Feature Article of Thursday, 25 October 2012
Columnist: Belinda Ayamgha
It started as a goodwill visit on October 1 to strengthen the bonds of friendship between Ghana and the South American state of Argentina. An Argentine navy ship, ARA Fragata Libertada, with more than 300 crew from Argentina, berthed at the Tema harbour as part of a West African tour to train Ghanaian navy personnel.
Also on board were military personnel from Bolivia, Chile, Paraguay, Peru, South Africa, Suriname, Uruguay and Venezuela. After all, Ghana and Argentina have enjoyed cordial ties since the agreement for the establishment of diplomatic relations between both countries was signed on the November22, 2005.
Ghana’s embassy in Brazil has concurrent accreditation to Argentina whose embassy in Abuja also has concurrent accreditation to Ghana. The two countries have been involved in various projects together including a proposed agreement on scientific and technical cooperation, which is being studied by the Ministry of Science and Technology, the Centre for Scientific and Industrial Research (CSIR), and the Ministry of Food and Agriculture. But this pleasant visit of the ship has turned into a diplomatic embarrassment and strained relations between Ghana and Argentina following the detention of the ARA Fragata Libertada at the Tema harbour on the orders of the Accra High Court, which upheld a motion by NML to detain the ship because Argentina owes the company money it is refusing to pay.
Alhaji Muhammad Mumuni, Minister of Foreign Affairs and Regional Integration summed up Ghana’s views when he said the seizure of the ship and subsequent issues had caused an embarrassment to the government of Ghana, especially as it had come at Ghana’s behest. “The Ghana government is not at all happy about it,” he told the Ghana News Agency (GNA) in an interview in Accra.
The Ministry of Foreign Affairs and Regional Integration and Ministry of Defence agreed to receive the ship for its goodwill and training mission following a request through diplomatic channels. Clearance was then obtained for the ship to stop in Ghana from October 1-4, 2012. But NML had been tailing the ship and immediately pounced when it saw the opportunity.
Mr Ace Ankomah, counsel for NML, filed an ex-party motion at the High Court requesting for an order restraining the ship until and unless the Argentine government provided sufficient security in the form of depositing a percentage of a judgement debt it owed the plaintiff.
This was upheld despite arguments by Argentina’s lawyer, Mr Larry Otoo, that the ship enjoys immunity from attachment under international law, particularly the UN Convention on the Law of the Sea. Therefore on Wednesday, October 24, 297 crew members of the ship disembarked and flew back to the Argentine capital, Buenos Aires, on board a chartered Air France Boeing 777 plane sent by the Latin American country. The ship is still at the Tema harbour with only a skeleton crew on board.
For more than three weeks, the ARA Fragata Libertada story was one of the biggest in the world media, but it hardly got any mention in the local media, save for when the case was determined by the High Court or when the Argentines made a comment.
Probably, it is because of the seeming complex nature of the case and also the virtual news “blackout” imposed by the Ghanaian authorities. Background to the suit Sometime in October 1994, the Republic of Argentina concluded a Fiscal Agency Agreement (FAA) with the Bankers Trust Company, a New York banking corporation, under which Argentina issued a securities and bonds for purchase by the public. The plaintiff, NML Capital purchased two series of the bonds on February 3, 2000 (12%) and July, 21, 2000 (10.25%), making them the beneficiary owners the bonds.
When Argentine Government defaulted on the bonds, the plaintiff sued and obtained judgment in the United States District Court for the Southern District in New York against the defendant to recover the amount due. (The principal amount was $284,184,632.30, plus interest of $48,95,940.91). On May 15, NML Capital commenced an action in the English High Court suing for the debt obligation imposed on Argentina by the New York judgment. In both cases they relied on a particular provision in the FAA as the basis for invoking the jurisdiction of those courts, as in the High Court of Ghana.
