20 Nov Argentina’s Very Weak Case for Jurisdiction in the ITLOS
This analysis from Professor Matthew Happold offers very good reasons to doubt that Argentina can validly invoke the jurisdiction of the International Tribunal of the Law of the Sea in its dispute with Ghana. Putting aside Argentina’s argument that it did not (or could not) waive its warship’s immunity, Professor Happold points out that it is far from clear that this dispute implicates any issue involving the UN Convention on the Law of the Sea. The key is UNCLOS Art. 32:
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.
The most logical reading of this language here is that the legal issue between Ghana and Argentina: is there immunity for the warship? — is not a UNCLOS question. And nothing in Argentina’s request for provisional measures makes me think that it is should be thought of as a UNCLOS question.
As Professor Happold notes:
Subsection A of Section 3 of Part II of UNCLOs deals with the rules applying to all ships concerning innocent passage in the territorial sea. Articles 30 and 31 respectively cover non-compliance with warships of the laws and regulations of a coastal State concerning passage through the territorial sea, and flag State responsibility for any loss or damage to a coastal State resulting from the non-compliance by warships with the laws and regulations of the coastal State concerning passage through the territorial sea. Put simply, therefore, the Convention states that it says nothing about the immunities of warships in the territorial sea (Article 32 falling within Part II of UNCLOs dealing with the legal regime of the territorial sea – despite the provision’s blanket terms another provision does exist (Article 95) concerning the immunities of warships on the high seas), still less about the immunities of warships in internal waters (which no provision of UNCLOs covers), leaving the matter to be dealt with elsewhere.
In any event, Professor Happold’s whole post is worth considering.
It comes to my attention that, in a recent post, you have questioned the unwaivable immunity to warships that Argentina has claimed to exist in CIL. And now, the analysis on jurisdiction that Professor Happold makes on Argentina v. Ghana before the ITLOS on provisional measures includes a statement that is ommitted in this post. In his legal opinion, Professor Happold states that “Argentina may well have the law on its side as regards State immunity for warships”.
Despite the analysis that could be made on jurisdiction, an unbiased post as a follow-up would have recognized that someone that is quoted here as an authority contradicts your opinion published last week.