Ivory Coast’s Injunction Must Be Thrown Out
The International Tribunal on the Law of the Sea (ITLOS) must “throw out” Ivory Coast's application for an injunction on oil exploration activities by Tullow Oil plc in the Tweneboa-Enyenra-Ntomme (TEN) oilfields over which the Francophone West African country is fighting with Ghana, former Attorney General Nii Ayikoi Otoo has told Morning Starr's Kafui Dey on Starr 103.5FM.
According to Mr Ayikoi Otoo, stopping exploration activities now would be damaging to both Ghana and Tullow Oil plc. He also believes the pendulum tilts in Ghana's favour.
“There are a lot of things that would influence a tribunal in taking a decision one way or the other: one of them is the balance of convenience.…They looked on while we spent so much, so at this stage why must we be stopped.
“Allow us to continue while the case also goes on because you could be compensated in damages. But to say: 'Stop now', when we've gone so far, the equities and the law appear to weigh in our favour, so it seems to me that the tribunal should look at how much money has been sunk and the damage that will be caused if this thing should come to a standstill pending a final determination.
“…So what happens for three years? We are talking about the corrosive nature of the sea and all that. All the machines there will get damaged if there is no maintenance for three years and all that so I think that in terms of balance of convenience, I think the application they have sent there should be thrown out,” Mr. Otoo said.
His concerns are in tandem with those of Ghana's current Attorney General who said at the second day of the hearing Monday that Ghana would be dealt “irreparable damage” and “irremediable injustice”, if the International Tribunal of the Law of the Sea (ITLOS) in Hamburg rules in favour of Ivory Coast by determining that the Anglophone West African country stops all oil exploration activities in the disputed oilfields until the Court makes a final determination.
“One of the more surprising things that was suggested yesterday [Sunday] by Cote d'Ivoire was that Ghana should diffuse the situation pending determination by the tribunal, by stopping work in the area.
“We agree that pending determination of a dispute, a party and a tribunal should not take steps that are likely to aggravate it. It is, we suggest, clear that Cote d'Ivoire's attempt to prevent the continuation of the existing activity 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 damage to Ghana. They would aggravate this dispute and they would cost irremediable injustice,” Marietta Brew Appiah-Oppong, who is leading Ghana's legal team argued. “On behalf of Ghana, I therefore formally request that their application for provisional measures be declined.”
Meanwhile Ivory Coast has cast doubts over maritime maps and data being used by Ghana to argue out its case as far as the dispute over the TEN oil fields operated by Tullow Oil is concerned.
An external lawyer for Ivory Coast said on the second day of the hearing that: “Ghana cannot be trusted to have independently secured these maps and the data without Ivory Coast having copies.”
“Since these maps are in the sole possession of Ghana, they should be prevented from using them in this litigation, because the authenticity of these maps cannot be independently verified,” the Lawyer said.
Ivory Coast argued at the tribunal on Sunday that allowing Ghana to continue oil exploration in the disputed offshore area pending the ruling would do irreparable damage to its economy and energy policy.
London-listed Tullow Oil is due to finish work on its TEN project in the disputed zone and start pumping oil by mid-2016. A final ruling by the court on the dispute could be in three years.
In its first round of oral arguments, Ivory Coast said Ghana was accelerating development in the zone, which would leave it to face a fait accompli.
Reuters reported Sunday that Michael Wood, a special adviser to the Ivorian delegation, said that not granting the suspension "could irreparably compromise Cote d'Ivoire's entitlement to formulate and pursue a national policy with respect to the use of natural resources".
Paul Reichler, a member of Ghana's legal team, said that Ivory Coast had for at least the last 40 years accepted the demarcation that Accra considers to be the boundary between the two nations.
"There was an agreed border separating their respective maritime territories, and it consisted of an equidistant line whose specific coordinates were identified and were reflected in their oil concession agreements," he said.
