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Calming the Waters in the West African Region: The Case of Ghana and Côte d'Ivoire

Document Cited in Related
Vincent
DOI10.3366/ajicl.2018.0246
Published date01 November 2018
Author
Pages507-526
Date01 November 2018
INTRODUCTION

The award rendered on 23 September 2017 in Ghana/Côte d'Ivoire represents the first case in which a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) has resolved a maritime boundary dispute between states, and it is only the second case, following the Guyana/Suriname Arbitration of 2007,1 in which an international adjudicating body has ascertained the meaning and scope of Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea (UNCLOS) in the context of unilateral oil and gas operations in disputed areas. The Special Chamber delimited the parties’ territorial sea, exclusive economic zone (EEZ) and continental shelf boundaries within and beyond 200 nautical miles (nm). The delimited boundary represents an unadjusted equidistance line favouring Ghana. The Special Chamber also considered and ruled on (a) Ghana's claim regarding the presence of a tacit agreement as to the existence of a maritime boundary and (b) the allegations by Côte d'Ivoire that Ghana had violated Article 83(1) and (3) of UNCLOS2 by allowing its concessionaires to conduct advanced oil and gas exploration and exploitation activities in the disputed area. In its judgment, the Special Chamber reached a number of conclusions which, taken together with its Order for the prescription of provisional measures of 25 April 2015, will have significant, practical implications for the future conduct of unilateral oil and gas activities in disputed maritime areas, as well as for the associated obligations incumbent upon states concerned.

 HISTORICAL AND PROCEDURAL BACKGROUND

Ghana and Côte d'Ivoire are adjacent to each other in the Atlantic Ocean; their shared 640km land border was only settled in 1989, after 15 years of inter-state negotiations.3 In the spring of 2010, Ghana established a Boundary Commission to undertake negotiations for the delimitation of the states’ maritime boundary in the Atlantic Ocean. That area of the Atlantic contains large reserves of hydrocarbons, which both West African states have always been eager to exploit.4 In 2007, the discovery of the major Jubilee oilfield 32nm off the Ghanaian coast attracted significant interest from foreign investors in Ghana's hydrocarbon potential.5 Subsequently, in March 2009, the Tweneboa, Enyenra and Ntomme (TEN) fields were discovered only 3nm east of Jubilee (see Figure 1). Several smaller fields were also found, totalling around 15 fields in Ghana's western maritime areas.6

Tweneboa, Enyenra and Ntomme (TEN) fields.

By the time the issue of maritime delimitation was brought into bilateral negotiations between the parties, the TEN and Jubilee fields were all under development by a consortium of companies led by London-based Tullow Oil. Côte d'Ivoire objected to the ongoing oil activities of Ghana, asserting that those activities were being undertaken in the Ivorian maritime area.7 It was in response to this assertion that the parties agreed to establish the ‘Joint Ivoiro-Ghanaian Commission on Maritime Border Demarcation’ (Boundary Commission) and maritime delimitation negotiations commenced.8 On 3 December 2014, in view of the lack of progress in diplomatic negotiations, Ghana and Côte d'Ivoire agreed to submit the maritime boundary dispute to a Special Chamber of ITLOS.

Provisional Measures

A subsequent dispute arose regarding Ghana's oil exploration and exploitation operations undertaken in the disputed maritime area. Côte d'Ivoire contended that, during the unfruitful Boundary Commission negotiations, Ghana had granted permission for oil companies to proceed with the exploration and exploitation of nine oil blocks until 2014. Of those nine blocks, eight were already in an advanced exploration phase, and 12 drilling operations had already been carried out in the maritime areas also claimed by Côte d'Ivoire.9 As a result, Côte d'Ivoire filed with the Special Chamber a request for the prescription of provisional measures under Article 290(1) of UNCLOS, asking that Ghana be ordered to immediately suspend all oil exploration and exploitation operations underway in the disputed area.

