Ghana
has been given the nod to continue oil production activities at a
disputed maritime boundary area between it and Cote d’Ivoire.
The International Tribunal for the Law of the Sea (ITLOS), in
unanimously dismissing Cote d’Ivoire’s call for the suspension of
activities on the disputed maritime boundary until the final
determination of their disagreement over the boundary – held that work
can go on uninterrupted.
The tribunal, however, ordered Ghana not to start new drilling activity on the disputed area until the matter is resolved.
In effect, exploration and exploitation works on the Tweneboah-Enyera-Ntoumme (TEN) project, being operated by Tullow Oil Plc and its partners, can proceed unabated, reports Graphiconline’s court correspondent, Mabel Aku Baneseh from Hamburg, Germany.
“In the view of the Special Chamber, the suspension of ongoing activities conducted by Ghana in respect of which drilling has already taken place would entail the risk of considerable financial loss to Ghana, and its concessioners and could also pose a serious danger to the marine environment resulting, in particular, from the deterioration of equipment."
It, therefore, considers that an order suspending all exploration or exploitation activities conducted by or on behalf of Ghana in the disputed area, including activities in respect of which drilling has already taken place, would cause prejudice to the rights claimed by Ghana and create an undue burden on it, and that such an order could also cause harm to the marine environment.
The Special Chamber considers it appropriate, in order to preserve the rights of Côte d’Ivoire, to order Ghana to take all the necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area.
Pursuant to article 95, paragraph 1, of the Rules, the Special Chamber requests each Party to submit a report and information on compliance with the provisional measures prescribed not later than 25 May 2015,” the order affirmed.
Ghana and its partners would have lost $4.7 billion from April 25, 2015 till 2018, when the matter would be settled, if the tribunal had ordered for a suspension of oil exploration activities.
Additional orders
The tribunal further ordered “Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area as defined in paragraph 60;
Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire;
Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment;The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end;
The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.”Both countries are expected to submit to the Special Chamber, the initial report referred on the compliance of the tribunal’s order not later than May 25, 2015.On the issue of cost, the tribunal “unanimously decided that each Party shall bear its own costs.”
Judge Boualem Bouguetaia, presided with Judges Rudiger Wolfrum; Jin-Hyun Paik; Thomas Mensah and Ronny Abraham as the panel members. Judges Mensah and Abraham were appointed by Ghana and Cote d’Ivoire respectively, in accordance with the rules of the ITLOS.
Judge Mensah’s Opinion
I have some doubts about the claim of Cȏte d’Ivoire to the maritime areas in dispute. In particular, I do not think that this claim has serious prospects of success on the merits. However, I agree with the finding of the Chamber that the claim is plausible.
This is because I accept that the test of “plausibility” is the only test that is applicable at this stage of the proceedings when the Special Chamber is not dealing with the merits of the case.
I also agree with the finding that, if the Special Chamber finds that any part of the disputed area pertains to Cote d’Ivoire,the activities being undertaken by Ghana in the area would pose a risk of prejudice to the rights that Cȏte d’Ivoire claims and the risk is imminent.
Consequently, I agree that the ordering of some provisional measures to protect the rights which Cȏte d’Ivoire claims in the area is appropriate in the circumstances of the case.
However, I do not think that the first provisional measure requested by Cote d’Ivoire should be granted.
Cȏte d’Ivoire requests the Chamber to order Ghana “to take all steps to “suspend all ongoing oil exploration and exploitation operations in the disputed area”.
I do not consider that such an order would be appropriate in this case
Article 290, paragraph 1, of the Convention gives power to the Special Chamber (and to other competent courts and tribunals) to prescribe provisional measures that “it considers [to be] appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision”. As has repeatedly been underlined by the International Court of Justice (ICJ), and by other international courts and tribunals which have been called upon to pronounce on the matter, provisional measures have as their object “preservation of the respective rights of the parties in the case pending the final decision on the merits.”
In its Order of 15 March 1996 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria the International Court of Justice explained: “it follows that the Court must be concerned to preserve by such measures “the rights which may subsequently be adjudged to belong to either party”.
This means that provisional measures ordered by the Special Chamber should have as their object, preservation of the rights not only of the party which requests the measures, but also the rights of the other Party in the dispute.
In other words, the measures prescribed by the Chamber should be such that they protect the rights that may subsequently be adjudged to“ belong either to the Applicant or to the Respondent ” (Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 21, para. 35.
