table 5-2007, Part 1). However, because the number of fishing days and vessels in the NAFO area decreased over the 2004–7 period, the at-sea inspection rate of vessels per fishing day actually increased from 2.4 percent to 4.5 percent over the period (ibid at 7). The number of vessels and inspections continued to fall in 2008 (NAFO, Annual Compliance Review 2009, Table 5-2008, Part 1). No data is available detailing the number of non-flag state inspections conducted by each NAFO party for the 2004-8 period. Similarly, no data is available for at-sea inspections of non-NAFO party vessels in the NAFO area during the 2004-8 period. No information was available with respect to the inspection of stateless vessels during any period.
102 NAFO CEM, supra note 101, arts 29(1), 29(8), 33(4).
103 Ibid, art 33(5).
104 Ibid, art 36.
105 Ibid, arts 37(1)–(2).
106 Ibid, arts 37(3), 37(5).
107 Ibid, art 40.
108 Ibid, arts 37, 40–41.
109 Canada appears to take advantage of this provision in the CFPA, supra note 86. Interestingly, both Guilfoyle’s and Rayfuse’s discussions of NAFO’s enforcement provisions against vessels flagged to non-NAFO parties only mention consensual boarding under Article 53 and not the potential implications of Article 51 (2). Guilfoyle, supra note 50 at 137–38; Rayfuse, supra note 47 at 242–43.
110 Rayfuse, supra note 47 at 158.
111 ICCAT, “Contracting Parties,” online: <http://www.iccat.int/en/contracting.htm>. See also ICCAT Conventtion, supra note 99.
112 ICCAT Commission, Recommendation Amending the Recommendation by ICCAT to Establish a Multiannual Recovery Plan for Bluefin Tuna in the Eastern Atlantic and Mediterranean, ICCAT Doc 08-05 (2008) at paras 97-98, Annex 8; ICCAT, ICCAT Scheme of Joint International Inspection, ICCAT Doc 75-02 (1975). Note that, pursuant to Article VIII of the ICCAT Comentan, Commission recommendations become binding on the parties. ICCAT Convention, supra note 99, art VIII.
113 ICATT Commission, supra note 112, Annex 8, paras 4, 7-8. At the time of writing, no data on non-flag boardings and inspections was available.
114 Ibid, Annex 8, para 11.
115 Ibid, Annex 8, paras 1–3.
116 Rayfuse, supra note 47 at 117. The NPAFC area includes “the waters of the North Pacific Ocean and its adjacent seas, north of 33 degrees North Latitude beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured” and the organization is only concerned with anadromous fish, particularly salmon. NPAFC Cornjention supra note 99, arts I-II and Annex, Part I.
117 NPAFC, “About NPAFC,” online: <http://www.npafc.org/new/about_convention.html>.
118 Guilfoyle, supra note 50 at 118. China’s co-operation includes a 1993 ship-rider and boarding agreement with the United States that allows both states to board and inspect one another’s vessels located in the NPAFC area.(ibid at 119).
119 NPAFC Convention supra note 99, arts IV (1)–(3).
120 Ibid, art IV(4).
121 Ibid, art V(2)(a).
122 Ibid, art V(2)(b).
123 Ibid, arts V(2)(c)–(d). NPAFC parties have been active with respect to boardings and inspections. While data on the total number of boardings and inspections is not available, between 1993 and 2009 forty-one vessels were detected driftnet fishing in the area and sixteen vessels were apprehended. NPAFC, “Enforcement Activities,” online: <http://www.npafc.org/new/enforcement_activities.html>. Apprehended vessels were flagged by Honduras, Indonesia, China, Taiwan, and Russia. NPAFC, “List of Apprehended Illegal Salmon Fishing Vessels in NPAFC Convention Area (1993-2007),” online: <http://www.npafc.org/new/about/Apprehended(web).pdf>. Some apprehended vessels were stateless, either by assimilation or by the flag state refuting a vessel’s registration (see also Rayfuse, supra note 47 at 130–33). In addition, at least two non-parties have consented to the arrest and prosecution of their flagged vessels by a NPAFC party for violations of the NPAFC Convention (ibidat 133–34). It should be noted that it is not always clear whether enforcement actions by NPAFC members are under the NPAFC Conventtion or the UN driftnet moratorium (ibid at 134–35; Guilfoyle, supra note 50 at 117; Large-Scale Pelagic Drift-Net Fishing and Its Impact on the Lilting Marine Resources of the World’s Oceans and Seas, GA Res 46/ 215, UNGAOR (1991)).
