Current Legal Developments International Tribunal for the Law of the Sea

THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL The International Journal of LAW Marine and Coastal Law 28 (2013) 375–387 brill.com/estu

TheAra Libertad Case (Argentina v. Ghana, 15 December 2012), Request for the Prescription of Provisional Measures

Introduction

On 15 December 2012, the International Tribunal for the Law of the Sea (ITLOS or the Tribunal) unanimously prescribed provisional measures in the ARA Libertad case between the Argentine Republic (hereafter Argentina) and the Republic of Ghana (hereafter Ghana).1 ITLOS thus added another impor- tant decision concerning provisional measures to its jurisprudence.2 Yet the fact that the provisional measures were prescribed by the unanimous decision of ITLOS did not mean that no differences of opinion existed between the members of the Tribunal. In fact, Judge Wolfrum and Judge Cot, in their Joint Separate Opinion, disagreed with the reasoning of the Tribunal concerning the prima facie jurisdiction of the Annex VII arbitral tribunal, even though they eventually voted for the prima facie jurisdiction for a different reason. Thus this contribution will seek to succinctly examine principal issues in the ARA Libertad Order.

1 The ARA Libertad Case (Argentina v. Ghana), Case No. 20, Order of 15 December 2012. The text of the Order is available via the homepage of the ITLOS: http://www.itlos.org/. The analysis of this contribution relies on the electronic version of the Order. The page numbers quoted in this contribution are the numbers of the electronic text. 2 The ARA Libertad case is the seventh case involving provisional measures in the ITLOS jurisprudence. The previous cases were: The M/V ‘SAIGA’ (No. 2) case (Case No. 2, 1998, Saint Vincent and the Grenadines v. Guinea), the Southern Bluefin Tuna cases (Case No. 3 and No. 4, 2000, New Zealand v. Japan; Australia v. Japan), the MOX Plant Case (Case No. 10, 2002, Ireland v. United Kingdom), Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Case No. 12, 2003, Malaysia v. Singapore), and the M/V Louisa case (Case No. 18).

Course of the Litigation

The central issue in the ARA Libertad case concerned the detention of the Frigate ARA Libertad, a warship of the Argentine Navy, by the authorities of Ghana at the port of Tema on 2 October 2012. The vessel is used for navy cadet training trips and it has been sailing the oceans for more than 50 years. The Governments of Argentina and Ghana agreed on the visit of the vessel to the port of Tema, Ghana. On 4 June 2012, the Government of Ghana autho- rized the visit and notified its decision to Argentina through diplomatic chan- nels. The Frigate ARA Libertad arrived on the scheduled date of 1 October 2012, and on the same day a formal welcome ceremony was held on board the ship. On 2 October 2012, however, an official of the Judicial Service of the Superior Court of Judicature of Ghana (Commercial Division) arrived at the vessel and delivered an official letter, requiring that the Frigate ARA Libertad be held at the Tema Port.3 According to Ghana, this measure derived from a series of cases brought by NML in the courts of the United States and the United Kingdom against Argentina.4 These litigations concerned sums said to be due to NML under two series of bonds issued by Argentina pursuant to a Fiscal Agency Agree- ment of 19 October 1994. On 11 May 2006, the US District Court for the Southern District of New York granted NML’s motion for summary judgment in respect of sums due to it under the bonds. On 18 December 2006, the US District Court entered a judgment in favor of NML in the amount of US $284,184,632.20 (the New York Judgment). NML sought to have the judgment enforced in the United Kingdom. On appeal, the United Kingdom Supreme Court acceded to NML’s request and agreed with the findings of the District Court that Argentina was not entitled to claim state immunity by reason of a wide-ranging waiver contained in the Bond Agreement.5 On 2 October 2012, NML filed a Statement of Claim before the High Court of the Republic of Ghana, sitting in Accra, seeking to obtain satisfaction of the New York Judgment debt from Argentina. The Ghanaian High Court thus made an Order for Interlocutory Injunction and Interim Preservation detaining the Frigate ARA Libertad.6

3 Request for provisional measures submitted by Argentina, 14 November 2012, pp. 2–3, paras. 3–6. 4 NML is reported to be a company incorporated under the laws of the Cayman Islands and a subsidiary of a US company which is engaged in the management of investments. Written Statement of the Republic of Ghana, 28 November 2012, p. 1, para. 3. 5 [2011] UKSC 31. 6 Supra note 4, pp. 1–2, paras. 3–4.