Northern Waters

[Colin Parkinson]

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.

 

[drunknsubmrnr]

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.

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.

 

[Colin Parkinson]

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

 

[Colin Parkinson]

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.

 

[drunknsubmrnr]

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.

 

[Colin Parkinson]

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.

 

[drunknsubmrnr]

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.

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.

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.

How is that of interest to this thread?

 

[Colin Parkinson]

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. 

 

[drunknsubmrnr]

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.

 

[je suis prest]

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.

 

[drunknsubmrnr]

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

I did. Did you?

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.

 

[Colin Parkinson]

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 

 

[je suis prest]

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.

 

[drunknsubmrnr]

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.

 

[je suis prest]

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.

 

[drunknsubmrnr]

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.

 

[je suis prest]

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.

 

[drunknsubmrnr]

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.

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.

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.

 

[je suis prest]

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. 

 

[Colin Parkinson]

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.