Immune or not? Warships in foreign internal waters and the UN Convention on the Law of the Sea

Cogliati-Bantz, Vincent P. (2013) Immune or not? Warships in foreign internal waters and the UN Convention on the Law of the Sea. Durham Law Review, 4 1-49.

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Author Cogliati-Bantz, Vincent P.
Title Immune or not? Warships in foreign internal waters and the UN Convention on the Law of the Sea
Journal name Durham Law Review
ISSN 1461-3964
Publication date 2013-01-01
Year available 2014
Sub-type Article (original research)
Volume 4
Start page 1
End page 49
Total pages 49
Place of publication Durham, United Kingdom
Publisher Durham Law School, Durham University
Language eng
Formatted abstract
On 20 December 2012, the International Tribunal for the Law of the Sea (ITLOS) rendered an order on provisional measures in rather extraordinary circumstances. It unanimously ordered that Ghana unconditionally release Argentina’s frigate ARA Libertad and its crew and allow them to leave the port of Tema and the maritime areas under Ghanaian jurisdiction. The vessel, the flagship of the Argentinean navy, had been detained by Ghana following an interlocutory injunction by a judge of the High Court of Ghana on 2 October 2012, upon the claim by a company in respect of sums due under bonds issued by Argentina.

In this, its sixth order on provisional measures since its establishment, ITLOS for the second time faced the criticism of some judges on the jurisdiction of the Tribunal to order the provisional measures sought by the Applicant. In the Libertad case, two judges questioned whether the arbitral tribunal to which the dispute was submitted would have prima facie jurisdiction over it. The problem was raised starkly in the context of the immunity of a warship in a foreign port which, despite being a well-established rule of international law, was allegedly not a rule to be found in UNCLOS and, therefore, not one capable of being vindicated through its compulsory disputesettlement mechanism. The case also raises issues of the relations between domestic law and the international obligations of States, and of the conditions to be fulfilled when provisional measures are sought.
Q-Index Code CX
Q-Index Status Provisional Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collection: TC Beirne School of Law Publications
 
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Created: Mon, 23 Jun 2014, 10:32:41 EST by Carmen Buttery on behalf of T.C. Beirne School of Law