Original version by Martín Cabrera Mirassou November 2014; reviewed by Martín Cabrera Mirassou November 2024.

A.  Introduction

1  The ‘ARA Libertad’ case was a dispute between the Argentine Republic and the Republic of Ghana regarding the detention and court measures adopted by Ghana against the frigate ARA Libertad. Proceedings before the International Tribunal for the Law of the Sea (ITLOS) (‘the Tribunal’) and an arbitral tribunal constituted under Annex VII (‘ARA Libertad’ Arbitration (Argentina v Ghana)) of the United Nations Convention on the Law of the Sea (‘UNCLOS’) were instituted by Argentina after bilateral negotiations failed. The controversy was successfully solved by the interplay of judicial and political methods of peaceful settlement of disputes in international law (Peaceful Settlement of International Disputes). In this way, the prescription of provisional measures by ITLOS (Interim (Provisional) Measures of Protection; Provisional Measures: International Tribunal for the Law of the Sea (ITLOS)), negotiation stages and good offices of international organizations resulted in Ghana agreeing to release the frigate. Also Ghana recognized its international responsibility (State Responsibility), according satisfaction as a form of compensation in the settlement agreement reached, and the arbitral tribunal terminated the proceedings at the request of the parties (International Courts and Tribunals, Discontinuance of Cases).

2  The dispute raised a number of issues concerning both international law and international relations. Attention was paid to the role of the dispute settlement system of the UNCLOS and, in particular, the jurisdiction of ITLOS, with emphasis on the provisional measures procedure (Law of the Sea, Settlement of Disputes). Also, the scope of the principle of immunity of warships in international law was pondered. The case can also be approached from the perspective of the ocean regime and its actors in order to comprehend the value and importance of ITLOS as an institution designed to administer and protect the former. It needs to be stressed that the Tribunal has the main goal, expressed through its judicial function, of administering and protecting the aforementioned regime.

3  The political and economic context of the dispute is also necessary to mention. Notably, the economic crisis of 2001 in Argentina can be considered as a remote starting point of the ARA Libertad dispute (Argentine Debt Crisis). This is so because, after declaring default on its sovereign debt in 2001, Argentina offered two debt exchange offers which took place in 2005 and 2010. In the restructure of this debt, Argentina managed to regularize 92.4% of the eligible debt. However, a handful of hedge funds purchased the bonds after the default when they were at deep discounts and began demanding to be paid at 100% of their face value. NML Capital of the Cayman Islands and a subsidiary of an American company based in New York was one such fund and was able to obtain favourable judgments from courts in the United States and United Kingdom. NML Capital began looking to enforce those rulings over Argentinian assets on foreign soil.

B.  Factual Background of the Dispute

4  As part of the annual navy cadet training trip carried out by the Argentinian navy, the training vessel frigate ARA Libertad made a friendly and goodwill visit to Ghana, as previously agreed upon by the two governments. The frigate arrived at the port of Tema on 1 October 2012 and was welcomed by the military authorities of Ghana. The day after, NML Capital initiated a legal action at the Commercial Division of the High Court of Ghana seeking an order to seize the ARA Libertad. The Order was served on the port by authorities of the Tema Port, who carried it out. Argentina immediately applied to the same judicial body for an order to set aside the seizure, arguing that it was not subject to the jurisdiction of the High Court and, furthermore, the ARA Libertad was entitled to immunity under the rules of international law (State Immunity). Despite these arguments, the High Court refused to revoke the Order confirming the seizure of the warship.

5  Therefore, Argentina initiated negotiations with Ghana’s government and at international organizations with the aim of obtaining the release of the warship. In case of negative results, the Argentinian government indicated that it would employ the judicial means of dispute settlement provided by international law (Judicial Settlement of International Disputes). In this manner, meetings were held between high ranked government officials of Argentina with the Foreign Affairs Minister, the Defense Minister, the Interior Minister, and the Attorney General of Ghana. Also, meetings at the United Nations organs took place, including the Security Council presidency, the president of the General Assembly, and the Legal Officer of the Organization.

