North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

Resources and Conflict: ITLOS settles dispute between neighbors

By: Lenore Livingston

 

 

 

 

 

 

The Dispute

A decade long maritime boundary dispute was settled between Ghana and Côte d’Ivoire by the International Tribunal for the Law of the Sea (ITLOS).[1] The Hamburg, Germany based tribunal ruled in favor of Ghana, thereby allowing Ghana to continue its deep-water oil and gas project in the Gulf of Guinea.[2] Ghana and Côte d’Ivoire have maintained over fifty years of economic relations.[3] Both countries have relied upon one another to build their oil reserves based upon an agreed maritime boundary in the Atlantic Ocean.[4] However, on September 22, 2014, Ghana initiated proceedings at the ITLOS to address Côte d’Ivoire’s claims that Ghana was encroaching on their marine borders.[5]

 

Côte d’Ivoire argued that Ghana violated the sovereign rights of their country with Ghana’s oil exploration activities.[6] Ghana claimed they did not violate Côte d’Ivoire’s sovereign territory because the maritime boundary was equidistance between the two countries from boundary pillar (BP) 55.[7] Côte d’Ivoire claimed there was a sole maritime boundary following the 168.7-degree azimuth line from BP 55.[8][9] The ITLOS ruled in favor of the equidistant boundary from BP 55.[10]

 

In western Ghana, people have seen a decline in the fishing and farming industries when farmlands were taken over from the construction of oil and gas facilities.[11] The Tweneboa, Enyenra, Ntomme (TEN) fields were discovered in 2009 when offshore drilling occurred from Ghana’s mainland.[12] Ghana’s Minister of Energy developed a plan to continue deep water oil drilling until the ITLOS issued a  provisional measure that drilling was not to continue until ITLOS gave its ruling on the maritime boundary dispute.[13] Since the ITLOS issued its ruling, which did not affect the TEN fields, the Government of Ghana has resumed oil drilling.[14]

Importance of regional economic stability

The historical relationships, economic ties, and similar regional challenges between Ghana and Côte d’Ivoire has influenced the West African region, encouraging economic development as a result of positive relationships between the two countries.[15]  Both Ghana and Côte d’Ivoire were under colonial rule and have gained independence from the colonial powers Great Britain and France, respectively, in the last 70 years.[16]  Both countries are members of the regional institution for the Economic Community of West African States (ECOWAS), an organization designed to bring regional countries together to maintain “regional peace, stability, and security through the promotion and strengthening of neighborliness” in order to promote a “peaceful environment as a prerequisite for economic development.”[17]

 

The maintenance of amicable relationships between regional states permits resources to be devoted to furthering economic activities and addressing regional challenges. A major challenge to economic exports for ECOWAS countries has been piracy.[18]  Ghana and Côte d’Ivoire have been partners on implementing strategies such as joint maritime patrols and naval drills to combat the growing threat of piracy in the Gulf of Guinea that serves to impact exports and imports of maritime vessels.[19]

Côte d’Ivoire has been known as one of the world’s top cocoa growers, and Ghana is considered to have one of the fastest growing economies in the world with its exports of gold, cocoa, and oil.[20]  Both countries’ economic growth depends on their ability to work together to address regional challenges to export cocoa and other resources to maintain their prosperity.

Sovereignty and maritime boundaries

The concept of state sovereignty in international law permits all sovereign nations to maintain “exclusive control over the people and property within their territory.”[21]  The United Nations has defined the “sovereignty of the coastal state” to extend “beyond its land territory and internal waters. . . .”[22]  A state’s sovereignty further “extends to all the air space over the sea” as well as over the land within the defined boundaries of the state.[23]

 

The maritime boundary further defines a nations’ borders and recognizes an exclusive economic zone (EEZ)  area “beyond and adjacent to the territorial sea . . . under which the rights and jurisdiction of the costal State and the rights and freedoms of other states are governed.”[24] Within the EEZ, the coastal state has “sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources” in the waters off the coastal state.[25] The EEZ “shall not extend beyond 200 nautical miles from the baselines” by which the sea is measured.[26]

Special circumstances and cartography

The ITLOS reviewed the arguments and maps presented by both countries, accounting for the understood maritime boundaries and the 200 mile EEZ boundaries.  Article 15 of the UNCLOS favors the equidistant maritime principal to determine boundaries, except when “it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is a variance.”[27] Côte d’Ivoire claimed special circumstances should be applied because of the instability of the coastline.

 

Côte d’Ivoire further claimed there were erroneous maps used by Ghana to determine the maritime boundary. Côte d’Ivoire claimed that: (1) the oil activities in the Atlantic were unilaterally conducted by one state [Ghana];[28] (2) the appropriate maps to consider should be those which accompany documents of signed agreements between the two countries;[29] and (3) none of the maps produced by Ghana mentions an agreed upon international maritime boundary.