When a court or tribunal considers a request for the prescription of provisional measures, it is necessarily faced with different rights or claimed rights, that is to say, the rights claimed by the opposing parties in the case.
In most cases, these rights are in conflict. In such a situation, the court or tribunal is obliged to weigh the different rights of the parties against each other.
Ghana has cogently argued that the activities of exploration and exploitation that it has undertaken or authorised in the disputed area“ are not new.”
Its argument is that, in line with a Decree by then President of Cȏte d’Ivoire, Ghana has for a very long time (“more than four decades”) regarded the equidistance line as the border between Ghana and Cote d’Ivoire.
Ghana states that it has treated this line as the“international border”in every concession agreement; in every one of the seismic and other exploratory activity; in all the drilling and development activities and in all its communications with
Cote d”Ivoire and third parties ever since. Ghana denies that it has acted imprudently or illegitimately in authorising activities in the disputed area and claims that Cote d’Ivoire had been fully aware of these activities and has in fact facilitated some of them
In any case, Ghana claims that Cote d”Ivoire has not objected any of these activities until the present case was submitted to arbitration.
Hence, according to Ghana Cote d”Ivoire cannot now be permitted to object to any of these activities.
Ghana also submits that the provisional measures requested Cote d”Ivoire especially an order to Ghana to cease all exploration and exploitation activities in the disputed area would deliver a crippling blow to Ghana’s petroleum industry, cause major dislocations and set back economic development for many years.”
Official reaction from Ghana
An official statement issued by Ghana’s team in Hamburg on behalf of the government of Ghana said “Ghana welcomes the order adopted by the Special Chamber of ITLOS this afternoon.
It carefully balances and protects the rights of both countries.
Ghana will be able to continue to engage in offshore exploration and, if it wishes grant new concessions.
More significantly, Ghana will be able to continue to exploit all wells that have been drilled.
This means that exploitation of the TEN field will be able to proceed in accordance with the schedule.
This should also provide ample reassurance to all Ghana’s investors that their rights and interests have been fully protected.”
Excitement
The Attorney-General and Minister of Justice, Mrs Marietta Brew Appiah-Opong and the Minister of Petroleum and Energy, Mr Emmanuel Armah-Buah, Ghana’s lead international lawyer, Professor Philippe Sands, Ghana’s Ambassador to Germany, Ms Akua Sena Dansua and Mr Fui Tsikata, Ghana’s local lawyer, Mr Kwame Mfodwo, Co-ordinator of the Ghana Maritime Commission and Mr Paul Riechler an international lawyer, were all elated by the decision. Representatives of Tullow Oil Plc were also ecstatic with the turn of events.
Officials from Cote d’Ivoire declined to comment on the tribunal’s order but took group photographs with Ghana’s team.
Background
Cote d’Ivoire in February 2015 filed for preliminary measures urging the tribunal to suspend all activities on the disputed area until the definitive determination of the case, dubbed: “Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Cote d’Ivoire in the Atlantic Ocean.”
The dispute has been listed as “Case 23,” by ITLOS.
Legal and technical representatives from both countries legally clashed on March 29 and 30, 2015 at ITLOS’s Special Chamber in Hamburg, Germany on Cote d’Ivoire’s call for activities to stop on the disputed area until the substantive case is settled in 2018.
Effect of the Order
Saturday's decision is preliminary but it has the potential to boost the shares of Tullow Oil and its partners on the stock market.
Billions of dollars is at stake and a shift from the status quo would have had frightful consequences for Ghana, shareholders and Ghana’s quest to woo more investors in the oil and gas industry.
Work on the field would have grinded to a halt - tools would have decayed - a new $ 900 million plus Floating Production Storage and Offloading (FPSO) vessel which is being built in Singapore would have been idle if the ruling had gone in favour of Cote d’Ivoire.
In short, Ghana would have lost out in revenue, not to talk of the financial crisis that would have hit Tullow Oil Plc, its partners, insurers, bankers and shareholders on the stock market.
These and other reasons were inclusive of why Ghana saw Cote d’Ivoire’s claims and request as out of place, pointless and not founded on law and international norm.
Ghana’s views were articulated through Mrs Appiah-Opong, a team of local and international lawyers and experts. It held the view Cote d’Ivoire had nothing to lose because it (Cote d’Ivoire) has invested nothing into the disputed area.
