The real complexities of the Ghana/Ivory Coast maritime boundary dispute

On the 23rd of September Ghana confirmed reports that it has initiated arbitration proceedings against the Ivory Coast under the United Nations Convention on the Law of the Sea. This follows unsuccessful attempts at reaching a bilateral agreement with Ivory Coast on the extent of each State’s maritime boundary.

Until 2010 when the Ghana Boundary Commission Act was passed by Parliament under a certificate of urgency Ghana had not, after 58 years of independence, made any effort to settle its maritime borders with any of its coastal neighbours as a result of which future disputes remain a possibility between Togo and Benin as well.
 
Being a coastal State Ghana has certain rights under international law over the adjoining sea. The maritime boundary determines the area (sea water, seabed, ocean floor and subsoil) over which Ghana can freely exercise its sovereign powers and economic rights without interference from another state. 
 
Ghana has total authority and jurisdiction over what is called the territorial sea measured 12 nautical miles from the coast into the sea.   The territorial sea is adjoined by the contiguous zone which is measured 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.
 
There is also the exclusive economic zone which is measured 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The seabed and subsoil of the area covered by the exclusive economic zone is what is referred to as the continental shelf.
 
Ghana may exercise over its continental shelf economic rights for the purpose of exploring it and exploiting its natural resources. The rights are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.
 
The natural resources referred to consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary spices.
 
Whereas a coastal state owns both the surface water area and the seabed of the territorial sea, it only enjoys economic rights over the sea bed and subsoil of the continental shelf.

Even so it can only do so without interference only if there is a bilateral agreement with its opposite or adjacent coastal neighbours.
 
A coastal state’s right of ownership over the exclusive economic zone is therefore tenuous until a bilateral agreement is reached. Additionally the exclusive economic zone is seen as international waters and other states can carry out some economic activities under the UN convention alongside the coastal state having economic rights over the seabed or subsoil of the zone.
 
It’s only where States fail to agree on the extent of their continental shelf that the International Court of Justice (ICJ) is petitioned to determine the boundaries between the states in accordance with Article 38 of the ICJ statute.
 
Ghana and Ivory Coast have failed to agree on their maritime boundary after 10 meetings and that is why we are at this point of arbitration. The Ghana/Ivory Coast maritime boundary dispute became acute in 2009 when the Ivory Coast indicated at the ECOWAS Ministerial meeting in Abuja that it disagreed with its maritime boundaries with Ghana and made further submissions to the United Nations Commission on the Limits of the Continental Shelf in 2010.
 
Ghana could not under international law put up a strong claim over the area as its exclusive economic zone because such a claim would not have been the result of an agreement between Ghana and the Ivory Coast. The area in dispute between Ghana and the Ivory Coast is the subject of intense oil and gas exploration by both states. As such it could well be that the Ivory Coast is just making its claims to prevent Ghana from straying into territory it regards as potentially hers.
 
In this context, the dispute should be seen as a necessary outcome of the failure of Ghana and its neighbours to settle on the extent of each country's maritime boundary as is expected under international law rather than an aggressive claim by the Ivory Coast for Ghana’s oil and gas resources.
 
The prospects of Ghana at the arbitration proceedings depends on various factors and could result in Ghana losing its oil and gas discoveries or holding on to them. The fact is that these discoveries are so close to the land boundary if hypothetically extended into the sea that nothing including victory should be taken for granted.
 
At a press conference to address rumours of the arbitration, the Attorney General confidently declared that Ghana will win the arbitration. Ghana’s ebullient or unrestrained hopes of victory is based on the equidistant or median line drawn 200 nautical miles into the sea the result of which keeps all our oil and gas discoveries within our jurisdiction.
 
However the principles governing the settlement of these maritime disputes under the UNCLOS are by no means certain. There are complexities and various principles involved in determining the extent of a coastal states continental shelf and exclusive economic zone.
 
The nature and geographical outline of the coastline of the States involved is key to determining the rights of the Parties. Some coastlines are quite straight, some concave and some more complicated since a particular State may be made up of a conglomeration of islands referred to as Archipelago. An example is the Cape Verde Islands, the Comoro Islands and West Indies.
 
The fundamental rule that will guide the arbitral panel will be the "equidistance /special circumstances” rule such that where there is an equidistant line drawn to delimit the maritime boundary between Ghana and Ivory Coast, the Arbitral Panel would look to see if such a line is equitable to both States and whether there are special circumstances that call for a departure from that method or the use of other methods. As stated earlier among the special circumstances the Panel would consider is the outline of the coast line of the States.
 
The ICJ has stated in the many cases that has been determined that where the application of the equidistant line principle by the arbitral panel will not produce an equitable result between States or is made unsuitable by some special circumstances it will discarded that rule in favour of other principles.
 
For example in the North Sea Continental Shelf case the ICJ stated that the principle of equidistance is not a mandatory legal principle or having a privileged status in relation to other methods since its use and practice has not crystallised into customary international law.
 
The key question engendered by Ghana’s reliance on the equidistant line is whether the drawing of that line produces (in the context of our coastline) an equitable result favourable to both states?
 
Indeed in the maritime boundary dispute between Guinea and Guinea-Bissau the ICJ rejected the use of the equidistant method noting that the equidistant method is just one among many and there is no obligation to use it or give it priority even though it is recognised as having a certain intrinsic value because of its scientific character and the relative ease with which it can be applied. The ICJ further stated that the concave nature of the Coast line of the two states made it necessary to use other methods to settle the maritime boundary.
 
One other factor Ghana seems to be relying on is the belief that Ivory Coast has since 1977 always respected the maritime boundary as it stands today and that the oil and gas practice of the two states have always respected that boundary. This same argument was put forward by Nigeria in its dispute with Cameroon but was rejected flatly by the ICJ since it was not of the opinion that the oil and gas practice of the States was a factor to be taken into account in that particular case.
 
From the foregoing it is clear that relying on the equidistance/median line alone may not guarantee victory for Ghana. This is why the ebullience expressed by Ghana must be practically tempered with caution.
 
A decision against Ghana could be economically devastating compared to the effect a similar decision would have on the Ivory Coast. Unfortunately however the arbitral panel will only consider what is equitable for both States and not by the economic impact of its decision.
 
God Bless Our Homeland Ghana!