6  As negotiations proved to be unsuccessful, Argentina decided to apply to judicial means of Part XV UNCLOS. The lack of an agreement between the parties was considered as the exhaustion of the negotiation. In accordance with Article 287(5) UNCLOS, as the parties had not accepted the same procedure for the settlement of the dispute, an arbitral tribunal under Annex VII had jurisdiction. On 30 October 2012, the Ghanaian government was notified of the institution of proceedings before the arbitral tribunal. On 14 November 2012, ITLOS received the application of request for provisional measures by Argentina.

C.  Relevant Aspects of ITLOS Jurisdiction

7  The Tribunal is one of four mechanisms that parties in a dispute concerning the interpretation or application of the UNCLOS must accept for its settlement, being able to choose also between the International Court of Justice (ICJ)—an arbitral tribunal constituted in accordance with Annex VII that also is the residual mechanism in case the parties have not accepted the same procedure—and a special arbitral tribunal constituted in accordance with Annex VIII for specific disputes (Art. 287 UNCLOS; Annex VII Arbitration: United Nations Convention on the Law of the Sea (UNCLOS); Annex VIII Special Arbitration: United Nations Convention on the Law of the Sea (UNCLOS)).

8  ITLOS is also conferred with residual jurisdiction in provisional measures and procedures for the prompt release of vessels and crews. According to Article 290(1) UNCLOS, if a dispute was submitted to the Tribunal, it may prescribe provisional measures to preserve the rights of the parties or to prevent serious harm to the marine environment (Marine Environment, International Protection). If the dispute was submitted to an arbitral tribunal yet to be constituted, ITLOS may prescribe provisional measures if it considers that prima facie the arbitral tribunal would have jurisdiction over the dispute and that the urgency of the situation so requires (Art. 290(5) UNCLOS). It follows that the conditions to prescribe provisional measures are the existence of urgency in the situation, the need to preserve the rights of the parties to the dispute or to prevent serious harm to the marine environment. Last, a prompt release of vessels or its crew procedure can be handled by the Tribunal if both parties accepted it or if they do not agree on a different mechanism (Art. 292 UNCLOS).

D.  Provisional Measures Procedure before ITLOS

9  In its memorial, Argentina argued that the frigate was detained in violation of rules of international law, namely, immunity of war vessels. The provisional measure requested to ITLOS was that Ghana unconditionally enabled the frigate ARA Libertad to leave the port of Tema and its jurisdictional waters and to be resupplied to that end. The main argument was that Ghana’s actions were causing irreparable damages to the rights of Argentina, such as ship immunity, the right to leave the territorial waters of Ghana (Territorial Sea), and freedom of navigation as one of the fundamental principles of the law of the sea and international relations (Navigation, Freedom of).

10  Ghana, in its counter memorial, based its strategy on three main points: the arbitral tribunal had no jurisdiction in the dispute, the provisional measures requested were not necessary or appropriate to preserve the rights of the parties, and there was no urgency to justify granting them during the period pending the constitution of the arbitral tribunal.

11  On 15 December 2012, ITLOS prescribed provisional measures (‘ARA Libertad’ (Argentina v Ghana) (Order)), ordering the immediate release by Ghana of the ARA Libertad and its crew. In the Order, the Tribunal started by analysing whether the arbitral tribunal would have jurisdiction over the case. Although it did not need to establish definitively the existence of the rights claimed by Argentina before prescribing provisional measures the Tribunal needed to satisfy itself that the provisions invoked by the Applicant appeared prima facie to afford a basis on which the jurisdiction of the arbitral tribunal could be founded. In this sense, the judges did not accept Argentina’s argument that Article 18(1)(b) UNCLOS on the meaning of passage in the territorial sea and that Articles 87 and 90 concerning the right and freedom of navigation on the high seas relate to the immunity of warships in internal waters.

