Maritime dispute: Ghana punches holes into Cote d’Ivoire’s claim
Ghana’s legal team is firing a series of salvos against Cote d’Ivoire at the hearing of the maritime boundary dispute between the two countries. According to the lawyers, Cote d’Ivoire was inconsistent in its claim that Ghana had entered into its maritime space.
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The lawyers are Professor Philippe Sands of Matrix Chambers, London; Mr Paul S, Reichler of Foley Hoag Chambers, Washington, DC; Mr Fui S. Tsikata of Reindorf Chambers, Accra, and Ms Clara E. Brillembourg of Foley Hoag LLP, Washington, D.C.
The lawyers presented maps, legal authorities and diplomatic correspondence between the two countries in their bid to prove that Cote d’Ivoire had no leg to stand on at the International Tribunal for the Law of the Sea (ITLOS).
Using those documents and agreements between the two countries spanning five decades, the lawyers advanced arguments to justify Ghana’s position that Cote d’Ivoire had no legal and geographical basis to claim any maritime boundary from Ghana.
Presenting Ghana’s case to the Special Chamber constituted to hear the case concerning the delimitation of the maritime boundary between Ghana and Cote d’Ivoire, the lawyers prayed the Special Chamber to dismiss Cote d’Ivoire’s claim.
The Attorney-General and Minister of Justice, Ms Gloria Afua Akuffo, in her opening address to the tribunal in Hamburg, Germany, last Monday, prayed the tribunal to uphold Ghana’s position.
She is leading a legal and technical delegation to the ITLOS to bring finality to the issue of whether or not Ghana is operating in Cote d’Ivoire’s territorial waters.
The Special Chamber
The President of the Special Chamber constituted to deal with the dispute, Judge Boualem Bouguetaia, is presiding over the hearing.
Other members of the panel hearing the case are judges Rüdiger Wolfrum, Germany, and Jin-Hyun Paik, the Republic of Korea.
Ad hoc judges Thomas Mensah, Ghana, and Ronny Abraham, France, were selected by Ghana and Cote d’Ivoire, respectively, per the rules of the ITLOS.
Professor Philippe Sands
Prof. Sand said Côte d’Ivoire had increased its maritime entitlement by 31,100 square kilometres, “with the hope that the Special Chamber might somehow ‘split the cake’. Yet the ‘cake’ created by Côte d’Ivoire is entirely artificial”.
He said the approach finally settled on by Côte d’Ivoire in its written pleadings was internally contradictory.
For instance, counsel argued that “Chapter 6 of Cote d’Ivoire’s counter-memorial argued for a bisector, on the basis that any other approach is unfeasible or inequitable; yet in the very next chapter – Chapter 7 – it acknowledges at length that an equidistance line is both possible and capable of being equitable in its result”.
“Mr President, this seems to be the first case of maritime delimitation in which a party advancing a claim makes two contradictory arguments in its first written pleadings. This confirms that the bisector claim is an artifice,” he argued.
“Côte d’Ivoire thus faces considerable difficulties. It is a party in a maritime boundary case which wishes to disavow five decades of its own legislation and application of a boundary, a party that concocts a bisector claim while recognising that an equidistance line is appropriately drawn,” Prof. Sands noted.
Counsel noted that such inconsistencies ran like a thread throughout Côte d’Ivoire’s case.
“After five decades of consistent practice, all of a sudden Côte d’Ivoire changes direction. Yet that change took place without the benefit of careful and proper reflection, and the consequence is to be seen in the pleading, a mass of contradictory positions – over 10 rounds of negotiations between the two parties from 2009 to 2014 and in the various alternatives settled upon to set aside the customary equidistance boundary long respected by Côte d’Ivoire,” he added.
Mr Paul S. Reichler
For his part, Mr Reichler told the Special Chamber that the geographic arguments on which Côte d’Ivoire based its advocacy for abandonment of equidistance or a radical adjustment of it were either wrong or irrelevant.
“The so-called ‘general direction’ of the West African coast is not as Côte d’Ivoire has described it and is, in any event, not relevant to the boundary between Ghana and Côte d’Ivoire. The concavity along Côte d’Ivoire’s coast does not produce a cut-off effect and is, therefore, irrelevant; there is no coastal instability in the vicinity of the land boundary terminus and the misnamed ‘Jomoro Peninsula’ is a part of Ghana’s sovereign land territory whose coastline can neither be ignored nor discounted,” he said.
Mr Fui Tsikata
Mr Tsikata took the Special Chamber through some examples of the extensive evidence in the written pleadings which showed that “an equidistance boundary existed between Cote d’Ivoire and Ghana and separated their respective maritime areas for over 50 years; it makes clear that both parties proceeded on the basis of an ‘existing’ maritime boundary; that that boundary was agreed upon”.
“This is reflected in numerous documents emanating from Côte d’Ivoire, Ghana and third parties which we have made available to you. By contrast, what has Côte d’Ivoire offered as evidence of its freshly developed claims? It has not produced a single map showing a maritime boundary between our two countries other than one following an equidistance line. It has not produced a single legislative, administrative, contractual or other document referring to a boundary other than one that follows an equidistance line.
“Its attempt to suggest a protest against the agreed line in 1988 and 1992 is not supported by credible or convincing evidence. Such material as it has introduced is, in any case, contradicted by its consistent acts till at least 2009,” Mr Tsikata pointed out.
He said the overwhelming weight of evidence produced by Ghana inexorably led to the conclusion that there had been a tacitly agreed equidistance-based boundary between the two countries for many decades.
“The evidence also shows that both parties rightfully placed reliance upon that existing maritime boundary and did so openly for many decades, without protest of any kind from either side,” he added.
Clara Brillembourg
Ms Brillembourg addressed the Special Chamber on the land boundary terminus from which the maritime boundary began and the nautical charts establishing the states’ respective coastlines.
She said the parties reached an agreement on those two points during their bilateral negotiations, well before the litigation began, and that agreement was one, which should be given effect by the chamber.
She, accordingly,prayed the Special Chamber to “confirm the customary equidistance boundary from BP 55, the parties’ agreed land boundary terminus. In the alternative, if it proves necessary, the chamber should draw a provisional equidistance line from BP 55 on the basis of the charts agreed by the parties in 2014. This is consistent with the convention and respects the parties’ agreements of December 2013 regarding the land boundary terminus and of April 2014 regarding their official charts. It also offers a means of avoiding the problems inherent in relying on technical data developed by a party while litigating its case”.
Hearing
The hearing of the substantive case began on Monday, February 6, 2017.
Cote d’Ivoire is expected to begin its oral submissions tomorrow, Thursday, February 9, 2017.