[Xuechan Ma, PhD candidate at Grotius Center for International Legal Studies of Leiden University, the Netherlands, researching on the topic of international cooperation in disputed marine areas; L.L.M. & L.L.B. at Peking University, China. Email: maxuechan [at] gmail [dot] com.]
The Special Chamber of the ITLOS delivered its judgement of the Ghana v. Côte d’Ivoire case on 23 September 2017, which pertained to unilateral oil activities in disputed marine areas. Both parties agreed that the dispute concerned the establishment of a single maritime boundary to delimit the territorial sea, exclusive economic zone (EEZ) and continental shelf, including the continental shelf beyond 200 nautical miles, between them in the Atlantic Ocean. While both parties concurred that there was no formally concluded delimitation agreement between them, they disagreed as to whether there had been a maritime boundary established by a tacit agreement. Ghana argued that both parties had recognized and respected a maritime boundary in the area concerned on the basis of a tacit agreement which had been developed or confirmed as a result of the oil activities of both parties over years. By contrast, Côte d’Ivoire claimed that such a tacit agreement did not exist and that the oil practice of Ghana in the disputed marine areas should be deemed a violation of international law, including Article 83(3) of United Nations Convention on the Law of the Sea (UNCLOS).
Notably, the oil activities discussed in this case are unilateral due to the absence of any provisional arrangement between the parties. This case indeed contains two interlinked legal issues in relation to unilateral oil activities in disputed marine areas. The first issue pertains to the legal effect of unilateral oil activities. Put differently, can such oil activities improve the legal position of the parties to the dispute? The second issue is about the legality of unilateral oil activities. In other words, are such unilateral activities in contravention of certain international obligations undertaken by a State to a marine dispute? These two issues are interlinked in the sense that if these activities are deemed illegal, it is impossible to conclude that such activities can contribute to the improvement of the legal position of the party who undertakes them. The reason is quite simple: otherwise it would entail positive implications for the illegal conduct of States. Nevertheless, the converse is not necessarily true. Even if unilateral oil activities cannot have any legal effect on improving a State’s legal position, they are not necessarily deemed illegal.
The Special Chamber first addressed the issue about the legal effect of unilateral oil activities. In its view, evidence for the purpose of establishing a tacit agreement regarding a maritime boundary should be compelling. In the present case, the Special Chamber considered that the mutual, consistent and long-standing oil practice and the adjoining oil concession limits alleged by Ghana might reflect the existence of a maritime boundary or might be explained by other reasons. Thus, it was not convinced of the existence of a tacit agreement in relation to a maritime boundary in the area concerned. Moreover, the Special Chamber explicitly concluded that the all-purpose nature of the maritime boundary meant that evidence relating solely to the specific purpose of oil activities in the seabed and subsoil could not be determinative of the extent of the boundary. In addition, it also concluded that in principle the location of oil resources could not be considered a relevant circumstance in maritime delimitation and that the only exception to this principle is that the delimitation was “likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned”. Nevertheless, Côte d’Ivoire had not advanced any arguments which might have led the Special Chamber to be convinced that the situation in this case constituted the aforementioned exception.
As mentioned above, the lack of legal effect on improving a State’s legal position does not necessarily indicate that unilateral oil activities should be deemed illegal. Hence, the Special Chamber had to deal with the issue of legality separately. Indeed, this issue was entertained by the Special Chamber during the proceedings of provisional measures. Côte d’Ivoire requested Ghana be ordered to suspend all ongoing oil exploration and exploitation operations and refrain from granting any new operations in the disputed area. The Special Chamber admitted that both the ongoing and future exploration and exploitation activities would result in significant and permanent modification of the physical character of the area in dispute and thus create a risk of irreversible prejudice to the rights of Côte d’Ivoire and also cause harm to the marine environment. However, it also noted that suspending Ghana’s ongoing activities in respect of which drilling had already taken place would not only entail the risk of considerable financial loss to Ghana and its concessionaries, but also pose a serious danger to the marine environment, particularly caused by the deterioration of equipment. In this light, it considered that an order suspending all ongoing activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Hence, the Special Chamber issued an order of provisional measures requesting that Ghana refrain from conducting any new drilling in the disputed area and authorizing Ghana to continue the ongoing drilling in the disputed area as long as it carried out strict and continuous monitoring of all activities undertaken by it or with its authorization “with a view to ensuring the prevention of serious harm to the marine environment”.
This finding seems to contradict previous jurisprudence. In the Guyana v. Suriname case, Suriname claimed that by allowing its concession holder to undertake exploratory drilling in the disputed marine areas Guyana violated its obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The tribunal took the position that exploitation of oil and gas reserves as well as exploratory drilling belonged to activities of the kind that lead to a permanent physical change to the marine environment and thus should be prohibited in disputed waters. On this basis, the tribunal concluded that “Guyana’s authorisation of its concession holder to undertake exploratory drilling in disputed waters constituted a violation of its obligation to make every effort not to jeopardise or hamper the reaching of a final agreement on delimitation”.
