Monday, 30 October 2017

Ghana and Côte d’Ivoire Maritime Boundary case: the other way of the judgement (Part 1)

Adnan Adams Mohammed

The International Tribunal for the Law of the Sea (ITLOS) a fortnight ago ruled on a case brought before it by the legal team of Ghana over a maritime boundary dispute settlement.

The Special Chamber of the ITLOS unanimously set the single, “all-purpose” maritime boundary between the Republic of Ghana and the Republic of Côte d’Ivoire both within and beyond 200 nautical miles from the two countries’ coastlines.

The boundary, which is situated in an area in the Gulf of Guinea that is rich in hydrocarbons,
represents a relatively rare “strict,” or un-adjusted, equidistance line favoring Ghana.

The case took three years to be resolved following Ghana’s surprise move to seek an
adjudicated solution upon its western neighbor after bilateral negotiations spanning six years and 10 rounds did not result in an agreed boundary.

Although, the case was ruled in favor of Ghana, there are a number of issues to be still considered as to why the ruling favored Ghana and under what circumstances Côte d’Ivoire could have won the case instead.
Several local and international experts on legal and maritime issues have given their commentary since the case was lodged at the ITLOS and after the ruling was given.

Energy Minister, Boakye Agyarko after the ruling jubilated over Ghana’s gain of 80 square kilometres of territorial space after a delimitation triggered by the ruling of the International Tribunal of the Law of the Sea (ITLOS).

He said although the country made some marginal losses at certain points following the creation of the new border, they are insignificant and will not affect oil production.

Mr Agyarko explained that “At the first intersection of 29 nautical miles, Ghana loses marginally about 19 square kilometres of territorial space because the border is to the left of our claim.

“Between 29 and 196 nautical miles, Ghana makes a gain of 121 square kilometres because the new border is on the right of our original claim. In a nutshell, the net gain made by Ghana is about 80 square kilometres of additional territorial space,” Mr Agyarko said.
From the commentary of Professor Pieter Bekker & Robert van de Poll, who are both with the Dundee Ocean and Lake Frontiers Institute and Neutrals (DOLFIN), have also released an analysis of the ruling.

Professor Pieter Bekker holds the Chair in International Law at the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) and is Founding Director of DOLFIN while Robert van de Poll is Global Manager Law of the Sea for Fugro Group, one of the world’s largest surveying and engineering companies headquartered in the Netherlands.

Their analysis of 181-page judgment delivered in Hamburg on 23 September 2017, came out with a revelation that, the new boundary will require adjustments to practically all existing oil and gas blocks on either side of the line.

“The maritime boundary resulting from the Special Chamber’s ruling will require adjustments,
however minor, to practically all existing blocks for mineral resource activities licensed by the
parties along the adjudicated boundary. This is a direct result of the Special Chamber’s line not
coinciding at any point with the parties’ claimed lines. Therefore, the ruling, while binding only
for Ghana and Côte d’Ivoire, directly impacts oil companies holding offshore oil and gas blocks
in the hitherto disputed area”, they said.

Again, in their analysis they noted that, while the Special Chamber’s chosen starting point of the maritime boundary might favour Côte d’Ivoire territorial claims near-shore along an initial segment measuring approximately 30 nautical miles, Ghana received a final boundary that is even more favourable than the boundary claimed by it in its final submissions along a segment of approximately 164 nautical miles. The boundary fixed by the Special Chamber is actually seen to be subdivided into three segments, with the final line initially lying east, then west and again east of Ghana’s claimed equidistance line in the deepest waters as it approaches its approximate termination point at the outer portion of Ghana’s extended continental shelf (ECS) claim, which was recently accepted by the CLCS.

Maritime boundary cases often involve, and are triggered by, competing claims to natural
resources, and this case is a prime example.

“The Special Chamber’s ruling, which is not open to appeal, affirms the cautious treatment that international courts and tribunals generally have given to non-geographical, resource-related criteria when considering relevant circumstances that might justify adjusting or shifting a provisional equidistance line in cases where drawing such a line is feasible. According to the Special Chamber, “a de facto line or modus vivendi related to oil practice [of the disputing coastal States] cannot per se be a relevant circumstance” in maritime delimitation.

“The ruling effectively denies the equitable access to the resources of the Tano Basin in the disputed maritime area that Côte d’Ivoire had sought.

