A Report on the Case of the ARA Libertad (Argentina v. Ghana), International Tribunal for the Law of the Sea, Case No. 20, Provisional Measures

Abstract

This case report analyzes the provisional measures order by the International Tribunal for the Law of the Sea (ITLOS) in the case of the Argentine frigate, ARA Libertad, held in Tema Port, Accra, Ghana. The order is important for upholding the immunity of a warship broadly and inclusively defined — as a tall sailing ship used for training by the Argentine Navy. ITLOS found that “in accordance with general international law, a warship enjoys immunity” (para. 95). Perhaps even more important, the order applied sovereign immunity as a general principle of international law to the internal waters (port) of Ghana, even though Article 32 on sovereign immunity is contained in Part II of UNCLOS on the territorial sea. This finding raises interesting questions about the scope of ITLOS’s jurisdiction beyond the specific provisions of the text of the Convention.

Keywords: Ghana, Libertad, frigate, ITLOS, UNCLOS, Law of the Sea, warship, sovereign immunity, provisional measures, maritime law, international law, oceans law