ARGENTINA SUES GHANA For DAMAGES … Over Detention Of Warship

When a Tema based High Court, presided over by Justice Richard Adjei-Frimpong, placed an injunction on the Argentine frigate ARA Libertad, when it entered Ghanaian waters to refuel, from leaving the shores of Ghana, the idea was to enforce the rule of law.

But the government of Argentina thinks Ghana has breached international laws in enforcing the detention of the ship in her territorial waters, and has, therefore, filed a petition at the International Tribunal for the Law of the Sea (ITLOS), based in Hamburg, Germany, claiming damages from the government of Ghana.

The decision comes barely a month after Argentina had succeeded in getting the same court to order the government of Ghana to release the ship, which was being detained at the Tema Port.

The ship was detained on the promptings of NML, a New York-based investment company and subsidiary of Elliot Capital Management – a hedge fund, which was seeking$20 million compensation from the Argentine government before the ship was released.

Information obtained by The Chronicle indicates that in 2001, the Argentine government defaulted in the payment of a $100 billion sovereign debt owed to a number of international conglomerates.

NML Capital Investments, which owns $1 billion in Argentina’s sovereign debt, argued and obtained judgment in a New York federal district court for $284 million in 2006.

Later NML Capital Investments also went to the U.K. Supreme Court to plead for right to execute its judgment against Argentina’s assets in the U.K. which was upheld by the court.

When  NML Capital Investments heard that the Argentine ship had entered Ghanaians waters, it went to court for an order to detain the ship, using the ruling by the UK Supreme Court as the basis for the pleadings, which was also upheld by the Ghanaian court.

It was based on this decision that the Argentine government took the case to the International Tribunal for the Law of the Sea (ITLOS), where she persistently argued that the Libertad was a warship, and that Ghana’s interference with the vessel violated sovereign and diplomatic immunity principles, despite the fact that the UK court had also such diplomatic principles on the assets of Argentina.

Ghana had argued at the international court that Argentina could obtain the release of the ship if she made payment of security to the Ghanaian court that placed an injunction on the vessel. This argument was, however, overruled by the court.

The tribunal observed that “a warship is an expression of the sovereignty of the state whose flag it flies, and “in accordance with general international law, a warship enjoys immunity, including in internal waters.”

To the court, therefore, “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,” and “actions taken by the Ghanaian authorities that prevent the ARA Libertad, a warship belonging to the Argentine Navy, from discharging its mission and duties affect the immunity enjoyed by this warship under general international law.”

The tribunal, therefore, concluded that “the urgency of the situation requires the prescription by the Tribunal of provisional measures that will ensure full compliance with the applicable rules of international law, thus preserving the respective rights of the parties.”

Though Ghana, which is a party to the 1982 U.N. Convention on the Law of the Sea, has respected the ruling of the court and released the vessel to sail back to Argentina, where an elaborate programme was organised to welcome it, Argentina is still dissatisfied, and has gone back to the court to seek compensation from the government of Ghana, which was only trying to enforce the law demanded by the plaintiff in the case in the Ghanaian court.

Should the court grant the reliefs being sought by the plaintiff, Ghana would end up paying millions of dollars in damages to Argentina, when she did not make any financial gains in the case filed at the Ghanaian court by NML Capital Investments.

Attempts made by The Chronicle to get the Ministry of Justice and Attorney General, a legal adviser to the government, to comment on the issue, as to whether the government was ready to fight the bizarre case or not, proved futile.

Though the Public Relations Officer for the ministry promised to get more briefing on the case before making any comment, he failed to respond to calls put through to his cellular phone on the agreed time he asked this reporter to call.

The founding President of Imani Ghana, a local think tank, Mr. Franklin Cudjoe, who is mad with the decision of the Hamburg based court, told The Chronicle that though Ghana was a party to the treaty on the law of the sea, orders issued by ITLOS should not be binding on the Ghanaian courts, and that they certainly cannot override a standing decision of a Ghanaian court.

At the tribunal, Argentina claimed that the detention of the ship violated the treaty. The claim was widely regarded as frivolous, because the treaty clearly does not have jurisdiction over disputes in Ghana’s ports, or disputes regarding the immunity of warships, he said, contending that ‘The Libertad’ is a three-masted naval training vessel, and arguably not even a warship.

To Frankling Cudjoe, the order of the ITLO for Ghana to release the so-called warship violated Ghana’s sovereignty, and ought not to have been respected.

 

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