“By unilaterally instituting proceedings against Côte d’Ivoire in September 2014, only a few
months after the two countries had agreed on the terminus of their common land boundary—an
apparent “trigger” for this case, and following six years of bilateral negotiations, Ghana took a
gamble, which this ruling shows ultimately paid off” they stated.

In explaining this further, they said, the ruling highlighted that maritime boundary delimitation involves a mixture of law and science. The Special Chamber’s choice of chart BA 1383 – reflecting very old near-shore mapping that only shows the coastal low-water line in some places (and none in near general proximity to the relevant coastal frontages where all scientific law of the sea baseline analysis was needing to be conducted) and falling short of the United Nations scale guidelines19—apparently stems from the fact that both countries had relied on that chart until 2014 and had not jointly surveyed their coasts.

The boundary’s starting-point (BP55+) resulting from the use of this chart sits 159.87 meters (geodetic) south and 18.43 meters east of the parties’ agreed land terminus point (BP55), thereby favouring Côte d’Ivoire near-shore.

The fact that this new position differs from the bilaterally agreed upon starting point means that the boundary line fixed by the Special Chamber nowhere coincides with the lines claimed by Ghana and Côte d’Ivoire.

In reading the judgment, Justice Boualem Bouguetaia, President of the Special Chamber accepted Ghana’s argument of adopting the equidistance method of delineation of the maritime boundary albeit some modification.

In consideration of the new boundary, the Chamber determined that the new one start from boundary 55 -200 nautical miles away, a position much closer to what Ghana was arguing for.
With the new boundaries laid, the Energy Minister said Ghana has not been adversely affected.

Mr Agyarko said “none of our oil fields in production have been affected by the ruling. All the oil fields we are working from are all squarely in the territorial space of Ghana. “So there is no loss,” he added.

He also indicated that the initial moratorium placed on the country which prevented it from drilling more wells in the disputed area has by the ruling been lifted.

This means that Tullow Oil can now begin to add 13 more wells to improve its production, an estimated addition of 80,000 barrels per day.

“30,000 additional barrels of oil times 50 dollars is a lot of money that can keep the free SHS, health insurance and the others going”.

Mr Agyarko added that more steps are being taken to secure Ghana’s territorial space and ensure that oil production continues unimpeded.

The Minister also cautioned the public on comments being made since the ruling.
“We shouldn’t gloat over it, because we are aware that before oil, Ghana had some relationship with our brothers and sisters in Cote d’Ivoire and after oil Ghana must still have a good relationship, so it should not be that they have lost and we have won. “The good neighbourliness must continue,” he added.

Recalling the run-up to the judgement day, no expert was emphatically confident enough to give a prediction of the outcome of the case due to the complexity and delicate nature of the implications of a wrongful prediction.

The year 2009 marked an important milestone in the relations between Ghana and Côte d’Ivoire: it was when Ghana intensified its oil activities in the disputed area following significant discoveries—especially in the TEN (Tweneboa, Enyenra, Ntomme) field. It also saw the filing
of a declaration by Ghana under Article 298 of the United Nations Convention on the Law of the
Sea (UNCLOS) stating that it did not accept any of the dispute settlement procedures provided
for in UNCLOS in matters of maritime boundary delimitation as well as of submissions for the
extension of the continental shelf beyond 200 nautical miles to the Commission on the Limits of
the Continental Shelf (CLCS) by both countries.

In September 2014, Ghana surprised Côte d’Ivoire by instituting proceedings before an ad hoc
arbitration tribunal seeking delimitation of the maritime boundary with Côte d’Ivoire in the Atlantic Ocean while withdrawing the Article 298 declaration it had made in 2009.

Given that both countries are parties to UNCLOS, Ghana could rely on Annex VII of UNCLOS to sue Côted’Ivoire and obtain an adjudicated solution to their boundary dispute. The two countries
subsequently concluded a Special Agreement whereby they agreed to transfer the case to a
Special Chamber of ITLOS comprising five members, with ITLOS Vice-President Boualem
Bouguetaia of Algeria presiding over the proceedings.

The case thus became the first-ever maritime boundary case submitted to an ITLOS Special Chamber.

In the proceedings before the Special Chamber, Ghana and Côte d’Ivoire, whose coasts are
convex and concave, respectively, but which otherwise are straight (i.e., not indented) and almost equal in overall length, disagreed on the approach to be taken in fixing their common maritime boundary. They also disagreed on the points along their coasts from which the boundary was to be measured, the so-called base points, and on the marine charts to be used in fixing their boundary.

