Northern Waters

[drunknsubmrnr]

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

 

[drunknsubmrnr]

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.

 

[je suis prest]

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. 

 

[drunknsubmrnr]

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.

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.

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.

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.

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.

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?

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.

 

[je suis prest]

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.

 

[drunknsubmrnr]

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.

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.

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.

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.

 

[Ex-Dragoon]

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,

 

[drunknsubmrnr]

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.

 

[Ex-Dragoon]

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.

 

[Colin Parkinson]

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.

 

[drunknsubmrnr]

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.

 

[drunknsubmrnr]

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

 

[Ex-Dragoon]

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

 

[drunknsubmrnr]

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.

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.

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.

 

[Ex-Dragoon]

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.

 

[Colin Parkinson]

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?

 

[drunknsubmrnr]

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.

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.

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.

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.

 

[drunknsubmrnr]

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.

 

[Colin Parkinson]

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.

 

[Ex-Dragoon]

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.