# Northern Waters



## Colin Parkinson (10 Apr 2008)

Drunkensubmrnr said:



> How exactly is it going to do this? We send ships through the Strait of Juan de Fuca all the time, and it's still international as far as I know.



Actually a split waterway with a shared use agreement, traffic in on the US side, traffic out on the Cdn side.

The US was also making noises 10 years ago about the Inside passage being a International waterway, regarding the movements of some of their smaller ships, I think that died, but the dispute at the tip of the Panhandle is still ongoing.


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## drunknsubmrnr (10 Apr 2008)

Colin P said:
			
		

> Actually a split waterway with a shared use agreement, traffic in on the US side, traffic out on the Cdn side.



That's a textbook example of an international strait under UNCLOS.



			
				Colin P said:
			
		

> The US was also making noises 10 years ago about the Inside passage being a International waterway, regarding the movements of some of their smaller ships, I think that died, but the dispute at the tip of the Panhandle is still ongoing.



The Inside Passage is an international strait under UNCLOS. It just has to be used for passage from one area of the high seas to another.


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## Colin Parkinson (10 Apr 2008)

The Strait of Juan Defuca does meet the standard of International waterway. As this is a sub thread, seeing the Tridents slipping through the fog was always interesting and a rather meancing looking vessel.


 But to my knowledge and reading the Inside Passage is Canadian waters where the “right of innocent passage” exists. Very different then a international waterway. I would be interesting in you proving me wrong with a link explictly showing the Inside Passage is an International waterway

 http://legal-dictionary.thefreedictionary.com/International+Waterways

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987528


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## Colin Parkinson (10 Apr 2008)

Interesting article on the subject of ownership in the arctic

http://thechronicleherald.ca/Canada/1048748.html


We really should slice this discussion off of this thread though.


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## drunknsubmrnr (10 Apr 2008)

Colin P said:
			
		

> But to my knowledge and reading the Inside Passage is Canadian waters where the “right of innocent passage” exists. Very different then a international waterway. I would be interesting in you proving me wrong with a link explictly showing the Inside Passage is an International waterway



The two concepts are not exclusive.

The Inside Passage is indeed Canadian "internal waters" as defined by UNCLOS, but it's also an international strait or more properly "A strait used for international navigation" as defined by UNCLOS. 

The UNCLOS definition (Part 37 of UNCLOS) is "straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone." 

http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm

Canada's EEZ is on one end of the Inside Passage, and the US EEZ is one the other. The high seas are beyond both. It's an international strait.


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## Colin Parkinson (10 Apr 2008)

Thank you for the link, I have reread it and I would say that the inside passage is a Territorial Sea (Part II) Now the US may dispute this, but they did not ratify this agreement anyways. I am also pretty sure that Canada’s position is that it is territorial sea and not an international waterway. I notice that there is no list of waterways giving their status, one would think that certain waterways would have their status published.

The article of interest to this thread would be Article 19 & 20


Article19
Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.

Article20
Submarines and other underwater vehicles
In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.


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## drunknsubmrnr (10 Apr 2008)

Colin P said:
			
		

> Thank you for the link, I have reread it and I would say that the inside passage is a Territorial Sea (Part II)



Internal waters are the Territorial Sea. They're the same thing.



			
				Colin P said:
			
		

> Now the US may dispute this, but they did not ratify this agreement anyways. I am also pretty sure that Canada’s position is that it is territorial sea and not an international waterway. I notice that there is no list of waterways giving their status, one would think that certain waterways would have their status published.



The area in question is both a territorial sea and an international strait. The straits can go right through an area of internal waters. An example of this would be the Bosphorus.



			
				Colin P said:
			
		

> The article of interest to this thread would be Article 19 & 20
> 
> 
> Article19
> ...



How is that of interest to this thread?


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## Colin Parkinson (10 Apr 2008)

This is a good read regarding the differences of a international waterway, territorial and internal sea.

http://www.igloo.org/community.igloo?r0=community-download&r0_script=/scripts/document/download.script&r0_pathinfo=%2F%7B7caf3d23-023d-494b-865b-84d143de9968%7D%2FResearch%2Fchanging%2Fcanadian%2Fpublicat%2Fbth_vol6&r0_output=xml&s=cc



The articles I posted referenced subs and the permitted activities of military vessels, back in the dusty past  this thread was about submarines.


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## drunknsubmrnr (10 Apr 2008)

OK, I think I know what you mean now.

I think the author of that article is a bit off base. Vessels are allowed to travel in the Inside Passage without Canadian consent or practical knowledge. Sailors can use the passage to travel to US ports in either direction. How could it not be international?

Most submarines transit the passage surfaced regardless of whether they're allowed to or not. Running that submerged would not be a terribly safe idea.


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## je suis prest (10 Apr 2008)

Before you assume the author of that article may be "off base", you might refer to his credentials:

Donald McRae  LL.B. (Otago), LL.M. (Otago), Dipl.Int.Law (Cant.), F.R.C.S.

