13 Nov Argentina Threatens to Sue Ghana in the International Tribunal for the Law of the Sea
Argentina has opened a new front in its battle with Ghana over a local court order detaining its naval training ship ARA Libertad until Argentina posts a bond for payment on its defaulted sovereign debt. It is now threatening to sue Ghana in the International Tribunal on the Law of the Sea.
Tomorrow, Tuesday, November 13th, all the deadlines expire for Ghana’s government to lift the embargo, recognizing the Convention on the Law of the Sea,” Argentine Foreign Minister Hector Timerman told reporters in Buenos Aires on Monday.
He said if Ghana did not release the ship, Argentina would be able to take its case to the Hamburg-based International Tribunal for the Law of the Sea the following day.
I suppose the issue will be whether naval vessels have an absolute immunity for a domestic court, even when the sovereign in question (Argentina) has expressly waived its immunity defenses. I think the law here is far from clear, and that Argentina’s case is far from strong. Here is Article 32 of the Law of the Sea.
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.
That’s all very well as it goes, but it doesn’t answer the question. No doubt there is immunity for warships under customary international law, but there seems little reason to doubt that this immunity can be waived (as Argentina almost certainly did here). Argentina will have to convince ITLOS that customary international law confers an unwaivable immunity to warships. I don’t know what authority it has for that proposition (my own brief review has found none) but it will be interesting to see if they are able to come up with anything. Maybe someone out there can do the work for ITLOS?