Argentina Rescues The Liberdad, Courtesy Of The ITLOS
Posted on December 17, 2012
I had a call some time ago from an investor who owned defaulted sovereign bonds. He had a final judgment from a US district court against the issuer, and he wanted to hire me to collect. He offered what I thought was a highly unrealistic fee, and when we discussed it, he justified his offer by pointing out that his last lawyer had already done the hard work by obtaining the judgment, and that all that was left to do was the easy work of collection. I laughed and laughed.
On Saturday, the International Tribunal for the Law of the Sea granted Argentina’s request for provisional measures and ordered the immediate release of the ARA Liberdad, the Argentine naval vessel that Ghana had seized on the motion of NML Capital. There was a jurisdictional issue in the case that I leave to people who know more about the Law of the Sea Convention (for example, Craig Allen’s post at Opinio Juris). The key substantive point was the Tribunal’s holding that under customary international law warships have immunity, even in a state’s internal waters. Michail Risvas, writing at EJIL:Talk!, and Julian Ku, at Opinio Juris, had suggested that Argentina’s waiver of its sovereign immunity might be a key issue in the case, but the Tribunal’s decision doesn’t discuss the effect of Argentina’s waiver, or even whether a state can waive the immunity of its warships. I don’t know why waiver wasn’t an issue in the decision, although I noted in a comment to the Risvas post that under the FSIA a state apparently cannot waive the immunity of its military property from attachment or execution. Perhaps the FSIA’s rule reflects the rule of customary international law?
There were several concurring opinions, which are available on the ITLOS website. One point that runs through some of the opinions is a point we have seen in other contexts, e.g., in the Lago Agrio case: as a matter of international law, a state cannot hide behind its constitution or judiciary. Even if Ghana’s executive lacked the power under Ghanaian law to release the Liberdad in light of the judiciary’s orders, Ghana is still responsible for the acts of its courts.