On Sunday Dec 15th, the ruling by the Hamburg-based International Tribunal for the Law of the Sea became widely publicized to the effect that Ghana has lost to Argentina. Not in a football match but in that legal battle christened the ‘ARA LIBERTAD’ case. The LIBERTAD case ensued when Ghana forcibly detained the Argentine warship ARA Libertad at the Tema port on the orders of the Commercial High Court in Accra in October 2012. The court had based its rulings on earlier verdicts in the District Court for the Southern District in New York and the Supreme Court of the United Kingdom. In both the United States and the United Kingdom, Argentina was found guilty of non-payment of sovereign debts it owed NML capital, a private Fund owned by Paul Singer, a key financier of the Republican Party. In both the United States and the United Kingdom Argentina has property in the form of Embassies, Consulates ,Trade Offices etc with the same immunity status as the ARA Libertard but none was attached to the rulings in those jurisdictions. The Ghanaian judiciary held that, to the extent that Argentina waived its immunity it its agreement with NML, the Argentine warship could be seized pending issuance of debt security. But the international tribunal said no. Ghana’s court was wrong. So, was the judgment by the international court right or wrong ?
In an earlier contribution on this topic ( see JUDGEMENT DEBT AND THE PEOPLE OF GHANA ,Feature Article of 16-12-12; ghanaweb) I had mentioned that, to waive one’s immunity and still demand it is like Esau selling his birthright and still demanding the privileges of the firstborn. But the issue is, even after Esau sold his birthright did he cease to be the firstborn? When he sold the rights did that change the order of birth? Can everything in life be undone by sheer will? Can every right be given away? For instance, if Mr. A. borrows money from Mr.B. and Mr A. undertakes that, if I fail to pay the money , kill me. Will the state respect Mr. A’s right to sell his life or Mr. B. would be held for murder in case the undertaking is executed? Can a sovereign nation set aside its immunity and still be said to maintain all the attributes of an independent state? Even though the ruling did not provide all the underlying judicial philosophy informing the ruling, the verdict clearly upheld the ‘non-waivability’ of sovereign immunities. At this point, it may be important to note that one of the key arguments by Argentina that, the forced detention of the Libertard disrupts the organization of the armed forces of a sovereign state and is an offence to one of the symbols of the Argentine Nation and hurts the feelings of the Argentine people…, was upheld by the court having considered that Warship is an expression of the sovereignty of a state. The court appears to say that just as no one can take his own life legally, so can no state waive its immunity under no circumstance. Well , from the point of legal philosophy therefore, one can say the verdict was right. But I am sure there would be many who would still say the verdict was wrong. If that is so then the jury was biased. Let’s examine why the jury may or may not be biased.
The jury of the International Tribunal for the Law of the Sea is composed of twenty one(21) eminent judges elected by a secret ballot under the auspices of the UN from the over one sixty (160)state parties who have ratified the Law of the Sea Treaty. These 21 independent judges are elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the Law of the Sea. No two members of the tribunal may be nationals of the same state. So concerned is the tribunal about fairness that it provides that, if the tribunal, when hearing a dispute, includes upon the bench a member of the nationality of one of the parties, any other party may choose a person to participate as a member of the tribunal. When Argentina sued Ghana, an Argentine was part of the jury and Ghana rightly exercised her right and selected His Excellency Justice Thomas A. Mensah to be part of the jury. Now, who is Justice Thomas Mensah or why did the government of Ghana select him to shepherd the interests of Ghana at the International Tribunal for the Law of the Sea.
Justice Mensah was born in Kumasi in on May 12th 1932. After his B.A. in Legon in 1956, he continued to the doctoral level in Yale and came back to the Law faculty in Legon as a lecturer. When Prof. Mensah left the faculty of Law as Dean in 1968, he worked with many international bodies including the International Atomic Energy Agency, the International Maritime Organisation, the UN Environment programme, Leiden University, Holland and Law of the Sea Institute, Hawaii before taking another Ghanaian appointment as Ghana’s High Commissioner to South Africa under President Rawlings. In about a year, in South Africa, he was elected as the first presiding Judge or President of the International Tribunal of the Law of the Sea, Hamburg; the court before which we all are or have been courtesy Argentina. It was to this same court that national duty called Justice Mensah to shepherd the interest of Ghana against Argentina. And guess what, even justice Mensah ruled against Ghana.
Apart from our own, the current vice president of the ITLOS is from South Africa. Many of the remaining 21 judges are from African and other developing nations including judge Boualem Bouguetaia of Algeria and Justice Luis Jesus from Cape Verde. And of course, Jesus ruled against us. The decision could only be free, fair and right. The current presiding judge is Japanese. I put it to you reader, that, this judiciary cannot be biased against Ghana in this case. The verdict against Ghana , in my view was fair and right. Especially when one considers, as did the court, that the matter which started between Argentina and a private entity had the tendency to damage relations between friendly states. And also considering that, if the Accra ruling is made to stand, it would submit the sovereignty of many nations to the dictates of rich global entrepreneurs and even endanger the independence and very existence of the nation-state.
If the matter was this straightforward why did the fast track court in Accra make the mistake of ordering the warship to be detained? Is it the understanding of the court of International Law and practice that was insufficient? I don’t think so! At the end of the day, not only has the Ghanaian people lost substantial amount of money in legal fees to Indian and British lawyers but any serious state should be feeling the loss of national pride not to mention the diplomatic wedge that has emerged between Ghana and most if not all South American countries. Does the Ghanaian judiciary normally consider the national interest in its rulings? In whose interest is the Ghanaian judiciary serviced by the taxpayer?
Already, the US investment fund is criticizing the International tribunal and gives indication that, the matter would still be pursued in Ghanaian courts. For how long shall we be wasting resources on another man’s matter?