12  However, ITLOS found that Article 32 UNCLOS afforded a basis on which prima facie jurisdiction of the arbitral tribunal could be founded. The relevant part of the article says: ‘… nothing in this Convention affects the immunities of warships …’ without specifying the geographical scope of its application. Ghana’s interpretation was that the disposition referred to the immunity of warships in the territorial sea and not in internal waters. Argentina’s position was that Article 32 UNCLOS determined the immunity of warships with respect to the entire geographical scope of the UNCLOS. ITLOS concluded that although the disposition is included in Part II entitled ‘Territorial Sea and Contiguous Zone’ and most of the provisions in that part relate to the territorial sea, some of the provisions may be applicable to all maritime areas. In sum, a difference of opinions existed between the parties as to the applicability of the disposition and, thus, a dispute appeared to exist concerning the interpretation or application of the UNCLOS.

13  As basis for the Order, the Tribunal upheld that a warship is an expression of the sovereignty of the state whose flag it flies (Flag of Ships). In accordance with general international law, a warship enjoys immunity, including in internal waters. 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. Consistently, the actions taken by the Ghanaian authorities that prevented the ARA Libertad from discharging its mission and duties affected the immunity enjoyed by this warship under general international law.

14  Thereby, the attempts by the Ghanaian authorities on 7 November 2012 to board the warship and to move it by force to another berth without authorization by its Commander, and the possibility that such actions might be repeated, demonstrated the gravity of the situation and underlined the urgent need for measures pending the constitution of the Annex VII arbitral tribunal. In sum, the urgency of the situation 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.

15  In the operative part of the Order and by unanimity, the Tribunal decided that Ghana should release the frigate ARA Libertad without any conditions, as well as ensuring that the frigate, its Commander, and crew were able to leave the port of Tema and the maritime areas under its jurisdiction, and that the frigate was resupplied to that end. Finally, the judges decided that Argentina and Ghana should submit to the Tribunal the initial report on the compliance with the decision no later than 22 December 2012. Thus, on 19 December 2012, and in compliance with the Order, as soon as the frigate was resupplied and at Argentina’s request, the warship and crew were immediately released and permitted to leave Ghana.

E.  Effects of ITLOS Order

16  In this context, the Government of Ghana, represented by the Attorney General, decided to initiate an action for a Writ of Certiorari at its Supreme Court to quash the order of the High Court detaining the ARA Libertad on the grounds that the order was a violation of the rules of customary international law concerning the immunity of warships. In its ruling of 20 June 2013, the Supreme Court agreed with the Government of Ghana that the Commercial Division of the High Court committed a fundamental error of law and issued an order of certiorari quashing the decisions as wrong for the main following reasons: that under customary international law, warships are covered by sovereign immunity in foreign ports and that the general principle of international law recognizes the sovereign immunity of states in the courts of other states. As stated in the Aide Memoire appended to the Settlement Agreement, the Supreme Court of Ghana asserted that the ‘order to attach the ARA Libertad, a military vessel, was palpably and fundamentally wrong in law and principle.’

17  At the international level, it is noteworthy to mention the specifics of the settlement agreement reached by the parties (Agreement between Argentina and Ghana in the ARA Libertad Arbitration (27 September 2013)). It was agreed that a note to the United Nations and other regional bodies would be circulated explaining the dispute. In addition, Ghana committed to publicize at the international level the contents of the judgment of its Supreme Court setting aside the orders made when detaining the frigate and in which it also recognized the immunity enjoyed by war vessels, in particular regarding ITLOS, the member states of the United Nations, and the states parties of the UNCLOS, as well as within the scope of the African Union (AU) and the Economic Community of West African States (ECOWAS).

18  Even more, in the agreement it was recognized that the seizure of the vessel was a breach of an international obligation; therefore, entailing the international responsibility of Ghana. Hence, the Argentine Republic considered that the judgment by the Supreme Court of Ghana, its dissemination at the international level, and the considerations expressed by the Ghanaian government, all documents distributed in the UN and other international organizations, constituted sufficient satisfaction to discharge any injury occasioned by the injunction measure over the frigate ARA Libertad. A reference can be made to the UN ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001), as this agreement captures the rules set forth in the work of the International Law Commission (ILC).