 

Ghana asserts that Côte d’Ivoire did not produce a map created before 2009 that shows a maritime boundary was not based on the equidistant line.[30] Ghana also claims the oil drilling was not unilateral, but was permitted mutually over the last five decades by both Ghana and Côte d’Ivoire.[31]  Ghana further believes only considering maps that are a part of signed agreements is too narrow of a view and claims that maps accompanying other documents, such as national legislation, requests for seismic studies, and bilateral correspondence between the two countries should also be considered. [32]  Finally, Ghana argues 22 of the 62 maps submitted show a customary boundary that account for the oil drilling activities in relation to each state’s territorial waters, permitting the equidistant boundary.[33]

States form agreements in the method of their choosing.

Ghana further argued that international law does not require there to be a formal writing between states to delineate territorial boundaries and tacit agreement may play a role in some cases.[34]  Ghana emphasizes state sovereignty permits countries to choose the form of agreement [whether written or oral] to resolve disputes.[35]  Ghana maintained this was a new dispute since 2009 and there was previously close cooperation between Ghana and Côte d’Ivoire prior to 2009.[36] Ghana further asserted there was a “long standing tacit agreement” between the countries that based the  boundary off equidistant lines. Ghana argues they did not violate Côte d’Ivoire’s sovereign territory because their activities in the disputed region occurred with Côte d’Ivoire’s cooperation and implicit consent.[37] Ghana claimed legislation, public statements, and oil concessions are demonstrative of this tacit agreement.[38]

 

Conversely, Côte d’Ivoire denied there was not a formal or tacit agreement between the countries on the maritime boundary.  Côte d’Ivoire cited Bangladesh v. Myanmar, an ITLOS case where Bangladesh asserted that fishing, oil exploration, and navigation were permitted because there was 30 years of tacit agreement of Bangladesh transiting Myanmar’s territorial waters.[39] Côte d’Ivoire’s argument relies on categorizing this dispute as being a tacit agreement over the past three decades that has defined the maritime boundary by a customary equidistant line.[40]  Côte d’Ivoire asserts that this situation is not the same as what was determined to be tacit agreement in the Bangladesh v. Myanmar case.

ITLOS decision

The ITLOS did not find Ghana’s argument of tacit agreement to be compelling.[41]  Furthermore, the ITLOS held Côte d’Ivoire did not provide sufficient evidence to justify special circumstances that would permit another methodology other than the equidistant measure to be used to form the boundary line.[42] However, The ITLOS concluded Ghana did not violate UNCLOS article 83 because Ghana’s conduct was conducted in good faith and was not conducted with the intent to violate Côte d’Ivoire’s sovereign territorial waters.[43]

Regional relationship strengthened?

Since the ITLOS unanimous ruling, Ghana and Côte d’Ivoire have established a joint committee to oversee the judgment.[44]  The formation of this joint committee has curtailed concerns of destabilization in the region had Ghana and Côte d’Ivoire not accepted the judgment from ITLOS.[45]  Ghana has suggested this judgment from the ITLOS, which has further strengthened the relationship between the two countries.[46]  Since this joint committee has been formed, the presidents of Ghana and Côte d’Ivoire have indicated they will work to develop a strategic partnership agreement focused on defense and security; cocoa and cashew crops; maritime cooperation; mining, energy, and environment; transportation; and economic policies.[47]

 

Only time will tell how successful this strategic partnership agreement is between Ghana and Côte d’Ivoire.  However, it appears as though the ITLOS has once again served as an effective institution to resolve a maritime boundary dispute between neighboring countries.

 

[1] voanews, Court Ruling Favors Ghana in Ocean Border Dispute with Ivory Coast, reuters (Sept 23, 2017, 5:45 PM) https://www.voanews.com/a/court-favors-ghana-in-ocean-border-dispute-with-ivory-coast/4041616.html[https://perma.cc/R2WT-49SL].

[2] See id.

[3] Reply of Ghana, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Case No. 23, Reply July 25, 2016, ITLOS, 2  https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/pleadings/Reply_of_Ghana__Vol._I_.PDF [https://perma.cc/X575-RSUU] [hereinafter Reply of Ghana].

[4] Id. at 4.

[5] Earnest & Young, International maritime court rules on maritime boundary dispute between Ghana and Côte d’Ivoire, Global tax alert (Sept 25, 2017) http://www.ey.com/Publication/vwLUAssets/International_maritime_court_rules_on_maritime_boundary_dispute_between_Ghana_and_Cote_dIvoire/$FILE/2017G_05466-171Gbl_Ghana%20ITLOS%20rules%20in%20favour%20of%20Ghana.pdf [https://perma.cc/HZ43-5SAC].

