Year

2023

Degree Name

Doctor of Philosophy

Department

Australian National Centre for Ocean Resources and Security

Abstract

For many years, Ghana and Cote d’Ivoire have peacefully co-existed as maritime neighbours on the West Coast of Africa on the Atlantic Ocean. Both States are parties to the United Nations Convention on the Law of the Sea(hereinafter referred to as “LOSC”), but did not delimit their maritime claims in accordance with the provisions of the LOSC. This notwithstanding, for over five decades, both countries carried on commercial activities such as fishing and petroleum exploration and production in their claimed maritime areas unhindered. Two years after Ghana’s discovery of hydrocarbons in commercial quantities on its claimed continental shelf and Exclusive Economic Zone (EEZ), Cote d’Ivoire formally served notice in 2009 that Ghana’s hydrocarbon discovery was within its maritime territory and intimated for the first time in over five decades that it would no longer recognise the international boundary that both countries have respected over the period. After several failed attempts to amicably resolve their differences, Ghana initiated arbitral proceedings against Côte d’Ivoire on 22nd September 2014, under Articles 286 and 287 and Annex VII to the LOSC, requesting that the Tribunal delimits the maritime jurisdiction of both countries in accordance with international law. Following Ghana’s initiation of proceedings, Cote D’Ivoire instituted proceedings for Provisional Measures against Ghana before ITLOS in accordance with Article 290 of the LOSC. On 25th April 2015, the Special Chamber, unanimously, gave an Order prescribing provisional measures pending the final determination of the dispute between Ghana and Côte d’Ivoire under Article 290, paragraph 1 of the LOSC.1 Significantly, the Special Chamber ordered Ghana to among others “take all necessary steps to ensure that no new drfilling either by Ghana or under its control takes place in the disputed area”2 and the Parties were obliged to take necessary measures to prevent serious harm to the marine environment in the disputed area and to cooperate in achieving that goal.3 On 23rd September 2017, the ITLOS Special Chamber gave its Judgment delimiting a single maritime boundary between Ghana and Côte d’Ivoire in the Territorial Sea, Exclusive Economic Zone and Continental Shelf, including the Continental Shelf beyond 200nm.4 Prior to the ITLOS Special Chamber Judgement in the Ghana v. Cote D’Ivoire maritime dispute, several international judicial bodies, including the International Court of Justice, ITLOS and other arbitral tribunals had delivered decisions on maritime boundary disputes. These decisions have firmly established the international law on maritime boundary delimitation.

This thesis employs a doctrinal approach to review primary and secondary materials relating to the Ghana v. Cote d’Ivoire and compares the Judgment of the ITLOS Special Chamber with the established jurisprudence on the subject of maritime boundary delimitation in order to determine its consistency or otherwise with the existing international regime. The key research findings of this thesis are as follows. First, the thesis shows that the Judgment of the Special Chamber is, to a very large extent, confirmatory of the established jurisprudence of international courts and tribunals on the subject of maritime delimitation principles and methods. Second, the thesis shows that the few instances where the Special Chamber appeared to have departed from the established jurisprudence ought to be understood in their proper context as laying down exceptions to the established rules. Third, the thesis shows that the Special Chamber failed to advance the jurisprudence of international maritime boundary delimitation in specific areas particularly in relation to the significance of diplomatic protests in establishing or negating tacit agreement in the context of international maritime boundary delimitation. Fourth, the thesis demonstrates that the Special Chamber’s Judgment that the holding of several bilateral negotiations between the parties was evidence of disagreement on their maritime frontiers effectively marked the end of tacit agreement in international maritime boundary delimitation. Fifth, the thesis contends that the determination of an application for provisional measures in situations of on-going oil and gas exploration activities has a direct impact on the outcome of the final Judgment on the merits of the case. Consequently, the thesis postulates that this realism must inform a party’s decision to make a request for provisional measures. It is also argued that the Special Chamber’s decision to permit Ghana to proceed with activities with respect to all on-going drilling activities is not only reflective of an excellent application of the principle of urgency but also constitutes a proper exemplification of grounds for refusing an application on other equally weighty matters such as the conduct of the applicant and where extreme hardship will be caused the respondent. Finally, the thesis shows that the petroleum practice heavily relied upon by Ghana to claim tacit agreement of a maritime boundary traversing all the maritime zones was ambitious, audacious and overly optimistic considering that Ghana’s petroleum activities were limited to not more than 87nm from its baseline.

FoR codes (2008)

1801 LAW, 180116 International Law (excl. International Trade Law)

Download

Share

COinS
 

Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong.