Proceedings of the Standing Senate Committee on
Fisheries
Issue 20 - Evidence
OTTAWA, Tuesday, May 11, 1999
The Standing Senate Committee on Fisheries, to which was referred Bill C-27, to amend the Coastal Fisheries Protection Act and the Canada Shipping Act to enable Canada to implement the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks and other international fisheries treaties or arrangements, met this day at 5:40 p.m. to give consideration to the bill.
Senator Gerald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we have as our first witness this afternoon Professor Donald Barry from the University of Calgary. He will be followed by Mr. Clyde Sanger and then we will end our session this evening with Ambassador Alan Beesley, who is, I should note for committee members, listening to us right now from Victoria. Indeed, he will be able to listen in to all of our insightful questions.
Before I call on Professor Barry to make his presentation, I should like give members of the committee a short biography.
Dr. Barry is a professor of political science at the University of Calgary; he is the author of an article entitled "The Canada-European Union turbot war: Internal politics and transatlantic bargaining" that appeared in the 1998 spring issue of the International Journal. His insightful and detailed account of what took place during the Canada-EU turbot dispute in 1995 draws on interviews with government officials, officials of the European Union and representatives of the fishing industry.
We felt that Professor Barry would be able to provide to us the background leading up to the turbot war that arose in 1995. I think it would be helpful for us to be able to place what we are doing today in that kind of historic perspective.
Professor, would you please proceed.
Professor Donald J. Barry, Ph.D., Department of Political Science, University of Calgary: Mr. Chairman, I should like to thank you and the members of the committee for inviting me to appear before you today. The exploitation of straddling stocks is one of the most important issues facing coastal states and their distant water counterparts. The United Nations Fish Agreement provides the foundation for its resolution.
I understand that Mr. Beesley and Mr. Sanger will discuss the substance of Bill C-27 and the fisheries agreement. I shall focus my presentation on the historical background to these measures and the principal developments that have brought to us this point.
In January 1977, Canada joined other coastal states in extending the offshore jurisdiction to 200 miles. The government's action followed an alarming decline in fish stocks that had occurred since the 1950s owing to sharply increased foreign fishing and the inability of existing mechanisms to control fishing beyond the territorial sea, which was extended from 3 to 12 miles in 1970.
Ottawa's goal was to Canadianize fishing within the 200-mile limit under a conservationist management regime that promoted the rebuilding of the stocks. In the meantime, Canada continued to allocate surplus stocks, and in some cases non-surplus species, to states whose fleets had traditionally fished inside the zone, provided that Canada received certain benefits in return. The most important of these were conservation cooperation and commercial compensation in the form of access to foreign markets.
The creation of the 200-mile limit, however, did not bring all of the continental shelf under Canada's control. About 10 per cent of the Grand Banks is located outside Canada's waters in areas known as the "Nose" and "Tail." Important commercial stocks, including cod, flounder, redfish and turbot straddle the boundary.
In 1979, the North Atlantic Fisheries Organization, or NAFO, was created to conserve and manage fishing in the Northwest Atlantic outside the 200-mile limit. It took on greater importance when the 1982 UN Convention on the Law of the Sea, which affirmed the right of coastal states to establish 200-mile limits, failed to address the issue of straddling stocks in a meaningful way.
NAFO's membership consists of Canada and states with distant water fleets operating in the area. NAFO is responsible for regulating various stocks beyond Canada's jurisdiction singly or in cooperation with Canada.
Each year, NAFO establishes total allowable catches, or TACs, quotas and conservation measures for stocks under its control, taking into account advice from the organization's scientific council, which is composed of scientists from the contracting parties. Decisions in NAFO are made by consensus or majority vote. Under NAFO's constitution, however, any member that objects to a quota decision within 60 days is not bound by the measure. Enforcement measures are subject to agreement among the contracting parties.
Perhaps the most important member of NAFO, aside from Canada, is the European Union. Fishing by EU states is governed by the union's common fisheries policy. Under the common fisheries policy, the European Commission, which is the union's executive arm, has the exclusive authority to negotiate and conclude fisheries agreements with third parties and to represent the union on international fisheries bodies. Undertakings are normally approved by the Fisheries Council, which is composed of the fisheries ministers from the member states. While policy is made at the EU level, implementation and enforcement are left in the hands of member states.
The EU cooperated with the conservative management approach followed by NAFO in Canada until 1985 when West German trawlers, after taking their assigned quota under the 1981 Canada-EU Long Term Fisheries Agreement, or LTA, began fishing cod on the Nose of the Grand Banks. The LTA gave EU fleets access to surplus cod in Canadian waters in return for market access for Canadian fish products and the promise of conservation cooperation.
The 1985 incident was settled by diplomacy. A more serious issue, however, was the pending entry of Spain and Portugal into the union in 1986, which would increase the EU's fishing capacity by almost 75 per cent. With no additional allocations available in its own overfished waters, and limited prospects elsewhere, the EU began pressing for a more liberal management scheme and substantially higher quotas in the NAFO regulatory area, under pressure from Spain and Portugal, their governments and their fishery industries.
Between 1986 and 1992, the EU used NAFO's objection procedure 53 times to set autonomous quotas that were much higher than those that had been established by NAFO. It assigned the largest shares to Spain and Portugal, whose actual catches were even higher. That occurred in the context of a growing crisis within the East Coast fishery brought about by the sharp decline in Northwest Atlantic fish stocks. Severe restrictions were placed on Canadian fishing activity culminating in the northern cod moratorium in 1992, and the closure or reduction in the quotas for other groundfish stocks in Canadian waters in 1994.
Paralleling the problem of overfishing by EU fleets was a major increase in fishing by non-contracting parties, that is, countries that were not members of NAFO, especially by flag of convenience and stateless vessels, many of which were actually owned and operated by interests in Portugal and Spain. These means offered those interests an additional way to undermine NAFO and to increase their catches.
The Canadian government took a number of measures to try to deal with the overfishing problem. At the NAFO level, it made efforts to have the organization's objection procedure amended and to improve its weak enforcement capability, but without much success. In addition, Ottawa did not renew the EU's annual allocation agreement, which allowed the union's vessels to fish for cod inside the 200-mile zone, and it closed Canadian ports to EU vessels in 1987. It also abandoned the fishing quotas for market access approach because it was not working.
In 1989, Canada launched a major initiative aimed at persuading the EU to take a more cooperative approach. That consisted of diplomatic overtures to the EU and its member states, a public-relations campaign that was aimed at the European public, and a legal initiative designed to fill the gap in the Convention on the Law of the Sea.
Ottawa's measures had little immediate effect, although the legal initiative would eventually culminate in the United Nations Fish Agreement.
The decline of Northwest Atlantic fish stocks and the restrictions imposed by Canada ultimately led to a more cooperative approach by the EU. Between 1992 and 1994, when NAFO began closing or restricting fishing in the regulatory area, the EU accepted all of the organization's conservation decisions. It also joined with Canada in approaching states to deregister vessels flying their flags of convenience, although these efforts were only partially successful.
The Canadian government, however, was concerned about the ability of the EU to control the fishing behaviour of its fleets. Canada and the union reached agreement on a bilateral fisheries accord in 1992, but it floundered when doubts developed in Canada about the lack of EU enforcement of the provisions. Ottawa was also concerned about the continuing problem of unregulated fishing by flag-of-convenience and stateless vessels.
Building on the momentum created by its predecessor, the present government came to office promising to take decisive steps to deal with the foreign overfishing problem. In April 1994, it ordered the arrest of the Kristina Logos, a Canadian-owned trawler crewed by Portuguese nationals, for fishing illegally on the Tail of the Grand Banks. The following month, Parliament passed Bill C-29, an act to amend the Coastal Fisheries Protection Act, which gave the Government of Canada authority to make regulations for the conservation of straddling stocks on the Nose and Tail of the Grand Banks, including the use of force against certain classes of vessels. The government exempted the measure from the jurisdiction of the International Court of Justice. The initial regulations proclaimed under the legislation targeted flag-of-convenience and stateless vessels.
The departure of flag-of-convenience and stateless vessels from the Nose and Tail as a result of the Canadian government's actions allowed Ottawa to focus its attention on the fishing activities of the EU fleets. Matters came to a head in the fall of 1994 when NAFO, for the first time, established a catch limit for turbot, the largest remaining straddling stock.
Turbot had been fished commercially off the Newfoundland coast since the 1960s. Almost all of the catches were in Canadian waters, with Canada taking 67 per cent of the average annual catch. At the beginning of the 1990s, however, the stock migrated from its traditional habitat to deeper waters at the edge of the Grand Banks, where it became the focus of an intensive foreign fishing effort. The reported overall catch rose from 27,000 tonnes in 1990 to 62,000 tonnes in 1994. EU fleets accounted for 75 per cent of that total, with the bulk of that, that is 80 per cent, being taken by Spain. Canada's share dropped to 10 per cent.
In response to scientist's concerns about the state of the turbot stock, the Canadian government pressed NAFO to establish a total allowable catch at its September 1994 annual meeting. The meeting agreed to a TAC of 27,000 tonnes but deferred a decision on quotas to a special meeting to be held in Brussels at the end of January 1995.
Meanwhile, Ottawa, concerned about the growing number of citations against Spanish and Portuguese trawlers in the Northwest Atlantic involving illegal fishing gear, misreporting of catches, landing of undersized fish, and the taking of fish under moratoria, expressed concerns to the EU and to Spanish and Portuguese authorities. However, beyond agreement to hold further discussions, no action was taken.
Canada went to the NAFO meeting determined to maximize its position. Mr. Tobin, the Minister of Fisheries, repeated his concerns about EU fleets' fishing practices when he met Commissioner Bonino on the eve of the session. She indicated willingness to deal with Canada's complaints but rejected any connection between the violations and the turbot quotas. Both sides went into the meeting claiming that they should receive the bulk of the TAC. After very difficult bargaining, the contracting parties decided to assign 16,000 tonnes, or 60 per cent of the TAC, to Canada and 3,400 tonnes or 12.6 per cent, to the EU.
Angered by the decision, and under intense pressure from Spain, the EU invoked NAFO's objection procedure and established a unilateral quota of 18,630 tonnes, or 69 per cent of the TAC. Canada responded by broadening the Coastal Fisheries Protection Act regulations to make it an offence for Spanish and Portuguese vessels to fish for turbot on the Nose and Tail and declared a 60-day moratorium on fishing turbot inside and outside the 200-mile limit. When the EU vessels refused to withdraw, Canada forcibly arrested the Estai, a Spanish trawler that was fishing in the disputed area. Inspection of the Estai revealed numerous fishing violations, which the Fisheries Minister skilfully used to buttress the government's case that it had acted in the name of conservation and to counter the EU's claims that Canada had acted illegally.
