Monday, 30 October 2017

Ghana and Côte d’Ivoire Maritime Boundary case: the other way of the judgement (part 2)

Adnan Adams Mohammed

The chairman for the Civil Society Platform on Oil and Gas, Dr. Steve Manteaw has welcomed the ruling by the International Tribunal for the Law of the Sea (ITLOS), saying: “I see it as victory for both parties.”

The tribunal ruled a fortnight that Ghana did not violate the sovereign right of Cote D’Ivoire by drilling oil around the maritime area shared by both countries.

“Ghana did not violate the provisional measures prescribed by the Special Chamber in its Order of 25 April 2015,” asserted the judgement read by Judge Boualem Bouguetaia, President of the Special Chamber.

“There is no tacit agreement between the Parties to delimit their territorial sea, exclusive economic zone and continental shelf both within and beyond 200 nm, and rejects Ghana’s claim that Côte d’Ivoire is estopped from objecting to the customary equidistance boundary,” added the judgement.

Commenting on the judgement, Dr. Manteaw said, “…I see it as victory for both parties, because now, Cote D’Ivoire is also clear about where their boundaries end with Ghana and they can then confidently market their area to attract investments.

“It puts Cote D’Ivoire on a good pedestal to be able to attract investments into their side of the disputed area,” he added.

But, as regards the Special Chamber of ITLOS’s task of effecting a delimitation between the maritime entitlements of Ghana and Côte d’Ivoire, both parties requested the judges to draw a single maritime boundary, i.e., one uninterrupted boundary line delimiting the various zones of
coincident jurisdiction appertaining to Ghana and Côte d’Ivoire. Ghana advocated an equidistance line modified to account for the parties’ oil activities. The Special Chamber noted
that, over time, Côte d’Ivoire had invoked various methods for delimiting the maritime

Finding no compelling evidence of a tacit agreement or estoppel regarding the parties’ maritime
boundary or of a modus vivendi between them affecting the boundary, the Special Chamber
noted that both parties agreed, in principle, on the internationally established three-stage
approach in applying the equidistance/relevant circumstances methodology invoked by both

According to the commentary of Professor Pieter Bekker and Robert van de Poll, who are both with the Dundee Ocean and Lake Frontiers Institute and Neutrals (DOLFIN), the approach and methodology, after identifying the relevant coasts with a view to determining the parties’ overlapping claims and the relevant area within which the delimitation is to be effected and in which the projections of the parties’ coasts overlap, a provisional delimitation line is established, which in the majority of cases has been an equidistance line, by reference to appropriate base points (Stage 1). The provisionally constructed line is then examined in the light of equitable factors, called “relevant circumstances,” so as to determine whether it is necessary to adjust or shift that line in order to achieve an equitable solution (Stage 2).

The final stage in the delimitation involves the application of a final proportionality check to verify the equitableness of the tentative delimitation and to ensure that the ultimate result is not tainted by some form of gross disproportion (Stage 3).

The parties having advanced differing versions of the relevant coasts and area for purposes of
drawing the provisional line, the Special Chamber concluded that only a portion of the mainland
coast of Côte d’Ivoire, measuring 352 kilometers, constituted the relevant Ivorian coast of which
the seaward projection overlaps with Ghana’s projection, while the relevant Ghanaian coast was
found to measure some 139 kilometers. This results in a ratio of approximately 1:2.53 in favour
of Côte d’Ivoire, whereas the ratio of the allocated areas is approximately 1:2.02 in favour of
Côte d’Ivoire.

Having found that delimitation of the area of overlapping claims could be satisfactorily
accomplished by constructing a provisional equidistance line, the Special Chamber identified a
starting point and selected base points for the line that differed from those advanced by both
parties. Given that the agreed border post 55 is situated some 150 meters from the low-water
line, the Special Chamber, guided by the parties’ coastline, fixed the starting point, referring to it
as “BP55+.” It did so by extending the direction of the land boundary from border post 54 to
BP55 until it reaches the low-water line.

After identifying base points by re-digitizing the relevant coastline reflected on British Admiralty
Chart 1383, which dates back to the 19th century, the Special Chamber reduced the resulting high number of base points by using, for each party, only those points furthest from and nearest to the land boundary terminus and the points in the middle, yielding five base points for each country.

