II. RUKARUKU DID NOT VIOLATE ARTICLE 6 OF THE FCN TREATY WHENTHE EGART WAS BEING OPERATED IN ANDUCHENCA’S TERRITORIAL SEA; HOWEVER ANDUCHENCA VIOLATED ARTICLE 7 OF THE FCN TREATY BY CAPTURING THE EGART, WHICH THEREFORE MUST BE RETURNED TO RUKARUKUA. Rukaruku did not violate Article 6 of the FCN Treaty when the Egart was being operated in Anduchenca’s territorial seaRukaruku did not violate Article 6 of the FCN Treaty when the Egart was being operated in Anduchenca’s territorial sea due to the following reasons. 1.Anduchenca is bound by the obligation of innocent passage under the UNCLOS , 2. the Egart was entitled to rely on the right of innocent passage. 3. Even if the Egart was not entitled to the right of innocent passage, the Egart is still entitled the right to freedom of navigation under Article 7 of FCN Treaty. 1. Anduchenca is bound the obligation of innocence passage under the UNCLOS Article 6 of the FCN Treaty requires each contracting party to respect the sovereign territory and sovereign waters of other contracting parties as required under international law. The fact that Anduchenca did not sign, ratify or accede to the UNCLOS did not relieve Anduchenca of its obligations under the Convention, since the obligation associated with innocence passage binds a non-signatory as customary international law. Moreover, Anduchenca has adopted a maritime security law, asserting its sovereignty of territorial water to have a breadth of 12 nautical miles from its coastal baseline , which is consistent with Article 2 and Article 3 of UNCLOS. As a result, it is apparent that the UNCLOS serves as customary law for Anduchenca even it is not a signatory to the Convention.2. The Egart was entitled to the right of innocence passageThe Egart was entitled to the right of innocence passage due to the following reasons. i the Egart was eligible to right of innocence passage, and ii.its operation was not prejudicial to the sovereignty of Anduchenca. iii. Moreover, there is no international law that forbids submerged passage and iv. the Egart did not need prior authorization to enter Anduchenca’s territorial sea.i. The Egart was eligible to right of innocent passageArticle 17 stated that all ship of all States can enjoy the right of innocence passage. Since the UNCLOS did not prohibit the autonomous underwater vehicles from enjoying the rights stated in the convention, and since innocence passage was based on an idea that the sea was free to everyone , the Egart shall eligible to the right of innocence passage. Moreover, Article 29 of the UNCLOS defines “warship” as a ship belonging to the armed forces of a State under the command of the government of the State. However, apart from Article 29, the UNCLOS does not provide further criteria for warship, meaning that there is no inherent reason why an autonomous underwater vehicle could not be deemed as a warship. As the Egart was owned and programmed by Rukarukan Navy which is the armed forces of the state, and operated under the command of the state, it shall enjoy sovereign immunity under the UNCLOS as a warship. Even if the Egart does not qualify as a ship in its own right, it still enjoys the same status as the ship which acts as its launched platform. The Egart was deployed by a Rukarukan Navy’s ship; and as a result, it enjoys the same sovereign immunity status of a warship as the Rukuraku Navy ship which deployed it. However, the fact that the Egart received the warship status does not impair the right to innocent passage of the Egart. The International Court of Justice (ICJ) asserted in Corfu Channel (United Kingdom v. Albania) that the warship was also entitled to the right of innocence passage. Therefore, the Egart, which received the warship status, was eligible to the right of innocence passage. ii. The Egart’s operation was not prejudicial to the sovereignty of AnduchencaThe operation of the Egart was in no way prejudicial to the sovereignty of Anduchenca. Article 19(2)(c) of the UNCLOS states that the passage of a foreign ship shall only be considered prejudicial to the peace, good order or security of the coastal State if in the territorial sea it conducts an act aimed at collecting information to the prejudice of the defence or security of the coastal State. William H. Taft IV, a former Legal Adviser to the U.S. Department of State, concurred that UNCLOS did not prohibit or regulate intelligence activities in the territorial sea. Intelligence collecting in usual navigation was not prohibited while engaging in innocence passage. Although the Egart was collecting optical and acoustic data, this was part of a normal navigation process that requires intelligence gathering in order to ascertain its position to avoid navigational hazard. As the Egart was merely conducting its normal data gathering and did not conduct any unusual activity when it entered Anduchenca territorial sea, its operation was not prohibited. Even though the data the Egart collected could arguably be used to undermine the national