The Saga Continues: Argentina’s Request for Provisional Measures v Ghana before the ITLOS
On 14 November 2012 Argentina filed a Request for provisional measures before the International Tribunal of the Law of the Sea (ITLOS) based in Hamburg, Germany in accordance with Article 290(5) of the United Nations Convention on the Law of the Sea (UNCLOS), requesting Ghana to release the frigate ARA Libertad, a sailing training vessel of the Argentine Navy. For the background of the case relating to Argentina’s default on its external debt in 2001 see my previous EJIL:Talk! post. This brief post will touch upon certain jurisdictional and substantive issues of the case, with particular emphasis on the jurisdictional framework established by the UNCLOS, the question of jurisdiction, and the scope of Argentina’s waiver with regard to enforcement immunity of warships.
Some Jurisdictional Aspects of the Case: The Forum
Although the case relates to the seizure of a vessel, it should be stressed that the case in question is a provisional measures case and not a prompt release case (Article 292 UNCLOS) which constitute the majority of the cases decided by the ITLOS so far. Where there is no agreement regarding which court or tribunal should decide on the prescription of provisional measures, the ITLOS will decide on the matter, provided that proceedings are already initiated before an arbitral tribunal (Article 290 UNCLOS).
UNCLOS contains a compulsory dispute settlement mechanism but allows State parties to choose between the International Court of Justice, the ITLOS, Annex VII Arbitration, and the special Arbitration of Annex VIII as their preferred forum. In accordance with Article 287 UNCLOS, Argentina has chosen ITLOS as first in order of preference and Arbitration under Annex VIII as second, while Ghana did not designate any particular forum. Thus, according to Article 287(3) Ghana ‘shall be deemed to have accepted arbitration in accordance with Annex VII’, (for all the declarations by State parties to the UNCLOS see here). Finally, article 287(5) UNCLOS stipulates that ‘[i]f the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree’. Argentina instituted proceeding against Ghana before an Annex VII arbitral tribunal on 29 October 2012. Consequently, if the two states do not settle the dispute concerning ARA Libertad extra-judicially (a possibility that should not be ruled out), an Annex VII arbitral tribunal will decide the merits of case.
Argentina’s modification of declaration
On 26 October 2012 Argentina modified its declaration upon the ratification of the UNCLOS.
in accordance with article 298 of [the] Convention, the Argentine Republic withdraws with immediate effect the optional exceptions to the applicability of section 2 of part XV of the Convention provided for in that article and set forth in its declaration dated 18 October 1995 (deposited on 1 December 1995) to “military activities by government vessels and aircraft engaged in noncommercial service”.
It is evident that Argentina modified its declaration in prospect of initiating proceedings against Ghana concerning the ARA Libertad dispute. One could question whether such modification was necessary. The answer depends on the interpretation of the term ‘military activities’. However, it seems that the dispute in question does not fall under that category.
Jurisdiction v Applicable Law
In international law the distinction between the jurisdiction of an international court or tribunal and the applicable law is of paramount importance. The compulsory jurisdiction of the courts or tribunals selected according to Article 287 UNCLOS is limited to ‘any dispute concerning the interpretation and application’ of the UNCLOS (Article 288 UNCLOS). On the contrary, according to Article 293 UNCLOS, the applicable law in these courts and tribunals is broader and includes the UNCLOS as well as ‘other rules of international law not incompatible with this Convention’. (see also Lorand Bartels’s article)
Based on the request for provisional measures, Argentina is invoking Articles 18(1)(b), 32, 87(1)(a) and 90 UNCLOS.
Article 18(1)(b) clarifies the meaning of passage for the purpose of ‘innocent passage’ in the territorial sea. It refers to the purpose of innocent passage without extending the right of innocent passage to the internal waters of the coastal state. Likewise, Articles 87 and 90 concern freedom of the High Seas and do not seem to be directly relevant as ARA Libertad was not captured on the high seas but rather in a Ghanaian port. Freedom of the High Seas does not cover access to ports, as States can regulate the access of ships to their ports (see Case Concerning Military and Paramilitary Activities in and against Nicaragua,  ICJ Rep 14, paras. 212 – 213).
The most relevant provision cited by Argentina is Article 32 UNCLOS, which refers to the immunity of warships in the territorial sea (but not in internal waters). Article 32 does not provide much on warships’ immunities and their scope:
‘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’.
It is not obvious whether Article 32 could serve as a valid jurisdictional basis. Contrary to Article 32, Article 95 UNCLOS is straightforward and clearly stipulates that ‘Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State’. Had Ghana allegedly violated the immunity of warships on the High Seas, there would be absolutely no doubt as to whether that is a sufficient jurisdictional basis under Article 288 UNCLOS. The situation under Article 32 is more complicated. On one hand Article 32 could be seen a rule concerning the immunity of warships phrased in a more complicated way, or in the words of the MOX Plant arbitral tribunal, contains ‘a direct renvoi’ to other conventions (MOX Plant (OSPAR) Final Award, 2 July 2003, para. 85). On the other hand, one could argue that Article 32 does not contain any rule regarding the immunity of warships, but rather states that the relevant rules of general public international law are unaffected by the UNCLOS. If the former approach is correct, general international law relating to immunity is incorporated by virtue of Article 32 and could constitute a jurisdictional basis. However, if the latter approach is correct, the interpretation of the rules concerning the immunity of warships in internal waters will not involve the interpretation and application of the UNCLOS, but other rules of customary or conventional international law. In other words, in the latter case, Argentina would not be accusing Ghana for violating Article 32 UNCLOS, but other customary or conventional international rules. Consequently, Article 32 UNCLOS, not containing any relevant rule, cannot be a legal basis for a claim and thus both the ITLOS and the Annex VII tribunal will not have jurisdiction.