In its application, Côte d'Ivoire argued, inter alia, that the ongoing hydrocarbon activities of Ghana in the disputed area caused a grave and irreversible harm to Côte d'Ivoire's sovereign rights of exploration and exploitation of the natural resources of its continental shelf (Articles 56(1) and 77(1) of UNCLOS).10 Côte d'Ivoire also argued that the conduct of geophysical investigations by Ghana constituted an infringement of the exclusive right of Côte d'Ivoire to conduct maritime scientific research, pursuant to Article 246(5) of UNCLOS, and its associated right to access, possess and control all confidential information relating to the exploration of the continental shelf. This, according to Côte d'Ivoire, was an indispensable element of a coastal state's sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources as provided for in Article 77 of UNCLOS.11 Overall, Côte d'Ivoire emphasised that the actions of Ghana irremediably deprived Côte d'Ivoire of its sovereign right to formulate and implement its national energy policy and its exclusive sovereign right to decide ‘when, how and under what conditions the exploitation of these resources will take place, and even whether it should take place’.12 In its final submission, Côte d'Ivoire requested the Special Chamber to declare and adjudge that the activities undertaken unilaterally by Ghana ‘in the Ivorian maritime area’ constituted a violation of (a) Côte d'Ivoire's exclusive sovereign rights over its continental shelf; (b) the obligation to negotiate in good faith, pursuant to Article 83(1) of UNCLOS and customary law; and (c) the obligation not to jeopardise or hamper the conclusion of an agreement, as provided for by Article 83(3) of UNCLOS.13

Ghana requested that the Special Chamber deny all of Côte d'Ivoire's requests for provisional measures. Ghana countered that all its activities were being conducted on the Ghanaian side of the ‘customary boundary’ based on equidistance, adding that similar activities had been carried out in this area for decades and that Côte d'Ivoire only began to raise objections after the TEN discovery was made in 2009. Ghana presented petroleum concession maps and argued that the two states’ petroleum history in the area indicated the presence of a tacit agreement as to the location of their maritime boundary – a boundary which, according to Ghana, had been accepted and respected by both states for more than forty years. Ghana contended that Côte d'Ivoire had not protested the line, but rather accepted it and proceeded to demarcate its own concession blocks using the same equidistance-based boundary.14

The Order of the Special Chamber was delivered together with the separate opinion of Judge Mensah on 25 April 2015.15 The Special Chamber applied a test of plausibility to ascertain that the rights that Côte d'Ivoire sought to protect in the disputed area were at least plausible.16 In applying its reasoning, the Special Chamber recognised that drilling causes a ‘permanent physical modification’ of the area in dispute which no form of financial compensation or reparation can restore.17 The Special Chamber also held that the acquisition and subsequent use of geological information of the disputed area created a risk of ‘irreversible prejudice to the rights of Côte d'Ivoire’ should the Special Chamber, in its decision on the merits, ‘find that Côte d'Ivoire has rights in all or any part of the disputed area’.18 Nonetheless, the Special Chamber stopped short of ordering the complete shutdown of Ghana's petroleum exploration and exploitation operations in the disputed area. First, it did not order Ghana to suspend ongoing geophysical surveys, but rather to ‘take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana … from being used in any way whatsoever to the detriment of Côte d'Ivoire.’19 Second, the Special Chamber did not order the full suspension of the TEN fields’ exploitation (which had already advanced to the development phase, with over US$2 billion invested by Tullow and other concessionaires). According to the Special Chamber, because the project was so well advanced, shutting it down would cause ‘considerable financial loss to Ghana and its concessionaires’ and could also ‘pose a serious danger to the marine environment’ from the deterioration of equipment.20 Nonetheless, the Special Chamber ordered Ghana to ensure that no ‘new drilling’ take place in the disputed area, including the TEN fields, until the full resolution of the case.21 Third, the Special Chamber called upon both parties to ‘pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute’. It did not, however, specify the type of cooperation or categories of unilateral actions that would have this aggravating effect.

On 29 August 2016, more than a year after the Special Chamber's Provisional Measures Order, Côte d'Ivoire requested from Ghana the file compiled by oil companies operating in Ghanaian waters to prove that they had complied with the Special Chamber's prohibition on any new drilling in the disputed area. Côte d'Ivoire also requested a copy of the companies’ daily reports on activities undertaken in the disputed area since 25 April 2015 (the date of the Provisional Measures Order).22 Following Ghana's protestations against being required to do this, the President of the ITLOS Special Chamber ordered Ghana to carry out Côte d'Ivoire's request and provide the relevant reports to Côte d'Ivoire.23

 JUDGMENT Respective Claims

Nine public hearings on the merits of the case took place between 6 and 16 February 2017. In its final submissions, Ghana requested that the Special Chamber declare the two states to have...

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