The revelations enabled Canada to win a major public relations victory over the EU. That in turn made it easier for Ottawa to take enforcement action against the EU on two subsequent occasions in order to pressure the union and Spain to support the agreement negotiated between the two sides.
The accord that was finally reached increased the EU's turbot allocation and established a comprehensive control and enforcement regime to govern fishing outside the 200-mile limit. The agreement gave each party 10,000 tonnes of the 27,000 tonne turbot TAC for 1995, with 7,000 of Canada's 10,000 tonnes reserved for Canada in Canadian waters. It also established a distribution arrangement for 1996 and beyond that separated the stock in international waters from that inside Canada's 200-mile zone. Under the formula, the EU would be given 50 per cent of the TAC in international waters, an amount that was subsequently increased to 55.35 per cent, with 15 per cent going to Canada and 35 per cent to the other contracting parties. Canada would receive exclusive access to the portion of the TAC in its own waters. The agreement also established an overall control and enforcement regime that included full observer coverage and 35 per cent satellite surveillance for a two-year trial period. The program was extended for an additional year in 1997 and was made permanent in 1998, with 100 per cent satellite coverage to come into effect in the year 2001.
The agreement has led to a substantial improvement in Canada-EU fishing relations. Canada contributed to this by reopening its ports to EU vessels in 1996.
The turbot war spawned a lively debate about the legal implications of Canada's actions and the likely effects on negotiations for the United Nations Fish Agreement, which were then entering their final stages. Many observers now agree that, by dramatizing the weaknesses of existing legal arrangements regulating the exploitation of straddling stocks, the turbot dispute contributed to the successful conclusion of that agreement. Moreover, because the agreement was ultimately adopted by NAFO, the organization's role in fisheries management and enforcement was strengthened, something that is consistent with the UN fish accord.
That concludes my remarks, Mr. Chairman.
Senator Perrault: Professor, your presentation was interesting and will prove valuable to the committee. There are fishing crises all over the world, are there not?
Mr. Barry: Yes.
Senator Perrault: We are rapidly exhausting the riches of the oceans. In a sense, conservation is an inexact science, is not it, professor? It is difficult to measure precisely how many fish are in any one place at a given time. I am from British Columbia. You probably are aware of that western outpost and the problems we have been having with the fisheries.
I will leave it at that for the moment, Mr. Chairman.
Senator Robichaud: Professor Barry, I want to thank you for going over the history of this whole process, because it should be on the record. It has been told a few times but in different ways and without covering the whole process leading up to UNFA.
You said that the minister of the day was very skilful in public relations when he went onto a barge in New York and showed the whole world what was really being done, especially with the nets taken from the Estai. Is it your opinion that that action helped significantly in getting nations to sign the UNFA?
Mr. Barry: It was really the crisis itself and its resolution that helped move the UN Fish Agreement forward, but the "net" incident was an important element in the turbot conflict, I would say.
Senator Robichaud: Yes, the practices became evident and apparent. Before that there were only allegations. No one could prove anything. However, when I was in Rome at the FAO, I had eye contact with representatives of the other European nations and, while not openly supporting Canada, it was apparent that they were happy that this had happened, because at that time some Europeans were also having problems with the Spanish fleet, were they not?
Mr. Barry: Yes, the British especially had problems.
Senator Robichaud: We had quite a campaign of support for the Canadian flags when Ambassador Frith was visiting the ports out there.
Mr. Barry: Yes. The revelations of the Estai's fishing violations were extremely important, but the use of force also played a role. When the EU and Canada moved to the last stages of bargaining, Canada twice took enforcement actions, first in cutting the warps of a Spanish trawler and then by sending out the navy with orders to protect any Canadian boarding party that was attacked by a Spanish vessel. We had decided to arrest more Spanish vessels to force Spain to acept the agreement reached with the EU to end the dispute. Those were also important actions.
Senator Robichaud: Until that time, those nations were really questioning if we were serious in what we were saying we would do. That action brought it home to them that we had given ourselves the power to go out there and act.
Mr. Barry: Yes.
Senator Robichaud: Would you just briefly explain how we gave ourselves, in Bill C-29, the power to act outside the 200-mile limit without being subject to the international tribunal?
Mr. Barry: We exempted the measure from the jurisdiction of the court.
Senator Robichaud: The Europeans were questioning that?
Mr. Barry: Yes, they were not pleased. The Spanish took it to the international court, but the court ultimately decided it did not have jurisdiction to try the case.
Senator Robichaud: The only comment I would make now is that we should have done it sooner. Thank you, professor.
The Chairman: Senator Robichaud, you alluded to the action of Brian Tobin, the then minister, in holding a very small fish in his hands and showing the world how it had became stuck in the net used by the Spaniards. His comment, which I can only paraphrase, was quite hyperbolic. He said that the ugly little fish, unloved, clinging, so to speak, by its fingernails to the bottom of the Grand Banks, was being fished to extinction; this might very well be the last fish, and could we not do something about saving this fish?
Visually, it worked quite well. I wish I had that gift of image making.
We will go on to our next questioner now. Senator Stewart.
Senator Stewart: I have three questions. I should say right away that I have two axes to grind. I am very interested in the bill now before this committee, but I am also interested in our relations with the European Union.
If I recall correctly, the manifestation of sympathy by European Union countries for the Canadian position during the turbot war crisis was not very great. Reference has been made to our former colleague, Senator Royce Frith, and his excursion down into Cornwall, but the reaction evoked in Great Britain seems to have been evoked to a great extent by Frith and not by the British government. I have heard it said that we did not get our best support from the United Kingdom, but from Germany.
Have you made a study, Professor Barry, of the European Union's participation in the turbot crisis? Are you in a position to tell us whether the European Union felt that they had to stick by their Spanish colleagues, or did they, for the most part, look at what we had accused the Spanish of doing as highly reprehensible? Perhaps you could distinguish between what they said publicly and what they said privately.
Mr. Barry: There is no doubt that the British position complicated the EU deliberations during some stages. However, it is important to note that when the last stages of bargaining between Canada and the EU over the agreement took place, in the last week to ten days there was no breaking of ranks at all among the EU countries.
The Spanish put great pressure on the president of the EU council -- France at the time -- in the name of EU solidarity. That is a very important point for EU countries.
There was solidarity among the members. That was when the use of pressure by Canada became an important instrument in bringing the agreement about. I refer to the order to Canadian boarding parties to arrest Spanish fishing vessels on the Friday before the agreement was signed and the decision to send our naval vessels out to fire on the Spanish vessels if they took action against the boarding parties.
Senator Stewart: It would appear that the governments of some of the European countries were more concerned with preserving harmony within the European community than with protecting the interests of their own fishers.
Mr. Barry: They arrived at a position, and once the position was arrived at they pretty much stuck to it. Solidarity is a very important principle for community members and the Spanish would not let them forget it.
Senator Stewart: On the day that the referendum took place with regard to a Scottish Parliament, I happened to be in a small town on the west coast of Scotland. I went for a walk. I walked down to the beach where I met a fisherman who was repairing his boat. We had a good talk and then I felt bold enough to ask whether he had voted. He said that he had not, and I asked whether he was going to. When he said that he was, I asked whether I could ask him how he would vote. He said that he would vote for a Scottish parliament. I asked why and he said that the people in London had allowed the Minch to be swept clean by foreigners; that they cared about nothing down there except having smooth diplomatic relations with other European countries.
That bears out what you say about the great importance the European community governments, at that time, tended to put on harmony at the governmental level between and among the countries of the union.
To what degree do you think that the bill now before the committee will solve the kind of problem with which we were confronted during the turbot war?
Mr. Barry: In looking back not only at the turbot war itself but the history of Canada-EU fishing relations since 1985, the two most important problems have been dispute settlement and enforcement. Both of those are provided for in the United Nations Fish Agreement.
I am not an expert on that agreement, but it seems to me that in it does lay the foundation for a solution. It does envisage a role for NAFO, and it is important that those provisions ultimately be incorporated into the operations of NAFO.
Senator Stewart: My final question may go beyond Professor Barry's area of confessed authority. I put it that way because he may know a lot more than he is willing to claim.
As a result of the confrontation between the European Union and Canada, Canada was punished in trade matters. The European Union went ahead and made a bilateral arrangement with the United States. We tried to get into it. If I recall correctly, the Prime Minister went to Rome to sign a tripartite agreement and came home with all his ink. He did not have an opportunity to participate.
One of the questions we are currently asking in the Foreign Affairs Committee relates to whether the action plan that Canada has with the European Union restores the parallel relationship that formerly prevailed between North America, on the one hand, and the European Union on the other, or whether we are still being penalized by the European Union as the attorney or proxy for Spain.
Mr. Barry: I do not think so, but there is not much doubt that Spain was responsible for the delay in our being able to conclude the action plan with the European Union. The action plan of the United States was concluded in 1995 and ours was not concluded until the end of the following year. Both the United States and Canada have gone further since then.
In May of last year the United States concluded a transatlantic economic partnership agreement with the Europeans, and in December of last year the Canadian counterpart of that was reached. It is known as the EU-Canada Trade Initiative. The 1998 Agreement is the culmination of a series of arrangements that have been made between the United States and the EU and between Canada and the EU since 1990, the first of these being the transatlantic declarations, which were parallel. Then in 1995 and 1996 we had the action plans, and they were parallel. They were basically designed to create an agenda for cooperation between the United States and the EU and between Canada and the EU.
The most recent arrangements are designed to give more focus to those action plans.Canada's arrangement is not what we wanted, but it seems to be the best we can get in the circumstances. However, I do not think the reason for that is any lingering reaction from the turbot war. I think there are other reasons why Canada is having difficulty in getting the kind of arrangement it wants with the EU. We, of course, originally wanted a free trade agreement, either between ourselves and the EU or between North America and the EU, but that has not come to fruition and probably will not.
Senator Stewart: I probably should not ask this question, but is the U.S.-EU action plan better than the Canada-EU plan?
Mr. Barry: Are you thinking about the 1998 agreement between the United States and the European Union?
Senator Stewart: Whatever is the present agreement.
Mr. Barry: The 1998 agreements are similar. The European Union and the United States had been contemplating a much bigger deal than a simple transatlantic economic partnership. The European Union had proposed a major trade agreement between the United States and the EU in December of 1997. Discussions moved forward for that, but in March of 1998 the plan was scuttled by the French, who see bilateralism as derogation from the principle of multilateralism.
