GHANA V. COTE D\u2019IVOIRE: WHAT YOU NEED TO KNOW ABOUT THE ITLOS\u2019 DECISION<\/p>\n
Last weekend\u2019s judgment in the \u201cDispute concerning delimitation of the maritime boundary between Ghana and Cote d\u2019Ivoire in the Atlantic Ocean\u201d by the International Tribunal for the Law of the Sea (\u201cITLOS\u201d) is bound to enjoy the spotlight and court both public and media attention at least for the next couple of days, and it should! The implications of the judgment make it a topic of grave national interest because the area which was being claimed by Cote d\u2019Ivoire is rich in oil and gas resources. Perhaps, interest in the judgment was further piqued because it arrived shortly after the government disclosed that its flagship free Senior High School policy would be funded by the country\u2019s petroleum revenues. As a student of International Law and Natural Resource law, the judgment was of particular interest to me. Theoretically, understanding the matters around which the dispute evolved requires knowledge of Public International Law, specifically an area of it known as The Law of the Sea. Practically, some knowledge of geography, geodesy or science makes for a more intelligent appreciation of the issues at play. The result is that a lot of people; laymen and lawyers alike, followed developments keenly from the start of the dispute with many more probably even tuning in for the live broadcast of the judgment. And yet, from the ensuing discussions you get the general feeling that by the end of everything, all people heard was a plenty talk (a 181 paged judgment is no joke) and few really understood what transpired. So what was all that really about? I will attempt to demystify the whole case in the following short paragraphs.<\/p>\n
THE BASIC CONCEPTS AND TERMS<\/p>\n
It is typical for a country\u2019s governmental powers to be distributed between an Executive, Legislature and Judiciary. So, to ascertain the domestic laws of a country such as Ghana, one may simply turn to its Parliament to see which laws it has enacted. However, the legal relationship between two sovereign states depends on International law and at the International level, there is no universally recognised body with authority to legislate for all countries in the world (i.e. there is no universal parliament). So which laws govern state actors in their international relations and who makes these laws? Well, for the answer to that vexed question we can turn to the Statute of the International Court of Justice (\u201cICJ\u201d), which is the principal judicial organ of the United Nations. This is because thankfully most states in the world are members of the United Nations and thereby ipso facto parties to the Statute of the International Court of Justice by virtue of Article 93 of the United Nations Charter. The ICJ can therefore be seen as a \u201cworld court\u201d of sorts and it is mandated to decide disputes submitted to it by state parties in accordance with International law. Article 38(1) of the Statute of the ICJ identifies the rules which the ICJ is to use in its resolution of disputes and these are otherwise referred to as the \u201csources of International Law\u201d. These sources include inter alia international conventions which establish rules expressly recognised by the contesting states; international custom as evidence of a general practice accepted as law; general principles of law recognised by civilised nations; and judicial decisions as subsidiary means for the determination of rules of law. International conventions are agreements entered into by states which are binding on them, just like a contract is binding on the parties who enter into it. These conventions are seen as expressions of the will and volition of the state parties and therefore binding on them under International Law. International custom on the other hand can be equated to a tacit (implied) agreement. It consists not of an expressly stated agreement, but rather in the fact that states have, in practice, behaved consistently in a certain manner due to their belief that they are required by law to behave in that way. Thus, custom in international law is said to have two important elements; the material facts (actual behaviour of states) and the psychological belief behind that behaviour (a.k.a. opinio juris) which is that the behaviour is required by law, not courtesy, goodwill, morality or some other reason. The standard of proving customary international law is very high, and rightly so. This is because a claimant must convince the adjudicator not only that the practice exists, but more importantly that the reason behind the practice in question is a feeling of legal compulsion; a belief that this practice is rendered obligatory by the existence of the rule requiring it[1]<\/a>. That is what converts practice into custom and makes it a rule of public international law. Therefore, where it is shown that there were protests by the opposing state party interested in the matter, it can be fatal to the case of the party claiming the existence of a custom because the protests may demonstrate that the state did not acquiesce in the practice.<\/p>\n The legal principles regulating appropriation of the sea are currently regulated by the 1982 United Nations Convention on the Law of the Sea (\u201cUNCLOS\u201d) for states which are party to this Convention. It lays down rules for the use and management of marine resources by coastal states as well as landlocked states e.g. it states the constituent elements of a coastal state\u2019s maritime zones, whether a state is entitled to these zones and the various applicable limits.