Ghana has ended its second and final round of arguments at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, accusing its neighbour Cote d’Ivoire for intentionally turning a blind eye to Ghana’s legal arguments.
According to the legal team from Ghana led by the Ms Gloria Akuffo – Attorney-General and Minister of Justice, Cote d’Ivoire’s arguments lacked merit as they have no evidence to back its claims that Ghana had moved into Cote d’Ivoire’s maritime space.
Ms Gloria Afua Akuffo closing arguments
The Attorney-General and Minister of Justice, Ms Gloria Afua Akuffo, has officially ended Ghana’s oral arguments at the International Tribunal for the Law of the Sea (ITLOS) with a call on the ITLOS to reject Cote d’Ivoire’s claims that Ghana has moved into its maritime boundary.
“And finally, we ask you to reject Cote d’Ivoire’s attempts to argue that an oil field built up and developed over decades should have been abandoned overnight in 2009 when Cote d’Ivoire decided that a different boundary would suit it better.
“The cynicism here is all that of Cote d’Ivoire, I am afraid to say, not of Ghana,” the Attorney-General noted.
She prayed the Special Chamber to apply well-established legal principles to a clear and consistent body of evidence.
“We submit that the law and the evidence point inexorably to the maritime boundary observed by both parties for half a century – the line, which we have termed the customary equidistance boundary. We say: You must uphold that line either as a result of the parties’ tacit agreement or by way of an adjustment to the provisional equidistance line to achieve an equitable solution,” Ms Akuffo prayed.
She said the duty of the Special Chamber was to bring finality to the dispute with what she termed as a “most valued neighbour and establish certainty of legal rights and entitlements of the parties’ fortune in the conduct of their affairs in the future.”
According to her, it would “be most unfortunate, should a contrary outcome, characterised by renewed and disruptive disputation between our two states and extending to third parties, be triggered by the decision of this Special Chamber.”
The Attorney-General and Minister of Justice is praying the Special Chamber to declare that Ghana and Cote d’Ivoire mutually recognised, agreed and applied an equidistance-based maritime boundary in the territorial sea, Exclusive Economic Zone (EEZ) and continental shelf within 200 Miles.
She is also praying the chamber to hold that the maritime boundary in the continental shelf beyond 200 Miles follows an extended equidistance boundary along the same azimuth (azimuth is a horizontal angle measured clockwise from any fixed reference plane or easily established base direction) as the boundary within 200 Miles to be the limit of the national jurisdiction.
Further to that, Ms Akuffo wants the Special Chamber to hold that Cote d’Ivoire was in accordance with international law, estopped from objecting to the agreed maritime boundary.
Another order being sought by Ghana is a declaration that, “The land boundary terminus and starting point for the agreed maritime boundary is at Boundary Pillar 55 (BP 55).”
She said the chamber should also hold that, “The customary boundary between Ghana and Cote d’Ivoire in the Atlantic Ocean starts at BP 55, connects to the customary equidistance boundary mutually agreed by the parties at the outer limit of the territorial sea, and then follows the agreed boundary to a distance of 200 M. Beyond 200 M, the boundary continues along the same azimuth to the limit of national jurisdiction.”
Ghana is also asking the Special Chamber to reject Cote d’Ivoire’s claim that Ghana violated the Special Chamber’s April 25, 2015 order, as well as claims that Ghana violated Article 83 of the United Nations Convention on the Law of the Sea (UNCLOS) and Cote d’Ivoire’s rights.
Ghana’s lead international lawyer, Professor Philippe Sands
Also addressing the Special Chamber hearing the dispute concerning the delimitation of the maritime boundary between Ghana and Cote d’Ivoire, Ghana’s lead international lawyer, Professor Philippe Sands, according to the Mabel Aku Baneseh of the graphic, said: “Our friends offer you a cloud of smoke and a few lines: bisecting lines, regional problems, unequal access to resources and so on.
“We have noticed — as have you, certainly — the many points on which they have remained, for the most part, silent,” he said, stressing that “in particular they have found nothing to tell you about Côte d’Ivoire’s respect for a customary border along an equidistance line, from its accession to independence until 2009”.
Professor Sands noted that his colleagues on the other side made copious arguments “without bothering to pay attention to the replies made by Ghana at the beginning of last week to the Ivorian rejoinder”.
He said Cote d’Ivoire’s prayer to the Special Chamber hearing the dispute to adopt its bisector line argument had no basis in the present case and particularly when it had not been able to undo Ghana’s bountiful evidence before the Special Chamber.
Cote d’Ivoire’s basin
Turning to the picture of the basin provided by Cote d’Ivoire in 2005 and titled: “Deepwater Opportunities in Côte d’Ivoire”, Prof. Sands argued that “they have most of the hydrocarbons, but that is not enough, and now they want more”.
He further accused Cote d’Ivoire of being selective in the matter of geology and denied claims by that country that there would be total deprivation of its natural resources should the Special Chamber give effect to the existing boundary or an unadjusted other equidistance line.
Highlighting Côte d’Ivoire’s oil activity since 2005, he said: “…more than 178 wells, for exploration and development, have been drilled in Côte d’Ivoire’s sedimentary basin, leading to a cumulative production of 90 million barrels of oil and 400 billion cubic feet of gas. Ninety million barrels is a lot more than Ghana had at that time.”