However, the transatlantic economic partnership that they ended up with is similar to the one that Canada and the EU concluded in December of this past year. It sets an agenda for bilateral cooperation and it establishes a basis for cooperation to get the next round of multilateral trade negotiations going.
Senator Stewart: Therefore, it would appear that our relations with the European Union in general economic matters will no longer be distorted by reason of the reaction we took regarding straddling stocks?
Mr. Barry: That is my guess.
Senator Perrault: Professor Barry, I suppose any agreement is only as good as the degree of compliance by the signatories.
You made reference a few moments ago to the united front, the seamless position taken by the British. I remember, however, that when I was in Brussels around that time a very outspoken Scottish representative on the European Parliament pointed her finger at the Spanish and accused them of being pious hypocrites, saying that although they talked in terms of conservation she doubted whether they even knew how to spell the word. She also claimed that their government was subsidizing the installation of false holds in their ships. She obviously was not on side with the London-based crowd in that delegation.
Have attitudes changed substantially over the years? You suggest that there has been an improvement, or that there will be an improvement if there is compliance. Are there, do you know, deliberate violations of agreements being committed today?
Mr. Barry: Do you have in mind the observer scheme and satellite surveillance that are now part of the agreement?
Senator Perrault: That is right. I am just wondering about the general plan.
Mr. Barry: I understand that major violations have decreased by 80 per cent since it was put in place.
Senator Perrault: That is good news.
Mr. Barry: Yes.
Senator Perrault: Then, of course, I hope that relations will improve in another direction as well. When we had our Canadian delegation meet the committee of the European Parliament they only voted 11 to 10 to allow us to speak. That was a source of concern at that time. However, in your estimation this is a much better situation?
Mr. Barry: I would say so, yes.
Senator Butts: Professor Barry, I want to revert to the matter of straddling stocks. Are there other places in the world where this is a problem? If so, who is involved and how do they handle the problem? I am thinking of all the signatories to this convention that we have already.
Mr. Barry: A number of countries have coastal shelves that extend beyond their 200-mile limit, and there are other regional organizations. They, I assume, would fall within the framework of the United Nations Fish Agreement.
Senator Butts: Does this convention specifically list straddling stocks or the names of the fish that might be involved?
Mr. Barry: I would assume not.
Senator Butts: I am trying to find a reason why Canada seems to be slow in signing this convention. Do you know of any other reasons why there might be hesitation?
Mr. Barry: No, I do not.
The Chairman: You gave the history of a long period of time during the early 1980s when there were problems between the EU and Canada. During most of that period there was the United Nations Convention, which had been signed by Canada.
Mr. Barry: Yes.
The Chairman: That convention might have helped had it been in force, but I understand that most of the ratifications did not come until 1994.
Mr. Barry: Yes.
The Chairman: Indeed, Canada has still not ratified the United Nations Convention even to this day. May I have your opinion on why Canada would not to this very day have signed that convention? Do you have any ideas on that?
Mr. Barry: Not really, no.
The Chairman: Reference has been made on occasion to gaps in the convention, that something might be missing from the convention.
Mr. Barry: Yes.
The Chairman: My assessment of it is that, even if it has gaps, it still could be signed and we could then work with what we have.
Mr. Barry: Yes.
The Chairman: It somewhat worries me that the convention has just been sitting there all these years; I am concerned that Canada, which has a reputation, and justifiably so, of being a leader in international dispute resolution, would just leave the convention sitting there -- a little bit like that poor old turbot clinging to the Grand Banks. I feel very uncomfortable that Canada has not ratified the convention, and I am not sure why it has not.
Mr. Barry: Perhaps another witness can give you a more authoritative answer than I can.
Senator Robichaud: If I can get back to what you said about UNCLOS, it did not address straddling stocks in a major way, did it?
Mr. Barry: As I understand it, it simply enjoined coastal states and distant water states to cooperate within regional organizations. I believe that was as far as it went.
Senator Cook: Professor Barry, most of my questions and concerns have already been addressed, either in the documents here or through the questions and answers.
I was one of the people who stood on the dock that day and watched the Estai come in. It was not a good feeling to see that happen, because, for generations, men like the men of the Estai had played soccer on our wharves and had walked our streets. I still wonder: Did we gain? Has the healing taken place? Was it worth it?
Mr. Barry: You mean in terms of Canada-EU relations?
Senator Cook: Yes.
Mr. Barry: My sense is that the relationship has improved substantially. We had some difficulty with the conclusion of the action plans, ours not being concluded until December of 1996, but I believe that both the EU side and the Canadian side are well satisfied with the turbot agreement. It gave certain advantages to the European Union, in that it confirmed their right to fish for turbot in the offshore zone. Its vessels receive a higher quota than they had originally been given at the NAFO meeting. Canada got what it very much wanted, and had wanted for some time, which was an effective surveillance and control regime to govern fishing outside the 200-mile limit.
I believe the European Commission was probably happy with the agreement too, because it gave them additional assurance that the member states would comply with their commitments, something that it would be very difficult for the commission to do on its own, since, in accordance with the EU subsidiarity principle, decisions about implementation and enforcement of fishing rules and regulations are left to the member states themselves.
Senator Cook: Bearing in mind that the turbot was so small that it lay in the palm of Mr. Tobin's hand -- indeed, we had difficulty believing it was a turbot -- have the stocks recovered?
Mr. Barry: Has the turbot stock recovered?
Senator Cook: Yes.
Mr. Barry: All I can tell you is what little I know about the size of the TAC in recent years. It was set at 20,000 tonnes from 1996 to 1998. It is now up to 24,444 tonnes.
Senator Cook: They have increased in size, no doubt.
Mr. Barry: I am sorry, senator, but I cannot tell you anything about increases in size.
The Chairman: Honourable senators, our next witness is Mr. Clyde Sanger. Mr. Sanger has worked as a journalist, as the editor of the Central African Examiner, as an editorial adviser to Drum magazine in Lagos and as the African correspondent of The Guardian and later its correspondent at the UN and in Latin America. Mr. Sanger has worked as an editorial writer and parliamentary reporter for The Globe and Mail and as the Canadian correspondent for The Economist. He has served as a special assistant to the president of the Canadian International Development Agency, CIDA, and as the associate director of communications at the International Development Research Centre, IDRC. He was also director of information for the Commonwealth Secretariat. Mr. Sanger has authored several books including Ordering and Oceans: The Making of the Law of the Sea, 1986, which I would recommend to each and every one of you. I have heard it makes for very interesting reading.
Sir, I welcome you to the committee and invite you to begin with any opening comments.
Mr. Clyde Sanger, Author: Thank you, Mr. Chairman. I am delighted to appear before your committee now as we near the end of a long journey that began in 1967 with the speech of the Maltese ambassador, Arvid Pardo, on the common heritage of mankind and with the establishment of the UN Seabed Committee that led to the Third UN Conference on the Law of the Sea.
The passing of the bill now under your scrutiny, Bill C-27, is a step allowing us to ratify the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks <#0107> an agreement that Mr. Wiseman, living up to his name, suggested we simply call the UN Fish Agreement or UNFA. Ratifying UNFA is also only a step -- a mini treaty, Alan Beesley calls it -- on the way to Canada's finally ratifying the 1982 UN Convention on the Law of the Sea. That is the real objective ahead.
I quote former Senator Allan MacEachen on the crucial importance of the Law of the Sea Convention.
The Law of the Sea Convention, and the Convention alone, provides a firm basis for the peaceful conduct of ocean affairs for the years to come. It must stand as one of the United Nations' greatest accomplishments, and worthy of support of every nation.
I am happy to have such good companions tonight. I would refer to all the senators but actually I am referring to Professor Donald Barry and former ambassador Alan Beesley. Essentially, as you read out, I am a journalist and writer of books. I am also an adjunct professor at Carleton University and I was an employee of the Department of External Affairs, for a brief time.
If I may tell a brief anecdote, my most memorable effort at External Affairs was in 1980 as an escort officer for two senators and 12 MPs on a tour of institutions in Europe. I managed to lose John Crosbie in Strasbourg when he slipped away in a futile attempt to bring down the Trudeau government.
Swimming between Carleton University and Foreign Affairs, I am something of a straddling stock myself.
My interest in the law of the sea goes back to 1967 when I was a correspondent for the United Nations for The Manchester Guardian. As a journalist in Ottawa for The Globe and Mail, I spoke with Alan Beesley about my writing a book. Fortunately, I did not get funds at that time. It was too early.
I started writing the book that the chairman referred to in 1983. I managed to interview in Jamaica, Washington and elsewhere most of the happy band of lawyers who had formed a remarkable group over the years, often pressing opposing interests but all of them dedicated to the advancement of international law. They came from many different countries -- Singapore and Sri Lanka are where the chairmen came from -- Indonesia, Fiji, New Zealand, Kenya, Tanzania, Ireland, Austria, Norway, the United States and many more, but most especially from Canada. Canada's team -- Len Legault, Paul Lapointe and others, headed by Alan Beesley at the start and finish -- was really outstanding and led many of the initiatives.
Mr. Beesley listed in a speech last June the most important of those moves that, as he said, gave the Canadian delegation the reputation as one of the most radical but creative forces in the conference. The December 1982 Montego Bay signing was one of the proudest moments for Canada in world diplomacy.
The 1996 Land mines Treaty is another proud moment, as is the 1998 statute setting up the International Criminal Court. However, the UN Convention on the Law of the Sea has a vastly broader scope and required a much longer sustained effort. Incidentally, Philippe Kirsch, the chair of the Committee of the Whole at the Rome Conference on the International Criminal Court was a young Department of External Affairs lawyer of 26 when he took part in the Caracas meeting of the Law of the Sea Conference. There is continuity there.
I hope that in my book I paid adequate credit to the principled imagination and negotiating skills of the Canadian team, which came from many different departments as well as External Affairs, and particularly to those lawyers. Canada gained hugely from the convention in its 200-mile economic zone, one of the biggest, in fisheries management, in pollution prevention, including the Arctic Article 234 on ice-covered waters, and so on.
