Read the arguments of Kris Best (Applicant) and Rebecca Segall (Respondent).
The underwater drone violated the 12 mile territorial sea of Anduchenca and did not engage in innocent passage!
Kris argues that the arbitral award ordering Anduchenca to return the Egart (underwater drone) to Rukaruku is not valid for three reasons. First, the ex parte communications (secret telephone calls) between Rukaruku's counsel and one of the Tribunal’s arbitrators constituted a serious departure from the fundamental rule of impartiality, violating Anduchenca’s right to be treated equally before the Tribunal. Second, the final award was written by a secretary who acted as a de facto fourth arbitrator in violation of the arbitration agreement. Finally, the Tribunal acted in excess of its powers when it issued an award based on Article 7 of the bilateral treaty between the Parties, as the dispute surrounding the Egart does not concern the right to freedom of navigation.
With respect to the second issue before the court, Kris argues that the Egart was not engaged in innocent passage in Anduchenca's territorial sea as it was navigating below the surface while collecting optical and acoustical data for military purposes. As freedom of navigation within the territorial sea of a coastal State is conditioned upon a vessel being in innocent passage, Kris argues that the Egart’s presence in the territorial sea was unlawful and thus a violation of Rukaruku’s obligation to respect Anduchencan’s sovereign waters. She argues that Anduchenca therefore had the right under customary international law to capture the Egart in order to prevent its further non-innocent activities in Anduchencan territory.
While technology may be challenging the legal framework, the law is clear! The malfunction of the Egart cannot be attributed to Rukaruku.
Rebecca argues that despite certain procedural irregularities, the arbitral award remains valid. The presumption is on the validity of arbitral awards, so the threshold for invalidating an award under international law is high. The first ground upon which an award can be invalidated is excess of jurisdiction - that the tribunal was not properly authorised to deal with the dispute. However, tribunals have a wide discretion in interpreting their mandate, and in this case, there was a reasonable connection between the subject of the dispute and the bilateral treaty between Anduchenca and Rukaruku. There was thus no excess of jurisdiction. Secondly, arbitral awards can be invalidated due to a serious departure from a fundamental rule of procedure. One concern was ex parte communications between an arbitrator and Rukarukan government official. However, in this case, there was no “serious” departure, as the content of these conversations were unlikely to have materially impacted the outcome of the award. Furthermore, there was no departure from the fundamental rule that arbitrators not delegate their mandate to an assistant, as the assistant was not involved in legal decision-making or reasoning. Therefore, the award must remain valid.
On the second prayer, Rebecca argues that the Egart’s presence in Anduchenca’s territorial sea did not violate Rukaruku’s obligation to respect Anduchenca’s sovereign waters as required under international law. Under international law, a state commits an internationally wrongful act if the act or omission is attributable to the state and constitutes a violation of an international obligation. Neither of these conditions were met. Firstly, a state can only act through human agents. Thus, when the Egart overrode its instructions not to enter Anduchenca’s territorial sea, the link of attributability was broken. Second, the Egart was exercising the right to innocent passage. This right exists under customary international law, and limits the sovereignty of the coastal state in its territorial sea. Since the Egart was not collecting information prejudicial to Anduchenca, its passage was innocent. However, in capturing the Egart, Anduchenca violated the vessel’s right to freedom of navigation, both under the regime of innocent passage as well as by preventing it from navigating in other maritime zones. Therefore, under the law on state responsibility, Anduchenca is obliged to reestablish the situation that existed prior to their wrongful act, and thus return the Egart.