124 CFPA, supra note 86.
125 Ibid, s 5.2; Coastal Fisheries Protection Regulations, CRC, c 413, s 21(2)(b), Table III [CFPR].
126 CFPA, supra note 86, s 5.3; CFPR, supra note 125, ss 22, 23(1), 39(1), Schedule IV. The fifty-one listed states were the parties to the Fish Stocks Agreement as of 2004. United Nations, supra note 87.
127 CFPA, supra note 86, s 5.4; CFPR, supra note 125, ss 43–44.
128 CFPA, supra note 86, s 5.5; CFPR, supra note 125, ss 23(2), 39(2), 43(2).
129 CFPA, supra note 86, s 18(1).
130 Ibid, s 18(2).
131 Ibid.
132 Ibid.
133 Ibid, ss 18(1)–(3).
134 Ibid, ss 7(a), 16.1-16.2. With a warrant, however, a protection officer may inspect any fishing vessel found within the NAFO area (ibid, s 7(b)).
135 Ibid, ss 16.1-16.2.
136 Ibid, s 16.1(c).
137 Ibid, ss 8-9, 16.1.
138 Ibid, ss 8-9, 16.1-16.2.
139 M/V Saiga case, supra note 70 at para 82. Conversely, Rayfuse has argued that there is an emerging customary rule that flag states may only authorize their nationals to fish where the flag state can exercise its supervisory responsibilities, and, in turn, flag states implicitly consent to enforcement actions against their vessels bearing their flag by RFMO members “where their vessels are fishing in contravention of the measures adopted by that RFMO and where the flag state is unwilling or unable to act, regardless of the existence or otherwise of an established scheme for non-flag state enforcement within the RFMO or the application of the FSA.” Rayfuse, supra note 62 at 194-95. Rayfuse does not, however, point to any specific instance of state practice where a state interdicted a foreign-flagged vessel in such circumstances and claimed a customary right to do so (although the CFPA could be held out as an example of relevant state practice). Moreover, it is questionable whether there is sufficient opinio juris to the effect that a state may use force against a foreign-flagged vessel because its flag state has not adequately regulated the vessel.
140 NAFO CEM, supra note 101, arts 29–31, 33–34, 36–37, 40; ICCAT Commission, supra note 112, Annex 8, paras 11, 13–16.
141 Cook, supra note 11 at paras 85–87 (per L–Heureux-Dubé J. dissenting).
142 Compare Charter, supra note 2, ss 6, 7.
143 Cook, supra note 11 at para 86 (per L’Heureux-Dubé J. dissenting).
144 Ibid at paras 23, 25. See also ibid at paras 85-87 (per L’Heureux-Dubé J. dissenting).
145 Amnesty International Canada v Canada (Chief of the Defence Staff), 2008 FCA 401 at para 20 [Amnesty International].
146 Slahi v Canada (Justice), 2009 FC 160 at para 47, aff’d 2009 FCA 259 [Slahi].
147 Ibid.
148 See, eg, R v Ramalheira, 2009 NLCA 4, 243 CCC (3d) 72, where the master of a Portuguese fishing vessel was charged with a regulatory offence under the CFPA, supra note 86.
149 Charter, supra note 2, s 32 (1)(a).
150 See Hogg, Peter, Constitutional Law of Canada, 5th edition (looseleaf)(Toronto: Carswell, 2007) at para 37.18.1.Google Scholar
151 Asya case, supra note 71 at 370.
152 Hogg, supra note 150 at para 37.18; CFPA, supra note 86 at s 16.1.
153 Guilfoyle, supra note 49 at 80–81 ; Shaw, supra note 15 at 611. See also Reuland, supra note 48 at 1164; Klein, supra note 45 at 291.
154 Guilfoyle, supra note 50 at 297–98.
155 Ibid.
156 See Rennie, supra note 32 at 129. See also R v Terry, [1996] 2 SCR 207 at para 19.
157 Guilfoyle, supra note 50 at 298–99. Guilfoyle argues that a flag state, in principle, maintains jurisdiction over the conduct of foreign boarding agents throughout a consensual interdiction (albeit concurrent with that of the boarding state) and that, while boarding agents are under a duty not to breach the flag state’s laws, they are obliged to comply with the boarding state’s police procedures. The boarding agents are, however, likely entitled to state immunity for any breach of the flag state’s laws (ibidat 303–4; Fox, supra note 42 at 462–64). The implications of this conclusion are discussed later in this comment.
158 NAFO CEM, supra note 101, s 31(2); ICCAT Commission, supra note 112, Annex 8, para 10. NAFO’s Joint Inspection and Surveillance Scheme provides: “Inspectors shall carry out their duties in accordance with the rules set out in this Scheme, but they shall remain under the operational control of the authorities of their Contracting Parties and shall be responsible to them.”