Cote d’Ivoire’s request
A written request from Cote d’Ivoire, signed by its Minister of Petroleum and Energy, Mr Adama Toungara, had prayed the tribunal to halt all ongoing oil exploration and exploitation operations in the disputed area.
It also wanted the tribunal to refrain Ghana from granting any new permit for oil exploration and exploitation in the disputed area
Another prayer from Cote d’Ivoire was 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 authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire.”
Ghana’s neigbour further urged the tribunal to direct Ghana to desist 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.
Ghana opposed
Praying the tribunal to reject Cote d’Ivoire’s request, Ghana, condemned its neighbour for departing from the law, making baseless accusations, being inconsistent and failing to produce witnesses and expert evidence.
Ghana also reminded Cote d’Ivoire of its lack of consistency and merit in filing for preliminary measure adding that the absence of credible data and evidence from Cote d’Ivoire, according to Ghana, was due to Cote d’Ivoire’s handicap in producing factual documents to back its case.
According to Ghana, Cote d’Ivoire failed to challenge the evidence of its technical witnesses which, according to Ghana, summed up to fragment Cote d’Ivoire’s case.
“We invite you to firmly decline the application before you,” Mrs Appiah-Opong noted and further held that Cote d’Ivoire had failed to prove Ghana had encroached on its territorial waters to warrant the stoppage of activities including the exploration of oil at the disputed area until the final determination of the dispute.
“There is no justification in law, logic, fairness or on the evidence for the measures sought. They would be unprecedented, an invasion of sovereign rights that stand in the face of representations made by Cote d’Ivoire for more than four decades, on which others and we have relied on,” Mrs Appiah-Opong stressed.
“Until Ghana was well advanced with its oil exploration programme on its side of the boundary there were no difficulties. At the time when Cote d’Ivoire had much more oil and gas production than Ghana, there were no claims about moving the maritime boundary.
In 2009 Cote d’Ivoire started to make representations to Ghana about their desire to alter the boundary. Yet its public position did not change. None of its inconsistent positions has any proper justification in law,” Mrs Appiah-Opong added.
Ghana’s argument was eventually accepted by the tribunal.
After 10 failed negotiations, Ghana went to ITLOS under the
United Nations Convention on the Law of the Sea (UNCLOS), in September 2014 seeking a declaration that it has not encroached on Cote d’Ivoire’s territorial waters. Ghana filed its suit based on Article 287 Annex VII of the 1982 UNCLOS
The tribunal, however, ordered Ghana not to start new drilling activity on the disputed area until the matter is resolved.
In effect, exploration and exploitation works on the Tweneboah-Enyera-Ntoumme (TEN) project, being operated by Tullow Oil Plc and its partners, can proceed unabated, reports Graphiconline’s court correspondent, Mabel Aku Baneseh from Hamburg, Germany.
“In the view of the Special Chamber, the suspension of ongoing activities conducted by Ghana in respect of which drilling has already taken place would entail the risk of considerable financial loss to Ghana, and its concessioners and could also pose a serious danger to the marine environment resulting, in particular, from the deterioration of equipment."
It, therefore, considers that an order suspending all exploration or exploitation activities conducted by or on behalf of Ghana in the disputed area, including activities in respect of which drilling has already taken place, would cause prejudice to the rights claimed by Ghana and create an undue burden on it, and that such an order could also cause harm to the marine environment.
The Special Chamber considers it appropriate, in order to preserve the rights of Côte d’Ivoire, to order Ghana to take all the necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area.
Pursuant to article 95, paragraph 1, of the Rules, the Special Chamber requests each Party to submit a report and information on compliance with the provisional measures prescribed not later than 25 May 2015,” the order affirmed.
Ghana and its partners would have lost $4.7 billion from April 25, 2015 till 2018, when the matter would be settled, if the tribunal had ordered for a suspension of oil exploration activities.
Additional orders
The tribunal further ordered “Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area as defined in paragraph 60;
Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire;
Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment;The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end;
The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.”Both countries are expected to submit to the Special Chamber, the initial report referred on the compliance of the tribunal’s order not later than May 25, 2015.On the issue of cost, the tribunal “unanimously decided that each Party shall bear its own costs.”
Judge Boualem Bouguetaia, presided with Judges Rudiger Wolfrum; Jin-Hyun Paik; Thomas Mensah and Ronny Abraham as the panel members. Judges Mensah and Abraham were appointed by Ghana and Cote d’Ivoire respectively, in accordance with the rules of the ITLOS.
