They have been neighbours since time immemorial and have lived in peaceful coexistence ever since. Language has been a major barrier between these two West African countries, but that did not in any way mar their diplomatic and business relations.
The issue that has now placed Ghana and Cote d’Ivoire on vertical lines is oil. Cote d’Ivoire claims it had since 1988 made its maritime boundary claims known to Ghana but Ghana insists Cote d’Ivoire, which began exploring for oil years before Ghana discovered oil in commercial quantities in June 2007 – began sending threatening messages to oil companies recently.
Ghana accuses Cote d’Ivoire of not laying claim to any portion of Ghana’s oilfields until after Ghana had invested hundreds of millions of dollars to acquire data, explore and produce oil.
After 10 failed negotiations between both countries, Ghana in September 2014, dragged Cote d’Ivoire to ITLOS under the United Nations Convention on the Law of the Sea (UNCLOS), seeking a declaration that it had not encroached on Cote d’Ivoire’s territorial waters. Ghana filed its suit based on Article 287 Annex VII of the 1982 UNCLOS.
Cote d’Ivoire’s request
But before the tribunal could hear the substantive case, Cote d’Ivoire on February 2015 filed for preliminary measures urging the tribunal to suspend all activities on the disputed area until the final determination of the case, dubbed: “Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Cote d’Ivoire in the Atlantic Ocean.”
An immediate project to be affected should Cote d’Ivoire’s call for all activities to cease on the disputed boundary be upheld, is the exploration and exploitation works on the Tweneboah-Enyera-Ntoumme (TEN) project being operated by Tullow Oil Plc and its partners.
Cote d’Ivoire’s 27-page request, signed by its Minister of Petroleum and Energy, Mr Adama Toungara, is asking the tribunal to suspend all ongoing oil exploration and exploitation operations in the disputed area.
It is also asking the tribunal to direct Ghana to refrain from granting any new permit for oil exploration and exploitation in the disputed area.
Another prayer from Cote d’Ivoire is an order directed at Ghana to “take all steps necessary to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorisation, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire.”
Ghana’s neighbour is further urging the tribunal to direct Ghana to refrain from any unilateral action entailing a risk of prejudice to the rights of Côte d’Ivoire and any unilateral action that might lead to aggravating the dispute.
Led by Mr Toungara, Cote d’Ivoire argued it would suffer severe and irreparable economic injury if its request is not granted by the tribunal.
But Ghana, led by its Attorney-General and Minister of Justice, Mrs Marietta Brew Appiah-Opong, has described Cote d’Ivoire’s request as baseless, without supporting evidence, and not founded on law but allegations and conjectures.
What transpired at ITLOS
It was a battle of wits. Both countries did not mince words in stating what they needed from the tribunal in their March 29 and March 30, 2015 argument before the tribunal in Hamburg, Germany.
Cote d’Ivoire accused Tullow Oil plc of incompetence and polluting the environment around the disputed area but Ghana denied the assertion and informed the tribunal that Tullow Oil had indeed been licensed to operate because of its competence and track record.
Ghana’s neighbour also denied having a mutual agreement with Ghana over their maritime boundary but Ghana held a different thought and took the tribunal through its 40-year history with Cote d’Ivoire and insisted even Cote d’Ivoire’s first President recognised the boundary between the two countries by signing a decree to that effect.
Cote d’Ivoire told the tribunal it first drew Ghana’s attention to maritime boundary claims in 1988 but Ghana said its neighbour began making ugly noises behind closed doors when Ghana announced it had discovered oil in commercial quantities.
Cote d’Ivoire produced three different maps labelled Meridian One, Meridian Two and Bisector Line, all claiming portions of Ghana’s oilfields and adjoining boundaries, but Ghana reproached it of uncertainty and showing signs of desperation with those maps, which Ghana said did not pinpoint any clear case for Cote d’Ivoire.
Ghana filed a 57-page written address, four witness statements from the Ghana National Petroleum Corporation (GNPC), the Environmental Protection Agency (EPA), the Ministry of Finance and Economic Planning (MOFEP), 2,000 documents including maps and expert opinions but Cote d’Ivoire did none of that. Rather, it accused Ghana of deliberately going into the merit of the case with its voluminous data in an attempt to prejudice the court’s pending decision.
Rebutting their counterpart’s accusation, Ghana said what Cote d’Ivoire was seeking the tribunal to do was a serious matter and it would have been most untenable for Ghana to come half prepared. Ghana also reminded Cote d’Ivoire of its failure to cross-examine witnesses produced by Ghana. Cote d’Ivoire’s failure to cross-examine the witnesses, according to Ghana, meant the evidence put forward by Ghana was incontrovertible.