<\/p>\n The maritime zones of a coastal state may typically consist of inter alia a territorial sea, exclusive economic zone and continental shelf (these are the necessary ones for the current discussion). These maritime zones are measured from a normal baseline, which is the low-water line (the level reached by sea water at low tide) along a state\u2019s coast as marked on the large-scale charts officially recognised by that state.[2]<\/a> Quite obviously, more land territory is revealed when the tide is low so it makes sense to not to end up trapping land when measuring a state\u2019s sea. The waters found landward of state\u2019s baseline are a state\u2019s internal waters and seen as part of its territory.[3]<\/a> The UNCLOS provides that a state may establish its territorial sea up to a limit not exceeding twelve (12) nautical miles (nm) from its baseline.[4]<\/a> A state\u2019s sovereignty extends beyond its land territory and internal waters to its territorial sea, its bed and subsoil as well as the airspace above it and is exercised subject to the provisions of the UNCLOS such as the duty to permit alien ships the right of innocent passage.[5]<\/a> A coastal state\u2019s exclusive economic zone (\u201cEEZ\u201d) starts from the outer limit of its territorial sea but shall not extend beyond 200nm from the baselines from which the breadth of its territorial sea is measured.[6]<\/a> A state has limited sovereignty rights and jurisdiction over its EEZ as compared to its territorial waters, however its rights extend inter alia to managing, exploring, exploiting and conserving natural resources (whether living or non-living) found on the seabed, in the subsoil of the seabed or in the water overlying the sea bed. Generally, a state has the right to commercially and economically exploit or explore its EEZ and the resources found therein to the exclusion of all other states e.g. only persons permitted by Ghana can fish in its EEZ. However, other states enjoy certain freedoms including inter alia the freedom of navigation in and flight over another state\u2019s EEZ as well as the right to lay submarine cables and pipelines in it.[7]<\/a> A continental shelf refers to the natural extension\/elongation of continental landmass into the sea, covered by a relatively shallow layer of water. A coastal state\u2019s continental shelf is therefore a natural prolongation of its land territory into and under the sea. This landmass, depending on the geographical constitution of a location may extend underneath the water in a gradual slope or fall sharply, giving way to the ocean bed several thousands of metres underneath. The geographical extent of a continental shelf therefore varies depending on the location. The UNCLOS provides that a continental shelf of a state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to a distance of 200nm from the baselines from which the breadth of its territorial sea is measured, or where the other edge of its continental margin extends beyond 200nm then a state\u2019s continental shelf extends beyond 200nm but shall not exceed either 350nm from the baselines or 100nm from the 2500metre isobath (a line connecting to the depth of 2,500 metres), based on the recommendations for the outer limit by the Commission on the Limits of the Continental Shelf (\u201cCLCS\u201d).[8]<\/a> Thus, irrespective of whether a state\u2019s geographical continental margin extends to 200nm from its baselines; it is entitled to a legal continental shelf of up to 200nm from its baselines. However, where its continental margin extends beyond 200nm, it can claim an extension to the outer limits of its continental shelf but subject to the restrictions stated above. Ghana\u2019s geographical continental shelf extends beyond 200nm and therefore it is entitled to an extended continental shelf, as does Cote d\u2019Ivoire\u2019s; that is why the judgment kept referring to the continental shelf within and beyond 200nm. Both states are currently in the process of delineating the outer limits of their continental shelves. Continental shelves are generally rich in oil and gas resources. Coastal states enjoy sovereignty rights over their continental shelves with respect to exploring and exploiting the natural resources found therein[9]<\/a> and it is unlawful for a state to carry out drilling in another state\u2019s continental shelf unless authorised by that state. That notwithstanding, a state\u2019s rights over its continental shelf do not affect the legal status of the overlying waters or the airspace above those waters e.g. a state may own a continental shelf but the waters above that shelf may be classified as the high seas (high seas are free for all and cannot be appropriated by any state). Therefore, states cannot exercise their rights over their continental shelves in a way which infringes or unjustifiably interferes with the rights of other states to the water or air above it.[10]<\/a><\/p>\n In 1986, Ghana enacted the Maritime Zones (Delimitation) Act, 1986 (PNDCL 159) through which it gave effect to all these maritime zones as provided for by UNCLOS. The various maritime zones are therefore terms of art, with specific meanings and different bundles of rights and limitations attached to each of them. The names of the zones cannot be used interchangeably. For example, Ghana\u2019s oil exploration and production are taking place in its continental shelf, not in its territorial sea as is widely being reported. The area being claimed by Cote d\u2019Ivoire was therefore the continental shelf.