Donald McRae specializes in the field of international law and has been an Advisor for Canada in several international fisheries and boundary arbitrations. He was Chair of the first dispute settlement panel set up under the Canada-U.S. Free Trade Agreement, and has sat on subsequent panels. He was also Chair of the first dispute settlement panel set up under the U.S.-Israel Free Trade Agreement. He is currently on the roster of panelists for NAFTA and the World Trade Organization. In 1988, he was appointed the Chief Negotiator for Canada for the Pacific Salmon Treaty. Professor McRae currently holds the Hyman Soloway Chair in Business and Trade Law and is a former Dean of the Common Law Section at the University of Ottawa. He was a Professor, Visiting Lecturer and Associate Dean at the Universities of Otago, N.Z., Western Ontario, British Columbia, Cambridge, Hebei, China, Windsor, and Houston Law School, Mexico City. Professor McRae served as President of the CCIL (1990-1992). His publications are principally in the field of International Law and he is Editor-in-Chief of the Canadian Yearbook of International Law.


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## drunknsubmrnr (10 Apr 2008)

je suis prest said:
			
		

> Before you assume the author of that article may be "off base", you might refer to his credentials:



I did. Did you?



			
				je suis prest said:
			
		

> Donald McRae  LL.B. (Otago), LL.M. (Otago), Dipl.Int.Law (Cant.), F.R.C.S.
> 
> Donald McRae specializes in the field of international law and has been an Advisor for Canada in several international fisheries and boundary arbitrations. He was Chair of the first dispute settlement panel set up under the Canada-U.S. Free Trade Agreement, and has sat on subsequent panels. He was also Chair of the first dispute settlement panel set up under the U.S.-Israel Free Trade Agreement. He is currently on the roster of panelists for NAFTA and the World Trade Organization. *In 1988, he was appointed the Chief Negotiator for Canada for the Pacific Salmon Treaty.* Professor McRae currently holds the Hyman Soloway Chair in Business and Trade Law and is a former Dean of the Common Law Section at the University of Ottawa. He was a Professor, Visiting Lecturer and Associate Dean at the Universities of Otago, N.Z., Western Ontario, British Columbia, Cambridge, Hebei, China, Windsor, and Houston Law School, Mexico City. Professor McRae served as President of the CCIL (1990-1992). His publications are principally in the field of International Law and he is Editor-in-Chief of the Canadian Yearbook of International Law.



He's more than a bit biased in that particular area.


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## Colin Parkinson (10 Apr 2008)

drunknsubmrnr said:
			
		

> OK, I think I know what you mean now.
> 
> I think the author of that article is a bit off base. Vessels are allowed to travel in the Inside Passage without Canadian consent or practical knowledge. Sailors can use the passage to travel to US ports in either direction. How could it not be international?
> 
> Most submarines transit the passage surfaced regardless of whether they're allowed to or not. Running that submerged would not be a terribly safe idea.



I believe my ex-boss did a study on this issue and might be able to shed some light on this, I will try to track her down, she is at the TSB now.

That would be a fine piece of chartwork to run the inside passage submerged and in totally passive mode!!!!!

The last thing the control room crew in a submerged subs wants to hear from the navigation officer: Oops or Ummm


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## je suis prest (10 Apr 2008)

I'm not sure why Professor McRae's participation in the Salmon Treaty negotiations would invalidate his opinion on this matter, but, in any case, the current Canadian position is the Inside Passage constitutes Internal Canadian Waters:

 http://www.tc.gc.ca/marinesafety/TP/TP14202/interpretation.htm


The American government does not accept that position.  In the '90s, in the midst of one of our periodic fishing disputes,  Canada asserted its right by charging licence fees to American vessels transiting the passage.  The fee regulation was withdrawn in the course of negotiations but, as far as I know, the fees were never refunded and remain a precedent.


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## drunknsubmrnr (10 Apr 2008)

The reason Professor McRae's opinion is invalidated is because of those transit fees. Under any interpretation of UNCLOS or Admiralty Law, they were illegal. He was the chief negotiator, he had to have been involved with that. At best, his opinion can be described as off base.

No other countries accept Canada's position on internal waters boundaries, it's not just the Americans.


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## je suis prest (10 Apr 2008)

Well, no, surely the transit fees (and it is only speculation to assume he had any role in their introduction) are entirely consistent with his explanation of the legal regime.  If, as Canada claims, the inside passage is internal Canadian waters, then, as Professor McRae says, the right of innocent passage does not apply - and Canada can levy fees if it chooses, or deny passage entirely to non-Canadian vessels.  It is only if the waters are territorial waters that the right of innocent passage would apply.  Given the Canadian position, therefore, the levying of transit licence fees would appear to have been entirely legal.

There are arguments, of course, on both sides to support the argument the inside passage is an international strait, or, as Canada asserts, internal waters.  The fact the sea bed belongs to the Crown in Right of British Columbia, for example, is one historical factor in favour of the Canadian interpretation.  

I understand your point that the Americans do not accept that interpretation of the status of the Inside Passage.  That alone would not seem to be sufficient grounds to dismiss Professor McRae's otherwise cogent explanation of the current status of the law of the sea as it applies to Candian coastal waters.


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## drunknsubmrnr (10 Apr 2008)

Under Article 8 of UNCLOS, thre's still a right of innocent passage even if the Inside Passage was recognised as internal waters.

Article8

Internal waters

1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

2. Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.

