By Dr. Samuel Adjei Sarfo
Attorney and Counselor at Law
The recent ruling by the International Tribunal for the Law of the Sea (ITLOS) was surprisingly received as a kind of victory for Ghana, but a deeper analysis of the actual ruling should give cause for concern by all well-meaning Ghanaians. For at best, the ruling could only be construed as a Pyrrhic victory; and at worst, a harbinger of a costly defeat.
After persistently failing to resolve her maritime dispute with neighboring Cote d’Ivoire, Ghana initiated a decision to bring a suit against Ivory Coast before the International Tribunal for the Law of the Sea. And by Order of 12 January 2015, ITLOS formed the Special Chamber to hear the case in accordance with the agreement between the parties. Côte d’Ivoire then submitted to the Special Chamber a request for the prescription of provisional measures under article 290, paragraph 1, of ITLOS. This request was made on February 27, 2014. Among other things, Cote d’Ivoire sought the following injunctions against Ghana:
1. That Ghana take all steps to suspend all ongoing exploration and exploitation operations in the disputed area.
2. That Ghana refrain from granting any new permit for oil exploration and exploitation in the disputed area.
3. That Ghana takes all steps necessary to prevent information resulting from past, ongoing and or future exploration activities conducted by Ghana, or with its authorization, in the disputed area from being used in any way whatsoever to the detriment of Cote d’Ivoire.
4. And generally take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil and;
5. Desist and refrain from any unilateral action entailing a risk of prejudice to the rights of Cote d’Ivoire and any unilateral action that might lead to aggravating the dispute.
The foundational differences between the position taken by Ghana as opposed to the one taken by Cote d’Ivoire is that Ghana claims a boundary line which is based on the theory of equidistance in order to secure formal recognition of the boundary which it uses for the grant of its oil and gas concessions. Ghana also relies on Cote d’Ivoire’s history of acceptance of the boundary line in formulating her maritime policies and awarding her oil concessions. On the other hand, Côte d’Ivoire claims a line that takes account of the relevant circumstances of the case and allows an equitable solution to be achieved in accordance with the requirements of contemporary international laws of the sea. Furthermore, Cote d’Ivoire claims that even if equidistance were used in the demarcation of the maritime boundary, a substantial portion of the disputed area still falls within Ivory Coast, and the oil concessions granted so far by Ghana still straddles the strict equidistant line.
In view of the two contradictory and entrenched positions taken by the parties, and in furtherance of Ghana’s cause in this matter, the country requested the International Body to deny all of Cote d’Ivoire’s request for injunction. However, on April 25, 2015, the court, sitting in Germany, modified the injunctions requested by Cote d’Ivoire, and in accordance with Article 89, paragraph 5 of its rules, prescribed the following provisional measures that are different in whole or in part from what Cote d’Ivoire initially requested.
And concerning injunction number one as requested by Cote d’Ivoire (that of Ghana taking all necessary steps to suspend all ongoing exploration and exploitation operations in the disputed area), the court largely declined the request, noting the extent of investments made in Ghana and other partners in the disputed area and stating that the imposition of such an injunction will put undue burden on Ghana, and even pollute the very marine environment which Cote d’Ivoire seeks to protect.
Concerning injunction number 2, the court was silent, and this silence may be construed by Ghana that it might continue to issue new permits for oil exploration and exploitation. But subsequent ruling does not make this construction accurate. This is because the court granted injunction Number 3 in favor of Ivory Coast. And the meaning is that Ghana has the obligation to prevent all information on its exploration and exploitation, whether past, ongoing or future, from being used in any way to the detriment of Ivory Coast. Now this sweeping order is ambiguous enough to be open to several interpretations, but it gives a broader meaning to the prior injunction request that Ghana may not be able to issue new oil permits, given that no permit could be given to multi-national corporations without first divulging information on exploration in an open and competitive international investment market.
Concerning injunction request number 4 and 5, the court actually enjoined both Ghana and Ivory Coast to: (a) Generally take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil. And (b) Desist and refrain from any unilateral action entailing a risk of prejudice to the rights of both parties and any unilateral action that might lead to aggravating the dispute. Thus these two items in the Court’s order could be seen as equally affecting both parties. But since Ghana is the country operating in the disputed area, it stands to reason that it could be under more scrutiny from Cote dIvoire for infractions. Remember that Cote d’Ivoire is doing nothing so far in the disputed area. Thus if nothing at all, this order puts that country more in a superior position to watch what Ghana is doing, and to report any infractions to the international body.
Furthermore, the Court ordered Ghana to refrain from drilling further beyond the areas in which it is already conducting drilling operations. That this prohibition has far reaching consequences on the scope of Ghana’s oil operations in the disputed area cannot be gainsaid. Three fields located wholly within the disputed area will be entering the commercial exploitation phase from 2016. Now that drilling is stopped, the fate of the fields will be uncertain.
Drilling is the end game in the oil industry. Thus all exploration and experimentation are subservient to it. In an oil operation, if in spite of all exploration and experimentation, any drilling is proscribed, then all the work done is virtually useless. So for Ghana to be limited to where it is at present drilling is as much as saying that its oil industry is now hamstrung, and could not expand farther. This is akin to the order God gave to the sea, “Thus far you shall come, but no farther; and here shall your proud waves stop.” Job 38: 11. So then, given the restrictions imposed on Ghana’s oil industry, can we sincerely say that we have won in this dispute just because we do not yet have any plans to expand?
