Even if the arbitral award is not valid, rukaruku did
not violate fcn treaty article 6 when the Egart operated in anduchenca’s
territorial sea, but anduchenca violated fcn treaty article 7 by capturing the
egart, which it therefore must return to rukaruku
FCN Treaty Article 6 provides that
Anduchenca and Rukaruku must respect each other’s sovereign territory and
sovereign waters as required under general international law.1
Anduchenca had no
grounds to capture the Egart, because (A) Rukaruku did not violate FCN Treaty
Article 6 when the Egart entered Anduchenca’s territorial sea. Further, (B) by
capturing the Egart, Anduchenca violated FCN Treaty Article 7, prescribing freedom of commerce and navigation, and should return it.
did not violate FCN Treaty Article 6 when the Egart operated in Anduchenca’s
Freedom of navigation includes sailing in exclusive economic zones and the high
seas, the right of innocent passage in the territorial sea and through
archipelagic waters, as well as the freedom of transit passage in straits used
for international navigation.2
Rukaruku did not violate FCN
Treaty Article 6 because (1) the Egart was free to navigate in Anduchenca’s
territorial sea under its regulations; or (2) alternatively, it was exercising
its right of innocent
Egart was exercising the freedom of navigation as permitted by Anduchenca
concluding the FCN Treaty, Anduchenca agreed to limit the exercise of its
territorial sovereignty to ensure safety of navigation
States can self-limit their sovereign rights by concluding treaties restricting
or prescribing a specific way of exercising such rights. 3
Thus, generally prohibited4 over-flight operations may be
permitted for foreign government aircraft for
treaty-based purposes, such as suppressing illicit traffic.5
Such limitations in a specific
treaty can be identified by finding the object and purpose of the treaty in its
and by detecting the parties’ common intention as of the treaty’s conclusion.7
Here, the FCN Treaty preamble
specifies that it intended
to ensure “peace and stability in the Odasarra region” and “encourage
mutually beneficial trade”.8
Its historical context, as with other Odasarran FCN Treaties,9
comprised Rukaruku’s measures (without limiting the type of craft used) along
the Kumatqesh coast to protect vessels of all nations from piracy, dangerous
shoals, and leftover mines.10
Hence, FCN Treaty Article 6
obliges Anduchenca to allow Rukaruku’s AUVs to enter into its territorial to ensure safe
passage of ships in the region and Anduchenca should be deemed to have limited its
territorial sovereignty to allow Rukaruka’s AUVs to conduct such operations.
The Egart was exercising the
freedom of navigation for the purposes of the FCN Treaty
AUVs are deployed to ensure safe
transit by detecting mines11
and conducting oceanographic research (bottom mapping, ocean current profile
The Egart’s technical
characteristics allow it to conduct oceanographic research by collecting
acoustic and optical data13
and detecting leftover mines.14
Allegations of surveillance activities of the Egart
spread by Anduchencan press15
lack any basis, and
the Egart was in fact exercising the freedom of navigation necessary for the declared16
purposes of the FCN Treaty.
the Egart exercised the right of innocent passage and could not be captured
Innocent passage is an exception from the coastal
Egart’s operation constituted (a) passage through territorial sea for (b)
innocent aims, even though (c) it operated below surface.
The Egart’s navigation constituted passage
word “passage” includes traversing the territorial sea
without entering internal waters, or proceeding to or from internal waters18
without stopping or anchoring.19
The use of territorial sea should also be reasonable given the weather and the
track of the underwater vehicle.20
In the instant case, the Egart was
traversing Anduchenca’s territorial sea without entering its internal waters.21
It did not stop or anchor in the area.22
Further, the Egart’s intrusion into the territorial sea was not critical, since the Egart was captured only 11 miles from Anduchenca’s coast23
due to a technical
Thus, the Egart’s navigation was a
passage protected by international law,
unlawfully interrupted by Anduchenca.
Egart’s passage was innocent despite data collection
A passage is “innocent” if it does
not undermine “peace, good order, or security of the coastal State” and implies
only those activities that ensure such passage.25
Besides that, to determine whether the passage is innocent, political climate
must be considered.26
In order to navigate, detect
underwater hazards or avoid collisions with other crafts, an underwater vehicle
uses sonar and optical systems.27 These
activities do not necessarily amount to illicit surveillance, since modern
vessel capabilities give a certain scope for surveillance while navigating in
normal mode,28 and
no specific amount of data collected makes a passage non-innocent.29
As the Egart was collecting
optical and acoustic data30
necessary for its navigation, such collection could not prejudice Anduchenca’s
As to the political climate,
Rukaruku knew that disputes between Anduchenca and other Odassaran States never
escalated to violence31
and did everything to
avoid conflict with Anduchenca by pre-programming the Egart to stay more than
12 nautical miles from Anduchencan coast32
and not to prejudice Anduchenca.