security of Anduchenca, its operation was not prohibited as long as it exercised the right of innocence passage. The key to determine whether the Egart’s operation was innocent or not lies in the intention of Rukaruku. Rukaruku had been deploying its Navy to collect data along the Kumatqesh coast in order to promote stability of the region since the end of World War II, and regularly shared the data with all of the states in the region. The past actions of Rukaruku reflected that Rukaruku did not have any intention that is prejudicial to the defence or security of Anduchenca. The Egart’s operation was merely to ensure the safe passage of theships of all nationalities that are transiting in those waters, as the Rukaruku’s Ministry of External Relations addressed. As a result, the Egart’s passage is innocent according to Article 19 of UNCLOS, and can enjoy the right of innocent passage through the territorial sea according to Article 17 of UNCLOS. iii. There is no international law that forbids submerged passageNeither Article 20 of the UNCLOS nor customary international law forbids submerged transit in the territorial sea. The fact that the Egart did not navigate on the surface, nor show its flag in accordance to Article 20 of the UNCLOS, did not indicate that the submerged passage of the Egart was forbidden by the international law. This is because Article 20 is not delicta juris gentium. The requirement for submarines and other underwater vehicles to navigate on the surface is not provided under Article 19, which instead lists the non-innocent activities. Accordingly, it can be seen that the mere fact of submerged navigation does not automatically render passage non-innocent. Therefore, Rukaruku is free to do that which is not specifically prohibited. iv. The Egart did not need prior authorization to enter Anduchenca’s territorial seaAnduchenca has adopted maritime security law that required any foreign government vessel entering its territorial to obtain prior authorization. However, Article 309 and Article 310 of the UNCLOS declare that countries cannot utilize declarations and/or internal laws in order to eliminate the legal effect of the provisions of the UNCLOS. Therefore the law and regulation of Aduchenca, the coastal state, should reflect the true meaning of UNCLOS which granted the right of innocent passage to all ships, including warships. The requirement of prior authorization will permit each country to suppress the legal effect of the Convention at their own discretion. Such discretion means that the UNCLOS will not be applied with uniformity, leading to the lack of harmony in international order. Moreover, the International Court of Justice also decided in Corfu Channel (United Kingdom v. Albania) that the innocence passage of warships cannot be prohibited, nor does it require any authorization. As a result, the Egart did not need prior authorization since it exercised the right of innocence passage.3. Even if the Egart was not entitled to the right of innocence passage, the Egart was still entitled to the right to freedom of navigation under Article 7 of the FCN TreatyAnduchenca and Rukaruku have signed the FCN Treaty and therefore must be bound by it. Article 7 of the said Treaty allows freedom of commerce and freedom of navigation between the territories of the two contracting parties. As a result, Rukaruku, as a party to the Treaty, has the right to freedom of navigation between the territories of Anduchenca and Rukaruku. The ICJ’s ruling in Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) stated that the signatories of the treaty which allows freedom of navigation must act in accordance with its obligations under the Treaty. Therefore, the Egart was entitled to the right of navigation under the Treaty that Anduchenca must respect.Even though Anduchenca claims that the right to freedom of navigation under Article 7 was intended only for commercial vessels on the high seas, Article 7 did not provide any criteria of vessels that are entitled to the right, nor does it specify any part of the ocean to enjoy the right as Anduchenca claimed. According to Article 31(1) of the Vienna Convention on the Law of Treaties, to which Anduchenca and Rukaruku are parties, a treaty shall be interpreted in the light of its objection and purpose. The objection of the FCN Treaty was to ensure perpetual peace and stability of the region, along with the encouragement of trade and investment. When taking into consideration the circumstances that the Treaty was concluded after the World War II, whereby Rukaruku embarked on the program to promote stability in the region by deploying its Navy to protect commercial ship along the Kumatqesh coast, the Treaty certainly does not intend to limit the right to navigation of government vessels or restrict the right only to be exercised in high sea as Anduchenca has claimed. Therefore, the Egart was entitled to the right of navigation under the FCN Treaty.B. Anduchenca violated Article 7 of the FCN Treaty by capturing the EgartAnduchenca violated Article 7 of the FCN Treaty by capturing the Egart since 1. it did not have the right to capture the Egart under the UNCLOS. 