General News of Friday, 30 November 2012
The International Tribunal for the Law of the Sea announced that the decision on the case involving the Argentine Navy frigate ARA Libertad retained in Ghana will be made public next 15 December. On Thursday both sides made their case in a several hours hearing at the seat of the tribunal in Hamburg.
“The court will announce its decision on December 15”, tribunal Judge Ruediger Wolfrum said during a break in the proceedings. He added “there are no easy cases, nor is this one and both sides have arrived supported by top leaguer lawyers”.
But Judge Wolfrum cautioned that the court would only make a decision about whether the ship should be released and may not make a wider judgment about whether warships can be arrested in civil debt cases.
“We will consider plausible causes and urgency to preserve the procedural position of Argentina” he added when asked what factors would be considered in the court’s decision.
Argentina asked the tribunal to order the immediate release of the training vessel being held in Ghana at the request of holders of Argentine bonds which they say are due for repayment.
The Ghanaian authorities detained the sailing frigate ARA Libertad in the port of Tema on Oct. 2 at the request of hedge fund NML Capital which says Argentina owes it 300 million dollars on bonds which have been in default since 2002. But Susana Ruiz Cerutti, head of an Argentine delegation argued that warships have immunity from such claims under international maritime law and it was a ”mystery“ why Ghana had not allowed the ship to leave.
Ms Ruiz Cerutti said the tribunal should order the ship's release as the United Nations convention on maritime law gives warships immunity from civil actions. ”Because a 'vulture fund' has chosen the frigate to be the subject of proceedings does not absolve Ghana of its international obligations,“ Cerutti said. Argentina refers to funds like NML as ”vulture funds“ because they buy distressed or defaulted bonds and then sue in international courts to get paid in full.
She added that the Law of the Sea convention does not define warships as carrying weapons and the ARA Libertad is an unarmed naval training vessel. The ship was visiting Ghana under Argentina's program to boost cooperation and friendship in the southern hemisphere and was seized in a ”brutal manner“, Cerutti said.
In reply Ghana's court representative Ebenezer Appreku asked for Argentina's application to be rejected and pointed out that the ship's detention arose from a court order in Ghana concerning a commercial contractual dispute between the private company NML Capital and the state of Argentina which did not involve Ghana's government.
He said that since Ghana's constitution clearly separates the powers of the judiciary from the Executive and the Ghana government ”cannot set aside the rule of law“ and direct the ship to be released against the order of a court. ”The government of Ghana does not consider itself to be in a state of dispute with the Argentine Republic“ Appreku said.
The issue ”has placed Ghana in a difficult and delicate position because we have been unwittingly drawn into a dispute between a foreign corporation and a sovereign state with which we enjoy good and cordial relations,” Appreku said. The crew of the vessel had not been subjected to harassment or psychological harm, said Ghana's government lawyer Anjolie Singh, and power and water were being supplied to the ship.
Argentina accused Ghana port authorities of having cut basic services to the vessel forcing the evacuation of most of the crew and cadets but for a skeleton group that are in fear of being boarded given ‘previous attempts’.
However the Ghana team also argued that the warships immunity apply to international waters and not territorial waters or when a vessel is berthed such is the case of ARA Libertad.