The Inside Passage has been used since before the baseline was drawn. 

The guy was chief negotiator for the Canadian government at the treaty during the time the fees were levied. I don't think it's a stretch to say he was involved. I'm not saying he agreed with the fees or not, but he's definitely biased in any positions he takes on the subject. If he took a different position now, it would be admitting that he'd been complicit in a violation of international law.


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## je suis prest (10 Apr 2008)

As Professor McRae points out in the article cited above, with respect to the baselines in the Arctic - but the argument applies equally to the Inside Passage, Article 8 of UNCLOS does not apply if the base lines were draw prior to the treaty being ratified by th nation involved.  At the time Canada asserted the inside passage, and subsequently the Arctic Internal Waters (or whatever we are now calling them), it was not a party to the treaty.  

Further, of course, the US is still not a party to the treaty and cannot challenge Canada's assertion of internal waters status by making reference to its remedies.  

As for allegations of bias in his arguments, I think you would be more persuasive if you pointed out flaws in his facts or arguments, rather than reverting to what is basically an ad hominem attempt to discredit someone who seems to be pretty much the expert on the subject.


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## drunknsubmrnr (10 Apr 2008)

je suis prest said:
			
		

> As Professor McRae points out in the article cited above, with respect to the baselines in the Arctic - but the argument applies equally to the Inside Passage, Article 8 of UNCLOS does not apply if the base lines were draw prior to the treaty being ratified by th nation involved.  At the time Canada asserted the inside passage, and subsequently the Arctic Internal Waters (or whatever we are now calling them), it was not a party to the treaty.



That particular interpretation doesn't seem to be recognised by the other signatories of the Convention. Or non-signatories for that matter.



			
				je suis prest said:
			
		

> Further, of course, the US is still not a party to the treaty and cannot challenge Canada's assertion of internal waters status by making reference to its remedies.



The US still subscribes to Admiralty Law, which doesn't recognise this concept either.



			
				je suis prest said:
			
		

> As for allegations of bias in his arguments, I think you would be more persuasive if you pointed out flaws in his facts or arguments, rather than reverting to what is basically an ad hominem attempt to discredit someone who seems to be pretty much the expert on the subject.



It's not ad hominem to point out the guy is biased. He's a paid negotiator for the Canadian government, and is therefore bound to that position. Under the description you've offered, Johnny Cochran is an expert on the OJ Simpson case and his word should be taken that OJ didn't do it.

As it happens, Professor McRae did make technical errors.

i) Nobody EVER admits what their submarines were doing. They're definitely not going to do that in an international court.

ii) Arctic sensor systems for submarines are impractical. There's just too much background noise to filter out the submarines. Without independent verification of what submarines were where, their evidence is inadmissible.


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## je suis prest (11 Apr 2008)

Actually, accusing someone of bias, especially simply because he represented his own country in negotiations would be an example of an ad hominem argument.  Given your example, yes, I would accept Mr. Chochrane (who is, I believe, no longer with us) as ane expert on evidence in murder trials in the US.  Saying Professor McRae's opinion should be dismissed because it is an opinion he has expressed when paid by the Canadian government would be like dismissing any opinion from a serving member of the Canadian Forces, because they must be "biased".   As I said, it is fair to note errors in the facts he has based his opinion on, or on his interpretation of the law - dismissing his opinion because he has given it before isn't the most persuasive argument you could make.


On the more substantive points you raise, yes, other countries may have other interpretations of our position on Intenal Waters. Unless you have some indication their interpretation has been accepted in a court with appropriate jurisdiction in preference to the Canadian approach, I would say the matter is still open for debate.  Clearly the Canadian position has some historical pecedent, reinforced by the transit fees imposed during the Salmon Treaty dispute.  As for recognition of our position, certainly the Americans have made their position clear. I'm not aware of other nations who have taken a position on the issue.

I think it is fair to say Dr. McRae recognizes, as would most people, that international law in these matters is a matter of practicality and diplomacy as much as black-letter law,  and even the best legal arguments may lose if brought before a tribunal.  That is no reason to abandon our position ahead of time.

As for technical errors, I don't think I would be so sure that no one would ever admit what their submarines have done in the past.  Current operations are certainly going to be kept confidential.  There have, however, been several recent revelations about American patrols in the arctic basin, conducted for hydographic mapping purposes in the 70s.   If the prospect of establishing an extended EEZ depends on further such revelations, I would expect that material will be made available.  Similarly, if the Americans feel they have to prove use of the north-west passage by revealing historical traffic, they may well do so.  Such revelations wouldn't have much to do with current operations.  Log entries and other data would, no doubt, make up any evidence presented in support of such a claim.

And, while not an expert on marine sensors, I'll just note that such proposals were made as recently as last year by the current government.  It would not appear that everyone agrees such systems cannot work.


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## Colin Parkinson (11 Apr 2008)

My reading also indicates that there has been no rulings issued under the dispute panels of the UNCLOS , so everything is still speculation as far as the strength of the agreement and enforceability. As someone else mention presence is 9/10Th of the law. Which is the Russian approach.


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## drunknsubmrnr (11 Apr 2008)

je suis prest said:
			
		

> Actually, accusing someone of bias, especially simply because he represented his own country in negotiations would be an example of an ad hominem argument.