<\/p>\n <\/p>\n THE DISPUTE<\/p>\n The dispute concerned the delimitation of the maritime boundary between Ghana and Cote d\u2019Ivoire. Explained in simple terms, it concerns agreeing on the specific limits of a state\u2019s maritime entitlements just like neighbouring states know the limits of their landed territories and their respective boundaries. States with opposite or adjacent coasts are required to expressly agree on the limits of their respective territorial seas[11]<\/a>, exclusive economic zones[12]<\/a> and continental shelves[13]<\/a> to iron out geographical overlaps which may be sources of confusion and interfere with the exercise by states of the different bundles of rights they enjoy over these different maritime zones.<\/p>\n With relation to the territorial sea, in the absence of an agreement, neither state is permitted to extend its territorial sea beyond the median line, every point of which is equidistant from the nearest point on the baseline from which the breadth of the territorial seas of each of the two states is measured.[14]<\/a> The UNCLOS further provides that the equidistance approach applies, unless historic title or other special circumstances make it necessary to delimit the territorial sea between two coastal states by a different approach.[15]<\/a> This rule is regarded as having a customary law character and is referred to as the equidistance\/special circumstances principle.[16]<\/a> It means that unless some special circumstances are shown to exist between two states with adjacent coasts which warrant the use of a different method for delimitation, in the absence of an express agreement between the states, the default method to be used would be the equidistance method.<\/p>\n However with relation to the EEZ and continental shelf, the UNCLOS provides that the parties shall come to an agreement effected on the basis of International law as referred to in Article 38 of the Statutes of the ICJ[17]<\/a> to achieve an equitable result, failing which they are to resolve the matter by recourse to the dispute resolution mechanisms provided for by the UNCLOS.[18]<\/a> Cote d\u2019Ivoire was making adverse claims to the continental shelf being claimed and exploited commercially by Ghana. The confusion was obviously because both states have adjacent coasts which they had not yet delimited. As they could not come to agree on the delimitation of their maritime boundary through negotiations, Ghana submitted the matter to the International Tribunal for the Law of the Sea (\u201cITLOS\u2019\u2019) for resolution.<\/p>\n GHANA\u2019S CASE<\/p>\n Ghana claimed that although it had not expressly agreed on its maritime boundary with Cote d\u2019Ivoire to delimit its territorial sea, EEZ and continental shelf, both parties had in practice respected a certain boundary arrived at using the equidistance methodology. The equidistance line, as explained earlier is a straight line drawn through the median point between the two nearest baseline points of both countries and projected seaward to delineate the maritime boundary. Ghana argued that this practice was inter alia evident in local Ivoirian legislation, Ivoirian charts and the fact that both states used this boundary for the allocation of oil concessions; with Ghana\u2019s concessions lying west of this boundary and Ivoirian concessions lying east of the boundary. It therefore claimed that this practice was evidence of a tacit agreement creating a customary equidistance boundary binding on both countries (remember customary international law?). It stated that its primary aim before the ITLOS was not to seek the creation of a new boundary, but to have an authoritative declaration of the already existing customary boundary or in the alternative the creation of a boundary which conformed to the already existing boundary.<\/p>\n COTE D\u2019IVOIRE\u2019S CASE<\/p>\n Cote d\u2019Ivoire denied that a customary equidistance boundary existed. It stated that it had always objected to Ghana\u2019s activities in the disputed maritime area (remember proof of protest is mostly fatal to claims of customary international law). It also claimed that the practice of both states allocating oil concessions on either side of the alleged boundary was because Ghana was first to establish its offshore petroleum block and therefore Cote d\u2019Ivoire was constrained to establish its blocks in a manner so as not to overlap Ghana\u2019s blocks. It claimed this was done out of restraint, caution and a desire to prevent instigating a conflict with its neighbour. In other words, there was no opinio juris i.e. underlying sense of legal obligation behind the practice nor did it recognise an equidistant boundary. It further claimed that Ghana had conducted oil exploration on its continental shelf and invoked Ghana\u2019s international responsibility to make reparation to it for the wrongful exploration. It also requested for the creation of a maritime boundary based on a bisector approach instead of the equidistance approach. Its justifications for this methodology were inter alia that the concavity of the Ivorian coast as compared to the convexity of Ghana\u2019s coast (i.e. although the coasts are adjacent each other, Ghana\u2019s protrudes while Cote d\u2019Ivoire\u2019s has an indentation), the highly unstable nature of the Ivoirian coast i.e. the coasts shifted often made the equidistance method inappropriate. It also alleged that the location of the nearest base points for the determination of the equidistant line were in Jomoro, which was unfair to Cote d\u2019Ivoire because Jomoro is a tiny strip of land which protrudes and blocks the massive Ivorian territory which sits atop of it from having access to the coast. It contended that these reasons as well as the fact that the Gulf of Guinea is subject to significant marine erosion called for a deviation from the use of the equidistance methodology.