159 See note 157 in this article.
160 The Royal Canadian Mounted Police Act provides that the RCMP may be employed outside Canada and that the force may address breaches of its code of conduct outside Canada, but no Canadian legislation specifically authorized the RCMP to search Hape’s office in the Turks and Caicos Islands. Royal Canadian Mounted Police Act, RSC 1985, c R-10, ss 4, 39 (1). Instead, the RCMP operated under the jurisdiction of the Turks and Caicos Islands and under the supervision of Detective Lessemun.
161 Guilfoyle, supra note 50 at 9; Caron, supra note 73 at 404. Jurisdiction is limited to actions for which the flag state has provided consent. The boarding state’s concurrent jurisdiction, throughout a consensual interdiction, is over both its boarding agents and the vessel (ibid at 298-99).
162 While Canada would not have enforcement jurisdiction over the vessel under international law, Canadian protection officers would be acting under the authority of the CFPA. It is a long-standing principle that Canada’s Parliament can enact legislation that is inconsistent with international law. Cheung Chi Cheung v The King, [1939] AC 160 at 168; Currie, supra note 38 at 234.
163 Reuland, supra note 48 at 1164; Guilfoyle, supra note 49 at 82; Guilfoyle, supra note 50 at g. There is debate as to whether an unlawful interdiction amounts to a breach of Article 2(4) of the Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 [UN Charter]. Guilfoyle notes that an unlawful interdiction is a use of force but does not comment on whether it is a use of armed force contrary to the UN Charter. Guilfoyle, supra note 49 at 82. In Fisheries Jurisdiction (Spain υ Canada) before the International Court of Justice, Spain argued that Canada’s interdiction of a Spanish fishing vessel on the high seas was a use of force contrary to Article 2(4) of the UN Charter. Fisheries Jurisdiction (Spain v Canada), Jurisdiction of the Court, Judgment, [1998] ICJ Rep 432 at para 78 [Fisheries Jurisdiction case]. While the International Criminal Court (ICC) held that it did not have jurisdiction to decide on the legality of Canada’s interdiction, it did, however, reject Spain’s argument that Canada’s interdiction was a use of force that gave rise to a separate claim under the UN Charter (at para 84). In the court’s view, the interdiction fell within Canada’s reservation pertaining to the enforcement of conservation measures and that “[b]oarding, inspection, arrest and minimum use of force for those purposes are all contained within the concept of enforcement of conservation and management measures according to a ‘natural and reasonable’ interpretation of this concept” (ibid). On the question of minimal use of force for law enforcement purposes, the arbitral tribunal in Guyana v Suriname held that such use of force must be unavoidable, reasonable, and necessary. Suriname v Guyana, Award of the Arbitral Tribunal, Permanent Court of Arbitration, 17 September 2007, at para 445. For a recent discussion of the debate over Article 2 (4) of the UN Charter and the use of force against merchant vessels, see Murdoch, Andrew, “Forcible Interdiction of Ships Transporting Terrorists” (2009) 48 Mil L & L War Rev 287 at 291–98.Google Scholar
164 Hape, supra note 1 at paras 52, 101.
165 Khadr 2008, supra note 27 at 18; Khadr 2010, supra note 27 at 14.
166 NAFO CEM, supra note 101, s 31(2); ICCAT Commission, supra note 112, Annex 8, para 10.
167 Guilfoyle, supra note 50 at 298. The Fish Stocks Agreement does, however, provide that a boarding state is liable for losses attributable to its enforcement actions if those actions are unlawful or unreasonable: Fish Stocks Agreement, supra note 76, arts 21(18), 35.
168 Guilfoyle, supra note 50 at 297–98.
169 See Hape, supra note 1 at paras 62, 69, 89, 91.
170 Guilfoyle, supra note 50 at 297–98.
171 Brownlie, supra note 47 at 318.
172 For example, Croft v Dunphy, a seminal case in which the Privy Council held that Canada’s Parliament could enact laws with extraterritorial reach, was a case in which Canada had exercised enforcement jurisdiction over a foreign vessel outside its territorial sea. Croft v Dunphy, [1933] 1 DLR 225 (PC).
173 See Hape, supra note 1 at para 66. There are a few exceptions where Canadian legislation does provide for the exercise of enforcement jurisdiction over non-Canadians located outside Canada’s territory. For example, an alleged spy for the enemy may be prosecuted outside Canada by a military tribunal established under the National Defence Act. National Defence Act, RSC 1985, c N-5, ss 60(1) (h), 68.
174 Roach, supra note 32 at 4.
175 Ibid.