Possibly, although that's not what I've done.

Professor McRae has acted as a paid representative of Canada in a very similar situation to the current topic. He has a clear conflict of interest in that he is again promoting the Canadian governments view of the issue, he is not a neutral party.



			
				je suis prest said:
			
		

> Given your example, yes, I would accept Mr. Chochrane (who is, I believe, no longer with us) as ane expert on evidence in murder trials in the US.



We're not discussing the general topic of murder trials. We're discussing specific cases, in which he was involved. 



			
				je suis prest said:
			
		

> Saying Professor McRae's opinion should be dismissed because it is an opinion he has expressed when paid by the Canadian government would be like dismissing any opinion from a serving member of the Canadian Forces, because they must be "biased".



Not the same situation. Professor McRae is commenting on something he was specifically hired to do. 



			
				je suis prest said:
			
		

> As I said, it is fair to note errors in the facts he has based his opinion on, or on his interpretation of the law - dismissing his opinion because he has given it before isn't the most persuasive argument you could make.



Professor McRae has a clear conflict of interest on this issue, and that's why I'm dismissing his opinion. If he was judging this, he'd be required to recuse himself. Does that not indicate a certain bias?



			
				je suis prest said:
			
		

> On the more substantive points you raise, yes, other countries may have other interpretations of our position on Intenal Waters. Unless you have some indication their interpretation has been accepted in a court with appropriate jurisdiction in preference to the Canadian approach, I would say the matter is still open for debate.



Agreed. Until and unless this is settled in a court of appropriate jurisdiction, the matter is still open.



			
				je suis prest said:
			
		

> Clearly the Canadian position has some historical pecedent, reinforced by the transit fees imposed during the Salmon Treaty dispute.  As for recognition of our position, certainly the Americans have made their position clear. I'm not aware of other nations who have taken a position on the issue.



I'm not aware of any historical precedent to the transit fees issue. Could you cite them?

The case for the Inner Passage being internal waters not subject to "Innocent Passage" appears to be questionable. The case for the Inner Passage not being an international strait appears to be very weak, due to the number of passages and historic precedent.



			
				je suis prest said:
			
		

> I think it is fair to say Dr. McRae recognizes, as would most people, that international law in these matters is a matter of practicality and diplomacy as much as black-letter law,  and even the best legal arguments may lose if brought before a tribunal.  That is no reason to abandon our position ahead of time.



There are a lot of reasons to abandon this position. If our claims on this are upheld, we lose all right of transit passage through a number of straits previously considered as international. That's going to hurt global trade and global security. 

Even if we win this fight, we lose. That isn't good policy.



			
				je suis prest said:
			
		

> As for technical errors, I don't think I would be so sure that no one would ever admit what their submarines have done in the past.  Current operations are certainly going to be kept confidential.  There have, however, been several recent revelations about American patrols in the arctic basin, conducted for hydographic mapping purposes in the 70s.



I am that sure. We don't talk about what we've done for reasons that should be obvious.



			
				je suis prest said:
			
		

> If the prospect of establishing an extended EEZ depends on further such revelations, I would expect that material will be made available.



I doubt it. They're unlikely to be able to sanitise the source enough to prevent people guessing what's behind it.



			
				je suis prest said:
			
		

> Similarly, if the Americans feel they have to prove use of the north-west passage by revealing historical traffic, they may well do so.  Such revelations wouldn't have much to do with current operations.  Log entries and other data would, no doubt, make up any evidence presented in support of such a claim.



If believed, the log entries would open up exactly what USN submarines do and what they're capable of. Not going to happen.

If they're not believed, they'll have damaged their case. Logs can be falsified, and without external evidence to back them up, they may not be believed.

This also pre-supposes that whatever the USN has been doing they haven't been doing it with Canadian government permission. The chances of that are remotely slim.

Either way, there is not enough gain to open up their logs.



			
				je suis prest said:
			
		

> And, while not an expert on marine sensors, I'll just note that such proposals were made as recently as last year by the current government.  It would not appear that everyone agrees such systems cannot work.



I used to work with the people that developed SOSUS and ADS, and I asked them. We couldn't afford to wire the Arctic to the degree necessary to track submarines under the ice.


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## drunknsubmrnr (11 Apr 2008)

Colin P said:
			
		

> My reading also indicates that there has been no rulings issued under the dispute panels of the UNCLOS , so everything is still speculation as far as the strength of the agreement and enforceability. As someone else mention presence is 9/10Th of the law. Which is the Russian approach.



There is an applicable case from the International Court of Justice. The precedent for that doesn't look good for the Arctic Waters issue, and really doesn't look good for the Inner Passage issue.


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## je suis prest (11 Apr 2008)

While I am sure most submarine activities are confidential, there are some examples, as I mentioned, of such operations being publicly disclosed, long after the fact, mind you.  An example is here:  

http://www.nytimes.com/2008/03/18/science/18arctic.html?8dpc


It may be, as you say, that the desire for operational secrecy would prevent any substantive evidence of submarine transit of the north-west passage from being disclosed.  If the economic benefits outweighed those operational concerns, I think evidence would be led.  I'm not sure it would be conclusive.  Secret transits of a passage wouldn't necessarily amount to it being recognized as an international strait.  Transit with Canadian knowledge and even tacit approval would also be unlikely to be sufficient to establish the claim.  But it remains an open question.