2.Even if Anduchenca were entitled to take action, the capture of the Egart was not an appropriate measure.1. Anduchenca did not have the right to capture the Egart under the UNCLOSAnduchenca did not have the right to capture the Egart under the UNCLOS because it cannot restrict the right of innocence passage through its maritime security lawi, its action does not comply with Duties of the coastal statesii and it cannot exercise the Rights of protection of the coastal States towards the Egartiii.i. Anduchenca cannot restrict the right of innocence passage through its maritime security lawSince the coastal states’ regulation has to be in conformity with the UNCLOS, Anduchenca cannot require prior authorization from government vessel that exercised the right of innocence passage as aforementioned. Therefore, the Egart did not violate Anduchenca maritime security law; thus, Anduchenca did not have the right to capture the Egart. As a result, Anduchenca’s action of capturing the Egart was a violation of Article 7 of the FCN Treaty.ii. Anduchenca’s action does not comply with Duties of the coastal statesThe International Law of the Sea stated that if there is no statutory exception in accordance with the UNCLOS, the innocent passage of a foreign ship through the territorial sea shall not be hampered. The fact that Anduchenca jammed the Egart’s communication links and transmitted false GPS to it in order to capture it was clearly against international law regarding the duties of the coastal states, which, as a result, is a direct contravention to the freedom of commerce and navigation as stated in the FCN Treaty. iii. Anduchenca cannot exercise the Rights of protection of the coastal States towards the EgartAccording to international law, underwater vehicles are required to navigate on the surface and show their flag in order to enjoy the right of innocent passage, and the coastal states may take necessary steps in order to prevent passage which is not innocent. However, even if the Egart did not navigate on the surface, it does not mean that the Egart failed to exercise the right of innocent passage as aforementioned. Article 19(1) of the UNCLOS , which indicates that the passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state, establishes a presumption of innocence. Since the UNCLOS does not require the ships to demonstrate their innocence, the complaining coastal state has the burden of proof to establish that the passage taken was non-innocent. However, when Anduchenca captured the Egart, it only found that the Egart was operating in its territorial sea without any evidence indicating that the Egart operation was non-innocent. As such, the presumption of innocence of the Egart must stand. Moreover, Article 19 (2) which is the exception to right of innocent passage should be interpreted narrowly, meaning that any exception should be interpreted strictly so the right can be exercised to its correct and full extent. Therefore, states must require proof of factual non-innocence before it initiate any action. The coastal state may not take a preemptive action to prevent suspected non-innocent passage since Article 19(2) has to be interpreted narrowly. As a result, Anduchenca’s capture of the Egart was inconsistent with the right of protection of the coastal states under the UNCLOS, rendering its action a violation of Article 7 of the FCN Treaty.2. Even if Anduchenca were entitled to take action, the capture of the Egart was not an appropriate measureSince the Egart was deemed a warship according to the definition of warship in the UNCLOS, the Egart enjoys the immunity of a warship. As such, the Egart, which is a warship, may be required to leave Anduchanca’s territorial sea only on the ground of non-compliance, in accordance with Article 30 of the UNCLOS. Moreover, the warship immunity is not to be the subject of seizure, arrest or detention. As a result, capturing the Egart was not an appropriate measure and constituted a violation of the right to freedom of navigation under Article 7 of the FCN Treaty. C. Anduchenca must return the Egart Anduchenca jammed the Egart communication links, transmitted false GPS to the AUV and captured it. These actions should and must be deemed the use of force, which prevent Rukaruku from enjoying the freedom of navigation in accordance with Article 7 of FCN Treaty. Moreover, such actions constituted a violation of Article 2 of UN Charter, which states that members of UN shall refrain in their international relations from the threat or use of force. Therefore, Anduchenca’s violations are international wrongful acts according to Article 2 of Responsibility of States for Internationally Wrongful Acts; and as a result, it must cease the Egart’s detainment as required in Article 30(a) and return it with full reparation as stated in Article 31 of this Act.