I shared the frustration of those lawyers when the years rolled by and Canada failed to ratify the convention. In an exchange last week between Senator Robichaud and Mr. Wiseman, the impression was made somehow that ambiguities in the articles relating to straddling stocks in the convention held up the process of ratification. That is true in a narrow sense as far as Canada in later years was concerned, but the main hold-up was over Part XI, the section on seabed mining. That section upset, in fact it infuriated, President Reagan, even though its implementation in terms of hauling up manganese nodules from the seabed profitably was always a rolling 20 years over the horizon. Canada was ensnared into being a party to that delay when six deep-sea mining consortia were set up and Noranda was recruited as a junior partner in one consortium led by Kennecott and Inco was one of four partners in another consortium. American lawyers represented those consortia and piled on pressure to amend the provisions about the Seabed Authority and the joint enterprise of which ironically, Henry Kissinger had been the original author.
Canadian lawyers were pushed to the sidelines at that time and it took until July 1994 for Part XI to be amended to the satisfaction of those industrial states that had held out alongside the United States. By that time, of course, the seabed mining issue had overlapped with the issue of straddling stocks. Canada again, John Crosbie to the fore, got it to the attention of the UN and in six sessions between April 1993 and August 1995, under the experienced hands of the Fijian lawyer Satya Nandan, the UN Fish Agreement was worked out. It took about a year longer than was expected and was open for signature only in December 1995.
Canada is among the 59 countries that have signed the agreement. To date, 21 countries have ratified the agreement. It has been a slow progress. When the Fisheries Committee in the House of Commons met last June, 18 states had ratified and only three more have done so since. But if the European Union adds 15 more -- not 16 because Italy has already ratified -- by the end of this year it will pass the necessary 30 threshold and come into force six months later.
There is an apparent impression that the UN Convention on the Law of the Sea is weak on the subject of straddling stocks, resorting to ambiguities and vague exhortations to cooperate. In fact, the word "ambiguous" has been used in press releases from the Department of Foreign Affairs in regard to this issue. It seems to be based in the language of Article 117, but Mr. Alan Beesley has pointed to three other articles, Articles 116, 118 and 300, that, in his view, impose legal obligations to cooperate. I am sure he will comment on that. In reference to the differences that opened up in the Northwest Atlantic Fisheries Organization in 1994 and 1995 over total allowable catches and quotas, Mr. Beesley has said, somewhat sardonically I believe, that "it is not stretching the rules of interpretation unduly to say that the duty to cooperate might even extend to the decision making of the regional organizations in question. Quite frankly, I have no doubt that a duty to cooperate that evaporates once the decision-making process begins is no duty at all but a mere façade." Honourable senators heard how there were 59 objections that NAFO made on behalf of the European Union.
At the same time, in a speech from November of 1995, Mr. Beesley listed 10 positive features of the 1995 fisheries agreement, including its emphasis on the precautionary approach, its low threshold of 30 ratifications for entry into force -- the Law of the Sea had to have 60 ratifications -- and its enforcement provisions. That is a crucial addition to the Convention on the Law of the Sea.
Reading the transcript of your meeting of May 6, I thought the witnesses and senators were tiptoeing around the subject of Bill C-29, which was passed in the middle of the straddling-stocks session chaired by Satya Nandan. If those sessions had been completed in the expected time frame and the UN Fish Agreement had been there for all to see, although not signed and ratified, would we have been spared all the turmoil of the turbot war and the problems that Bill C-29 raised for us with Spain and the European Union? That is just a thought.
I argued at the time that Bill C-29 was necessary to combat overfishing outside the 200-mile zone and was a legitimate way to extend international law by unilateral measure. After the seizure of the Spanish trawler Estai, I had a lively debate in front of the Group of 78, an association of 200 internationalists in Canada. I was debating with Fergus Watt, representing the World Federalists, who argued that Canada was, by this action, putting the whole of the Law of the Sea treaty in jeopardy and was acting through motives of greed rather than for the sake of conservation. Several former ambassadors present supported him. They said we should not have challenged the Spanish boats. However, I was delighted that no less an authority than the late Maxwell Cohen, who had served as a judge on the International Court of Justice, spoke three times during that debate to argue that international law relied for its evolution upon principled unilateral action and that this was a good case in point. That was exactly the point I was trying to make. That was also the line that Canada had taken in 1970 with the Arctic Waters Pollution Prevention Act, which is another of Mr. Beesley's achievements.
Bill C-29, however, did cause us problems. The government worried that if we ratified the Law of the Sea treaty, it would lay us open to be taken to the Hague over the Estai affair. Never mind that Bill C-29 only applied to flags of convenience and stateless vessels by revoking an Order in Council or the draft agreement months after the seizure.
Officials in Ottawa quietly explained last June, when the House of Commons Fisheries Committee met, that Brian Tobin was really the obstacle to movement on the treaty, but Bill C-27 and UNFA would clear the way. Indeed, opposition members on the Commons committee tried to have Mr. Tobin subpoenaed to appear before them. When Liberal members outvoted them, they walked out in protest. Therefore, Patrick McGuinness of the Fisheries Council and myself had a rather short appearance in front of that committee.
That brings me to a particular point on Bill C-27 raised then by Patrick McGuinness and last week by Senator Robichaud: the amendment to section 7 of the Coastal Fisheries Protection Act that is proposed new section 7.01(1). It refers to a protection officer who believes on reasonable grounds that a foreign fishing vessel has been illegally fishing in Canadian fisheries waters. The important bit is about consent. It says:
...the officer may, with the consent of that state, take any enforcement action that is consistent with this Act.
Mr. McGuinness argued last June that Canada did not need the consent in Canadian waters, where we are sovereign, nor on the high seas, where the requirement is really notification and a three-day waiting period. I do not know if that clause has been redrafted since last June, but I did find last week's discussion a little confusing on that point. Mr. Wiseman said in the end that Mr. McGuinness had accepted an explanation, but I am still confused.
My final point is to emphasize once again what Mr. Beesley has so eloquently said several times: Canada cannot take a pick-and-choose attitude to the Law of the Sea treaty. Mr. Beesley has called that attitude "deplorable." That is what we have been doing on occasion over the last few years.
I shall quote from Mr. Beesley's speech to the UN association in Vancouver last June. He said:
Throughout the...negotiations Canada, more than any other country, argued against any form of the "pick and choose" approach, whereby those articles in the Convention deemed acceptable by a state could be treated as "instant law", while those not favoured could be characterized as merely provisions in a treaty not accepted by that state. Apart from the cynicism and hypocrisy inherent in such an approach, it undermines and rejects the concept of the Rule of Law. Moreover, in the case of Canada, non-ratification carries certain very clear costs and disadvantages.
Mr. Beesley describes two of those disadvantages. They are first, the inability to use a dispute settlement mechanism in the West Coast salmon dispute and, second, the inability to challenge a loophole in the NAFO agreement.
Mr. Beesley ends sadly:
Indeed, Canada is challenging the jurisdiction of the International Court to even hear the turbot dispute between Spain and Canada. What a tangled web! Here too is a clear example of opting out of the Rule of Law, through a policy based on the "pick and choose" approach.
At last we have a chance to clear the deck and to clear Canada's name. We did get the International Court to back off hearing the Spanish case thanks again to the work of Philippe Kirsch, but it was not what one might call a famous or a proud victory.
We are on the point of passing Bill C-27 and being able to ratify UNFA, which will presumably allow us to consign Bill C-29 to some dusty corner of the legislative archives. However, we should not rest until we have all our domestic legislation harmonized with the Law of the Sea treaty. Heaven knows we have had long enough to do that. We should proceed to ratify the 1982 convention. We should have been the first country -- or second after Iceland, perhaps -- instead of following after the 125 or more states that have now ratified the agreement.
We owe its speedy ratification by ourselves now to the redeeming of Canada's fine international name and to a generation of lawyers who put their hearts into this great work.
The Chairman: Mr. Sanger, you made a point in your closing comments about Bill C-29 being sent off to archives somewhere. I am not sure what happens to Bill C-29 now. It is still here. As far as I know, it is still legislation; it has not been sent anywhere.
Mr. Sanger: I was being metaphorical. It would be subsumed by everything else, would it not?
The Chairman: It is still the law of the land.
Mr. Sanger: Yes, we might send it off to St. John's.
Senator Stewart: As I understand it, you believe that Bill C-27 will bring us up to date with regard to straddling stocks. Is that right?
Mr. Sanger: Yes.
Senator Stewart: Do you believe that we should pass the bill without amendment?
Mr. Sanger: Certainly. If Section 7.01(1) could be explained. I do not understand it.
Senator Stewart: That is the only area where you might have a question, and you concede that the question may have been answered.
Mr. Sanger: It is hard for someone like myself. You have to have the Coastal Fisheries Protection Act alongside it and another act, and work it all out. It is not a complete act in itself. It is an amending act.
Senator Stewart: Yes.
Mr. Sanger: I have not heard any objections to it.
Senator Stewart: That is very reassuring given your long experience in these matters. Remaining with the same question, but being more precise, are you saying that we are now abandoning the pick-and-choose method that we might formerly have been accused of using?
Mr. Sanger: We have not abandoned it yet. We will not abandon it until we have ratified the Convention on the Law of the Sea in its totality. We have talked about different parts of it, especially the 200-mile economic zone. It is quoted as though we have already ratified it. We signed it in 1982 but until we have ratified the whole of it and have the dispute settlement mechanism under our belts, we could still be accused of picking and choosing. I cannot give you instances of when we have talked about port states in relation to pollution and things like that, but I think we probably have.
Senator Stewart: Insofar as the domestic law of Canada is concerned, would the enactment of Bill C-27 put the executive government of Canada, known sometimes as the Crown, in a position to ratify the Convention on the Law of the Sea?
Mr. Sanger: I have been talking to Mr. Tellier from the legal bureau of Foreign Affairs. He supports what Mr. Beesley said last June, that there is still some harmonization to be done. Perhaps you would want to question him further.
Senator Stewart: Yes. To your knowledge, would that harmonization require statutory action by Parliament? Or could it be done by prerogative?
Mr. Sanger: I am not the person to answer that question. You do have an expert sitting in the wings.
Senator Robichaud: In answer to Senator Stewart's comment, you said that we should pass this bill unamended as soon as possible in order to get away from our pick-and-choose way of doing things in the past.
Mr. Sanger: Yes, I did say that. It is a first step. We have to ratify the UN Fish Agreement and move on to ratifying the Law of the Sea Convention. It is only when we have ratified the Law of the Sea Convention that we will have put aside the temptation to pick and choose which bits of the Law of the Sea Convention we believe are law as far as we are concerned and which are not. It is a three-stage process -- Bill C-27, UNFA and then the Law of the Sea Convention.
Senator Robichaud: After we ratify UNFA, should we move on as quickly as we can to a process to ratify the Law of the Sea Convention?
