Ghana has opened its second and final round of arguments at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, and is reproaching Cote d’Ivoire for deliberately turning a blind eye to Ghana’s erudite legal arguments.
According to Ghana, Cote d’Ivoire stuck to its old arguments last week because it did not have any evidence to back its claims that Ghana had moved into Cote d’Ivoire’s maritime space.
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, 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”.
Prof. 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 supports 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”.