The resulting boundary, which starts from BP55+, includes six turning points at which the
direction of the line changes and which are connected by geodetic lines. From the southern-most turning point, the equidistance boundary continues as a geodetic line starting at an azimuth of 191˚ 38’ 06.7” until it reaches the outer limits of the continental shelf beyond 200 nautical miles.

As regards the course of the line delimiting the continental shelf beyond 200 nautical miles,
which it confirmed could be fixed by it, the Special Chamber emphasised that “there is in law
only a single continental shelf.”

Without fixing a termination point, it found that this segment of the boundary runs in the same direction as the line within 200 nautical miles.
Given that the boundary line thus fixed by the Special Chamber begins south and east of border
post 55 agreed upon by both parties (i.e., commences at a new starting point) and has its own six turning points, plus its own azimuth, for the remainder of the single line, the final boundary does not coincide with the equidistance line claimed by Ghana. The final line starts out east of
Ghana’s claimed line, crosses to the west (offshore) and then crosses again east nearing the 200-nautical-mile EEZ limit, before continuing to the extent of the continental shelf. Details of this can be seen in Figure 2 below.

The Special Chamber rejected all of the parties’ arguments that an adjustment or shifting of the
provisional equidistance line was required in the present case based on “relevant circumstances” and found instead that strict application of the equidistance method resulted in an equitable solution in this case. The Special Chamber also determined that the line constructed by it “does not lead to an inequitable result owing to a marked disproportion between the ratio of the respective coastal lengths [here, 1:2.53] and the ratio of the relevant maritime area allocated to each Party [here, 1:2.02].”

Finally, the Special Chamber rejected, for lack of convincing evidence, all of Côte d’Ivoire’s
arguments regarding Ghana’s international responsibility based on allegedly unlawful conduct by Ghana both prior and during the proceedings.

The two experts in their analysis commentary again instituted that, the Special Chamber’s ruling is especially instructive regarding the legal obligations of neighbouring coastal States with active offshore oil blocks but lacking an agreed maritime boundary or a provisional arrangement for joint exploration and exploitation of natural resources pending agreement on the common boundary. The Special Chamber pointed out that Côte d’Ivoire never requested Ghana to enter into provisional arrangements; hence, Côte d’Ivoire was barred from claiming that Ghana had violated its obligations to negotiate on such arrangements.

“This means that disputing States are well-advised to explore such provisional arrangements.
Following this latest ruling, the first between African coastal States in 15 years, some 70 percent
of Africa’s blue frontiers (lake and ocean boundaries), including various in the Gulf of Guinea,
are still to be delimited. This affects practically all of Africa’s maritime waters, which hold
offshore hydrocarbon reserves (EEZ and ECS waters) of approximately 95 billion Barrels Oil
Equivalent (BBOE) (discovered) and, most importantly, yet-to-be-found reserves estimated at
70-80 BBOE, subject to basin limits.22 Many of these areas, which are believed to harbour morethan half of Africa’s total reserves, are in near proximity to the present-day unresolved

“It remains to be seen how this ruling will affect other maritime boundary disputes and cases,
especially the pending maritime delimitation case between Somalia and Kenya in which the ICJ
will be issuing its decision in the near future. Significantly, Judge Ronny Abraham of France,
who is serving as ICJ President, was a member of the Special Chamber that imposed a strict-
equidistance boundary on Ghana and Côte d’Ivoire, the country that had appointed him.

“If he belongs to the majority, President Abraham normally will be a member of the three-member committee drafting the ICJ’s judgment in the case between Somalia and Kenya.
In connection with its request to be provided with the parties’ written pleadings and documents,
Benin stated that “the view adopted by the Special Chamber on the delimitation of the Ivoiro-
Ghanaian maritime boundary is likely to have an influence on the delimitation of the maritime
areas of the sub-region, including that of Benin”, Prof Bekker and Van de Poll opined.

However, the Special Chamber pointed out that “its Judgment is binding only upon Ghana and Côte d’Ivoire [and] is without prejudice to the rights and interests of third parties,”25 which includes neighbouring countries.

While the first and only maritime boundary case adjudicated by ITLOS, fixing a single boundary
representing an adjusted equidistance line in the EEZs and continental shelves appertaining to
Bangladesh and Myanmar, respectively, lasted only 27 months, it took the ITLOS Special
Chamber just under 33 months to reach its decision. This compares favourably with the average
of 69 months that maritime delimitation cases before the ICJ have taken since 1969. Other
tribunals thus are emerging as a speedier alternative to the ICJ in maritime delimitation cases.