Law of the Sea Tribunal Resoundingly Affirms the Sovereign Immunity of Warships and Orders Ghana to Release Argentine Tall Ship ARA Libertad

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

On December 15, 2012, one phase of the dispute between the Argentine Republic and the Republic of Ghana over the “seizure” of the Argentine frigate ARA Libertad while in a Ghanaian port came to an end, when the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany ordered Ghana to “forthwith and unconditionally release the frigate ARA Libertad” and to “ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and … that the frigate ARA Libertad is resupplied to that end.” (See Order of 15 December 2012).

The order came just one month after Argentina filed its application for provisional measures with the ITLOS. The tribunal’s decision—which should receive a warm welcome in the Pentagon—sends a clear message on the principle of sovereign immunity of warships and the readiness of ITLOS to enforce that immunity even when the warship is in the port or internal waters of another state—at least if the involved states are party to the 1982 LOS Convention.

The dispute between the two states has its roots in Argentina’s 2001 default on roughly $100 billion in sovereign debt, reportedly the largest sovereign default in history. NML Capital Investments, which owns some $1billion in Argentina’s sovereign debt, obtained judgment in a New York federal district court for $284 million in 2006. The U.K. Supreme Court later upheld NML’s right to execute its judgment against Argentina’s assets in the U.K. (NML Capital Ltd  v Republic of Argentina, [2010] EWCA Civ. 41, aff’d, [2011] UKSC 33), a decision extensively relied on by agents for Ghana during oral argument at the ITLOS.

This particular dispute before the ITLOS between Argentina and Ghana arose on October 2, 2012, during the ARA Libertad’s October 1-4 port visit to Tema, an industrial port east of Ghana’s capital, Accra. The Libertad, a three-mast tall ship, carried 330 navy cadets and crew at the time. A local Ghanaian court granted NML’s application for an injunction, which prevented the vessel from taking on the fuel she needed before departure until Argentina posted $20 million with the court, in partial satisfaction of NML’s judgment.

Argentina consistently argued that the Libertad was a “warship” under international law, declaring at one point that she is the flagship of the Argentine Navy. In fact, Ghana’s seizure of the vessel prompted several high level resignations in the Argentine Navy and intelligence agency (which was criticized for not foreseeing the seizure). Despite having earlier waived its sovereign immunity with respect to the debt instruments (and the U.K. Supreme Court’s decision upholding the broad effect of that waiver) Argentina argued that Ghana’s interference with the vessel violated sovereign and diplomatic immunity principles.

Ghana and Argentina are both parties to the 1982 U.N. Convention on the Law of the Sea. On October 30, 2012, Argentina instituted dispute settlement proceedings under Annex VII of that Convention. On November 14th, after waiting the required two weeks, Argentina filed its application in ITLOS for provisional measures under article 290 of the Convention, pending constitution of the Annex VII arbitral tribunal. ITLOS heard two days of oral arguments on November 29-30 and issued its order on December 15, 2012. The decision of the judges to order the vessel’s release was unanimous; however, five judges issued separate declarations or opinions.

A threshold question presented in an application to ITLOS for provisional measures is whether the court or tribunal that will eventually adjudicate the dispute on the merits would prima facie have jurisdiction over the dispute under article 288 of the LOS Convention. Jurisdiction under that article is limited to “any dispute concerning the interpretation or application of [the LOS] Convention.” Argentina argued that prima facie jurisdiction existed because the dispute concerned the interpretation or application of four LOS Convention articles: article 18(1)(b) on innocent passage in the territorial sea, article 32 on the sovereign immunity of warships and articles 87(1)(a) and 90 on high seas freedom of navigation.  The tribunal rejected three of the four grounds (see ¶ 61), but found that the dispute did, at least prima facie, concern the interpretation or application of article 32 (¶¶ 65-67). It should be noted, however, that the Annex VII arbitral tribunal is not bound by the ITLOS determination regarding jurisdiction over the dispute, as was demonstrated by the differing opinions on jurisdiction in the 1999-2000 Southern Bluefin Tuna cases.

