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DETAINEE RIGHTS and STATE OBLIGATIONS; CHARTING the SHOALS FACING the ROYAL CANADIAN NAVY by Darin T. Reeves Submitted in Part

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DETAINEE RIGHTS and STATE OBLIGATIONS; CHARTING the SHOALS FACING the ROYAL CANADIAN NAVY by Darin T. Reeves Submitted in Part DETAINEE RIGHTS AND STATE OBLIGATIONS; CHARTING THE SHOALS FACING THE ROYAL CANADIAN NAVY by Darin T. Reeves Submitted in partial fulfilment of the requirements for the degree of Master of Law at Dalhousie University Halifax, Nova Scotia August 2014 © Copyright by Darin T. Reeves, 2014 DEDICATION PAGE This thesis is first dedicated to all the Canadian Officers and Sailors of the Royal Canadian Navy, past present and future. By volunteering to sail into harm’s way, braving the dangers of the seas and the violence of the enemy, you serve Canada and Canadian interests around the world with pride and honour. I wish you fair winds and following seas. This work is also dedicated to the families of our Canadian Officers and Sailors, holding down the home front while their loved ones do their duty, and most especially to my own wife Bonnie and my children Victoria, Kathryn and Alex. Yours is the hardest job of all. ii TABLE OF CONTENTS ABSTRACT ....................................................................................................................... vi LIST OF ABBREVIATIONS USED ............................................................................... vii ACKNOWLEDGEMENTS ............................................................................................... ix Chapter 1: Introduction ...................................................................................................... 1 Chapter 2: Introduction to Contemporary Naval Operations.............................................. 6 2.1 Support to Other Government Departments ....................................................... 7 2.1.1 Support to Domestic Criminal Law Enforcement ........................................ 8 2.1.2 Support to the Department of Fisheries ...................................................... 11 2.1.3 The RCN as Lead Agency in Domestic Operations ................................... 14 2.1.4 Conclusion: CAF Support Operations to OGDs ........................................ 14 2.2 Contemporary Counter-Narcotics Operations – OP CARIBBE ........................... 15 2.3 Contemporary Counter-Piracy Operations ............................................................ 16 2.4 Stages in Maritime Operations .............................................................................. 19 2.4.1 Right of Approach - Hailing and Information Gathering ........................... 20 2.4.2 Visit and Search .......................................................................................... 21 2.5 Summary ............................................................................................................... 23 Chapter 3: International Law and High Seas Detainees .................................................. 25 3.1 Sources of International Law ................................................................................ 25 3.1.1 Treaty Law ................................................................................................... 27 3.1.2 Customary International Law and Jus Cogens ............................................ 28 3.1.3 General Principles of International Law ..................................................... 31 3.1.4 Subsidiary Means of Determining International Rules of Law .................. 32 3.2 Legal Regime of the Maritime Operational Area ................................................. 34 3.2.1 Coastal State Jurisdiction - Internal waters and Baselines.......................... 35 3.2.2 Territorial Sea and Innocent Passage .......................................................... 36 3.2.3 Straits used for International Navigation .................................................... 37 3.2.4 Archipelagic Straits ..................................................................................... 38 3.2.5 Contiguous Zone ......................................................................................... 39 3.2.6 Exclusive Economic Zone .......................................................................... 40 3.2.7 The Continental Shelf ................................................................................. 41 iii 3.2.8 The High Seas and Law of the Flag State ................................................... 43 3.3 Jurisdiction ............................................................................................................. 45 3.3.1 Customary Rules of Extra-territorial Jurisdiction ....................................... 48 3.3.2 Extra-territorial Jurisdiction and Security Council Resolutions ................. 55 3.3.3 Jurisdiction in Counter-Narcotics Missions – OP CARIBBE .................... 59 3.3.4 Jurisdiction in Counter-piracy Operations .................................................. 65 3.3.5 Jurisdiction and Lawfully Detaining Ships at Sea ...................................... 73 3.4 Detainee Rights and State Obligations under IHRL ............................................. 77 3.4.1 Charter of the United Nations and Security Council Resolutions .............. 79 3.4.2 Convention Relating to the Status of Refugees .......................................... 80 3.4.3 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ...................................................................................... 81 3.4.4 International Covenant on Civil and Political Rights ................................. 83 3.4.5 Refoulement of Detainees ........................................................................... 86 3.4.6 Effect of UN Security Council Resolutions on IHRL ................................ 89 3.4.7 Conclusion .................................................................................................. 91 3.5 State Obligations under IHRL and Detainee Rights to Remedies ......................... 91 3.5.1 State Responsibility for Wrongful Detentions ............................................ 94 3.5.2 Breach of IHRL Standard of Treatment ...................................................... 96 3.6 Conclusion ............................................................................................................. 99 Chapter 4: Canadian Law and High Seas Detainees ...................................................... 101 4.1 Incorporating International Law into Canadian Domestic Law .......................... 102 4.2 The Crown Prerogative and Military Deployments Outside of Canada ............. 103 4.3 Canadian Charter of Rights and Freedoms ........................................................ 110 4.3.1 Charter Protections in Detentions ............................................................ 111 4.3.2 Extra-territorial Application of the Charter .............................................. 113 4.4 Canadian Legislative Authorities Impacting on Extra-Territorial Detentions ..... 125 4.4.1 The Criminal Code ..................................................................................... 126 4.4.2 Immigration and Refugee Protection Act .................................................. 127 4.4.3 Other Canadian Acts ................................................................................. 130 4.5 Breaches of Detainee Rights and Remedies ........................................................ 133 4.5.1 Crown and Agent Civil Liability for Breaches of Detainee Rights .......... 134 4.5.2 Crown and Agent Criminal Liability for Breaches of Detainee Rights ..... 135 iv 4.6 Conclusion ........................................................................................................... 137 Chapter 5: Analysis of the Legal Waters Surrounding Contemporary Operations ....... 139 5.1 What Determines Canadian Jurisdiction over Maritime Detainees? .................. 140 5.1.1 Human Rights Obligations towards those onboard HMC Ships .............. 143 5.1.2 Human Rights Obligations towards those not onboard HMC Ships ........ 145 5.1.3 Re-Conceptualizing Naval Operations through Frontiers and Borders .... 147 5.2 Attribution Within Coalition Operations ............................................................ 153 5.3 The Canadian Maritime Frontier Zone, Attribution and Contemporary RCN Operations .................................................................................................................. 161 5.3.1 Support to OGD ......................................................................................... 161 5.3.2 Counter-Piracy Operations........................................................................ 163 5.3.3 Counter Drug Trafficking Operations - Op CARIBBE ............................ 172 Chapter 6: Conclusion ................................................................................................... 175 BIBLIOGRAPHY ........................................................................................................... 181 v ABSTRACT This thesis examines the question of Canadian domestic, and international, rights and obligations owed to individuals detained by Ships of the Royal Canadian Navy in a selection of contemporary naval operations. The thesis discusses the underlying lawful authority for these operations as well as the international law affecting the maritime environment. Next the thesis reviews extra-territorial extension of a State’s jurisdiction and the rights and international and Canadian State obligations triggered when an individual is detained together with issues arising from breaches of these rights and obligations. Legal issues found in maritime operations are then analyzed in contrast to the robust
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