Lawrence A. Kogan on 'ARA Libertad' Case Ruling Suggests Ever-Expanding ITLOS Jurisdiction

Lawrence A. Kogan on 'ARA Libertad' Case Ruling Suggests Ever-Expanding ITLOS Jurisdiction

by Lawrence A. Kogan

The International Tribunal for the Law of the Sea ("ITLOS") in ARA Libertad found grounds to expand its compulsory subject matter jurisdiction to review international law concepts not expressly incorporated within the UN Convention on the Law of the Sea ("UNCLOS"), nor in other treaties conferring jurisdiction on ITLOS. The decision has overridden Respondent's sovereign domestic laws and caused repercussions for international finance.

Excerpt:

In the recently decided case of ARA Libertad, the International Tribunal for the Law of the Sea, once again, found grounds to expand its compulsory and binding subject matter jurisdiction, on this occasion, for the purpose of reviewing international law concepts neither expressly incorporated within the text of the United Nations Convention on the Law of the Sea nor contained in other treaties conferring jurisdiction on the Tribunal. The decision, which also granted provisional relief notwithstanding the Applicant's arguable failure to plead sufficient law and facts supporting its allegations, has effectively overridden Respondent's sovereign domestic laws and caused potentially serious repercussions for international finance.

The ARA Libertad case was initiated by the Government of the Republic of Argentina during October 2012 in response to the attempted forced boarding, seizure and detention and the arrest of the commander of an Argentine warship (Training Vessel, Frigate ARA Libertad) that had been anchored with the consent of the Government of the Republic of Ghana at the Ghanian Port of Tema incident to a scheduled and authorized official State visit. These acts had been committed by Ghanian port and maritime authority officials implementing a Ghanian national court order issued in a private litigation commenced by the foreign corporate beneficial owner (Cayman Island-based investment firm, NML Capital Limited) of defaulted Argentine sovereign bonds to enforce a previously awarded (December 2006) final US Federal District Court judgment that was later reaffirmed in a (December 2011) English Consent Order. On November 14, 2012, the Government of Argentina filed with the ITLOS a 'Request for the Prescription of Provisional Measures' pursuant to UNCLOS Article 290(5) pending the constitution of an arbitral tribunal and institution of proceedings on the merits under UNCLOS Annex VII. This request aimed to secure the Argentine warship's resupply and unconditional release from the Tema port and the jurisdictional waters of Ghana. The Tribunal ultimately found in Argentina's favor and unanimously prescribed a provisional remedy that mirrored its request. The ARA Libertad was thereafter observed departing Ghana on December 19, 2012.

The Reasoning Underlying the Tribunal Majority's Decision:

Grounds for Finding Prima Facie Jurisdiction to Prescribe Provisional Measures

The Tribunal majority's decision to prescribe a provisional remedy pursuant to UNCLOS Article 290(5) was based on its initial determination and satisfaction "that prima facie the Annex VII arbitral tribunal would have jurisdiction" in the matter. While such determination did not require it to "establish definitively the existence of the rights claimed by Argentina," the majority reasoned that the Tribunal was obliged to ensure that "the provisions invoked by the Applicant appear[ed] prima facie to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal might be founded". In this regard, although Argentina had alleged that the Tribunal possessed prima facie jurisdiction to prescribe a provisional remedy because Ghana had violated multiple UNCLOS provisions, including Articles 18(1)(b) (Argentina's right of innocent passage through Ghana's territorial sea, to and from Ghana's internal waters), 32 (the sovereign immunity of Argentina's warship operated for non-commercial purposes, as determined under customary or general international laws beyond the text of the Convention), 87(1)(a) (Argentina's right of freedom of navigation through the high seas), and 90 (Argentina's right of navigation on the high seas), the Tribunal's majority concluded that Articles 18(1)(b), 87 and 90 did "not relate to the immunity of warships in internal waters and therefore [did] not seem to provide a basis for prima facie jurisdiction of the Annex VII arbitral tribunal, within the meaning of UNCLOS Article 290(5). [footnotes omitted]

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Lawrence A. Kogan, Esq. is Managing Attorney of The Kogan Law Group, P.C., a New York City-based multidisciplinary professional services firm, and President/Director of the Institute for Trade, Standards and Sustainable Development (ITSSD)that is a globally recognized NGO for reporting and analysis of the growing influence of evolving foreign and international public interest rules on private property rights and the American free enterprise and common law systems.