Dr Suzette V. Suarez
Hamburg, 04.02.2015 – It had been announced recently that Ghana and Cote d’Ivoire decided to transfer their maritime delimitation dispute which they originally filed with an Annex VII Tribunal to a special Chamber of the International Tribunal for the Law of the Sea (ITLOS). This will be the second maritime delimitation case for ITLOS. The first one was the maritime delimitation in the Bay of Bengal between Bangladesh and Myanmar.
There are some similarities between the two cases. Both delimitation cases deal with adjacent States and the delimitation of several maritime zones between them. The Special Agreement between Ghana and Cote d’Ivoire of 3 December 2014 describes the dispute in general terms as a “maritime dispute in the Atlantic Ocean” and did not specify the maritime zones that are to be delimited. Presumably, the delimitation would include not only the territorial waters but the exclusive economic zone and the continental shelf as well.
It is reported that the two States have delimited their land boundary. If this is the case, then most likely, the disputing States have an existing land boundary terminus which they can use as the starting point of the delimitation line of their territorial waters.
Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), unless the parties otherwise agree, the delimitation of territorial waters, whether between adjacent or opposite States, will be done by drawing a median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.
Single maritime boundary
Will the parties agree to a single maritime boundary for the exclusive economic zone and the continental shelf? UNCLOS does not require that a single maritime boundary be delimited for the water column and the seabed below. Indeed, as the International Court of Justice pointed out in Qatar v Bahrain case, a single maritime boundary for the EEZ and continental shelf comes from state practice and not from treaty law. In the Bangladesh v Myanmar case, ITLOS proceeded to delimit a single line because the parties agreed to a single maritime boundary between them.
If a single maritime boundary is drawn, the Chamber will first consider the coast relevant to the maritime delimitation. According to ITLOS in the Bangladesh v Myanmar case, “for a coast to be considered as relevant in maritime delimitation it must generate projections which overlap with those of the coast of another party.”
As for the method of delimitation, it must be underscored that UNCLOS does not specify any method. The most popular method relied on by international courts and tribunals is the equidistance method. However, courts and tribunals including ITLOS, have been quick to point out the equidistance method does not have priority over other methods.
Extended continental shelf
Will delimitation also be undertaken for the extended continental shelf? Both Ghana and Cote d’Ivoire have made their submissions of information to the Commission on the Limits of the Continental Shelf (CLCS). The CLCS has given its recommendations for Ghana on 5 September 2014 but has not yet finished consideration of Cote d’Ivoire´s submissions. If the issue of jurisdiction will come up, the ITLOS Special Chamber will most likely follow the ruling of ITLOS in the Bangladesh v Myanmar case and declare that it has jurisdiction to delimit the extended continental shelf between the two States.
Joint development agreement
I agree that a final delimitation between the two States will be crucial in keeping and maintaining the peace and the friendly relations between them. However, delimitation alone will most likely not resolve the dispute between them concerning the use or access of resources in straddling areas. Ghana discovered oil in the disputed area. Cote d’Ivoire subsequently revealed that it had struck oil in a block off its shore and adjacent to Ghana’s Jubilee Field. Parallel to the delimitation proceedings, the parties should consider entering into a joint development agreement in the straddling areas in order for them to jointly manage and develop the straddling area and jointly benefit from the proceeds thereof.