Judge Mensah’s Opinion
I have some doubts about the claim of Cȏte d’Ivoire to the maritime areas in dispute. In particular, I do not think that this claim has serious prospects of success on the merits. However, I agree with the finding of the Chamber that the claim is plausible.
This is because I accept that the test of “plausibility” is the only test that is applicable at this stage of the proceedings when the Special Chamber is not dealing with the merits of the case.
I also agree with the finding that, if the Special Chamber finds that any part of the disputed area pertains to Cote d’Ivoire,the activities being undertaken by Ghana in the area would pose a risk of prejudice to the rights that Cȏte d’Ivoire claims and the risk is imminent.
Consequently, I agree that the ordering of some provisional measures to protect the rights which Cȏte d’Ivoire claims in the area is appropriate in the circumstances of the case.
However, I do not think that the first provisional measure requested by Cote d’Ivoire should be granted.
Cȏte d’Ivoire requests the Chamber to order Ghana “to take all steps to “suspend all ongoing oil exploration and exploitation operations in the disputed area”.
I do not consider that such an order would be appropriate in this case
Article 290, paragraph 1, of the Convention gives power to the Special Chamber (and to other competent courts and tribunals) to prescribe provisional measures that “it considers [to be] appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision”. As has repeatedly been underlined by the International Court of Justice (ICJ), and by other international courts and tribunals which have been called upon to pronounce on the matter, provisional measures have as their object “preservation of the respective rights of the parties in the case pending the final decision on the merits.”
In its Order of 15 March 1996 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria the International Court of Justice explained: “it follows that the Court must be concerned to preserve by such measures “the rights which may subsequently be adjudged to belong to either party”.
This means that provisional measures ordered by the Special Chamber should have as their object, preservation of the rights not only of the party which requests the measures, but also the rights of the other Party in the dispute.
In other words, the measures prescribed by the Chamber should be such that they protect the rights that may subsequently be adjudged to“ belong either to the Applicant or to the Respondent ” (Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 21, para. 35.
When a court or tribunal considers a request for the prescription of provisional measures, it is necessarily faced with different rights or claimed rights, that is to say, the rights claimed by the opposing parties in the case.
In most cases, these rights are in conflict. In such a situation, the court or tribunal is obliged to weigh the different rights of the parties against each other.
Ghana has cogently argued that the activities of exploration and exploitation that it has undertaken or authorised in the disputed area“ are not new.”
Its argument is that, in line with a Decree by then President of Cȏte d’Ivoire, Ghana has for a very long time (“more than four decades”) regarded the equidistance line as the border between Ghana and Cote d’Ivoire.
Ghana states that it has treated this line as the“international border”in every concession agreement; in every one of the seismic and other exploratory activity; in all the drilling and development activities and in all its communications with
Cote d”Ivoire and third parties ever since. Ghana denies that it has acted imprudently or illegitimately in authorising activities in the disputed area and claims that Cote d’Ivoire had been fully aware of these activities and has in fact facilitated some of them
In any case, Ghana claims that Cote d”Ivoire has not objected any of these activities until the present case was submitted to arbitration.
Hence, according to Ghana Cote d”Ivoire cannot now be permitted to object to any of these activities.
Ghana also submits that the provisional measures requested Cote d”Ivoire especially an order to Ghana to cease all exploration and exploitation activities in the disputed area would deliver a crippling blow to Ghana’s petroleum industry, cause major dislocations and set back economic development for many years.”
Official reaction from Ghana
An official statement issued by Ghana’s team in Hamburg on behalf of the government of Ghana said “Ghana welcomes the order adopted by the Special Chamber of ITLOS this afternoon.
It carefully balances and protects the rights of both countries.
Ghana will be able to continue to engage in offshore exploration and, if it wishes grant new concessions.
More significantly, Ghana will be able to continue to exploit all wells that have been drilled.
This means that exploitation of the TEN field will be able to proceed in accordance with the schedule.
This should also provide ample reassurance to all Ghana’s investors that their rights and interests have been fully protected.”
Excitement
The Attorney-General and Minister of Justice, Mrs Marietta Brew Appiah-Opong and the Minister of Petroleum and Energy, Mr Emmanuel Armah-Buah, Ghana’s lead international lawyer, Professor Philippe Sands, Ghana’s Ambassador to Germany, Ms Akua Sena Dansua and Mr Fui Tsikata, Ghana’s local lawyer, Mr Kwame Mfodwo, Co-ordinator of the Ghana Maritime Commission and Mr Paul Riechler an international lawyer, were all elated by the decision. Representatives of Tullow Oil Plc were also ecstatic with the turn of events.