As for the Inside Passage, the fact Canada collected transit fees is the precedent I referred to.  That is an indication of our control and assertion of status of the passage.  It has not been challenged or overturned by any domestic or international tribunal that I am aware of.  

I don't share your concern that Canada's successful defence of its position on the status of the Inside Passage would jeopardize our access to any other parts of the ocean currently considered available for innocent passage.  Each such case would be based on its own merits, including historical use, precedence, the peculiarities of geography, etc.   The status of the inside passage as internal waters is a long-standing one of the government of Canada.  I'm not sure why you think it is problematic.

As for your position on Professor McRae, let's just say I think your definition of bias and conlfict of interest is novel.


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## drunknsubmrnr (11 Apr 2008)

je suis prest said:
			
		

> While I am sure most submarine activities are confidential, there are some examples, as I mentioned, of such operations being publicly disclosed, long after the fact, mind you.  An example is here:
> 
> http://www.nytimes.com/2008/03/18/science/18arctic.html?8dpc



Ok, I understand now what you're getting at. Books like "Blind Man's Bluff" are NOT official recognition that any of those things occurred. They're not admissible in any court.

Still good stories though. Thanks for the link, I'll have to get that one.



			
				je suis prest said:
			
		

> It may be, as you say, that the desire for operational secrecy would prevent any substantive evidence of submarine transit of the north-west passage from being disclosed.  If the economic benefits outweighed those operational concerns, I think evidence would be led.



Not going to happen. The USN won't allow it. It took a Presidential directive before they'd allow us to buy boats they didn't even own before they'd allow a Trafalgar sale, they're definitely not going to own up to running through Canadian waters. Assuming they have without permission of course.



			
				je suis prest said:
			
		

> I'm not sure it would be conclusive.  Secret transits of a passage wouldn't necessarily amount to it being recognized as an international strait.  Transit with Canadian knowledge and even tacit approval would also be unlikely to be sufficient to establish the claim.  But it remains an open question.



An open question of what? They can't prove they made "secret transits". The entire point behind a secret transit is that nobody can prove that they did it.



			
				je suis prest said:
			
		

> As for the Inside Passage, the fact Canada collected transit fees is the precedent I referred to.  That is an indication of our control and assertion of status of the passage.  It has not been challenged or overturned by any domestic or international tribunal that I am aware of.



So it's a self-referential precedent? Nice.



			
				je suis prest said:
			
		

> I don't share your concern that Canada's successful defence of its position on the status of the Inside Passage would jeopardize our access to any other parts of the ocean currently considered available for innocent passage.  Each such case would be based on its own merits, including historical use, precedence, the peculiarities of geography, etc.



Err...no. Each case would be based on it's merits and legal precedent. The case for the Inside Passage has issues on its merits, and has legal precedent against it. The merits are the same as the claims on the Northwest Passage. If we lose a case on the Inside Passage on its merits, we lose the case for the Northwest Passage.



			
				je suis prest said:
			
		

> The status of the inside passage as internal waters is a long-standing one of the government of Canada.  I'm not sure why you think it is problematic.



It's only been declared as internal waters since the baselines were drawn in the 1980's. How is that "long-standing"? Also, nobody else recognises that claim. You don't think thats an indication maybe there's a problem?



			
				je suis prest said:
			
		

> As for your position on Professor McRae, let's just say I think your definition of bias and conlfict of interest is novel.



If by "novel" you mean "generally accepted principle of jurisprudence", we're in agreement.


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## je suis prest (11 Apr 2008)

Actually I meant "novel" in the sense of interesting, unusual but not very realistic. I don't mean to be rude, and I recognize that is a danger of these sorts of chats, but I really think you are off base in your suggestion that Professor McRae's opinion is somehow tainted by his previous arguments on the topic.  No advocate that I know is going to have his opinion rejected in one case, simply because he took that position previously for the same client, or, for that matter, if he argued an opposite position in a previous case for another client.   

Anyhow, the issues are all, at this point, somewhat moot.  As for the Inside Passage, there is a modus vivendi between ourselves and the US which noone seems to be interested in changing at this point.  The arctic Internal Waters are probably going to be  a different matter and if the ice continues to disappear there will be some need for clarification of what regulatory regime applies to shipping in that part of the world.

As Professor McRae points out, though, the distinctions between "Internal Waters", "Territorial Seas" and "International Straits" are not as great, in practical terms as they may seem.  So long as Canada can assert an appropriate level of control in regards to environmental protection in the arctic the primary concerns in the north will be the normal ones of fisheries patrol, immigration and border security and general projection of law and order.  The specific legal nature of the waters in question, while interesting, is more of an academic than a practical concern.


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## drunknsubmrnr (11 Apr 2008)

je suis prest said:
			
		

> Actually I meant "novel" in the sense of interesting, unusual but not very realistic. I don't mean to be rude, and I recognize that is a danger of these sorts of chats, but I really think you are off base in your suggestion that Professor McRae's opinion is somehow tainted by his previous arguments on the topic.  No advocate that I know is going to have his opinion rejected in one case, simply because he took that position previously for the same client, or, for that matter, if he argued an opposite position in a previous case for another client.



