International & Transnational Criminal Law

TCL at the Jessup

 

I have just returned from the Canadian Round of the Philip C. Jessup International Law Moot Court Competition. As many readers will know, this is an annual (and international) moot that revolves around a hypothetical case between two states that appear before a mock version of the International Court of Justice. The issues are all public international law-based and often quite timely in nature. I was coaching the team representing the Schulich School of Law, made up of Rebecca Critchley, Lara Green, Ian Hardie and Paul Neville. They acquitted themselves well and won prizes for both their written and oral advocacy.

This year’s problem touched on a number of interesting legal issues, and not least among them were the issues arising from the following fact situation: a national of state A steals a yacht from a port in state A and pilots it out to that state’s EEZ where he narrowly avoids a collision with a cruise ship flagged by state B. The near-miss causes the cruise ship to collide with an artificial island built by state A and over 100 people are killed—mostly nationals of state B but some state A nationals as well. The yacht flees into the contiguous zone of state B, where it is ordered to stop by a naval vessel; instead, it flees back into the EEZ of state A, pursued by state B’s naval vessel. The yacht rams the naval vessel and sinks; the individual is brought aboard the naval vessel and arrested.

Obviously some great TCL issues here, specifically within the maritime context: was the “hot pursuit” by the naval vessel lawful? Did state B have the jurisdiction to arrest? Which state had the better jurisdictional claim to prosecute? The students had a great time wrestling with these questions, and I heard a number of interesting and creative arguments made.

I was very pleased to see that quite a number of the student teams had cited our book in their written submissions, as authority on the jurisdictional issues. While one might construe this remark as another opportunity to promote the book (which it is), the fact of the matter is that both Joseph and I aspire for the book to be useful—useful to courts, practitioners and of course to the student audience. One does not get into Canadian legal publishing in order to make money selling books; unless you are Paciocco & Steusser on Evidence or Hogg on Constitutional Law there is really very little to be made. This book has simply been a labour of love and the most rewarding aspect is seeing it used as help for solving legal problems, hypothetical or real.

Breaking News: Canada in breach of 1884 criminal law treaty?

 

CBC news reported this morning that an application for judicial review has been filed in the Federal Court in Halifax, and the application has some interesting TCL aspects. The application was filed by Tele Greenland, Greenland's largest telecommunications company, which says it has had to repair breaks in its undersea cables that connect Greenland to Newfoundland (and ultimately Canada). It earlier asked Canada's Department of Fisheries & Oceans (DFO) for information about the breaks, which took place "off the coast of Newfoundland", and which according to the company arose from contact with "fishing gear." DFO responded with some documents, but the longitude and latitude of the breaks and information about vessel monitoring in the area was redacted.

Tele Greenland is alleging (the application can be viewed on the CBC link above) that DFO has breached the Access to Information Act under which the request was made. DFO apparently feels that providing the information would breach the Act. No defence has yet been filed.

Why is this of interest to readers of this blog? Well, any writing about the suppression conventions upon which TCL is based often begins with the assertion that inter-state cooperation criminal matters is actually not new or modern, and one of the touchstones underpinning that statement is the 1884 Convention for the Protection of Submarine Telegraph Cables. Under this treaty, to which Canada is a party, states agree to criminalize the breaking of "submarine cables," "whether wilfully or by culpable negligence." They also agree to enforce this law and to cooperate with the other treaty partner states in certain respects regarding prosecutions.

The Convention is supplemented by certain provisions of the UN Convention on the Law of the Sea (UNCLOS), and it is administered by the International Cable Protection Committee (I am not making this up; the Committee's website is here). Any mild humour on my part is counterbalanced by the fact that these cables are what keeps the internet running, and therefore this is a major piece of legal infrastructure. Here is a paper that lays out the details.

This legal regime is designed to balance the protection of cables with the needs of the fishery. The party states are obligated to exercise criminal jurisdiction over the breaking of cables by anyone within their territorial waters; or where the break happens in their EEZs or on the high seas, over any vessel with the state's flag or where the state's nationals are responsible. While I have not researched it in any detail, I suspect this regime constitutes customary international law obligations.

So what about this case? On an international law level, Tele Greenland has no standing to assert any rights under either of the treaties, so this particular application does not invoke Canada's international law obligations. If the government of Greenland itself asks for information, however, that will be a different matter because Canada is obliged to provide exactly this kind of assistance. Moreover, the failure to provide Tele Greenland with the information it has requested does make one wonder whether there has been an investigation into these breaks and a determination of whether they fall under Canada's criminal jurisdiction. Or any prosecutions. Or, perhaps, a failure to do either, which would breach the treaty.

That said, Canada tends to be a good international legal citizen and deliberate flouting of these laws seems unlikely. The upshot of the whole thing is that, whether or not the treaty is in play here, TCL enthusiasts the world over will be positively gleeful to even have such a matter arise. I will attempt to track this case and any TCL developments. Watch this space.