Officials from Cote d’Ivoire declined to comment on the tribunal’s order but took group photographs with Ghana’s team.
Background
Cote d’Ivoire in February 2015 filed for preliminary measures urging the tribunal to suspend all activities on the disputed area until the definitive determination of the case, dubbed: “Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Cote d’Ivoire in the Atlantic Ocean.”
The dispute has been listed as “Case 23,” by ITLOS.
Legal and technical representatives from both countries legally clashed on March 29 and 30, 2015 at ITLOS’s Special Chamber in Hamburg, Germany on Cote d’Ivoire’s call for activities to stop on the disputed area until the substantive case is settled in 2018.
Effect of the Order
Saturday's decision is preliminary but it has the potential to boost the shares of Tullow Oil and its partners on the stock market.
Billions of dollars is at stake and a shift from the status quo would have had frightful consequences for Ghana, shareholders and Ghana’s quest to woo more investors in the oil and gas industry.
Work on the field would have grinded to a halt - tools would have decayed - a new $ 900 million plus Floating Production Storage and Offloading (FPSO) vessel which is being built in Singapore would have been idle if the ruling had gone in favour of Cote d’Ivoire.
In short, Ghana would have lost out in revenue, not to talk of the financial crisis that would have hit Tullow Oil Plc, its partners, insurers, bankers and shareholders on the stock market.
These and other reasons were inclusive of why Ghana saw Cote d’Ivoire’s claims and request as out of place, pointless and not founded on law and international norm.
Ghana’s views were articulated through Mrs Appiah-Opong, a team of local and international lawyers and experts. It held the view Cote d’Ivoire had nothing to lose because it (Cote d’Ivoire) has invested nothing into the disputed area.
Cote d’Ivoire’s request
A written request from Cote d’Ivoire, signed by its Minister of Petroleum and Energy, Mr Adama Toungara, had prayed the tribunal to halt all ongoing oil exploration and exploitation operations in the disputed area.
It also wanted the tribunal to refrain Ghana from granting any new permit for oil exploration and exploitation in the disputed area
Another prayer from Cote d’Ivoire was 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 authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire.”
Ghana’s neigbour further urged the tribunal to direct Ghana to desist 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.
Ghana opposed
Praying the tribunal to reject Cote d’Ivoire’s request, Ghana, condemned its neighbour for departing from the law, making baseless accusations, being inconsistent and failing to produce witnesses and expert evidence.
Ghana also reminded Cote d’Ivoire of its lack of consistency and merit in filing for preliminary measure adding that the absence of credible data and evidence from Cote d’Ivoire, according to Ghana, was due to Cote d’Ivoire’s handicap in producing factual documents to back its case.
According to Ghana, Cote d’Ivoire failed to challenge the evidence of its technical witnesses which, according to Ghana, summed up to fragment Cote d’Ivoire’s case.
“We invite you to firmly decline the application before you,” Mrs Appiah-Opong noted and further held that Cote d’Ivoire had failed to prove Ghana had encroached on its territorial waters to warrant the stoppage of activities including the exploration of oil at the disputed area until the final determination of the dispute.
“There is no justification in law, logic, fairness or on the evidence for the measures sought. They would be unprecedented, an invasion of sovereign rights that stand in the face of representations made by Cote d’Ivoire for more than four decades, on which others and we have relied on,” Mrs Appiah-Opong stressed.
“Until Ghana was well advanced with its oil exploration programme on its side of the boundary there were no difficulties. At the time when Cote d’Ivoire had much more oil and gas production than Ghana, there were no claims about moving the maritime boundary.
In 2009 Cote d’Ivoire started to make representations to Ghana about their desire to alter the boundary. Yet its public position did not change. None of its inconsistent positions has any proper justification in law,” Mrs Appiah-Opong added.
Ghana’s argument was eventually accepted by the tribunal.
After 10 failed negotiations, Ghana went to ITLOS under the
United Nations Convention on the Law of the Sea (UNCLOS), in September 2014 seeking a declaration that it has not encroached on Cote d’Ivoire’s territorial waters. Ghana filed its suit based on Article 287 Annex VII of the 1982 UNCLOS
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