I don't take it as rude. Actually, I agree with you. As an advocate, you're quite correct. However, an official advocate is a biased position, and I consider it as such. Therefore, I take Professor McRae's points with a great deal of salt. If he were selected as a judge on these positions, he'd have to recuse himself because of his previous positions.



			
				je suis prest said:
			
		

> Anyhow, the issues are all, at this point, somewhat moot.  As for the Inside Passage, there is a modus vivendi between ourselves and the US which noone seems to be interested in changing at this point.



As long as we don't charge any transit fees in the future, you're probably right. However, the very fact that we no longer charge the fees is a pretty good indication on how the case would go.



			
				je suis prest said:
			
		

> The arctic Internal Waters are probably going to be  a different matter and if the ice continues to disappear there will be some need for clarification of what regulatory regime applies to shipping in that part of the world.



I don't think we're going to have to worry about it. It looks like the ice isn't going away any time soon.



			
				je suis prest said:
			
		

> As Professor McRae points out, though, the distinctions between "Internal Waters", "Territorial Seas" and "International Straits" are not as great, in practical terms as they may seem.  So long as Canada can assert an appropriate level of control in regards to environmental protection in the arctic the primary concerns in the north will be the normal ones of fisheries patrol, immigration and border security and general projection of law and order.  The specific legal nature of the waters in question, while interesting, is more of an academic than a practical concern.



I agree. That's why I don't see the point in investing as much in the North to prevent people using the Northwest Passage. The de facto Destroyer Replacement Program looks like it'll be the AOPS, and that has pretty large repercussions throughout the rest of the navy.


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## Ex-Dragoon (11 Apr 2008)

> I agree. That's why I don't see the point in investing as much in the North to prevent people using the Northwest Passage. The de facto Destroyer Replacement Program looks like it'll be the AOPS, and that has pretty large repercussions throughout the rest of the navy.



Care to provide an official source on the AOPS cancelling out the DRP,


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## drunknsubmrnr (11 Apr 2008)

That's _de facto_ ie in fact, not _de jure_ or in law. The _de jure_ replacement for the TRUMPS is still the DRP. I think we're going to find that we're going to get the AOPS and not get the DRP, making them the _de facto_ replacement.

Consider this: The major issues with new (and current) destroyers are that they're very expensive to build and run, and require a lot of technical personnel. The AOPS will be fairly cheap to build and run, and will be remarkably lean on techs. Probably a coincidence, but it's going to be difficult to convince politicians otherwise.


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## Ex-Dragoon (11 Apr 2008)

Thats not what I asked for though.....So in reality you cannot say either one way or the other that we will not get destroyers or not, its an _assumption_ from you that no destroyers are forthcoming.


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## Colin Parkinson (11 Apr 2008)

drunknsubmrnr said:
			
		

> There is an applicable case from the International Court of Justice. The precedent for that doesn't look good for the Arctic Waters issue, and really doesn't look good for the Inner Passage issue.



Thanks, I see four cases of which one is pending, one seems to be agreed out of court and two finalized. I don't see one that applies to the inside passage after a quick scan.

http://www.pca-cpa.org/showpage.asp?pag_id=1288.


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## drunknsubmrnr (12 Apr 2008)

Ex-Dragoon said:
			
		

> Thats not what I asked for though.....So in reality you cannot say either one way or the other that we will not get destroyers or not, its an _assumption_ from you that no destroyers are forthcoming.



No, it's a prediction based on the capital budget, the manning shortfalls and the arguments for a destroyer program that have clearly not worked in the past.


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## drunknsubmrnr (12 Apr 2008)

Colin P said:
			
		

> Thanks, I see four cases of which one is pending, one seems to be agreed out of court and two finalized. I don't see one that applies to the inside passage after a quick scan.
> 
> http://www.pca-cpa.org/showpage.asp?pag_id=1288.



I was referring to the Corfu Channel case.

http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=cc&case=1&k=cd


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## Ex-Dragoon (12 Apr 2008)

drunknsubmrnr said:
			
		

> No, it's a prediction based on the capital budget, the manning shortfalls and the arguments for a destroyer program that have clearly not worked in the past.



And when Ottawa decides on a design to replace them then they usually allocate money to fund those projects. They have staffs for almost every capital project and some work out others did not. I have talked to the old chiefs in the navy and they were skeptical the Halifax class would ever come about, even when the first steel was cut they had their doubts. You are stating this project will not happen because of a prediction? Sorry you have to do better then that. Either provide an actual source or withdraw the comment.

Milnet.Ca Staff


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## drunknsubmrnr (12 Apr 2008)

Ex-Dragoon said:
			
		

> And when Ottawa decides on a design to replace them then they usually allocate money to fund those projects. They have staffs for almost every capital project and some work out others did not.



Like CADRE? And SCSC? And the GPF for that matter? All of those projects had money and staff allocated, but I don't recall see any built. All of those projects share general characteristics with DRP, and none were built. The only AAW destroyer program we've ever had funded was TRUMP, and that program didn't have a whole lot in common with DRP or the other destroyer replacement programs.