F.  Proceedings before the Arbitral Tribunal

19  In the Notification and Statement of Claims dated 29 October 2012, Argentina requested the arbitral tribunal to declare that the Republic of Ghana, by detaining the warship Fragata ARA Libertad, not allowing it to refuel, and adopting judicial measures against it, violated the obligation of respecting the immunities from jurisdiction and execution enjoyed by the frigate pursuant to Article 32 UNCLOS and Article 3 International Convention for the Unification of Certain Rules relating to the Immunity of State-owned Vessels (1926) as well as pursuant to customary international law, and prevented the exercise of the right to sail out of the waters subject to the jurisdiction of the coastal state and the right of freedom of navigation enjoyed by the said vessel and its crew, pursuant to Articles 18(1)(b), 87(1)(a), and 90 UNCLOS.

20  Also, Argentina requested to the arbitral tribunal to assert the international responsibility of Ghana, which must: (1) immediately cease the violation of its international obligations; (2) pay to Argentina adequate compensation for all material losses caused; (3) offer a solemn salute to the Argentine flag as satisfaction for the moral damage caused by the unlawful detention of the flagship of the warship, preventing it from accomplishing its planned activities and ordering it to hand over the documentation and the flag locker to the Port Authority of Tema; and (4) imposed disciplinary sanctions on the officials of Ghana directly responsible for the decisions by which the state had engaged in the violations of its international obligations.

21  The constitution of the Arbitral Tribunal took place on 4 February 2013. It was composed of HE Judge Awn Shawkat Al-Khasawneh, Judge Elsa Kelly, Judge Thomas A Mensah, Professor Bernard H Oxman, and HE Judge Bruno Simma (President). But before it had a chance of examining its jurisdiction on the case, the parties reached an agreement over the dispute. Negotiations were reinitiated after the release of the vessel and concluded with a settlement agreement (Settlement Agreement between Argentina and Ghana [27 September 2013]). Therefore, the parties requested the Arbitral Tribunal to issue an order for the termination of the arbitral proceedings, which was signed on 11 November 2013.

G.  Assessment

22  The ITLOS decision in the case confirmed the essential role of Part XV UNCLOS in the administration and protection of the ocean regime, fulfilling also the purpose expressed in the United Nations Charter of maintaining international peace and security. Likewise, the ITLOS Order stated important issues of international law, notably affirming the immunity enjoyed by state vessels, expressed in the obligation to respect the immunity that warships enjoy under Article 32 UNCLOS and in customary international law. In the words of the judges, ‘a warship is an expression of the sovereignty of the State whose flag it flies … [and] actions taken by the Ghanaian authorities that prevent the ARA Libertad … from discharging its mission and duties affect the immunity enjoyed by this warship under general international law’ (‘ARA Libertad’ (Argentina v Ghana) (Provisional Measures) (Order) (15 December 2012) paras 94, 98).

23  Furthermore, at prescribing provisional measures in lieu of the procedure for prompt release of vessels and its crew, ITLOS had a flexible approach to the particular circumstances of the case. This is so as the procedure of prompt release of vessels or its crew was not applicable to the case, in accordance with Article 292 UNCLOS, which can be invoked only when expressly provided in the dispositions of the UNCLOS (Arts 73(2), 226(1) and 220(6)). Correspondingly, in cases not provided in the Convention, an effective and timely procedure can be invoked to obtain the release of a vessel.

24  From an international relations perspective, Argentinian and Ghanaian diplomatic and even commercial relations could have been affected by the dispute. ITLOS called attention to the fact that any act which prevents a warship by force from discharging its mission and duties is a source of conflict that may endanger friendly relations among states. In this sense, the existence of international tribunals with jurisdiction to receive and administer a broad range of disputes, together with the increasing acceptance of such jurisdiction by states, constitutes a significant step in strengthening the international system.

25  Although state sovereignty may appear as the main paradigm sustaining the Order, it needs to be highlighted that regime protection was carried out by the judges. ITLOS was far from protecting only a state’s right to immunity, but was also guaranteeing the principles and values of the ocean regime. And this has become a salient feature of ITLOS jurisprudence so far: maintaining the delicate balance of state interests and the values of the international community, so that the principles of the Convention can be fulfilled.