Production in Cote d’Ivoire
Touching on the scale of oil production in Côte d’Ivoire over the years before the dispute arose, Prof. Sands said: “Oil production in Côte d’Ivoire was around 20,000 barrels a day in 1996, rising to about 60,000 barrels a day in 2006 and reaching a peak of 70,000 barrels a day in 2009. To reach that level of production, Côte d’Ivoire brought in foreign investors, and they came, among other reasons, because Côte d’Ivoire was able to offer and rely on a stable, agreed boundary, one it knew to be fully respected by Ghana.”
Responding to the assertions by Mr Adama Kamara, one of Cote d’Ivoire’s lawyers, that Cote d’Ivoire could not address issues of maritime delimitation, as well as be able to protest the activities of Ghana in granting concessions, authorising exploration and drilling; Prof. Sands said “the claim is not credible, and it is unsupported by the evidence of intense petroleum-related activity in that very period”.
He then took the Special Chamber through what he termed “impressive activity” in the same period during which Mr Kamara told the chamber that Côte d’Ivoire was in such a deep crisis.
“As you can see, from 1995 until the period when the dispute began in early 2009, Ghanaian production was minimal, less than 10,000 barrels a day. In the decade before 2009, with the benefit of an agreed boundary, Côte d’Ivoire was producing roughly between two and six times as much oil as Ghana: every day, 365 days a year, for more than ten years,” he noted.
Prof. Sands said Ghana did not make a fuss about the agreed boundary, adding that Ghana “respected the geography, the geology and the boundary. Yet now Côte d’Ivoire seeks to present itself to this Special Chamber as, somehow, a poor relation of Ghana, a resource-deprived country for which equity requires that it should have access to petroleum resources located on Ghana’s side of the existing boundary”.
Legal begging bowl
He noted that despite Cote d’Ivoire’s vast oil reserves, its lawyers had come before the Special Chamber with a “legal begging bowl”, pleading with the Special Chamber to make what he termed “a massive change to the existing boundary, so that it can add to what it already has in the Tano-Ivorian basin”.
Ghana’s lawyer noted that the principles identified by the Barbados-Trinidad and Tobago Tribunal were applicable to this case, which operated entirely in favour of maintaining the status quo in support of the existing boundary.
He noted that the consequences would be very significant and dire if the Special Chamber departed from the existing maritime boundary.
“The concessions that have been granted by Ghana will be undermined, and issues may arise under the contracts that underpin them and which have been entered into in consequence of them. How would that add to certainty and stability?
“How could it be an equitable solution for Côte d’Ivoire, having known about, accepted and never protested Ghanaian concessions and related activity based on an agreed maritime boundary to now turn around and say that it no longer recognises the boundary it had previously and long accepted as existing? How could it be equitable when Côte d’Ivoire has relied on the same boundary to develop its own oil industry? We submit that the question answers itself,” Prof. Sands pointed out.
He denied Cote d’Ivoire’s claim of Ghana violating its sovereign rights, adding: “Côte d’Ivoire has failed to point to any conduct by Ghana which could conceivably jeopardise or hamper the determination of the boundary.”
Mr Fui Tsikata
Addressing the tribunal on whether or not there had been a tacitly agreed maritime boundary between Ghana and Cote d’Ivoire in the past five decades and more, Mr Fui Tsikata, one of Ghana’s lawyers, said Cote d’Ivoire deliberately ignored or misrepresented facts before the tribunal.
He said they rather resorted to “alternative facts” and noted that out of the 15 maps that were shown last week, seven were produced by five ministries in Cote d’Ivoire, ministries which, to counsel, had not been privatised.
Mr Tsikata’s response to the issue of the maps coming from Ivorian government agencies that had not been privatised was in answer to claims by Cote d’Ivoire that Ghana had tendered in evidence maps produced by oil companies.
He said Ghana had provided many maps, which explicitly show that the Ivorian authorities had acknowledged the existence of a maritime boundary between the two countries for more than five decades.
He said Cote d’Ivoire failed to produce evidence that it first put up protest in 1988 and later in 1992.
“Nothing in the material before you support the contention of Cote d’Ivoire that it protested to Ghana on even a single occasion against the use of the customary equidistance boundary on even a single occasion between 1956 and 2009,” he said, adding: “Last week Monday, Prof. Sands posed the question: Where is the evidence of the constant opposition alleged by Cote d’Ivoire?”
Counsel noted that Ghana was still waiting for that answer from Cote d’Ivoire, adding that Cote d’Ivoire appeared to have a problem with the word “customary”.
He stressed that the word “captures the idea of an accepted practice, evolved over time and with normative implications.”
Cote d’Ivoire will advance its final oral argument tomorrow, Thursday, February 16, 2017.
The President of the Special Chamber constituted to deal with the dispute, Judge Boualem Bouguetaia, is presiding over the hearing.
After 10 failed negotiation attempts, Ghana, in September 2014, announced that it had instituted arbitration proceedings at the ITLOS to ensure a resolution of its maritime boundary dispute with Cote d’Ivoire.
In accordance with Article 3(a) of Annex VII, Ghana appointed Judge Thomas Mensah, a former President of the ITLOS, as a member of the tribunal.
“Despite several years of good faith negotiations, including at least 10 rounds of bilateral meetings, Ghana and Cote d’Ivoire have been unable to agree upon the location of their maritime boundary,” then Attorney-General and Minister of Justice, Mrs Marietta Brew Appiah-Opong, announced at a press conference in Accra on September 23, 2014.