In the present case, Ghana argued that this case should be distinguished from the Guyana v. Suriname case in the sense that the latter involved wholly new and unilateral activities that had been undertaken following the emergence of the dispute, namely the critical date, while in this case, Ghana’s activities were “simply the continuation of decades of previous activity of a kind which would have been conducted by Côte d’Ivoire”. By this argument, Ghana implied that its ongoing activities were a normal continuation of acts conducted prior to the critical date and thus could not be deemed illegal. However, the Special Chamber had already negated the relevance of the notion of critical date in the present case on the ground that the activities of both parties in the maritime area concerned had not changed over years. In fact, even if the notion of critical date were held to be relevant in this case, Ghana’s argument would still be untenable because it mixed two issues, namely the legal effect and the legality of unilateral acts. The notion of critical date is only relevant to the legal effect of unilateral oil activities. Put differently, unilateral oil activities as a normal continuation of acts prior to the critical date could not improve the legal position of the party which relied on them. However, this cannot lead to a conclusion on whether such unilateral activities should be deemed legal or illegal.
Nevertheless, there is indeed some difference between the Guyana v. Suriname case and the present case. The oil activities involved in the former case only included exploratory drilling and did not include any actual exploitation operation. Consequently, the suspension of such activities would not entail the risk of considerable financial loss to Guyana and its concessionaries and pose a serious danger to the marine environment particularly caused by the deterioration of equipment. By contrast, in the present case, the oil practice included oil concessions, seismic surveys and exploration and drilling activities. The extent and intensity of the unilateral oil activities undertaken by Ghana were much greater than that of Guyana. Consequently, suspending Ghana’s activities would cause prejudice to the rights claimed by Ghana and create an undue burden on it. Moreover, it is generally accepted that an international court or tribunal can only prescribe provisional measures when there is “a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute”. Therefore, a provisional measure could not itself cause prejudice to the rights of both parties in dispute. In this light, it is understandable why the Special Chamber had refused to order Ghana to stop all ongoing drillings in the disputed area during the proceedings of provisional measures.
Furthermore, it is worth noting that the standard for an activity to be qualified as a provisional measure differs from that for an activity to be considered not hampering or jeopardising the reaching of a final agreement. The tribunal has confirmed in the Guyana v. Suriname case that the former standard has a higher threshold than the latter. In other words, activities qualified as a provisional measure can be considered not a violation of the obligation not to hamper or jeopardize the reaching of a final agreement under Article 83(3) of UNCLOS. But the converse is not necessarily true. In the present case, the fact that the Special Chamber did not order the suspension of ongoing oil exploration and exploitation operations as a provisional measure could not indicate that such ongoing activities did not violate the obligation under Article 83(3) of UNCLOS.
It is a pity that the Special Chamber missed the opportunity to further address the compliance of Ghana’s unilateral oil activities in the disputed marine area with Article 83(3) of UNCLOS. Côte d’Ivoire had requested the Special Chamber to declare that unilateral activities undertaken by Ghana after the issuance of the provisional measures “in the Ivorian maritime area” constituted a violation of the obligation not to jeopardize or hamper the reaching of the final agreement as provided by Article 83(3) of UNCLOS. The Special Chamber opted not to explicitly address the real issue as to whether the unilateral oil activities undertaken by Ghana in the disputed area constituted a violation of the obligation set forth by Article 83(3) of UNCLOS. It simply concluded that the activities of Ghana did not meet the qualification of the relevant submission of Côte d’Ivoire since such activities took place not “in the Ivorian maritime area” but in an area attributed to Ghana. This finding implies that unilateral oil activities would not be deemed illegal as long as relevant areas of oil operations are found to belong to the party who has undertaken the activities.
To conclude, the judgement in this case contributes to clarifying the legal effect of unilateral oil activities in disputed marine areas. It is explicitly declared that unilateral oil activities have no legal effect on improving the legal position of a State to a marine dispute. However, by circumventing the issue about the legality of unilateral oil activities in disputed marine areas, this case may have negative impact on other unsettled marine disputes around the world. Following this jurisprudence, an international court or tribunal could not order a provisional measure to suspend ongoing unilateral oil activities in marine area in dispute as long as the extent and intensity of such oil activities are so great that suspending such activities would cause irreparable prejudice to the right of the party who undertakes such activities. In this sense, it can be imagined that States to a marine dispute would be motivated to undertake as many unilateral oil exploration and exploitation activities as possible since these unilateral activities would not be deemed illegal provided that relevant marine areas of oil operations are found to belong to them in the end.