			
				Ex-Dragoon said:
			
		

> I have talked to the old chiefs in the navy and they were skeptical the Halifax class would ever come about, even when the first steel was cut they had their doubts.



Given the number of times projects have been started but no construction was authorised, I'm not surprised they were cynical. 



			
				Ex-Dragoon said:
			
		

> You are stating this project will not happen because of a prediction? Sorry you have to do better then that.



No, I'm *predicting* that this project will not happen. This is because the TRUMPs will be paying off around the same time as the AOPS will require manning. At that point, we're going to have personnel issues in manning new destroyers, funding issues with the capital program in that timeline (2012-2018) and we're going to have to overcome not having the destroyers for a period of time. If you'd like I can provide references for all of those comments, but the issues are well known.


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## Ex-Dragoon (12 Apr 2008)

drunknsunmrnr said:


> The de facto Destroyer Replacement Program looks like it'll be the AOPS, and that has pretty large repercussions throughout the rest of the navy.


Nowhere did you state it was your own personal prediction now did you? Had you stated that then there would not be an issue. Lots of projects as well do get funded and if for whatever reason a project does not get the funded, what the staff has learned during that time period has proved to be invaluable. So when/if they do get the green light less mistakes are made.

As for references please provide official references from DND or Ottawa, not someone elses opinion what may or may not happen.



> Like CADRE? And SCSC? And the GPF for that matter? All of those projects had money and staff allocated, but I don't recall see any built. All of those projects share general characteristics with DRP, and none were built.


Nor do I recall these projects being funded. Its all fine and dandy to staff and office for something that may or may not happen. Its nice to know someone is covering the bases just in case a capital project is authorized.


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## Colin Parkinson (12 Apr 2008)

drunknsubmrnr said:
			
		

> I was referring to the Corfu Channel case.
> 
> http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=cc&case=1&k=cd



Thanks for the link, has this case ever been used as precedent?


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## drunknsubmrnr (13 Apr 2008)

Ex-Dragoon said:
			
		

> drunknsunmrnr said:Nowhere did you state it was your own personal prediction now did you? Had you stated that then there would not be an issue.



Thats why I mentioned the difference between _de facto_ and _de jure_ projects. I'll be more specific next time.



			
				Ex-Dragoon said:
			
		

> Lots of projects as well do get funded and if for whatever reason a project does not get the funded, what the staff has learned during that time period has proved to be invaluable. So when/if they do get the green light less mistakes are made.



I agree. We don't seem to be doing too well on the destroyer programs though. Maybe we'll have better luck this time.



			
				Ex-Dragoon said:
			
		

> As for references please provide official references from DND or Ottawa, not someone elses opinion what may or may not happen.



I can provide references on why I formed my opinion, if thats what you'd like.



			
				Ex-Dragoon said:
			
		

> Nor do I recall these projects being funded. Its all fine and dandy to staff and office for something that may or may not happen. Its nice to know someone is covering the bases just in case a capital project is authorized.



I agree. However if our plan is to get something that is unlikely to be funded, maybe we should change the plan to something that's more likely to be funded.


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## drunknsubmrnr (13 Apr 2008)

Colin P said:
			
		

> Thanks for the link, has this case ever been used as precedent?



You're welcome, and it's the only precedent I'm aware of. Aside from the shore batteries and minefields, it's pretty close to our situations.


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## Colin Parkinson (13 Apr 2008)

drunknsubmrnr said:
			
		

> You're welcome, and it's the only precedent I'm aware of. Aside from the shore batteries and minefields, it's pretty close to our situations.




Ha! who needs shore battries and minefields when we have Newfie politicans and strongly worded letters!!  ;D

I am still digesting the link, I also notice the strait is not completely owned by Albania, although the issue of Territorial waters is quite prominent.


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## Ex-Dragoon (13 Apr 2008)

drunknsubmrnr said:
			
		

> I agree. We don't seem to be doing too well on the destroyer programs though. Maybe we'll have better luck this time.


The Arctic Patrol Vessels are not equal to a destroyer in any ways , shape and form. How will we have better luck should these replace the 280???



> I can provide references on why I formed my opinion, if thats what you'd like.


If its an official reference then please do, we try not to deal with conjecture here.



> I agree. However if our plan is to get something that is unlikely to be funded, maybe we should change the plan to something that's more likely to be funded.


For what? Another less then capable warship like the MCDVs? Thats like buying a Sherman tank when you can afford M1s.


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## drunknsubmrnr (13 Apr 2008)

Ex-Dragoon said:
			
		

> The Arctic Patrol Vessels are not equal to a destroyer in any ways , shape and form. How will we have better luck should these replace the 280???



I hope we get the destroyers, or something else that will get the job done. I agree that the AOPS will not be that ship, it's just all that I think we'll get any time soon.



			
				Ex-Dragoon said:
			
		

> If its an official reference then please do, we try not to deal with conjecture here.



Sure. It might take a while to track them down, but I'll post them in this thread..



			
				Ex-Dragoon said:
			
		

> For what? Another less then capable warship like the MCDVs? Thats like buying a Sherman tank when you can afford M1s.



My own thoughts are that maybe we can get by with fewer number of better ships, rather than the full Task Group concept.


