Argentina Threatens to Sue Ghana in the International Tribunal for the Law of the Sea

by Julian Ku

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?

5 Responses

  1. When and how Argentina “has expressly waived its immunity defenses”? I haven’t seen this…

  2. Mariano, I understand that the terms of the Argentinian bonds included an unconditional waiver – see Julian’s earlier post:

  3. ITLOS has just spread the news on the new case

    As the Argentine’s application is not yet published, it’s curious to see how the Argentine invokes the UNCLOS.

  4. Here there is a quick response directly from the law and from the Press Release: “Argentina emphasizes that the  ARA Libertad is a warship and the flagship of the Argentine Navy. It alleges that, at the time of its detention, the frigate ARA Libertad was on an official visit to Ghana and that the Government of Argentina and the Government of Ghana had agreed upon the vessel’s arrival at the Port of Tema on 1 October 2012”
    Thus, even if the waiver applies, which it does not (I have read the brief from the judge of Ghana and it is far from correct on this point as it cites ramdon precedents from the UK and not a single one of the plethora of cases that differentiate between different types of immunities and the waiver of the argentine bonds), the following points should be made 1) as the flagship of the Navy it enjoys special immunity which cannot be waived, this is customary international law and is embodied in UNCLOS as well expressly and BECAUSE it is CIL, 2) The ARA has entered Ghana under an agreement with that State and in an official visit. That prevents, under international law, any seizure from the ghanian authorities as they have waived in such any right of siezure (otherwhise it will be like an unlawful luring), 3) Warships do enjoy a particular type of immunity recognized by most nations, because if they do not any court which believes that a certain country has committed war crimes, crimes against humanity, etc, could seize any military vessel it arrives at its ports undermining defense and military interests all across the world. This is very clear in UNCLOS and in general international law since its inception. The commercial documents where the “waivers” were inserted on only refer to state immunity for State assets of merely commercial value. Warships can not, by any means, be charactized as that.
    The hearings will be at the end of November, so lets see what in this story.

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