The argument was rejected at the tribunal by Ibrahima Diaby, director-general of hydrocarbons for Ivory Coast's energy ministry.
"I regret that Ghana should rewrite our shared history by asserting that Cote d'Ivoire expressly accepted as a maritime boundary between the two states the line along which oil blocks were granted by the two states," he said.
Ghana is seeking a dismissal of Ivory Coast's request for a provisional suspension.
Ghana downplayed fears of a possible suspension of the TEN project earlier this month after Ivory Coast introduced its request, saying a ruling in favour of the Ivorian government was "highly unlikely".
But Tullow lost over 200 million pounds ($308 million) of its market value on March 2 over concerns that the boundary dispute could delay its TEN project.
Ghana's legal team argued Sunday that Tullow Oil plc risks making huge losses if the Court upheld Ivory Coast's application for a suspension of further exploration until a ruling is made.
The firm recently said it was informed by the Government of Ghana that Côte d'Ivoire had applied to the International court, which is hearing the oil boundary dispute to restrain further exploration until the case is determined.
In a statement issued early March this year, the oil exploration firm said it “understands that a decision on this application for provisional measures should be handed down before the end of April 2015.”
In September last year, Appiah-Oppong said at a press conference that the young oil producer is certain of winning the arbitration case it filed against Côte d'Ivoire over the matter.
“We're extremely confident in our case. I don't think we'll lose. Many laws support the position we've taken so I'm confident that it will go our way”, Appiah-Oppong told Journalists.
She said the line drawn to delineate Ghana's maritime territory from Côte d'Ivoire has “existed for decades” since the 1950s “so Ghana is not ready to shift its position”.
Ghana resorted to the International Court after more than 10 rounds of negotiations with Côte d'Ivoire since 2008 without success of resolving the impasse.
The young oil producing country of 25 million people wants the International Tribunal on the Law of the Sea to declare that it has not encroached on the Ivorian territorial waters in the exploration of oil.
Appiah-Oppong said the arbitration process started by Ghana is not a “hostile” move intended to create tension between the two neighbours.
“This is not a hostile act. All we're are doing is to bring certainty and finality to the matter. It does not mean we're at loggerheads or the two heads of state are fighting”, Ghana's chief lawyer said.
The case, according to the AG will take at least three years. The two parties are to agree on three independent arbitrators by mutual consent. The president of United Nations Convention on the Law of the Sea (UNCLOS), to which both countries belong, will be compelled to appoint the arbitrators should the two parties fail to reach an agreement on the arbitrators.
The decision of the arbitrators will be final. There will be no room for appeal. The Minister said all Ghana's operations in oil fields that fall within the disputed boundary will continue operating in the interim.
Energy Minister Emmanuel Amah Kofi Buah said at the press conference that the claim of Côte d'Ivoire indeed affects some of Ghana's concessions.
Also Minister of Communication, Dr Edward Omane Boamah said despite the warm relationship between Ghana and Côte d'Ivoire, the former British colony has “a sacred duty of protecting our natural resources not just for this generation but also generations unborn”.
Ghana filed the suit based on Article 287 Annex VII of the 1982 UNCLOS.
The statement of claim avers, among other things, that pursuant to articles 286 and 287 of the 1982 UNCLOS, and in accordance with Article 1 Annex 1, the Republic of Ghana had served notice to the Republic of The Ivory Coast to the effect that “having failed to reach a settlement after successive negotiations and exchange of views over an extended period of time, Ghana has elected to submit the dispute concerning the determination of each maritime boundary with Cote d'Ivoire to the arbitral procedure provided for under Annex VII of UNCLOS”.
Ghana discovered oil in commercial quantities offshore the Western Region in June 2007, but the Ivorian authorities have been laying claim to the discovery.
The dispute received wide media attention in the past, resulting in leaders from both countries engaging in talks to resolve their differences.
And to compound the issue, oil companies operating in the oilfields have been receiving threatening letters from The Ivory Coast asking them to leave site.