Mr. Sanger: Yes, certainly we should. Canada and the United States are the last two industrial states not to have ratified it. The European Union has done so now.
Senator Robichaud: Do you see any major problems preventing us from going ahead full steam?
Mr. Sanger: Absolutely not. You will find people, some of them in Foreign Affairs, who say let us give it a little time and see how UNFA will work out, how the dispute mechanism will work, and so on. That is not the same sort of courage as we showed during the Law of the Sea conference or with the land mines. Those moves are not leaps of faith. They are moves that can be made in total expectation of being right.
Senator Robichaud: So you are saying, then, that there is no grounds for this precautionary approach being advocated by Foreign Affairs.
Mr. Sanger: I would not have thought so. UNFA is up for the informal review that takes place every two years and a full review conference after five years of its coming into force. Is that right? I am not being contradicted anyway.
Senator Butts: I know little about the UN Convention on the Law of the Sea, but this committee spent half a year talking about common property, individual quotas, private property and many other nice things. Are they even mentioned in this Law of the Sea Convention? Do you know? Is anything like that mentioned?
Mr. Sanger: Yes. It depends on where the seabed begins. Defining the territorial sea at 12 miles and the economic zone for the fisheries agreement and for other management by the coastal states at 200 miles means that everything in the high seas, except of course the straddling stocks agreement, is "the common heritage of mankind." That comes into play particularly over the seabed mining side because most of the manganese nodules are far out to sea in the Pacific Ocean. They are lying around waiting to be vacuumed up. That is supposedly the common heritage of mankind and that is why the seabed authority was set up with the headquarters in Kingston, Jamaica. The quarrel was over who owned those nodules. The answer Mr. Kissinger came up with was a joint enterprise of private sector and United Nations. If the seabed mining of copper, manganese and so on ever becomes profitable it could become an automatic income for the United Nations. People have talked about how the manganese nodules might be a better form of income than the Tobin Tax.
Senator Robichaud: You said that the sooner we ratify UNCLOS, the sooner we could use it in our salmon negotiations to settle the problem with the U.S. Could you elaborate on that?
Mr. Sanger: It puts us onside with dispute settlement mechanisms that are included in there.
I am not an expert on the anadromous species.Salmon played a large part in the negotiations in Caracas and later. The negotiators made use of wonderful people like Roderick Haig-Brown, who was a fly fisherman, to write a book on salmon. We really pushed this subject, but it is in quite a different category than the East Coast. I am sure that Alan Beesley will enlarge on this point, but I do not think that he will disagree with what I said, that when we ratify the Law of the Sea Convention we will be in a different position in the salmon dispute. The problem is that the United States has not yet ratified it, and they might play some game of that sort.
Senator Robichaud: When and how would the U.S. respect it? They are known for finding ways around these things; we have experienced that with NAFTA and the softwood lumber issue. Even when a decision is rendered, it must be done the same way three times before they finally accept it.
Mr. Sanger: The United States has a problem with treaties. It likes bilateral treaties, but it does not like multilateralism as far as treaties are concerned. Reagan was a culminating person in this way. He got a man to kill the Moon Treaty, and then he got hold of the same man, Mr. Lee Ratiner, to try to kill the Law of the Sea treaty back in 1980-82. However, Ratiner is a principled lawyer and decided that this was a good treaty and that he would have nothing to do with it. Nevertheless, the United States lined up a number of industrial states -- Mrs. Thatcher's Britain and Chancellor Kohl's Germany among them -- to stay out of the signing of the Law of the Sea treaty. In fact, when they came in, they had to accede to sign and ratify at the same time.
The United States, however, still has not signed it. They have that business of it having to go through Congress, and Congress quite often likes to attach other things to particular bills.
The Chairman: I have a few questions on the relationship between Bill C-27 and UNFA. First, I wish to try to relate Bill C-27 to UNFA. Bill C-27 does not always coincide with what is contained in UNFA. For example, UNFA refers to "clear grounds" to board a vessel in Canadian waters, whereas Bill C-27 refers to "reasonable grounds." There are other examples. The cabinet can change certain things such as the three-day notice. UNFA calls for a three-day notice. The intent in the regulations is 72 hours or three working days.
What I am leading to with this is that although we have signed UNFA, our legislation does not mirror UNFA. Will that cause problems? Can other countries create legislation that does not necessarily mirror UNFA?
Mr. Sanger: I believe you raised those questions last week with Mr. Wiseman, and he deferred to Nadia Bouffard, who is in attendance now. I am not the expert. Faced with the senior advisor on legal issues for Fisheries and Oceans Canada, I should defer to what she said.
The Chairman: If we do not mirror legislation, will we avoid future problems?
Mr. Sanger: Regarding the three days, you brought in Christmas, and so on.
The Chairman: Yes. There is also the question of UNFA saying "clear grounds," while we are saying "reasonable grounds." What would happen if the European community used the phrase "unreasonable grounds" rather than "clear grounds" or "reasonable grounds"? If we can change the intent or wording of UNFA according to our national will, we are not implementing UNFA.
Mr. Sanger: In the International Criminal Court, they had a similar problem with the words "and" and "or." In this case, one word has been chosen rather than the other. Perhaps it would be better to put both together and have "clear and reasonable grounds."
The Chairman: I guess we can defer to the legal people. If they say it is all right to do it that way, then we will do it.
Mr. Sanger: I would trust them.
Senator Stewart: That may well be a question that you will want to ask our next witnesses.
The Chairman: Yes. We will probably return to that on Thursday.
We have signed UNFA, but we have not ratified it. Would passing Bill C-27 be a ratification? I am trying to look at the mechanics of this issue.
Mr. Sanger: Those are questions for officials. I should know the answer, but I spent such little time in External Affairs trying to keep an eye on John Crosbie that I do not know the answer to that. Surely the government takes its cue from Parliament and signs whatever document of ratification is in order.
Senator Stewart: I do not want to have anything on the record that might mislead us.
As I understand it, an ambassador abroad might very well sign a treaty. That document is then sent back to the home government, and the Crown, in the case of Canada, decides whether or not to ratify. In Canada, however, the mere ratification by the Crown would not give that treaty effect in our domestic law. Only if the treaty required effect in our domestic law would we have an act of Parliament.
The situation is different in Washington, where the Congress participates in the making of treaties. The Parliament of Canada does not participate in the making or ratification of treaties. It enacts statutes that give the terms of the treaty, insofar as it is necessary, a legal base in Canadian law; otherwise, the treaty could not be enforced in Canada. That is my understanding. We can check that with Mr. Beesley, who is an authority on this.
The Chairman: Mr. Sanger, some of us are still trying to understand this process. It is fairly new to many of us, and we are calling upon expertise from all over.
Mr. Sanger: I wish I was not sitting here alone but with the three other experts in the room. Perhaps they can answer these questions on Thursday.
The Chairman: They are listening to the questions and answers, so they will probably have the answers on Thursday.
Mr. Sanger: Yes.
The Chairman: Why would we want to ratify UNFA prior to ratifying the convention? Would it not make more sense to be ratifying the convention rather than UNFA?
Mr. Sanger: It is an addition to the convention. Obviously, we could have ratified the convention and then done UNFA. However, since UNFA is right there, it certainly strengthens enormously Articles 117 to 120 and Article 300.
I will read quickly the 10 points that Alan Beesley made regarding the positive features of UNFA. They include the following: its binding nature; its data collection system; its emphasis on the precautionary approach. The word "precautionary" was new to me; it means that you take a very conservative estimate. There are also the data sharing system; its focus on subsistence fishing; the strengthening of regional organizations; the provisions of transparency; the dispute settlement provisions, which are contained in the Law of the Sea but which are reinforced here; the provisional entry into force to make it quicker; and, finally, its enforcement provisions. Those all add greatly to the Convention on the Law of the Sea. If we ratify that and then ratify the basic document, the two will fall into place.
The Chairman: Last year, Canada argued before the International Court in The Hague that we did not recognize the authority of the World Court. As I understood the witnesses from the department, our reason for arguing along that line was that we were covering only a narrow subject. Is there not a danger in arguing before the International Court that we do not recognize the court's jurisdiction? Regardless of how much merit there might be on this one particular subject, by reducing the court's jurisdiction over these matters, are we not ourselves reducing the value of the World Court? Should we be arguing before the World Court that it does not have jurisdiction in certain matters?
Mr. Sanger: I think it is a sad day when we must do that. We placed a similar reservation on the 1970 Arctic Waters Pollution Prevention Act. However, the Americans did not take us to court in that case. The Americans themselves have placed reservations on several things, for example, the mining of harbours in Nicaragua, and so on. All of those things damage the jurisdictional breadth of the court.
The Chairman: I wish to thank you very much, Mr. Sanger, for agreeing to appear before us this evening.
I should now like to welcome Dr. Alan Beesley. Dr. Beesley is a retired Canadian diplomat, lawyer and renowned expert in international law who headed Canada's delegation during negotiations on the Law of the Sea from 1967 to 1982. He chaired the Law of the Sea drafting committee, served as Canadian ambassador in a number of countries and UN posts and was Canada's ambassador for marine conservation. I should note that in that capacity he started the provisions for the Convention on the Law of the Sea.
He was also special environmental advisor to the Minister of External Affairs from 1989 to 1991. He holds an honorary doctor of law degree from Dalhousie University, 1994, and an honorary doctorate in environmental studies from the University of Waterloo, 1983. He is the recipient of numerous medals and honours and is a member of a number of advisory boards and councils.
I should note that when some of the officials from the department found out that Dr. Beesley would be our witness, they asked if they could attend the session tonight, a request to which we agreed.
Welcome to the committee, Dr. Beesley. We are pleased that you were able to appear before us. Please proceed.
Mr. J. Alan Beesley, O.C., Q.C., former Ambassador to the UN: Mr. Chairman, I wish to open with some general comments as background about the way I see international law.
First, I wish to repeat a quotation that I have used before once or twice. It is from Lester B. Pearson who said that "diplomacy is largely the art of making an indiscretion sound like a platitude and politics that of making a platitude sound like a pronouncement." I am not sure where my comments will fit in, but I will certainly give you my honest opinion when asked.
My basic thesis is that no system of national law devised thus far has been able to prevent breaches of the law ranging from fraud to violence, in spite of generations of experience, the development of sophisticated legal superstructures and the establishment of a strict penal system. It is simplistic and superficial to dismiss or deny the existence of international law for being unable to avoid or punish such breaches of the law on the international plain.
