Tribunal to rule on suspension of Ghana’s offshore operations in April 2015

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Legal arguments on whether or not oil exploration activities should be suspended on Ghana’s offshore until the final determination of a maritime dispute between it and Cote d’Ivoire has ended.

Subsequently, the registrar of the Tribunal for the International Law of the Sea (ITLOS) in Hamburg, Germany, Mr Philippe Gautier, has given both countries up to April 2, 2015, to submit corrections on their oral submissions to the tribunal.

According to Mr Boualem Bouguetaia, the President of the panel of judges, which heard application for and against preliminary measures against Ghana, the decision of the tribunal, would be delivered in April 2015.

He, however, did not indicate the exact date but said it will be communicated to the parties soon.

He also thanked the parties for putting up a spirited fight.

Prior to the end of the proceedings, the lead international lawyer for Ghana, Professor Philippe Sands, drew the tribunal’s attention to Cote d’Ivoire’s circumvention of the rules of the tribunal when it (Cote d’Ivoire) decided to attach a fresh document to its case during the hearing on Sunday.

The tribunal told Prof. Sands it had taken note of the issue.

A major 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.

Earlier at the tribunal’s sitting in Hamburg on Monday, lawyers for both countries made a case for and against the suspension of exploration activities on the disputed area.

Cote d’Ivoire accused Ghana of attempting to prejudice the tribunal’s upcoming decision by going into the merit of the case with volumes of documents and witness statements but Ghana faulted 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 measures.

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.

Ghana also reminded Cote d’Ivoire of its failure to challenge the evidence of its technical witnesses which according to Ghana, summed up to shred Cote d’Ivoire’s case.

The Attorney-General and Minister of Jusstice, Mrs Marietta Brew Appiah-Opong led Ghana’s team while the Minister of Petroleum and Energy of Cote d’Ivoire, Mr Adama Toungara led the Ivorian team.

Cote d’Ivoire, which was given the first opportunity to present its closing address prayed the tribunal to grant its application on the grounds that it would suffer irreparable damage should Ghana be allowed to continue with exploration activities on the disputed boundary.

One of Cote d’Ivoire’s lawyers, Mr Adama Kamara, expressed regret at Ghana’s decision to argue on the merits of the case at the preliminary stages and insisted the two countries had always questioned the delimitation of their boundaries.

He said “the issue on maritime boundaries between the two countries remains an open subject but Ghana says it is closed and there is no contention.”

According to him the two countries never agreed on delimitation of their maritime boundaries and argued that the equidistance line produced by Ghana was “approximate,” and added “we will advance the technical argument later.”

Mr Kamara made a u-turn and indicted Petroci, the agency vested with Cote d’Ivoire’s hydrocarbons and said the maps produced by Petroci could not be used to illustrate the official position of Cote d’Ivoire.

Sir Michael Wood, one of Cote d’Ivoire’s international lawyers, accused Ghana of attempting to prejudice the case with its advanced arguments on the merit of the case.

He said Ghana had relied on fait accompli by ignoring Cote d’Ivoire’s protest while his counterpart, Mr Michael Pitron, also indicated Cote d’Ivoire did not produce witnesses and expert opinions because the merit of the case was yet to be tackled.

“Ghana is bent on hegemony. We have voiced our concerns since 1988 and that is why we are here,” Mr Pitron added.

Prof. Alain Pellet, urged the tribunal to protect the rights of both countries as enshrined in international law but accused Ghana of acting as if it was on “home ground,” and prayed the tribunal to stop Ghana from continuing with exploration activities until the matter is resolved.

He also urged the chamber to order Ghana to send periodic reports to the Chamber on steps being taken to protect the marine environment in the disputed area.

Making a case for his country, Cote d’Ivoire’s Minister of Petroleum and Energy, Mr Adama Toungara, said Cote d’Ivoire has never recognised what he termed “the so-called customary equidistance line.”

According to him, Ghana was imposing the equidistance line on Cote d’Ivoire and, therefore, urged the tribunal to stop Ghana from acting unilaterally.

The Attorney-General in her closing remarks noted “Cote d’Ivoire has done nothing to displace the fact that Ghana has a solid case for entitlement to the area it newly claims that was recognised in mutual petroleum concession practice over many years and backed by principles of domestic and international law.

She accused Cote d’Ivoire of making unjustifiable and glaring omissions in both its written and oral submissions adding “that is not good enough.”

Mrs Appiah-Opong also indicated how Cote d’Ivoire had been totally silent on how Ghana’s rights would be protected should Ghana win in the long run, and oil production, had been stopped by the tribunal at the preliminary stage.