NML Capital is a subsidiary of the US hedge fund Elliott Associates, which did not take part in a restructuring of Argentina's 95 billion dollars debt in 2001. This restructuring gave the country's creditors about one-third of their money back. Instead, it is trying through the courts to get back all the money it is owed. So NML has been seeking to seize property of Argentina and had been tailing the navy ship.
How Ghana handled the issue Various diplomatic moves were made to resolve the matter. The Argentine Embassy in Abuja with concurrent accreditation to Ghana called on the Minister of Foreign Affairs to draw his attention to the seized frigate and to lodge a strong complaint on the matter. They later sent another delegation including the Deputy Foreign Minister and Defence Minister to engage Ghana’s Foreign Ministry, with the view that they could use executive powers to release the ship.
However, the ministry of Foreign Affairs advised them to file an application at the court to set aside the order, explaining to them that it could not exercise any executive powers to release the frigate because Ghana worked with the rule of law and separation of powers. The judiciary is independent and the executive has no power over the case and thus could not do anything about the seizure. As a sign of goodwill, the Director of the Legal Bureau of the Foreign Ministry, Mr Ebenezer Apraku, accompanied by Principal State Attorney, Mrs Grace Awul, were in court to announce that they were holding watching brief for their respective ministries in the capacity of Amici Curiae (Friends of Court).
Mr. Apraku drew the attention of the court to the practice of Foreign Ministries and or Defence Ministries, representing the executive arm of government, to confirm the status of the vessel as a warship and to advise that a refusal to recognize the sovereign immunity of a foreign state would harm Ghana’s foreign relations.
They cited the ex-parte case of Peru (1943), where the court, after the intervention by the Department of State arguing the immunity of Peru, had agreed to release a vessel, in support of their submission. The representatives of Argentina expressed their appreciation for the representation of the government of Ghana at the court and for the submission intended to persuade the court to abate the embarrassment.
But Argentina is clearly angry with Ghana and has been issuing threats to take the matter to the UN Security Council. The Fragata case has also claimed the head of Argentina's navy chief Admiral Carlos Alberto Paz has stepped down. Alhaji Mumuni has dismissed the threat saying that Ghana has not been officially notified of the move to take the matter to the UN.
“It is an empty threat and we are not in the least bothered about it,” the Minister said. “It is true that as a nation and, particularly this ministry, we feel very embarrassed about it, especially given the fact that this trip was arranged through diplomatic channels and we have excellent relations with Argentina. But there’s nothing we can do about it because we are a nation of laws,” Alhaji Mumuni said.
He said the NML had simply invoked the law and a court of competent jurisdiction had ruled on it and they could not interfere in that process. “Even if they take us before any adjudicatory body, we have a ready answer - it is a court that acted and we have no control over that,” Alhaji Mumuni said. “The court discounted their claims to immunity saying they had waived those rights and once you waive your rights, you cannot just claim it back. Ghana has not broken any laws, absolutely not. These are purely commercial transactions,” he stated.
Effect on bilateral relations Alhaji Mumuni emphasized that Ghana did not expect the matter to mar Ghana-Argentina relations, which had been cordial because Ghana had done nothing wrong. “They have appreciated the fact that the state of Ghana has committed no wrong. It’s just that the law decided to work. We were very courteous to them and have provided the needs of the crew,” he said.
Current status and the way forward Alhaji Mumuni said Argentina had filed an appeal against the ruling of the court. On allegations of violations of the human rights of the crew resulting from the court decision not to allow the vessel to bunker, Alhaji Mumuni explained that representatives of Argentina had brought the matter to the attention of the Ministry and requested that the ship should be allowed to take enough fuel daily to run it. However, he had told them that as long as the vessel was on attachment, it was in the custody of the court and therefore such a request should be made to the court for it to make an order to that effect.
“If we decided to go ahead and refuel the vessel, even though the court did not permit that, we would be in violation of the court, which amounts to contempt of court. So you simply go to court and bring it to its attention and the court will always do what is reasonable. I don’t know whether they went to court or not to have that order made,” Alhaji Mumuni said. “What happens to the vessel now is at the pleasure of the court,” he concluded.