Second, in addition to the continuing process of development of customary international law through state practice, which is somewhat analogous to the common law process, there exists a vast and still expanding network of bilateral and multilateral treaties, many of them global in scope, that effectively regulate relations among states on issues as diverse as boundaries, trade law, arms control, health standards, the environment and fisheries. I have been involved in negotiations in all of those subject areas.
Third, contrary to widespread public perception, states do tend to observe and implement their treaty obligations to one another if only because it is in their self-interest to do so.
Fourth, weaknesses in the application of international law often arise not from inadequacies in the law elaborated through negotiations among states, but from the unwillingness or hesitation of states, including Canada and those with similar constitutions, to enact the necessary domestic legislation and establish the required mechanisms.
Fifth, on issues as complex and interrelated as oceans affairs, a global constitution of the ocean is required, particularly in the field of fisheries, but on other issues as well.
Sixth, the 1982 UN Convention on the Law of the Sea comprises just such a constitution of the oceans, embodying as it does not only a comprehensive set of substantive, legally binding rules of law on uses of the ocean, but the most complete set of dispute avoidance and settlement mechanisms in existence, a point to which I shall return.
Seventh, although the convention has been in force since November 16, 1994, neither Canada nor the U.S. has ratified it. Consequently, as Mr. Sanger pointed out, each feels free to assert the convention rights on a highly selective and self-serving basis while not accepting corresponding obligations. It is my fundamental belief that rights and duties go hand in hand in any system of law.
Finally, the convention does not have the impact intended by the negotiators, particularly in avoiding and settling disputes among states.
Let me turn quickly to a couple of points that have arisen. I am not expressing a difference of views with anyone, but reference was made to the relationship between the continental shelf and straddling stocks. There is no relationship. The continental shelf is a term of art referring to the seabed and subsoil that comprise the extension seaward of the submerged land mass. That is the continental shelf, and we have an extensive one, especially off the coast of Newfoundland. The Canadian delegation fought hard to get acceptance of that extensive continental shelf. The super-adjacent waters -- that is, the waters above it -- can be 200 miles or 350 miles, but the jurisdiction, for fisheries and pollution purposes, stops at 200 miles unless we have some kind of straddling stock arrangement. I am asking only that we not misuse the term "continental shelf" as is done repeatedly. The further east we get, the more often it is misused -- I think quite innocently, but it clouds the issue.
The next point I would make is that Professor Barry gave an extremely impressive presentation. It impressed me. I liked it, for what that is worth. However, I differed with him on one thing. He said that the Law of the Sea Convention did not address meaningfully the question of straddling stocks. That is not true. The problem is that it relied on the good faith of the signatories, and eventually the parties, in a whole series of provisions laying down legally binding obligations to set up a cooperative arrangement whereby straddling stocks would be managed. A mythology has grown up, encouraged in some quarters, that there is only a mere duty to cooperate. If a duty is less than an obligation, that is simply a mis-statement of the law. I will not cite the provisions; they are contained in some of the texts that I circulated to you beforehand. However, I will give them chapter and verse if you so desire.
I should like to lay to rest at the outset the mythology, approaching a scam, of a cover-up that asserts that the Law of the Sea Convention somehow did not notice straddling stocks. Believe me, we fought long and hard for very tough provisions. What we got was considered enough, because we thought it would be in everyone's interest to cooperate to preserve the stock that everyone needed. I remember my predecessor, Alf Needler, a wonderful fisheries scientist, genuinely believed, as did we, that the European states would not find it worthwhile to cross the ocean in order to fish for the stocks in the area that we always called from year one "straddling stocks." It is not a new discovery.
I do not want to offend Earl Wiseman and his colleagues, but having done the tough job in the Law of the Sea conference, we turned over the implementation of it to DFO and they devised the NAFO treaty. Unfortunately, the loophole is not in the Law of the Sea Convention but in the NAFO treaty. It is called the objections procedure, and it is a loophole big enough to drive a factory trawler through. It was not naive of our DFO colleagues because it worked well when people negotiated in good faith. However, when Spain and Portugal joined the EU or the EC or whatever they called themselves then, everything changed and they began to march with their lawyers at their sides, but in a dishonest way, which I have cited as an abuse of rights in a whole series of articles. One of them was mentioned by Mr. Barry but I wrote 12 altogether in learned journals, pointing out that Canada was being accused of pretending that there was a dwindling stock when actually there was plenty of fish and we just wanted to buttress our case. That is not true. However, we did find it necessary to take some stern measures to try to rectify the situation.
I clearly recall that I was the first person to count the number of times the objections procedure was used to block agreement in NAFO. I was astounded. It occurred 53 times in 10 years. That made a mockery of the NAFO treaty and also of the Law of the Sea Convention. I said, on more than one occasion in my capacity as Ambassador for Marine Conservation, that using that procedure is not abiding by the Law of the Sea Convention, that it is not even bowdlerizing it, but is flying in the face of it. Eventually, we decided that we had to do something about it.
I was then reporting directly to three cabinet ministers, one of whom was John Crosbie, a man who had complete integrity and who never softened his words to suit the audience, as you well know. He did not like the idea of unilateral action and he particularly did not like the idea of having a trade war. We did everything we could short of that. When I finally had to resign because of the ill health that all my friends had predicted if I took on that crazy job, he did not speak to me about this personally but one of his colleagues did, and after that I deleted a sentence from my retirement letter which had said, "If you fishermen are fed up with the situation and you are demanding unilateral action, I can sympathize with you." That is all I said, but I was asked to take it out because it would be inflammatory, and I did. However, that is the way everyone was feeling at the time. Certainly, I knew that Brian Tobin felt that way because he made no bones about it. That is the background.
When I was charged with that job, I had already outlined my views on the strategy to be followed before I was hired. We had to have a three-pronged approach.
One was euphemistically called the diplomatic track, where you try to negotiate. That was necessary and essential, and we followed it consistently.
Another, which was at times a dismal failure, was the public relations approach. We spent endless hours and a lot of money and sent many people over to Europe but we found no constituency. There was no one to listen or to respond when we had a variety of presentations about the conservation problem. Basically, we were brushed off. However, we did not give up. We kept it up.
The third track was the so-called legal approach. I know about that. I was accused of having invented it until it started to succeed and then no one remembered that I had anything to do with it. I chaired the first meeting leading to this convention that you are now talking about, and I am proud of it because I believed that it was possible to do such a thing.
I must be quite frank with you and say that the success we achieved went well beyond what I would have predicted. The people involved in DFO, in External Affairs and in our embassies abroad did an astounding and outstanding job and we got a good treaty out of it. However, it almost breaks my heart to hear people say -- as I heard Brian Tobin say in Halifax -- that we did not have a treaty or a dispute-settlement mechanism and now we have both.
Have a look at Part VIII of the fisheries agreement. It is simply an incorporation by reference of the dispute-settlement provisions already in the Law of the Sea Convention. I am astounded that people would say that. I did not reply then, but the chair of the meeting summed up, after Premier Tobin had left, by saying, "It was a pity. I was wondering when I was down in New York why we did this, and now I know -- no law and no dispute-settlement provision." I spoke the next day, and I am speaking today, saying that if there are no dispute-settlement provisions, why do we simply incorporate the ones from the Law of the Sea Convention into the new agreement? That is dishonesty of a new kind for Canada. That is coupled with the fact that promises were made in the House to ratify, which have never been implemented.
I am not aiming my comments at any party or any particular politicians, but to be a little more up-to-date, let me give you an analogy.
Suppose we fought the fight we just fought on land mines. It was a bold one. The purpose of the fight was a noble cause, and we got a land mines treaty. Let us not forget that a few countries, including our rule-of-law maker to the south, do not accept that land mines treaty. They are free to lay their land mines where they want, not excluding our borders. As was the case in the Law of the Sea agreement, it was, "Come on, everyone. Let us get ahead and do this. Of course, we will have a few reservations at the end."
What if we had said, "We are not sure about land mines; we might have another mini-treaty for the ones that are designed to trick children into picking them up because they are like toys. Let us emphasize that for a few years. If we can get it ratified, maybe we will look at the big treaty"? We would look like hypocrites. Why? Because we would be hypocrites.
We look like hypocrites now. Why? Because that is what we are. We are out in front all the time in developing international law, especially environmental law, but when we have succeeded, we do not follow it. I do not understand that. Worse still, I do not understand why no one except the Senate takes an interest in saying that it is not right.
What are the reasons? When you ask for them, you do not hear them. I know the reason. I will not get into it unless you insist. There was fear of being dragged into court. We are now boasting about the wonderful dispute-settlement mechanisms. Someone touched on the practical value of those mechanisms. If we had led the way, there might have been so much momentum that the U.S. would have ratified the treaty too.
Do not forget that we signed the treaty. People say, "Any one can sign a treaty; it is a scrap of paper." It is not that simple. If a state signs a treaty, it has a duty not to take any action inconsistent with the object and purposes of that treaty. Think about that for a while. Have we acted wholly consistently with the Law of the Sea Convention? I will not give an opinion on it, but we do have some obligation not to shove it aside and then do the most distasteful thing. We put out papers to publicize this spin-off from the Law of the Sea Convention, and we put out bumper sticker slogans and we dishonestly draw attention to it. One bumper sticker says, "It does not have anything on salmon or the continental shelf." You might as well say that it does not have anything on land mines or non-proliferation. Of course not. It is already in the other convention that is incorporated in the name of this treaty. I do not agree with Earl Wiseman, who used to be a friend of mine until he forgot my name last week.
Look at the full name of the convention: it has to begin by referring to the United Nations Convention on the Law of the Sea, and so it does because that is its origin. It is an amending treaty. However, we must all pretend that we have reinvented the wheel and it just started.
I am troubled, not only because I spent more than 12 years of my life working on this, but so have many -- and I include myself -- highly skilled and very dedicated men and women from a variety of walks of life. I am not talking only about people from government, but also about the fishermen's union, the native brotherhood, and Chief Jimmy Seaweed from B.C., a very articulate spokesman for fishing rights on the West Coast. On the East Coast we had Cabot Martin, who lived up to his name in every sense by saying, "What are you up to now? You are making a deal at the expense of Newfoundland."
I found it wise that because of the range of issues that we had to deal with, our delegation was very broad-based. We had people from industry right, left and centre, environmentalists, native peoples and bureaucrats who did not agree with one another. However, no one ever got one Canadian diplomat to contradict another.
