Anduchenca's Argument Analysis

Freedom of navigation is a broad concept that has always existed throughout the history international law. Anduchenca recognizes the doctrine of freedom of the navigation and also how it is applied in customary law. In territorial sea, freedom of navigation exists, but it is exercised through various doctrines such as the right to innocent passage. As an international treaty, provisions of the FCN Treaty should be interpreted in line with international law i.e. treaty and customary law. Principles drawn from the Corfu Channel case support Anduchenca’s position that freedom of navigation indeed exists but within the limits of certain doctrines that have developed under international law. Such doctrines include the right of innocent passage.

This followed the subsequent events whereby British naval vessels that had been destroyed by mines within the Albanian coastal waters, justified their presence based on the doctrine of innocent passage. However, although the United Kingdom had exercised a right to innocent passage through straits, its operation of a Minesweeper had violated Albanian sovereignty, since it had been carried out against Albania’s will. Therefore, Rukaruku’s argument defies logic when it claims that Anduchenca’s acceptance of the FCN Treaty’s terms shall be interpreted in such a way that Anduchenca was willing to give up its rights to exercise sovereignty within its territorial sea. Anduchenca by becoming a party to the FCN Treaty has been recognizing the right of innocent passage through its territorial sea. However, the text of Article 7 of the FCN Treaty does not exclude the possibility for Anduchenca to regulate the passage of certain categories of ships through its territorial sea. This position of Anduchenca, as it will be further illustrated below, is in line with the principles applicable to the international customary law of the sea and does not contradict to the UNCLOS provisions that have codified such customary

If the concept of the territorial sea is surrounded by security concerns in particular self-defense does it mean that Anduchenca by signing the FCN Treaty also gave up its inherent rights to self-defense enshrined in the United Nations Charter as well as customary international law? Any interpretation that can be applied with respect to these Treaty provisions does not lead to a conclusion that the ability of Anduchenca to establish internal laws and regulations to control certain ships’ access to its territorial sea is restricted. Therefore, Anduchenca did not violate Article 7 of the FCN Treaty. Stating otherwise would be an interpretation of the Treaty provisions in a way that contradicts international