Public hearings in Argentina v Ghana: An UNCLOS dispute?

Under Article 290 of UNCLOS, ITLOS may prescribe provisional measures pending the constitution of an Article VII arbitral tribunal if“it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.” ITLOS will therefore have to establish whether the arbitral tribunal constituted under Annex VII would have prima facie jurisdiction over the dispute.  Article 288 of UNCLOS provides that an Annex VII arbitral tribunal has jurisdiction over “any dispute concerning the interpretation or application of this Convention.”

Prima facie jurisdiction

Before examining whether the dispute can be framed as a dispute involving the application or interpretation of UNCLOS, it should be noted that to prescribe provisional measures, ITLOS is only required to establish that the Annex VII tribunal would have prima facie jurisdiction. The threshold of prima facie jurisdiction is lower than that required for a finding of jurisdiction to examine the merits of a case, as has been outlined in both the jurisprudence of the ICJ concerning Article 41 of the ICJ Statute and the jurisprudence of ITLOS dealing with provisional measures. At the provisional measures stage of the M/V Saiga (No.2) case, ITLOS held that it “may not prescribe such measures unless the provisions invoked by the Applicant appear prima facie to afford a basis on which the jurisdiction of the Tribunal might be founded.” In brief, though the threshold is low, Argentina must make a plausible case that this dispute concerns the application of UNCLOS.

Is this really a dispute about the application or interpretation of UNCLOS?

The central issue of the dispute is whether a waiver contained in the conditions governing FAA bonds issued by Argentina applies to Argentinian warships or not. It is a dispute about whether sovereign immunity of warships can be waived, and if so, and under what circumstances. Settling this dispute should involve an analysis of whether Ghana correctly interpreted the bond conditions as a waiver of immunity and whether it therefore was justified in detaining the Libertad. Is this a dispute about UNCLOS?

According to the application of Argentina, the dispute concerns the interpretation and application of the following articles of UNCLOS:

·      Article 18(1)(b) on the definition of passage in the territorial sea;

·      Article 32 on the relationship between UNCLOS and the immunities of warships;

·      Article 87(1)(a) on freedom of navigation on the high seas; and

·      Article 90 on the right of navigation on the high seas.

Articles 87 and 90 concerning the high seas do not appear to be relevant to the dispute and will not be considered further. Nor is it clear whether Article 18 on passage is relevant, given that the visit of the Libertad was agreed upon by exchange of notes between Argentina and Ghana.

Article 32 provides:

“With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.”

Subsection A involves rules applicable to all ships, including the definition of innocent passage, while Article 30 deals with non compliance by warships with the laws of the coastal state and Article 31 with damage caused by warships. Article 32 therefore sets out that certain provisions of the Convention contain derogations from the immunity of warships. None of the exceptions contained in Article 32 are at issue in the present case.

The Argentinian claim is based not on the derogations from warship immunity set out in Article 32 but on the reference to immunity itself. Article 32 clearly refers to the immunity of warships. The question the Tribunal will have to answer is whether this reference to immunities of warships has the effect of incorporating existing international law on immunity into the Convention, or whether Article 32 merely deals with the relationship between UNCLOS and existing immunity rules without itself being the legal source of such immunity.

The drafting history of UNCLOS is of interest in this regard. Article 32 was based on Article 22 of the 1958 Convention on the Territorial Sea, the relevant part of which provides “nothing in these articles affects the immunities which such ships enjoy under these articles or other rules of international law”(emphasis added). The purpose of the reference to immunity was to clarify that the rights of the coastal State regarding innocent passage were without prejudice to immunities enjoyed either under the 1958 Convention or other rules of international law.  The reference to immunities of warships was introduced into UNCLOS by a Fijian proposal, which provided “nothing in these articles affects the immunities which warships enjoy under the provisions of these articles or other rules of international law” (emphasis added). This was the text used in the draft article 31 in the ISNT/Part II. At the fourth session (1976) the text was added to a provision on other government ships and altered so that the relevant part of the article in the RSNT/Part II read “nothing in the present Convention affects the immunities of warships and other government ships operated for non-commercial purposes.” The reference to “other rules of international law” was dropped, as was the reference to immunities “which warships enjoy under the provisions of these articles.” The language of UNCLOS Article 32 was thus specifically changed during drafting to remove reference to the source of immunities of warship. The draft provision on government ships operated for non-commercial purposes had also contained a reference to “immunities which such ships enjoy under these articles of other rules of international law” so the creation of a single article covering both warships and other government ships is unlikely to be the reason for this change in language.

As the text was changed during informal meetings of the Second Committee, the reasons underlying the change in language are unclear. At a minimum, the revision of the text introduces some doubt as to whether immunity of warships can be considered a part of UNCLOS.

In its Statement of Claim, Argentina refers to the

“immunities from jurisdiction and execution enjoyed by such a vessel pursuant to Article 32 of UNCLOS and Article 3 of the 1926 Convention for the Unification of Certain Rules concerning the Immunity of State-owned vessels as well as pursuant to well-established general or customary international rules in this regard.”

Argentina therefore claims that the Libertad enjoys immunity pursuant to Article 32 of UNCLOS. Ghana presumably will argue that the reference to immunity of warships in UNCLOS does not mean that such immunities form part of UNCLOS, an argument supported by a literal interpretation of Article 32. Furthermore Ghana is likely to argue that there is no dispute between the parties, as both parties agree that pursuant to Article 32, the provisions of the Convention do not affect existing rules of immunity of warships.

In order to decide the merits of this case, the Annex VII tribunal would have to examine customary international law regarding waiver of sovereign immunity of warships. The answer to the issue in dispute between the parties (whether warship immunity can be waived) is clearly not to be found in the Convention. This may lend support to the argument that the rules on immunity are not part of UNCLOS. In conclusion, a plausible argument can be made by both parties as to whether the dispute concerns the interpretation and application of UNCLOS, and Article 32 in particular. Since ITLOS need only find that the Annex VII tribunal would have prima facie jurisdiction, a finding that the dispute did involve the interpretation and application of UNCLOS would not be completely unreasonable. However, it is suggested that a more satisfactory conclusion is that UNCLOS does not deal with the immunity of warships (except in so far as the exceptions mentioned in Article 32 which are not relevant to the present case) and that the dispute is therefore not an UNCLOS dispute.

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