When I say "diplomat," I do not mean Foreign Affairs. In my experience -- and it has been lengthy -- Canadians do have a capacity, an instinct, almost an intuition for diplomacy -- not the art of diplomacy as used by some people, meaning holding a cocktail in the right way, but by seeing two sides to every question and instinctively seeking an accommodation. That is what we are good at. We were so good at it that people from other delegations would come up and say, "Is it all right if we borrow John Cooper?" He died recently. He was the best hydrographer in the conference. He and Don Crosby would explain that there was such a thing as continental drift and therefore, for example, India should join us on the continental shelf question, and did. We would lend such a person for a while.
We had only one principle: We did not lie and cheat. We were honest. No one ever said, "Hey, let us make integrity our watch word," but that is how it was. I was recently teased by a well-known author who said, "I saw Alan Beesley weaving his way through the delegation selling his snake oil." I said, "What was I selling?" He said he never knew. I could have told him it was just basic honesty, and it worked.
We came home happy afterwards, and with every reason, but someone later said we were a bunch of petty crooks -- the country that demanded the most, the country that got the most, the country most criticized, for example, for being too greedy, and rightly so. We did not do anything about it. We trumpeted our achievements, saying, "Oh, we got 200 miles and we will also make a claim to the continental shelf." We do not say where it came from. Even today we hear references to the 200-mile limit without anyone saying that we laid the foundation for it in the Law of the Sea negotiations. It was a spin-off. There are many spin-offs.
The Arctic is a classic example. We were subjected to the most horrendous pressures. We were basically going against all Western values, the 11th commandment, freedom of navigation. We looked like we were dumb hillbillies who did not understand but we pressed on. You could count our allies in the developed countries on one hand. Our allies were Iceland, Norway -- usually but not always -- New Zealand and sometimes Australia if the British had not got to them first. Beyond that, our allies were developing countries. Why did they like us? First, we never lied to them and, second, they used to tell us that we turned them from outlaws into pioneers.
Someone mentioned the question of unilateral action and how it is accepted. I am honoured that my well known speech in the UN was quoted in which I said that unilateral action is the way that the territorial sea was developed, and that was how the straight base-line system was developed. I said that it is not only an appropriate course of action but is an essential course of action in certain circumstances.
Does that apply to this case when Mr. Tobin did what he did? I think it does. I think that he was justified. I think he is not just a master communicator. I think he showed guts again and again, and he persevered. I think he deserves all the credit, including the credit he gives himself.
I am worried about the fact that he ought to know that he is misrepresenting the situation -- both the facts and the law -- when he says, "Unfortunately, there was no law and there was no dispute-settlement provision." I was sitting 10 feet away in the audience in Halifax last fall thinking, "Where was he?"
I will not breach any oath of office, although it is so far in the past that it probably does not apply, but it is not generally known that after I had retired I was hired by the Department of Fisheries and Oceans to do a study on unilateral action. They were very careful about using the phrase "unilateral action" because they were fearful that they could be fired for it, and they were right to be fearful. I was not fearful because I had already retired. Phase one of my study was dated November 25, 1993. Phase 2 was dated December 27, 1993. I am not at liberty to tell you what I proposed, but I can tell you that I made 23 recommendations. Later, it was more than idle curiosity when I pressed to have someone put in writing how many had been accepted. The answer was 21 of the 23 recommendations. Meanwhile, various persons who will not be named invented unilateral action. I did not have to invent much; I just drew upon the experience that I had encountered and learned and lived with during our own unilateral action taken over the years.
I was called by the other delegates "Mr. Creeping Encroachment," and I had to plead guilty. We are always taking unilateral action. I have here somewhere a list of the bilateral treaties I negotiated, based on our unilateral claims.
I was astounded recently to read a speech by another "Alan" saying that he had negotiated them. I thought, "This goes beyond plagiarism."
The ones that I negotiated include Denmark, France, Norway, Portugal, Spain, and the United Kingdom, and Cuba, which actually was on hijacking. It was not easy in those days to claim sovereign rights over the Gulf. It was highly controversial. My blood was all over the place because there were so many protests. I always hoped to be backed up by ministers and prime ministers, and I always was. I did not invent those positions. They were always cleared with the cabinet first and then it was the job of my colleagues and me to implement them.
We finally met with the Spanish. We deliberately kept them until last, because we knew they would be the toughest. They said they had nothing to negotiate, that they had fished in the Gulf waters since the 1500s and that they were high seas. The Gulf of St. Lawrence claim by Canada meant nothing to them, they said.
We tried to be careful with them. We observed all the protocol, although I am not very good at that. We ushered them in. We met them at the doorway to the East Block. We got them all seated. I made the opening comment, and I had barely started when a rather rough-looking individual said, "Ha!"
I said, "The Canadian government --"
"What government?" he said, interrupting me.
Finally, when I was finished, the Spanish representatives spoke, and I was pleased to see that this man did the same to them. We sent a junior officer over to ask the Spanish if they could not get their fisherman to behave a little better. They replied, "We thought he was one of yours."
We had ushered in someone off the street and he had fitted right in. The same junior officer got rid of him within five minutes without a wrestling match. I asked him years later in Cuba how he had done it so quickly and he said, "I gave him $10 for a bottle of wine."
The Spanish were not offended. They did eventually agree to get out of the waters that we considered rightfully ours.
There is a tradition of Canadian unilateralism. People know about the Arctic, perhaps. They know about the recent case. We have resorted to unilateralism whenever we have been satisfied that the law was simply out of whack with the times, as it was when we started the Law of the Sea negotiations.
We created new concepts in the law and we trod on many toes. The British have never forgiven me for saying that it used to be that Britannia ruled the waves and now Britannia waives the rules. They made a joke to get even with me. I said that if they did not agree that we held these God-given rights, then perhaps we could just call it a delegation of power and say we are acting on behalf of the international community. A British wit wrote a poem, part of which I quoted in a speech I delivered recently:
Let's have delegation of powers And it will all be ours, Because our rights are too measly According to Beesley.
I heard many such things.
In closing, let me say that we do not need to find special cause to support the agreement that begins with reference to the Law of the Sea Convention in order to support it. It stands on its own legs, even though it is an amending agreement. In my humble opinion -- or maybe not so humble -- it definitely deserves ratification.
I do not think we all should go home and say that we certainly did it, just as with the land mines. No. It is not even a question of clearing the way for the ratification of the Law of the Sea Convention. The two should go hand in hand. Quite frankly, we should ratify the mother of all conventions before one of its spin-offs.
I have been accused of being the godfather of the Law of the Sea Convention. I am not, but I might be the midwife of the fisheries convention.
By the way, let us not call it the fish convention. It has a proper name. Let us sing it out any time anyone asks about it so that we can remind them where it comes from. I will read from my copy: "Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks."
What has happened to that title? Have we forgotten the Law of the Sea Convention? I do not think so. We have even incorporated some of its provisions, including the peaceful settlement provisions -- at least when it is not being claimed that such provisions do not exist even in the Law of the Sea Convention.
However, what really disturbs me is that, again and again, we lift provisions out of the Law of the Sea Convention, holus bolus, and incorporate them into the fish treaty. It is called the fish treaty so that we can bury the fact that it came out of the Law of the Sea Convention. The same provisions that are attacked as being a mere duty to cooperate are repeated in the new agreement.
There are other provisions, which Clyde Sanger was kind enough to quote from one of my statements when he said that, if those were such bad provisions, we should not have carried them forward into the new agreement.
This is a time for honesty. Maybe now is our last chance. I have read what there is to read of your hearings already. I am aware that the chairman of your committee considers your role an educational one as much as a decision-making one. Perhaps I am being arrogant even in commenting on that, but I applaud it. Let us educate the House of Commons. Let us educate the Government. Let us educate the Canadian people. Let us educate a few journalists, who are not all renaissance men like Clyde Sanger. Let us educate a few professors, who genuinely believe that if you want to cite someone on unilateral action, you cite the other "Alan," who picks things up here and there but was never around when things happened.
I was there. I received protest notes from so many friends that I eventually started handing them back, saying, "I already have that" or "I have already seen that." I asked, "Why do they always say the same things?" All of our NATO allies gave us the same protests. Strangely, the cabinet ministers loved it. It is not that they liked dining out on David and Goliath interests, as we have gone down on some other issues recently. If we had turned our back on the Land Mines Convention the way we have turned our back on the Law of the Sea Convention, I would feel like becoming an American. I would consider that we have no ethics anymore and I might as well emigrate.
I spoke longer and more forcefully than I meant to, but, as you can see, I still care. I wanted you to be aware that, to quote a much more well-known person, the reports of my death have been greatly exaggerated.
The Chairman: Thank you, Dr. Beesley. Your passion does come through. Please continue. We need your kind of education on the meaning of this convention.
Senator Stewart: Dr. Beesley, my initial question was why, in your opinion, the Convention on the Law of the Sea was not ratified by Canada? Then, in the course of your remarks, I had to add to that: Were the reasons personal? Were the reasons political? Were they substantive? If they were substantive, could you tell us what they were?
Mr. Beesley: I will try to answer that question as honestly as I can, to the best of my knowledge and belief. I will even include your alternatives.
I think the reasons were personal to some extent as it is sometimes awkward to change one's position. They were political, because that goes without saying. If one government does not take unilateral action when it is being urged to do it and another one does it, then that reason may be regarded as political. However, I do not criticize anyone for that. That is the way we govern ourselves.
The substantive reason is the one that shames me. It is because we did not want to go to court and lose. At the same time, we were pounding the table and saying that we were acting within the law, that this was a case of abuse by the EC of the whole process, of the fishing law, that Spain was overfishing and we could prove it.
The business of holding up little fish did not start with Brian Tobin. John Crosbie did it too, and he was funnier when he did it, but he does not have the ability to get the same kind of attention as Mr. Tobin does, so I defer to him on that. However, I will tell you that the reason for non-ratification is that we are afraid of going to court with Spain.
Like Clyde Sanger, I am ashamed that we even ducked the question of the jurisdiction of the court. I am not ashamed of our unilateral action. I recommended that step in the 23 recommendations I made, but I also said it should be an interim measure and we should ratify the Law of the Sea Convention and put our money where our mouth is.
As to the reasons for the delay, the answer is simple. Initially we held back, out of deference to the Americans. We did not have anything against the seabed mining provision. We actually wrote into legally binding language Henry Kissinger's proposal for the joint-venture approach. We had some of the best people in the world, and they were not from External Affairs. They were from Energy, Mines and Resources, such as Don Crosby and Dave Pasha. It was for that reason that we held back; but Canada did not say, "Thank God that is settled. Let's ratify." However, by then there was trouble over straddling stocks.