<\/p>\n THE DECISION<\/p>\n The Special Chamber of ITLOS rejected Ghana\u2019s claim of a customary equidistance boundary through a tacit agreement. It held that although the practice in relation to the alleged customary maritime boundary was consistent and mutual over a long period of time, it was not free of doubt or controversy. The standard of proof as earlier explained is very high and had not been met by Ghana because a tacit agreement is not easily presumed. Moreover, the chamber held that Ghana\u2019s evidence of the custom consisted mostly in oil practice (behaviour in oil concession allocation, etc.) which alone is insufficient to prove a tacit agreement in relation to an entire maritime boundary. The reason was that a maritime boundary relates to all the maritime zones namely territorial sea, EEZ and continental shelf whereas the oil practice relates mostly to only the continental shelf. Also, oil practice can easily be explained by other factors and the Ivoirians advance a few plausible explanations such as the need for caution, restraint and good neighbourliness. Further, the Special Chamber held that the fact that both states had several exchanges and negotiations in attempt to delimit their maritime boundary was proof that there was no tacit agreement for a maritime boundary.<\/p>\n Despite its rejection of Ghana\u2019s tacit agreement argument, the Special Chamber affirmed Ghana\u2019s position on the use of the equidistance methodology to determine the boundary, thereby rejecting Cote d\u2019Ivoire\u2019s bisector methodology. The Panel found that in the absence of special circumstances, the default methodology ought to be based on equidistance and the arguments for a deviation from this methodology were unsatisfactory. It noted that Jomoro is part of the territory of Ghana, not a peninsula as the Ivoirians had argued. Accordingly, Jomoro could not be ignored in determining Ghana\u2019s maritime entitlements without doing violence to the principle of Uti Possidetis (a public international law principle which frowns against refashioning of the established geographical boundaries of existing states). The Special Chamber also found as a fact that despite the Ivoirians claim that the coastline of the Gulf of Guinea was subject to significant erosion, the coastline from a British Admiralty Chart made in 1383 was very similar to the coast line depicted in a 2014 chart.<\/p>\n The Special Chamber went ahead to delimit the maritime boundary using the equidistance methodology but based on its own selected base points, rejecting the Ghanaian and Ivoirian base points as being too seaward and too landward respectively. The provisional equidistance line resulted in a cut off to the detriment of Cote D\u2019Ivoire at 163nm (within the EEZ) but the Special Chamber held that it was inconsequential because all ships enjoy freedom of navigation in the EEZ and a good distance apart from the contested area which is not even 100nm from the baseline. There was thus no need to adjust the provisional equidistance line. The Special Chamber further delimited the boundary of the continental shelf beyond 200nm, pending each state\u2019s delineation of the outer limits of its continental shelf. The disputed area was adjudged to fall within Ghana\u2019s maritime zone.<\/p>\n With respect to Ghana\u2019s international responsibility, it was held that Ghana was not in breach of International law, the UNCLOS or the Special Chamber\u2019s order of 25th April 2015 (Ghana was ordered not to inter alia conduct new drilling pending the determination of the dispute) and therefore owed no duty to make reparation or pay compensation. More importantly, the Special Chamber held that where neighbouring states have a dispute over overlapping continental shelves, only an authoritative pronouncement on the delimitation establishes which portion of the continental shelf in dispute belongs to the disputing parties. Accordingly, the decision has a constitutive effect, not a declarative one. This means that maritime activities undertaken by a state in a contested area of the continental shelf which is held to belong to another state cannot be considered a violation of the sovereign rights of that other state, if the activities were carried out before the judgment and the area concerned was the subject of claims made in good faith by both states.[19]<\/a> This pronouncement is very instructive, as it indicates that even if the disputed area had been held to be within Cote d\u2019Ivoire\u2019s continental shelf, Ghana\u2019s prior hydrocarbon activities and exploration would not have amounted to an internationally wrongful act requiring Ghana to make reparation. Perhaps the only consequence would have been the future loss of revenue, not a debt to repay all accrued benefits from the exploitation. Fortunately, there will be no loss at all as the petroleum activities are in Ghana\u2019s continental shelf.<\/p>\n [1]<\/a> North Sea Continental Shelf Case ICJ Reports, 1986, p 109<\/p>\n [2]<\/a>[2] Article 5 of the 1982 UNCLOS.<\/p>\n [3]<\/a> Ibid, article 8(1)<\/p>\n [4]<\/a> Ibid, article 3<\/p>\n [5]<\/a> Ibid, article 2<\/p>\n [6]<\/a> Ibid, article 57.<\/p>\n [7]<\/a> Ibid, article 58<\/p>\n [8]<\/a> Ibid, article 76.<\/p>\n [9]<\/a> Ibid, article 77(1)<\/p>\n [10]<\/a> Ibid, article 78(1) & (2)<\/p>\n [11]<\/a> Ibid, article 15<\/p>\n [12]<\/a> Ibid, article 74<\/p>\n [13]<\/a> Ibid, article 83<\/p>\n [14]<\/a> Ibid, article 15.<\/p>\n [15]<\/a> Ibid, article 15.<\/p>\n [16]<\/a> See for example Qatar v Bahrain ICJ Reports, 2001 para.177<\/p>\n [17]<\/a> supra<\/p>\n