There was an interesting spectacle at the tribunal when Cote d’Ivoire made a U-turn and indicted Petroci, the agency vested with Cote d’Ivoire’s hydrocarbons. According to Cote d’Ivoire, maps produced and in possession of Petroci could not be used to illustrate the official position of Cote d’Ivoire. Ghana would have none of that. Ghana told the tribunal its rival was denying Petroci because the maps in Petroci’s possession tallied with Ghana’s. Ghana also argued that that, perhaps, was the main reason representatives of Petroci were sidelined by Cote d’Ivoire. There was no representation from Petroci at the preliminary hearing.
Cote d’Ivoire described the boundary between it and Ghana as approximate but Ghana held the view that that boundary had been respected by both countries for four decades until recently.
Ghana’s neighbour wants all ongoing oil exploration and other activities at the disputed area to be suspended but Ghana has argued that Cote d’Ivoire has nothing to lose when that happens.
It outlined the implications for Ghana should Cote d’Ivoire’s request be granted.
Ghana said it would suffer an unquantifiable loss should the tribunal uphold Cote d’Ivoire’s claim and that it had, together with its oil companies, invested millions of dollars and as a result, any hold on ongoing works would have dire consequences for Ghana.
Ghana also accused Cote d’Ivoire of not giving any assurances on available remedies should the case be finally settled in favour of Ghana.
On the other hand, Ghana has contended that Cote d’Ivoire could be compensated in quantifiable monetary terms in the event it wins the case.
Per the foregoing, Ghana is praying the tribunal to dismiss Cote d’Ivoire’s application for preliminary measures as without merit.
It also accused Cote d’Ivoire of failing to advance any tangible legal arguments backed by facts except to rely on unfounded allegations in its bid to invite the tribunal to shift the maritime boundary in Cote d’Ivoire’s favour.
Both parties have expressed optimism for a favourable ruling from the tribunal.
The substantive case will take three years to end but the tribunal has indicated it will deliver its ruling on the preliminary issues before the end of April 2015.
Mrs Appiah-Opong led Ghana’s legal and technical team. Other members of Ghana’s team included Prof. Philippe Sands, a Professor of International Law, University College of London; Prof. Pierre Klein, Centre for International Law, Universite Libre de Bruxelles, Belgium; Mr Paul S. Reichler, a partner at Foley Hoag law firm; Ms Alison Macdonald, Matrix Law Chambers, London and Ms Clara Brillembourg, a partner of Foley Hoag.
Other members of Ghana’s legal team were Mrs Helen Awo Ziwu, Solicitor-General; Ms Akua Sena Dansua, Ghana’s Ambassador to Germany; Mr Daniel Alexander, a London-based lawyer; Ms Anjolie Singh, a member of the Indian Bar, New Delhi; Mr Fui Tsikata, a lawyer at Reindorf Chambers, Accra, Professor Martin Tsamenyi, a law professor of A. M. University of Wollongong, Australia, and Mrs Jane Aheto, Director of Legal at the Ministry of Foreign Affairs and Regional Integration.
Mr Kwame Mfodwo of the Maritime Boundaries Secretariat, Office of the President; Mr Korshie Gavor, a lawyer at the Ghana National Petroleum Corporation (GNPC); Ms Vivienne Gadzekpo, head of legal department of the Ministry of Energy and Petroleum; Mr Alex Tait, Vice-President, International Mapping Associates; Mr Theo Ahwireng, the Chief Executive Officer of the Petroleum Commission; Mr Thomas Manu, Director of Exploration, GNPC, and Mr Lawrence Apaalse, Lead Geologist, GNPC were also part of Ghana’s contingent.
The rest of Ghana’s delegation comprised Mr Kwame Ntow-Amoah, GNPC; Nana Asafu-Adjaye, a consultant on petroleum issues; Mr Kojo Agbenor-Efunam, the Deputy Director of the Environmental Protection Agency (EPA); Dr Joseph Kwadwo Asenso, Head of Oil and Gas Revenue Unit, Ministry of Finance and Economic Planning; Nana Poku, Cartographer, GNPC, and Ms Nancy Lopez and Ms Anna Aviles-Alvaro, both lawyers at Foley Hoag law firm at Washington, DC.
Cote d’Ivoire’s delegation
Mr Toungara led Cote d’Ivoire’s team, which had Dr Ibrahim Diaby, Director-General of Hydrocarbons at the Ministry of Petroleum and Energy; Mr Thierry Tanoh, Deputy Director-General to the Presidency; Mr Leon Houadja Kacou Adom, Cote d’Ivoire’s Ambassador to Germany; Mr Michel Pitron, a lawyer from Paris, France; Mr Adama Kamara, a lawyer in Cote d’Ivoire; Professor Emeritus Alain Pellet, University of Paris Ouest; Sir Michael Wood, a lawyer in the United Kingdom and Dr Alina Miron, law doctor at the University of Paris Ouest.
The rest of Cote d’Ivoire’s team comprised Ms Issabelle Rouche and Mr Jean-Sebastian Bazille, both Paris-based lawyers; Mr Etran Sthoeger of New York University School of Law; Mr Lucien Kouacou, Director-General of Hydrocarbons, Ministry of Petroleum and Energy and Ms Lucie Bustreau from France.