As reported in our earlier blog post, on 29 and 30 November 2012, the International Tribunal for the Law of the Sea (the ITLOS) heard an application by Argentina for provisional measures against Ghana under Article 290(5) of the UN Convention on the Law of the Sea (UNCLOS) regarding the detention of its naval ship, the ARA Libertad. The ARA Libertad was detained in Ghana following a successful application in the High Court in Accra by NML Capital, one of Argentina’s creditors (see our earlier blog post). Argentina commenced arbitration proceedings against Ghana under Annex VII of UNCLOS and, by way of its application for interim relief, sought an order requiring Ghana unconditionally to release the frigate.
On 15 December 2012, the ITLOS granted the requested provisional measures, ordering Ghana to release the ARA Libertad and ensure that it, its commander and crew are able to leave the maritime areas under the jurisdiction of Ghana. Ghana has complied with the ruling, and the Libertad set sail from Tema yesterday.
The full Order can be found here.
The ITLOS found that the provisions of UNCLOS invoked by Argentina appeared prima facie to offer a basis on which its jurisdiction would be founded. On the basis that the urgency of the situation so required, it was therefore entitled to prescribe any provisional measures which it considered appropriate under the circumstances to preserve the respective rights of the parties to the dispute.
It considered that a warship is an expression of the sovereignty of the State whose flag it flies and, in accordance with general international law, enjoys immunity including in internal waters (a point which was not disputed by Ghana). The ITLOS found that, in detaining the frigate, Ghana’s actions prevented it from discharging its mission and duties, which affected the immunity enjoyed by it under general international law. The ITLOS did not deal with the question of whether Argentina had waived immunity in relation to the frigate (a question which the Ghanaian courts had firmly decided in NML Capital’s favour).
According to the ITLOS’ ruling, the urgency of the need for provisional measures pending constitution of the Annex VII tribunal was demonstrated by the Ghanaian authorities’ attempts to board the warship and to move it by force to another berth without authorization by its commander. This urgency required the prescription by the Tribunal of provisional measures that would ensure full compliance with the applicable rules of international law, thus preserving the respective rights of the parties.
The ITLOS noted that the order “in no way prejudges the question of the jurisdiction of the Annex VII arbitral tribunal to deal with the merits of the case, or any questions relating to the merits themselves, and leaves unaffected the rights of Argentina and Ghana to submit arguments in respect of those questions”. The Annex VII tribunal will of course be left to rule on Argentina’s claim that the detention violated international obligations under UNCLOS as well as customary international law rules, as well as its request for: compensation; a salute to the flag in satisfaction of the “moral damage” it alleges was caused by Ghana’s actions; and disciplinary sanctions of the Ghanaian officials responsible. However, whilst the measures granted by the ITLOS are expressed to be provisional, Argentina perhaps has less incentive to pursue its claims before the Annex VII tribunal once the ARA Libertad has left Ghana and is unlikely to return.
Argentina’s challenge in the Ghanaian courts to the injunction under which the ARA Libertad was detained is due to be heard in January 2013. However, it is questionable whether the Ghanaian proceedings have any continuing purpose, given that the frigate has already left Ghana, bound for Argentina. For the purposes of Argentina’s creditors, therefore, any continuing spat between Argentina and Ghana is likely to become something of a side-show.