Ghana maintained that both countries over several decades had mutually recognised and applied an equidistance-based maritime boundary in the 12-nautical-mile territorial sea and their
Exclusive Economic Zone (EEZ) and continental shelf within 200 nautical miles from their
coasts. Ghana also claimed that the countries’ 2009 submissions to the CLCS were evidence of
their tacit delimitation agreement regarding the boundary beyond 200 nautical miles.

According to Ghana, the starting-point for the demarcation of the allegedly agreed maritime
boundary was the common land boundary terminus at border post 55 (BP55), the geographic
coordinates of which had been agreed by the two countries nine months before Ghana instituted

Disagreeing with Côte d’Ivoire that the area to be delimited features geographical circumstances
capable of influencing the equidistance-based maritime boundary advocated by Ghana, Ghana
submitted that, if the Special Chamber did not accept that there was an agreed boundary, the
provisional equidistance line to be drawn by the judges based on a 10-kilometer segment of
Ghana’s coast was to be adjusted to the west on account of the oil activities of both countries. In
Ghana’s view, those activities evidenced a modus vivendi. The resulting boundary coincides
with the western limit of Ghana’s oil blocks.

Ghana also asked the Special Chamber to rule that the parties’ maritime boundary beyond 200
nautical miles follows an extended equidistance boundary along the same azimuth as the boundary within 200 nautical miles, to the limit of national jurisdiction.

Denying that there was an expressly agreed or “customary” boundary in place between the two
countries, let alone one based on equidistance, and rejecting Ghana’s reliance on oil activities in
the relevant area, Côte d’Ivoire asked the Special Chamber to rule that the single maritime
boundary between Ghana and Côte d’Ivoire follows the 168.7˚ azimuth line, which both parties
agreed starts at BP55 and extends to the outer limit of the continental shelf.

The boundary that was advocated by Côte d’Ivoire is based on an angle bisector method, which
along with equidistance is among the geometry-based methods for delimiting maritime
boundaries recognised by international courts and tribunals. This method is based on the general direction of the coastal geography of two countries with adjacent coasts.

According to Côte d’Ivoire, applying the bisector method was appropriate in this case given the
limited number of base points and their location on what in its view constitutes an unstable
coastline that is not representative of the overall coastal geography. It also pointed to the
orientation of the countries’ coastlines, which runs in the opposite direction to the general
direction of their coasts, as well as the circumstance that the base points (typically, low-water
line points) used for the construction of the provisional equidistance line are all located on a
small portion (around 10 kilometers) of the countries’ coastlines, and all of them are situated on

Representing only one percent of Ghana’s territory, Jomoro is an incursion into Ivorian
territory that takes the form of a narrow strip of land blocking the seaward projection of part of
the Ivorian land mass, and Côte d’Ivoire argued that it would create maritime entitlements for
Ghana in an area exceptionally rich in hydrocarbons, especially the Tano sedimentary basin, one of West Africa’s richest basins.

Côte d’Ivoire also complained that the configuration of the narrow coastal segment employed for
the construction of the equidistance line advocated by Ghana would cause a cut-off for the
maritime area of Côte d’Ivoire in contravention of settled international jurisprudence and that the
resulting boundary line was contrary to the objective of achieving an “equitable solution,” the
result dictated by UNCLOS for boundaries in maritime areas lying beyond the territorial sea.

Côte d’Ivoire instead identified much longer relevant coasts than Ghana, claiming its relevant
coast was 510 kilometers versus 121 kilometers for Ghana, resulting in a ratio of approximately
1:4.2 in its favour. According to Côte d’Ivoire, this “marked disparity” in the respective lengths
of the coasts was a circumstance to be taken into account as a relevant circumstance requiring
adjustment to any provisional equidistance line to be made.

Côte d’Ivoire maintained that the same line could be construed based on either a bisector methodor modified equidistance using the equidistance/relevant circumstances method proposed by Ghana.

In Côte d’Ivoire’s view, only the line proposed by it would allow the area that was to be
delimited to be shared equitably, while respecting the interests of neighbouring countries in the
Gulf of Guinea.

Côte d’Ivoire went as far as accusing Ghana of having incurred international responsibility
through wrongful conduct stemming from Ghana’s oil activity and conduct during the
proceedings, including alleged new drilling in the disputed area that was the subject of a
moratorium imposed by the Special Chamber’s unanimous Order of 25 April 2015.