Oral Arguments Begin in Ghana vs Côte d'Ivoire Maritime Boundary Dispute

By William Nyarko (US-based Ghanaian Law Student and Journalist). wnyarko@law.gwu.edu

Ghana and Côte d'Ivoire are poised for oral arguments, March 29, 2015'to persuade the International Tribunal for the Law of the Sea (ITLOS), in Hamburg, Germany, to decide a request for provisional measures in each country’s favor.

A decision in favor of Côte d'Ivoire will stop Ghana’s partner, Tullow Oil, from drilling oil in the disputed maritime areas as regards the TEN territories, which Ivory Coast claims are part of its maritime boundary. By contrast, a denial of Côte d'Ivoire's request will enable Tullow Oil to continue with its operations.

The two-day round of oral arguments are as a result of a request for provisional measures filed by Côte d'Ivoire on February 27, 2015, in which it sought that Ghana suspends oil exploration and exploitation until the Tribunal decides which of the two countries owns the disputed maritime region.

In addition, Côte d'Ivoire is seeking an order to restrain Ghana from “granting any new permit for oil exploration and exploitation in the disputed area” and to preserve the “continental shelf, the waters superjacent to it, and its subsoil”.

Côte d'Ivoire filed its request for provisional measures pursuant to Article 290 (1) of the United Nations Convention on the Law of the Sea (UNCLOS), which provides that a party may request for the prescription of provisional measures pending the outcome of the dispute. Article 290 (5) of the UNCLOS authorizes the Tribunal to grant such a request if it is satisfied that it would have prima facie jurisdiction and to “preserve the rights of the parties or protect the marine environment, pending the outcome of the dispute”.

Ghana initiated arbitration under Annex VII of the UNCLOS in September last year seeking an affirmation of its rights in the disputed maritime boundary.

According to the rules of procedure agreed to by Ghana and Côte d'Ivoire, Mr. Ronny Abraham, an ad hoc Judge chosen by Ivory Coast will first present Ivory Coast’s oral arguments and Mr. Timothy Mensah, an ad hoc Judge chosen by Ghana will present the country’s counter claim.

The Tribunal comprises the two ad hoc judges, one each chosen by Ghana and Côte d'Ivoire, and three permanent judges of the Tribunal. A decision on the request for provisional measures is expected in April 2015.

How the Tribunal is Likely to Decide

The Tribunal has granted requests for provisional measures in cases where it was satisfied that it would have prima facie jurisdiction over the dispute and when it believes that granting such a request is urgently needed to preserve the rights of the parties or protect the marine environment.

Both Ghana and Côte d'Ivoire are parties to the UNCLOS and the jurisdictional issue was resolved on December 3, 2014 by agreement between the two countries in consultations with the President of the Tribunal, acting pursuant to Annex VII of the UNCLOS.

The most challenging question for the Tribunal, however, is to resolve whether denying Côte d'Ivoire request or granting it will preserve the rights of both parties.

Ghana has already granted a permit to Tullow Oil, which has been exploring and drilling oil in the disputed TEN territories. But Ghana insists that it would prevail in the substantive case, counting on the Tribunal’s likely use of the equidistance method to delimit the maritime boundary. A decision on that is also not expected until December 2017.

Undeniably, Côte d'Ivoire has not licensed any company to explore or drill oil in the disputed region, but the Tribunal is likely to grant Côte d'Ivoire's request so that in the event that it prevails in the substantive case, the oil, which is finite, will still be available to it. The result will be the same for Ghana if it prevails in the case.

If the provisional measures are not granted and Tullow Oil continues to drill oil, an eventual Côte d'Ivoire win of the substantive case, would also mean it had lost the benefit of revenue accruing from oil.

Cognizance of these exigencies, the Tribunal may grant Côte d'Ivoire's request for provisional measures to stop Tullow Oil, Ghana’s partner, from exploring and drilling oil in the disputed maritime boundary.