Key to the tribunal’s decision was the fact that the two states disputed whether article 32 on the sovereign immunity of warships applied to such vessels while in the internal waters of a state. Argentina, relying on the opening language of the article 32 saving clause “nothing in this Convention” argued that the LOS Convention immunity did extend to warships in internal waters, while Ghana, citing the fact that article 32 appears in Part II of the LOS Convention, which addresses the territorial seas, argued that article 32 did not apply in internal waters. While not dispute the warship’s immunity, Ghana argued that the immunity was governed by customary law, not the LOS Convention, and that the dispute therefore did not concern interpretation or application of the Convention.

The tribunal first observed that “although article 32 is included in Part II of the Convention entitled ‘Territorial Sea and Contiguous Zone,’ and most of the provisions in this Part relate to the territorial sea, some of the provisions in this Part may be applicable to all maritime areas, as in the case of the definition of warships provided for in article 29 of the Convention.” (¶ 64). The tribunal then concluded that “a difference of opinions exists between them as to the applicability of article 32 and thus the Tribunal is of the view that a dispute appears to exist between the Parties concerning the interpretation or application of the Convention.” (¶ 65).

After answering the threshold question on prima facie jurisdiction under the LOS Convention in the affirmative, the tribunal then turned to the issue of provisional measures.  It noted that article 290(1) provides that such measures may be ordered “to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending a final decision.” Ghana argued that no such measures were necessary or appropriate because Argentina held the keys to the Libertad’s release. The tribunal’s order took notice of Ghana’s assertion that Argentina had the ability to obtain immediate release of the vessel by payment of security to the Ghanaian courts (¶ 92).  However, the tribunal was not persuaded that provisional measures were therefore inappropriate. It cited the continuing serious prejudice to Argentina posed by Ghana’s refusal to permit the warship to depart its port.  The tribunal observed that “a warship is an expression of the sovereignty of the State whose flag it flies” (¶ 94) and “in accordance with general international law, a warship enjoys immunity, including in internal waters (¶ 95). It then declared that “any act which prevents by force a warship from discharging its mission and duties is a source of conflict that may endanger friendly relations among States” (¶ 97) and “actions taken by the Ghanaian authorities that prevent the ARA Libertad, a warship belonging to the Argentine Navy, from discharging its mission and duties affect the immunity enjoyed by this warship under general international law.” (¶ 98). The tribunal then concluded that “the urgency of the situation requires the prescription by the Tribunal of provisional measures that will ensure full compliance with the applicable rules of international law, thus preserving the respective rights of the Parties.” (¶ 100).

The tribunal did not address the question raised during oral argument regarding Argentina’s waiver of sovereign immunity.  Argentina had argued that such waivers must be specific as to warships.  Arguably, to find prima facie jurisdiction the tribunal did not need to reach the waiver issue.

While the ITLOS decision may indeed be cheered in naval circles for its ringing affirmation of the sovereign immunity of warships (possibly also for military aircraft, although they are not defined in the LOS Convention, nor is their sovereign immunity addressed), it also serves as a reminder of the awkward position of the U.S. as a non-party to the LOS Convention (the Convention has been pending before the senate since 1994, but the senate has yet to give its advice and consent to accession). Accordingly, should a similar incident occur involving a U.S. Navy or Coast Guard warship, the U.S. would not be able to apply to the ITLOS for the vessel’s release. Should the U.S. become a party to the LOS Convention, it should also take note of the fact that Argentina shrewdly amended its article 298 declaration on October 26^th (four days before instituting its first legal action under Annex VII of the LOS Convention) to remove its early rejection of the LOS Convention’s compulsory dispute settlement procedures with respect to “military activities by government vessels and aircraft engaged in noncommercial service.” (¶ 34).  In presenting the Convention to the senate in 1994, the Clinton administration recommended that the U.S. exempt military activities from the Convention’s compulsory dispute settlement procedures. Proposed declarations by the Senate Foreign Relations Committee in 2004 and 2007 adopted that position. This case demonstrates at least one potential drawback to such exemptions.