As a result, although it is not unlikely that the Annex VII tribunal has jurisdiction to hear the Argentine claim, this should not be taken for granted. Given the complex and fragmented legal framework concerning the immunity of warships, it is unclear whether the rule that Ghana allegedly violated is a rule under the UNCLOS or under general public international law.
There are serious doubts whether Argentina’s application for provisional measures satisfies the conditions of Article 290 UNCLOS.
First, it should be highlighted that in order for the ITLOS to prescribe provisional measures, the court or tribunal that will decide the merits of the case should have prima facie jurisdiction; a condition which might be absent in the present case (Article 290(1) UNCLOS).
Second, provisional measures under Article 290(1) UNCLOS are granted only ‘to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision’. In casu, it seems unlikely that the ITLOS will grant the provisional measure requested by Argentina (the release of the vessel) as this will render to a very large extent the dispute moot.
Substantive issues of the case
Argentina claims that Ghana by detaining the frigate ARA Libertad is in breach of the UNCLOS. As Julian Ku has noted in Opinio Juris that
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.
He also added that he found no support for the latter proposition. It is certainly true that warships enjoy enforcement immunity under international law. However it less certain that Argentina has waived its immunity concerning enforcement on its warships. The relevant clause in the Argentine bonds under the Fiscal Agency Agreement (FAA) stipulates that:
The Republic has in the Fiscal Agency Agreement irrevocably submitted to the jurisdiction of any New York state or federal court sitting in the Borough of Manhattan, The City of New York and the courts of the Republic of Argentina (the “Specified Courts”) over any suit, action, or proceeding against it or its properties, assets or revenues with respect to the Securities of this Series or the Fiscal Agency Agreement (a “Related Proceeding”) except with respect to any actions brought under the United States federal securities laws. The Republic has in the Fiscal Agency Agreement waived any objection to Related Proceedings in such courts whether on the grounds of venue, residence or domicile or on the ground that the Related Proceedings have been brought in an inconvenient forum. The Republic agrees that a final nonappealable judgment in any such Related Proceeding (the “Related Judgment”) shall be conclusive and binding upon it and may be enforced in any Specified Court or in any other courts to the jurisdiction of which the Republic is or may be subject (the “Other Courts”), by a suit upon such judgment.
(See for text of the clause NML v Argentina  UKSC 31, paras. 127-129; NML Capital Ltd. v. Republic of Argentina, 08- CV-6978, U.S. District Court, Southern District of New York (Manhattan), para. 3; EM Ltd. v. The Republic of Argentina, 720 F.Supp.2d 273, 278 (S.D.N.Y. 2010)).
It is well established under international law that warships are immune from execution. (See Article 3 of the 1926 International Convention for the Unification of Certain Rules concerning the Immunity of State-owned Vessels; Articles 30, 31, 32, 95 of the UNCLOS; Article 21(1)(b) of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property; Wijsmuller Salvage BV v ADM Naval Services, District Court of Amsterdam, 19 November 1987, (1989) 20 NYIL 294; Xiaodong Yang, State Immunity in International Law at p.417; Lady Hazel Fox, The Law of State Immunity at p. 645).
There is no doubt that ARA Libertad qualifies as a warship. Article 29 of the UNCLOS, drawing on the similar provision of Article 8(2) of the 1958 Convention on the High Seas, provides the definition of warship:
[f]or the purposes of this Convention, “warship” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.
Nonetheless, Argentina has waived its jurisdictional and enforcement immunity with regard to the enforcement of decisions related to FAA bonds. Therefore, the crucial question is whether such a general waiver also covers military property and warships, given that the latter are immune from execution under international law, without any explicit and specific mention.
The English High Court in A Co. Ltd v. Republic of X, QBD, 21 December 1989,  2 Lloyds Rep 520, 87 ILR 412, held that a clause providing that a State ‘hereby waives whatever defence it may have of sovereign immunity for itself or its property’ is not sufficient to waive the inviolability and immunity of the premises and property of a diplomatic mission, or the private residence and property of a diplomatic agent, enjoyed under Articles 22 and 30 of the Vienna Convention on Diplomatic Relations. Saville J, held that a mere inter-partes agreement could constitute a waiver, but ‘an undertaking or consent given to the court itself at the time the court is asked to exercise jurisdiction over or in respect of the subject matter of the immunities’. The French Court of Appeal in Ambassade de la fédération de Russie en France v Société NOGA, Cour d’Appel, Paris, 1st Chamber, section A, 10 August 2000  128 JDI 116, adopted a similar approach and the case was also cited by Argentina in its Request for provisional measures (see also August Reinisch’s analysis in his article in EJIL at 825-826).).
These cases deal with waivers of enforcement immunity and immunity of diplomatic property and not immunity of warships. Although, functionally diplomatic missions and properties are not the same as warships, drawing an analogy with the immunity of warships is persuasive. While it is hard to predict the outcome of the case, it will not be surprising if the tribunal gives emphasis to the unique functional and symbolic role of warships and requires a specific waiver of their immunity.
To sum up, if the ITLOS decides that there is prima facie jurisdiction, it seems likely that the provisional measures requested by Argentina will not be granted. However, with regard to the merits of the case, if the arbitral tribunal finds that it has jurisdiction under the UNCLOS, probably a more specific waiver of immunity from execution against warships will be deemed necessary, by analogy to the immunity of diplomatic missions and property.