And the United Nations makes Ghana give Argentina its warship back

There is something amusingly science-fictional about the title of this post, like something that John Brunner would have written satirically in the 1960s.

The International Tribunal on the Law of the Sea (ITLOS) is an international court (loosely-associated with the United Nations) that rules on disputes related to the Law of the Sea Treaty. It consists of 21 judges elected by the governments of the states party to the Law of the Sea Convention. They serve nine-years terms; decisions are made by majority. Since it was created in 1996, the Tribunal has only seen 20 cases.

And today it released its decision in case #20! “Ghana shall forthwith and unconditionally release the frigate ARA Libertad, shall ensure that the frigate ARA Libertad, its commander and crew are able to leave the 22 port of Tema and the maritime areas under the jurisdiction of Ghana, and shall ensure that the frigate ARA Libertad is resupplied to that end.” It also ordered each party to pay its own costs associated with keeping the ship in berth to date.

Ghana argued that the ITLOS did not have jurisdiction because:

1. The ARA Libertad was in Ghanaian territorial waters (p. 4 at the above link);
2. Argentina had waived immunity under U.S. and U.K. law (p. 5);
3. Domestic appeals in Ghana are continuing (p. 6).

ITLOS declared (in paragraphs 94-100 at the link to the decision):

1. A warship is an expression of the sovereignty of the State whose flag it flies;
2. In accordance with general international law, a warship enjoys immunity, including in internal waters, and that this is not disputed by Ghana;
3. 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;
4. Attempts by the Ghanaian authorities on 7 November 2012 to board the warship ARA Libertad and to move it by force to another berth without authorization by its Commander and the possibility that such actions may be repeated, demonstrate the gravity of the situation and underline the urgent need for measures;
5. 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.

And so, the decision! Argentina gets its ship back, although the two parties can continue to argue about the underlying principles. The Argentines also wanted Ghana to salute the flag and otherwise genuflect, but the Tribunal wisely seems to have ignored all that.

The decision was unanimous, but some of the judges added their own wrinkles. Anthony Lucky of Trinidad thought the Tribunal should have been more forceful in asserting sovereign immunity. Chandrasekhara Rao of India was annoyed that the Ghanaian government took a different view before ITLOS than before its own courts. He also wanted the Tribunal to state more forcefully that a state that allowed a foreign warship into its waters automatically gave up jurisdiction over that ship. Finally, Rüdiger Wolfrum of Germany and Jean-Pierre Cot of France had ... well, what seems to this non-lawyer to be a lot of hair-splitting that ends up in the same place as Lucky and Rao.

And thus, this latest attempt to seize Argentine assets comes to naught. Even in today’s world of limited sovereign immunity, it is hard to collect on sovereign debts. An expropriation case would be different (at least if it involved export industries) since foreign courts could easily go after production from the expropriated assets. But when it comes to sovereign debt, about the only leverage seems to be going after new issuances.

In short, Argentina won and Ghana lost. Sorry, LT.