There is an expression that may be offensive to the women in the crowd, but in that kind of situation the people I call "nervous Nellies" begin to win the day. Any diplomat can give you eight reasons for not doing something. The one who does something sticks his or her neck out a mile. So we have fallen back on euphemisms. We live next to the euphemistic capital of the world and we are getting just like them. We do not even know the truth when we hear it -- but you people do, because you come from a certain generation.
There is a mix of personal, political and substantive reasons. There are all kinds of issues on the international plane that we could duck if we chose, including land mines and non-proliferation of nuclear arms. We were the only country I know of which had the nuclear weapons technology, and voluntarily abdicated it. That took real courage and farsightedness.
Would we do it today? We would talk round it. I do not know what we would say, but I suspect that we would not do it.
Senator Stewart: Insofar as the straddling stocks are concerned, will Bill C-27, if enacted, cure the situation?
Mr. Beesley: I am out of the loop, but I believe it will as far as straddling stocks are concerned.
Senator Stewart: Consequently, you would recommend to this committee that we propose to the Senate that the bill be enacted?
Mr. Beesley: Absolutely. I strongly support it. Just because the main treaty will allow languishing in the background or in the cubbyholes where such things are put does not mean you should throw this one in the ashcan too. This one is worthwhile. It stands on its own two legs even though its parentage is clearly the Law of the Sea Convention. I have no hesitation. After all, I helped invent it.
Senator Perrault: I wish we could coax Mr. Beesley out of retirement to go to work for this country again. He is one of the most outstanding public servants we have produced.
I thought your presentation tonight was spot on. You have the courage to call a spade a shovel when it should be described in that way.
Although you say that some drafting changes might improve this legislation, you are urging support of it. I would be very pleased to support it based on your recommendation alone.
Are there any changes that you would recommend to Bill C-27, whether undertaken now or later? Do you see any weaknesses in it?
Mr. Beesley: I would have to start from scratch. When I was on top of this subject, I thought it was adequate. Now the 72-hour rule confuses me a bit. I think it is a good agreement, especially the part that steals from the Law of the Sea Convention. I have no desire to see it changed.
Senator Perrault: There is pride of paternity there. That is very reassuring from you.
Senator Robichaud: I wish to thank you for taking the time to give us the information that you have. It certainly sheds light on UNCLOS, and your testimony will strengthen our resolve to move ahead and pass the UNFA to UNCLOS so that we can use it in our salmon discussions.
We could use harsher words than that, but you seem quite confident that it could play a role.
Mr. Beesley: Not the straddling stocks agreement -- I know that you did not say that -- but the UNCLOS provides not just the underpinning but the actual language not only for straddling stocks but also for salmon.
I have argued publicly and I have written 12 papers on the turbot issue. One was mentioned by Donald Barry, and I appreciate that. I fought that battle for free, as usual, long after I retired. However, on salmon I was actually paid by the British Columbia government to do some studies and they publicized them. I was on holiday in Geneva and they arranged a conference call. I told them that I would talk to a couple of journalists, but found there were 30 of them in the room, and they peppered me with questions. However, that achieved nothing, because people get stuck with a certain kind of tunnel vision. They are in lock step and they cannot say, "This is the fundamental treaty; here are the spin-offs and here is the change that we should not have made. Let's go for the vital issue." The sad truth is that a DFO negotiatior altered the language of the Law of the Sea Convention, as he recently admitted to me.
We thereby played into the hands of the Alaskans, who act as if they are an independent state. They are way ahead of Kosovo. I was the only one who ever said this, and I still am. I believe David Anderson is a good minister and a good person. He goes back many years with me, when he was in the legal division and I was his boss -- that is, if anyone ever was his boss. In those days he was home on leave in Victoria and thought, since there was an election, he would take a try at it. He was a rebel in those days, but I worked well with him because we wanted to do something about the supertankers that pass by in front of where I live.
He did not win that one, but he sure tried, and now he is forced to become a team player. The essence has not changed. Someone must have the guts to say what needs to be said, and it is not usually a public servant.
I feel that we have not put our best arguments to the fore on the salmon issue. How can we cite the Law of the Sea Convention on a particular species when we have not ratified the convention? The Americans can chuckle all the way to the fish farm, because they have not ratified either. They have sucked us in and conned us. We are delighted now on the West Coast that they have named a heavy hitter to negotiate with us. We think that shows they are taking it seriously. I know Lloyd Cutler. He is taking us seriously; he is no give-away artist.
Things will not change unless we go back to what we always had when I was involved in these things, namely, a collegial approach, an interdepartmental approach, with a chairman who reports to the chairman of a cabinet committee and we are forced to resolve issues. Do not leave it solely to a hardworking delegation to achieve basic successes. The Americans were our allies on salmon, as were the Russians, the British and the Irish. We fought a good fight and we won it; then we turned it over to DFO and they gave it away. Anyone can make mistakes, but repeatedly? That takes real talent. It is not fisheries management mistakes; it is judgment. It is people who should know better.
I have worked with DFO people and I would hire them tomorrow, especially people like Earl Wiseman, who used to know my name. However, last week, he forgot it. I think they said not to mention me. Earl is a man of integrity. I can only wonder how he can put his name to some of this stuff.
They actually produced what they are touting as the original bill on all things to do with the Law of the Sea. The poor souls did not even notice that they had the Law of the Sea Convention in the marginal notes. They got rid of that when I pointed it out. However, they still claimed sovereignty over the air space above the contiguous zone, which is totally illegal. It took me approximately six months to get that fixed up.
The problem is that public servants are afraid to admit to an error. I certainly made many of them -- and there were always lots of people around to tell me.
We must rethink the way we look at issues. Let us not just talk about the shooting incidents south of the border or in Alberta. If there is no ethical basis to Canada's foreign policy, where will you find it?
Senator Robichaud: I will tell you that Earl Wiseman knows Alan Beesley, because he is right here with us listening to your testimony.
Mr. Beesley: I knew that.
Senator Robichaud: I wanted to make sure that he remembered your name. I am sure that he does.
The Chairman: The State of Alaska has used the argument of the principle of pasturage, which gives them the legal right to catch B.C. salmon because of time spent during their lifetime in what they consider to be U.S. waters. I understand that the State of Alaska is the one proposing this. Is there any kind of merit to that argument at all?
Mr. Beesley: None whatsoever. It has about as much merit as what you find on pastures after the sheep have been around. Believe me, it is a crock of sheep leavings. It is so bad that it was a joke until the Canadians began to take it seriously and said, "We have not researched the documents, but we don't think it is valid." That is not the way to handle a thing like that. You do not argue it to death, you laugh it to death. When you do not, people start citing it back and forth again. I heard about it the first day. Someone, whom I won't mention, but who used to be minister of fisheries, was in charge, and one of his juniors came up to me, after being in the same room on another conference, and I did laugh. Mind you, it was genuine laughter. I said a rude word, that it was a crock of something or other, and I asked how many different countries could claim pasturage rights. "Do you follow the salmon around, like they do now with hockey? You put a little red dot on it and every time it goes past another state, there goes more pasturage rights." What utter nonsense.
In any event, the law, the only law, the Law of the Sea Convention, does not say it that way. We fought for that law, as did the United States, which included Alaska in those days, as well as the Russians, the Irish and the British.
To answer your question more seriously, it is such a lot of nonsense that the only credence that has been given to it is the seriousness with which Canada has replied. There are many ways of being a good diplomat and one is to laugh a thing to death. The Russians always used that trick. If they did not have an appropriate proverb, they invented one.
I got deeply involved in all that. What troubled me was that people loved it when they heard me writing and saying what I said, but then they would say, "Oh, well, that's Beesley."
The Law of the Sea Convention is an intimidating document. Nonetheless, when I was chairman of the drafting committee, we went through it line by line and made 7,000 drafting changes. Most of them were trivial, but you do not make a change unless it has some substantive meaning. I find that people fly by the seat of their pants now. Maybe they don't go to school any more; they just join some department and start spouting.
Senator Stewart: I remember talking with Senator Eugene Forsey at one time and he said, "You know, the lawyers on the Supreme Court of Canada don't know anything about constitutional law, because that branch of law is not important in private practice.
They may be good criminal lawyers and they may be good contract lawyers, and so on, but they have had no practical experience in interpreting the Constitution."
What is the state of our knowledge in Canada of international law? Is this a field which is reasonably profitable so as to attract young lawyers who are hoping to make a living?
Mr. Beesley: First, we have some of the outstanding international lawyers in the world. One is Ron McDonald. Typically, he is from Halifax, where there is the biggest export of brains. They reached across the Atlantic and they made him a judge of the European court, he was so excellent. He only just retired the other day. Another is Don McRae, whom we borrowed or stole from New Zealand.
I could give you name after name of first-class people, but does anybody make any money at it? Of course not. Worse still, and this is only my private thinking, most private lawyers do not take international law seriously. Some judges do not even admit that it exists. It is a difficult question. Nevertheless, international law is important. Without it we are all in trouble, especially relatively powerless countries like Canada. We need the rule of law more than anyone, and when we snicker at it, which happens occasionally, and start covering things up, we do a real disservice to the rule of law.
I must say I like your question, because almost any branch of the law is more remunerative.
I did a study for the Sierra Legal Defence Fund, of which I am a director. I put a significant amount of my time into analyzing four international conventions and applying them to a very controversial situation, the Clayoquot Sound case. It was my conclusion that Canada was in breach of international law and that these issues should be argued before the Supreme Court of Canada. They were not. The lawyer who was doing most of the work for the Sierra Legal Defence Fund -- a man I admire greatly, whose integrity is unquestionable -- eventually told me that he does not really believe in international law. So we did not put our best foot forward.
I remember, for example, that when we had the offshore mineral rights dispute between the Government of Canada, the Crown in the right of Canada, and B.C., articles were written in learned journals in the hope that judges might read them and pick up a few bits of law. It remains a serious problem.
However, you know who does take international law seriously? You do. In my experience, the Parliamentary Centre, with Peter Dobell, took international law seriously. I always got a good hearing from MPs and senators. I have found that the people who are charged with making the law tend to look a bit further than their noses. I cannot generalize, but I should like to see my own son make a career in international law. However, when I suggested that, he replied, "But, dad, I have to make a living." He is right.
The Chairman: I wish to thank Mr. Beesley for his evidence this evening.
I should also like to thank Messrs. Barry and Sanger for giving us their experience tonight and for making this a good learning experience for us.
Mr. Beesley: Mr. Chairman, I wish to thank you for inviting me. It was an honour. Thank you also for your courtesy in listening to me. It was not just flattering; it was reassuring.
The committee adjourned.