An injunction, within the context of the law, is an order issued by the court asking a person to perform a specific act or to stop performing a specific act. So in this case, who was ordered to do something or to stop doing something? It was Ghana that was asked to stop drilling further and also to preserve the environmental integrity of the disputed zone. And the issue becomes more troubling if one considers the standard used by the Court in prescribing the provisional measures. In this respect, the International Special Chamber was explicit that, “ It may not prescribe any provisional measures unless it first finds that there is a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute.” And concerning the rights which Cote d’Ivoire claims on the merits and seeks to protect, the Special Chamber stated that before prescribing provisional measures, it needs only satisfy itself that these rights are at least plausible. The Chamber further found that Cote d’Ivoire has presented enough material evidence to show that the rights it seeks to protect in the disputed area are plausible.
In view of the foregoing ruling, Ghana must be very concerned indeed. Injunctions are not imposed merely on account that it is requested by an adversarial party. There ought first to be some prima facie evidence that the party requesting the injunction has a case that stands the possibility or the plausibility that it could be proved in that party’s favor, and also that should it be proved in that party’s favor, monetary compensation alone will not satisfy the injury alleged against him or her; and that the only thing that can adequately compensate the party is an injunction, that is to ask the other party to refrain from performing the offending action. In this respect, injunction is far more valuable in a legal action, and far more difficult to obtain in a court of law, and its impact and consequences are far-reaching than even monetary damage.
And if you have any doubt that an injunction has been imposed on Ghana, ask yourself what Ghana was capable of doing before the court ruling, and whether after the court ruling, Ghana can do the same exact thing. And if we ask this question, we will discover that Ghana cannot now drill beyond the limited space of its present operations should the country choose to do so. And when you make that discovery, you may naively conclude defeasibly that we won because we did not lose badly enough. This state of mind is similar to that of my nephew who, when he was asked of how he performed in an examination, answered that his friend C.K. failed the exams. And we celebrate with some shady conclusion that the court did not ask us to wrap up our entire oil operations in the disputed area? What type of mindset is that?
From the very beginning, Ghana’s attitude in this whole maritime dispute has been contempt and nonchalance for the claim being made by Cote d’Ivoire. We have somehow convinced ourselves with the spurious argument that history is on our side, and that even before independence, the imaginary maritime border between Ghana and Ivory Coast, which is based on the maritime demarcation theory of equidistance, was mutually recognized by Cote d’Ivoire and Ghana as what Ghana claims it to be today. Moreover, we repetitively lay claim to equitable estoppel in saying that we made so much investments in the disputed area in the full knowledge of Cote D’Ivoire, and that we will incur huge costs should we abandon our oil projects. In other words, we might be accusing Cote d’Ivoire of laches or even some sort of forfeiture through adverse possession, assuming these laws are indeed applicable to maritime disputes. But what Ghana has expediently forgotten is that the theories it hinges its argument on may not be sustained by the International Court of the Law of the Sea.
After all, stare decisis or the theory of precedent is known not to apply in this context. And there is enough in the records of the Court to show that such equidistance and status quo arguments have failed elsewhere in the past. Besides, the court has relied on other principles such as the equity/equitable principle, single maritime boundary and proportionality principles to rule on maritime disputes such as the one presented in the Ghana/Cote d’Ivoire matter. And in fact, when one scrutinizes the maps presented by each side and agreed upon as what presently is the status quo, one could make very convincing argument that Ghana may be in trouble even with its equidistance proposition, and the recourse of the court might well be that which it will consider as equitable under the circumstances presented. Note that Cote d’Ivoire argues that two of the six hydrocarbon deposits located entirely or partly within the disputed area, Tano West and Enyenra, overlap the objectively determined equidistance line. And if the court agrees with such a view, Ghana could find its oil assets in the disputed area substantially diminished, if not altogether halved.
In this sense, the better posture to assume is cerebration, not celebration. We must procure a star team including international lawyers to represent our interests, then review and demean ourselves in the court’s prior rulings and the judicial philosophy behind each for whatever it is worth. Moreover, we must begin to take the claims of Cote d’Ivoire more seriously and anticipate all the four corners of their argument to find their weaknesses. And then make our case, marshaling our arguments, not from a narrow perspective of the theory of equidistance, or of the status quo ante, but from the wider perspective of prevailing international maritime jurisprudence which takes into account both the theory of equity, the theory of equidistance and all the other known theories.
And more importantly, we must once more open the door for negotiations and consensus with our neighbor. We must remember that the action taken by Ghana to proceed to ITLOS was ill-advised anyway, considering that nearly 90% of cases akin to this one in issue are often resolved through negotiations. And although we have already accepted the course of action that will bind us, as civilized peoples, to the conclusions of a neutral arbiter, we can still preempt an unfavorable verdict if we begin talking now to see whether we can end this dispute amicably with a workable compromise, and without the involvement of any court.
Samuel Adjei Sarfo is a practicing attorney in Austin, Texas, USA. You can email him at sarfoadjei@yahoo.com
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