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## drunknsubmrnr (13 Apr 2008)

Colin P said:
			
		

> Ha! who needs shore battries and minefields when we have Newfie politicans and strongly worded letters!!  ;D



Right! Send Snook and Buddy Wasisname to sort them out.



			
				Colin P said:
			
		

> I am still digesting the link, I also notice the strait is not completely owned by Albania, although the issue of Territorial waters is quite prominent.



The strait was split between Greece and Albania, and Albania mined their part. The RN nearly lost a ship on the mines, and then forcibly cleared the minefield. Both parties took the issue to the ICJ, and the result is what you've got.


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## Ex-Dragoon (13 Apr 2008)

drunknsubmrnr said:
			
		

> I hope we get the destroyers, or something else that will get the job done. I agree that the AOPS will not be that ship, it's just all that I think we'll get any time soon.


You and I both. Unlike CADRE and SCSC there seems to be a lot information coming down the pipeline. If it means anything we will see.



> My own thoughts are that maybe we can get by with fewer number of better ships, rather than the full Task Group concept.


The TG concept is here to stay though. Its something we are practicing more and more. Not only does it help prepare our navy for command roles with our own, it also prepares us better for intergration with Coalition navies. Its a valuable tool for the military and not to mention Canada when we do send several ships overseas.


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## drunknsubmrnr (14 Apr 2008)

I agree that the Task Group concept will stay, but I'm not so sure that the way we do things will stay the same or even close to the way we're doing it now.

The Plan needs at this point at least 4 elements to a task group:

i) 5-7 helos for ASW/ASuW/MIO/VERTREP/Pizza delivery/etc

ii) An AOR for refuelling/replenishment

iii) 2-3 FFH for ASW/ASuW/MIO

iv) 1 DDH for ASW/AAW/ASuW/MIO/C3

I'm sure I've forgotten a few missions in there, but I think those are the main ones.

All of the current platforms we're using for the above are pretty much worn out. We're getting very capable replacements for the first two elements, but they're joint. The implication of their jointness is that they're basically CF assets, not Navy ones. Thats a big difference from the normal way we've operated. The FFH will be getting FELEX, which will certainly help but may have issues in high or even medium threat environments. We may or may not get replacements for the DDH. If we don't get new destroyers, we're going to have issues deploying a task group into medium or high threat environments because of the lack of AAW support. Even if we do get new destroyers the "jointness" of the new helo/AOR platforms may have issues with deploying a task group. ie if they're doing purple things, who's left to do the Navy things we've always done with those assets?


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## Ex-Dragoon (14 Apr 2008)

You covered the main ones. NGS is a role that is starting to creep back into the fleet at a very slow rate, with some procedures being updated and worked upon. 

 I don't think the CH148s will be as joint as you are worried about. To switch from an ASW helo to a troop lift is not as easy nor as fast as I believe the guys in suits are hoping it will be. As for the JSS, I think that if the Navy needs to do a RAS then the RAS will take precedence over landing vehicles. While I am a fan of multirole, you need enough platforms to cover off when needed. 3 JSS are not enough to do both the sea lift and to do replenishment at sea.

  Now if we got the MK41 launchers variant that can have 4 ESSMs per launcher for the Halifax class then I would not be as concerned as I am now for AAD. 64 ESSMs per frigate gives you some breathing room (not much) that may make the loss of the 280s more bearable. 16 ESSMs does not give anyone a warm fuzzy. So if the 280s go with no replacement then any capability we have for TG C3 is lost. That would be to the detriment of our Navy and our allies as well.


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## drunknsubmrnr (14 Apr 2008)

We're doing NGS again? That's surprising.

All I know about CH148 jointness is that the program was slightly delayed and the budget was increased to allow them to quickly remove the ASW equipment and convert to something like a utility helo. This happened a couple of years ago. No idea about how fast "quickly" actually means.

For the JSS I'm not so much worried about the actual landing as what's required to support the landing. For instance, do the vehicles burn the same fuel as the ships? If not, some of the fuel meant for the ships will need to be offloaded. Also, what about supplies? There's only a certain amount of space on board for supplies. If they're carrying the ground forces supplies on the JSS, what happens when a frigates widget breaks and the spares have been offloaded?

It even gets down to food. Both soldiers and sailors eat the same food, but adding a few hundred mouths to the task group will make the available stores run down that much sooner.

I agree we need more JSS.

I don't think the CPF Mk 41 variant would really be necessary. The current version has 16 ESSM in single cells in the Mk 48 launcher, 8 on each side. That can be increased by either increasing the number of launchers to 12 cells per side (space and weight were reserved) or by using dual-cell launchers or both. Using both would give 48 ESSM.

However, the bottleneck is in the designation systems. The combat system architecture we're using requires the STIRs to track before launch and illuminate until the target is killed. That means the CPF is unlikely to be able to use more than 4-8 ESSM before a fights over one way or the other.

FELEX is supposed to reconfigure the ops room to allow a command function. It might be possible if the displays are replaced with something smaller, although they'll also need to find a staff locker for the staff and a monitor. Both the IC and 2IC of FELEX were previously Athabaskan CSEO's, so I'm sure they have an idea of what they want to do.


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