Consequently, the Egart’s passage
Egart’s submerged passage does not undermine its innocence
Generally, innocent passage
happens on the surface.33
However, if this requirement is not met, it does not automatically impair
innocence of passage.34 In fact, since this rule is
contained in an Article other than UNCLOS Article 19, submerged navigation of foreign underwater vehicles in the territorial sea constitutes at most an infringement of the coastal State’s regulations rather than
Anduchenca’s regulations never required underwater crafts to surface.
Therefore, even though the Egart was navigating underwater,36
its passage remained innocent.
the Egart respected the innocent passage regime, was
exempt from Anduchenca’s sovereignty and did not violate FCN Treaty Article 6.
This also means that Rukaruku could not prevent this passage.
1 FCN Treaty,
2 Wolfrum, Freedom of Navigation: New Challenges, Statement by the President of
the International Tribunal for the law of the Sea, 2008, at
2; Nordquist, Rosenne, Nandan (Eds.),
United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. 3
3 The SS “Wimbledon”, United Kingdom et al. v Germany, Judgment, (1923) PCIJ
Series A No
1, ICGJ 235 (PCIJ 1923), 17th August 1923, ¶35; Paulsson, Power of States to Make Meaningful Promises to Foreigners, 1(2)
J.I.D.S. 341 (2010), 341, 343, 344.
4 Nicaragua, ¶251.
5 Agreement Between the Government of the
United States of America and the Government of the Commonwealth of the Bahamas
Concerning Cooperation in Maritime Law Enforcement, TIAS 04-629 (2004), Article 7; Agreement Between the
Government of the United States of America and the Government of the Dominican
Republic Concerning Cooperation in Maritime Law Enforcement, TIAS
13-005 (1998), Article IV(10)(a).
6 Hulme, Preambles in Treaty Interpretation, 164 U.Pa.L.Rev. 1281 (2016), 1300.
regarding Navigational and Related Rights (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2009, ¶63.
8 FCN Treaty, Preamble.
10 SoAF, ¶5.
et al., A Survey of
Missions for Unmanned Undersea Vehicles (2009) (“Button”), 36-37.
12 US Department of the Navy, The Navy Unmanned Undersea Vehicle (UUV)
Master Plan (2010), 14.
13 Ibid., 13.
14 Button, 17.
15 SoAF, ¶15.
16 SoAF, ¶17.
17 Treves, A Handbook on the New Law of the Sea, Vol. 2, (1991) (“Treves”), 906.
18 United Nations Convention on the Law of
the Sea, 1833 U.N.T.S. 397 (1982) (“UNCLOS”),
19 UNCLOS, Article 18(2).
The Influence of Law on Sea Power (1975),
21 Clarifications, ¶1.
22 SoAF, ¶16.
23 Clarifications, ¶1.
24 SoAF, ¶17.
25 UNCLOS, Article 19(2).
26 O’Connell, 143.
27 He et al., Autonomous Navigation for Autonomous Underwater Vehicles Based on
Information Filters and Active Sensing, 11 Sensors 10958 (2011) at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3274324/; Hernández, et al., Autonomous Underwater Navigation and Optical
Mapping in Unknown Natural Environments, 16(8) Sensors (2016), at
28 Kaye, Freedom of
Navigation, Surveillance and Security: Legal Issues Surrounding the Collection
of Intelligence from Beyond the Littoral, Australian YBIL, 24, 93 (2005), 99.
29 Kraska, Putting Your Head in the Tiger’s Mouth: Submarine Espionage in the
Territorial Sea, 54 Colum. J. Transnat’l L. 164 (2015) (“Kraska”), 221-222.
30 Clarifications, ¶1.
31 SoAF, ¶8.
32 Ibid, ¶13.
33 UNCLOS, Article 20.
34 Masahiro, The Submerged Passage of a Submarine Through the Territorial Sea – The
Incident of a Chinese Atomic-Powered Submarine, 10 SYBIL 243 (2006) (“Masahiro”), 247; Froman, Uncharted waters: non-innocent passage of warships in the territorial
sea, Thesis (1983), 28; Ivey, National Security
Implications in the Global War on Terrorism of the United States Accession to
the United Nations Convention on the Law of the Sea, 7(2) Dartm. L. J. 117
(2009), 125; Statement
of William H. Taft IV (April 8, 2004): Accession to the 1982 Law of the Sea
Convention and Ratification of the 1994 Agreement Amending Part XI of the Law
of the Sea Convention, Testimony before the U.S. Senate Committee on Armed
of John F. Turner: To examine the United Nations Convention on the Law of the
Sea. (March 23, 2004), Testimony before the U.S. Senate
Committee on Environment & Public Works.
35 Treves, 927-929; Uniform Interpretation of Rules of
International Law Governing Innocent Passage, 28 ILM 1444 (1989), 1446.
36 SoAF, ¶16.