Cote d’Ivoire had accused Ghana of hegemony and acting unilaterally but Mrs Appiah-Opong reminded it that its first President had recognised the boundary between the two countries decades ago.

She said it was long after oil companies had spent millions to drill wells and discovered oil that Cote d’Ivoire began to stake a claim.

Responding to Cote d’Ivoire’s accusation that Ghana’s marine environment had been polluted – the Attorney-General said “the environmental competence allegations made by Cote d’Ivoire and the claim of rights relating to environmental information are manifestly unsustainable.”

She also touched on the competence of the contractors operating on Ghana’s oil fields and said Ghana had expert evidence to back its assertion that Cote d’Ivoire had no basis to accuse Ghana of environmental pollution.

Mrs Appiah-Opong argued that there was no urgency to the matter, Ghana had invested millions and Cote d’Ivoire had nothing to lose should work be stopped on the disputed area.

According to her Ghana on the other hand would suffer unquantifiable loss should its opponent’s application be upheld adding “Cote d’Ivoire’s attempt to prevent the continuation of the existing activities is likely to seriously aggravate this dispute and make its resolution much harder.

In short, the measures sought by Cote d’Ivoire would guarantee disproportionate, irreparable harm to Ghana, they would aggravate this dispute and they would cause irremediable injustice.”

Arguing further, Mrs Appiah-Opong noted that Cote d’Ivoire had not acted in accordance with the principles of comity between nations in this particular case in “attempting on the basis to of the very thin material it has put forward to halt a significant part of one of Ghana’s vital industries.

Cote d’Ivoire made this application as though the events from 1960 to 2009 had not occurred, as though the entire history began only in 2009 or late 2011, when it made its new claims public. With great respect, that is not a reasonable approach. Cote d’Ivoire acted as it did for more than four decades as did Ghana, and it is not now entitled to disregard this.”

“Ghana takes this case and our international legal obligations seriously, particularly when subject to unjustifiable attack. We have filed detailed and extensive written evidence.

We have offered witness testimony, none of which has been challenged. We have brought a substantial delegation to this tribunal covering the many areas touched by this application. This approach has not been reciprocated either in the written submissions or at this hearing,” Mrs Appiah-Opong emphasised.

She submitted further “this should be one of the straightforward cases that this Tribunal has had to decide. It is, we respectfully submit, clear that the provisional measures sought should be refused.

On behalf of Ghana, I therefore, formally request that the application for provisional measures be declined. A formal written submission pursuant to Article 75 will be provided.”

Mrs Appiah-Opong thanked the judges and staff of ITLOS for indulging both parties at such short period.

Making a case for Ghana, the lead counsel for Ghana’s international legal team, Prof. Sands said Ghana had been prudent and consistent with Cote d’Ivoire for more than 40 years on the issue of maritime boundary demarcation.

He questioned why Cote d’Ivoire had abandoned its first President’s decree recognising the maritime boundary with Ghana.

“There was no formal agreement but there was understanding and no conflict. It was only in 2009 that the situation changed behind the scene after money had been spent by Ghana and oil had been found,” he noted.

He accused Cote d’Ivoire of coming up with three different and inconsistent mapping on the disputed area and said Ghana had been consistent with its position.”

Still on the maps, Prof. Sands questioned “are they claiming Meridian 1, Meridian 2 bisector line or a new line they constructed weeks ago? There is no specification on their claims. We take that as a concession. They recognise the implausibility of their claims.”

Reacting to Cote d’Ivoire’s disowning of Petroci, Prof. Sands told the tribunal Petroci was a government entity and not a private entity as was being portrayed by Cote d’Ivoire.

He said the Ivorians perhaps decided not to bring Petroci to the tribunal because Petroci’s data recognised Ghana’s position.

“Petroci is a government entity but now Cote d’Ivoire is disowning it. That is a sign of desperation,” Prof Sands opined.

Cote d’Ivoire attempted to dismiss Ghana’s witness statement but Prof. Sands maintained they could not do that because they had failed to cross examine Ghana’s witness thereby indicating the evidence had been unchallenged by Cote d’Ivoire – which also failed to call witnesses.

Responding to Mr Toungara’s earlier claim that he (Toungara) had had 40 years experience in Cote d’Ivoire’s oil industry and was, therefore, a witness, Prof. Sands replied “he is not a witness. He is an Agent for Cote d’Ivoire.”

Counsel proceeded to undo Cote d’Ivoire’s closing remarks and even accused them of using “unorthodox” means to introduce fresh documents into the case in clear violation of the tribunal’s rules.