[6] Shayna Posses, Ghana Largely Prevails in Ivory Coast Maritime Dispute, law 360 (Sept 25, 2017 9:10 PM) https://www.law360.com/articles/967260/ghana-largely-prevails-in-ivory-coast-maritime-dispute [https://perma.cc/4RFT-NUBS] (last visited Oct. 21, 2017).

[7] Lexology, Simplifying the ITLOS Judgment Ghana v. Côte d’Ivoire  Maritime Dispute, (Sept. 25, 2017) https://www.lexology.com/library/detail.aspx?g=e15bc84f-f8d9-4646-a1cd-3b07610cf327 [https://perma.cc/YUG7-5GCW] [hereinafter: simplifying ITLOS judgment].

[8] Id.

[9] BP 55 has coordinates of 05º 05’ 23.2 N, 03º 06’ 21.2” W and follows specific coordinates. See Reply of Ghana, supra note 3 at 113.

[10] Id.

[11] Deustche Welle, Ghana can drill for Oil after dispute with Ivory Coast thrown out by Maritime Court, (Sept. 26, 2017) http://www.dw.com/en/ghana-can-drill-for-oil-after-dispute-with-ivory-coast-thrown-out-by-maritime-court/a-40694880 [https://perma.cc/5J5R-ADK3] (last visited Oct. 21, 2017).

[12] Tullow, TEN Field, (Sept. 24, 2017) https://www.tullowoil.com/operations/west-africa/ghana/ten-field [https://perma.cc/9AMV-85U3] (last visited Oct. 21, 2017).

[13] See id.

[14] See id.

[15] Ventures, Ghana vs Ivory Coast: Similar Challenge, Contrasting Fortunes (2017)

http://venturesafrica.com/ghana-vs-ivory-coast-similar-challenge-contrasting-fortunes/ [https://perma.cc/F8YG-ZVDF] (last visited Oct. 21, 2017) [hereinafter: Ventures in Africa].

[16] Index Mundi, Ghana v. Cote d’ Ivorie, http://www.indexmundi.com/factbook/compare/ghana.cote-d-ivoire [https://perma.cc/R2DJ-Y8CR]. Ghana gained independence from Great Britain in 1957 and Côte d’Ivoire  gained independence from France in 1960.

[17] Economic Community of West African States, Fundamental Principals, (2016)

http://www.ecowas.int/about-ecowas/fundamental-principles/ [https://perma.cc/9WAM-SL8B].

[18] Oscar Nkala, Maritime Center to Fight Gulf of Guinea Piracy, defense news, (Mar. 27, 2015)

https://www.defensenews.com/naval/2015/03/27/maritime-center-to-fight-gulf-of-guinea-piracy/ [https://perma.cc/TB7K-G6CY] 

[19] Id.

[20] Ventures in Africa, supra note 15.

[21] The Levin Institute, The Issue of Sovereignty, (2016) http://www.globalization101.org/the-issue-of-sovereignty/[https://perma.cc/T3QX-GZ7F] (last visited Oct. 21, 2017).

[22] United Nations Convention on the Law of the Sea [UNCLOS] Part 2 art. 2 http://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm [https://perma.cc/626E-4D6L]

[23] See id.

[24] United Nations Convention on the Law of the Sea [UNCLOS] art. 55. http://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm [https://perma.cc/TGC2-LMUY]

[25] United Nations Convention on the Law of the Sea [UNCLOS] art. 56.

[26] Id. at art. 57.

[27] Id. at art. 15.

[28] Reply of Ghana, supra note 3, at ¶ 2.84

[29] Id. at ¶ 2.89.

[30] Id.

[31] Id. at ¶ 2.84.

[32] Id.

[33] Reply of Ghana, supra note 3, at ¶ 2.90.

[34] See id. at ¶ 2.111.

[35] See id.

[36] Id. at ¶ 2.117.

[37] Simplifying ITLOS judgment, supra note 7.

[38] Id.

[39] Reply of Ghana, supra note 3, at ¶ 2.115.

[40] See id. at ¶ 2.117.

[41] Simplifying ITLOS judgment, supra note 7.

[42] See id.

[43] See id.

[44]Edwin Kwakofi, Ghana, Ivory Coast Set Up Joint Committee to Implement ITLOS Ruling, Citifmonline (Oct. 17, 2017 4:22 PM) http://citifmonline.com/2017/10/17/ghana-ivory-coast-set-up-joint-committee-to-implement-itlos-ruling/ [https://perma.cc/4LYL-EAR2] (last visited Oct. 22, 2017).

[45] Id.

[46] Id.

[47] Id.

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