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Russian bombers in international airspace are mostly a distraction. A greater threat to Canadian sovereignty runs silent and deep, in the form of a U.S. submarine that might sail the Northwest Passage this week.

On Saturday, the Los Angeles Times reported on Ice Exercise 2009, a classified mission described by the U.S. Navy as the "testing of submarine operability and war-fighting capability" in the Arctic Ocean. Two nuclear-powered attack submarines, USS Helena and USS Annapolis, will be testing their communications equipment in the waters around and below a research station on the sea ice some 300 kilometres north of Prudhoe Bay, Alaska.

According to the L.A. Times, the Helena recently left its home port of San Diego. We don't know when the other submarine departed for the Arctic. But we do know that the Annapolis is based in Norfolk, Va. - and that's the rub.

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There are two obvious routes from Virginia to northern Alaska. The first involves a long detour to the east and north around Greenland, sailing through international waters. The second route involves a 2,000-kilometre shortcut through the Northwest Passage, which Canada claims as "internal waters."

Submarines are one of the reasons why the United States claims that the Northwest Passage is an "international strait." Under the law of the sea, submarines may pass through an international strait without surfacing or otherwise alerting the adjacent coastal state or states. In Canadian internal waters, however, Washington must obtain Ottawa's permission for any voyage, whether on the surface or submerged.

It's no secret that U.S. submarines regularly use the Northwest Passage. Inuit hunters see periscopes in Barrow Strait, and a U.S. submariner once confessed to me that he'd sailed through. What isn't clear is whether Canada's permission has been sought and received.

Ironically, total ignorance of the voyages would work in Canada's favour. In international law, a country must show some sense of legal entitlement or obligation before its actions can contribute to establishing a new right.

Still, it seems likely that Canada - an ally of the United States in both NATO and NORAD - has known about at least some of the voyages and simply kept quiet.

On Nov. 6, 1995, then-defence minister David Collenette was asked in the House of Commons about submarines in the Northwest Passage. He replied: "Mr. Speaker, we have a number of bilateral agreements with the United States. One of them provides for the movement of U.S. vessels in Canadian waters upon agreement of such a manoeuvre. ... When the U.S. requires such permission, they let us know that they intend to use our waters and we acquiesce."

Two months later, Mr. Collenette retracted this statement. He wrote: "There is no formal agreement covering the passage of any nation's submarines through Canadian Arctic waters. However, as a country that operates submarines, Canada does receive information on submarine activities from our allies. This information is exchanged for operational and safety reasons with the emphasis on minimizing interference and the possibility of collisions between submerged submarines."

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This week's voyage of the Annapolis makes it important that Canadians know which of Mr. Collenette's responses was correct.

We can hope it's the first one, since a bilateral agreement on submarine voyages would likely be modelled on the arrangement concerning icebreakers. The 1988 Arctic Co-operation Agreement specifies that voyages by coast guard icebreakers are "without prejudice" to either country's legal claim.

But if Canada is told about the voyages without being asked for permission, the combination of knowledge and acquiescence could fatally undermine its position.

The key criterion for an international strait is usage by international shipping without the consent of the coastal state. Ottawa's failure to protest against the submarine transits could constitute evidence that - in the corridors of international diplomacy, where it really matters - Canada has already surrendered its claim.

Taking physical action against the submarines is neither necessary nor practical. In international law, protests are sufficient to prevent the protested action from creating a new right.

For the moment, the issue of submarine voyages remains off the table, legally speaking, as long as both governments continue to treat these activities as officially secret. But keeping secrets is becoming ever more difficult in a rapidly warming, increasingly busy Arctic.

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The issue of the Northwest Passage cannot be avoided. It's time for both Canada and the United States to stop the shenanigans - and negotiate a comprehensive agreement on shipping in the North.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He is a project leader with ArcticNet, a federally funded consortium of scientists from 27 universities and five federal departments.

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