OWNERSHIP AND CONTROL ISSUES REGARDING OIL, GAS, AND HARD MINERALS IN AREAS OF DISPUTED BORDERS—A WEST AFRICAN PERSPECTIVE
| Jurisdiction | United States |
(Feb 1995)
OWNERSHIP AND CONTROL ISSUES REGARDING OIL, GAS, AND HARD MINERALS IN AREAS OF DISPUTED BORDERS—A WEST AFRICAN PERSPECTIVE
Aluko & Oyebode
Lagos, Nigeria
TABLE OF CONTENTS
* Introduction
* Legal Regime in the Delimitation of International Boundaries
* Prevailing Legal Regime in International Maritime Boundaries Delimitation
* Application of the Legal Regime to Land Boundaries
* Dispute Resolution in International Boundary law Chapter Two
* The West African situation
* The Bakassi Peninsula: Nigeria/Cameroon Border Dispute
* The Gulf of Guinea: Nigeria Equitorial Guinea
* The Cabinda Enclave: Dispute between Angola/Zaire Chapter Three
* Conclusion
* Bibliography
* Attached Maps
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1. INTRODUCTION
Disputes between nations over land and maritime boundaries have for a long time been a problem, perhaps because of the expansionist tendencies of certain nations or indeed because of the uncertainty over who owns particular territories as between two or more adjacent or neighbouring States. These border disputes have also been the cause of diplomatic disputes and sometimes long fought wars between States. Recent examples of these include, the persisting and seemingly intractable dispute between Nigeria and Cameroon over the Bakassi Peninsula, the dispute between Nigeria and Equitorial Guinea concerning certain parts of the Gulf of Guinea, and the dispute between Angola and Zaire over the Cabinda enclave etc.1 which would be examined in greater details in this paper.
It is not a coincidence that these and other disputed areas are usually richly endowed with mineral and natural resources which are often the major means of economic sustenance of the disputing countries. However, because of the long existence of border and boundary disputes between nations of the world and the relative success in the area of the resolution of such disputes, the law governing the delimitation of interational boundaries is becoming more and more ascertainable and may indeed be in the process of being finally established.2
According to Colombos3 three basic reasons justify the extension of the sovereignty of a coastal State beyond its land territory and its internal waters. First, a coastal State's security requires that it should have exclusive possession of its shores and that it should be able to protect its approaches. Second, for the purpose of furthering its commercial, fiscal and political interests, a coastal State must be able to supervise all ships entering, leaving or anchoring in its territorial waters. And third, the exclusive exploitation and enjoyment of the products of a coastal state's territorial sea are essential for the existence and welfare of the peoples of its coast.
Generally, the prevailing acceptable arrangement in the indentification and delimitation of international boundaries is based on various existing treaty obligations between States or agreement as to where the territory of one country ends and that of the other begins. These agreements may be expressed in Treaty Obligations or by conduct over time which may or may not involve an element of what is known in the international law as "voisinage",4 i.e a mutaully concessionary arrangement or understanding between two or more neighbouring States that is necessitated by the geographical and historical fusion or non-distinguishability and non-demarcation of the boundary line between such States.
The situation often arise that there are no Treaty Obligations or other forms of agreement which are binding on all the disputing countries or on which the compulsory obligation to follow any particular line of boundary demarcation or resolution of the dispute may be based.5 In these circumstances the existence of a generally acceptable and relatively ascertainable legal regime for the resolution of such dispute is most desirable.
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LEGAL REGIME IN THE DELIMITATION OF INTERNATIONAL BOUNDARIES
Generally, the judgments of the International Court of Justice [ICJ] and awards of ad hoc International Arbitration Tribunals are important in International Boundary Law and especially concerning International Maritime Boundaries Law. This can be attributed to several factors which include: (1) the absence of clear and unambiguous International legal codification of either the opinio juris or state practice, (2) the usual absence of treaty law that is generally accepted as binding between countries especially disputing countries, (3) the various individual legal obstacles that stand in the way of international treaties or agreements where they are available by varying ratification requirements of the municipal laws of States that were part of such treaties or agreements also, (4) the absence of the doctrine of "stare decisis" in international adjudication, (5) more importantly, the emergence and continued development of a unique line of jurisprudence made possible by a continuing series of decisions of both the ICJ and the various ad hoc arbitration tribunals has underlied the significance and importance which these decisions are presently assuming.
In this paper, as a basis for the establishment of what constitutes the legal regime in delimitation of international boundaries, the recent progress made in the particular area of International Maritime boundary delimitation law, especially in the light of relevant provisions of the 1982 Convention on the Law of the Seas6 and also that of the Statute of International Court of Justice will be examined with a view to using this as the basis for establishing what constitutes the prevailing legal regime for delimitation of international boundaries.
Prevailing Legal Regime in International Maritime Boundary Delimitation:
The delimitation of Maritime and water boundaries between adjacent or neighbouring States results more often in dispute perhaps because of the strategic importance of the maritime sea area to most States that are not landlocked.
Essentially, the goal of the law on delimitation of international maritime boundary is one for the achievement of an equitable resolution of disputes. According to the United Nations 1982 Convention on the Law of the Seas7 , with regard to the delimitation of the continental shelf and the exclusive economic zone, the legal obligation that is imposed on adjacent or neighbouring coastal States is to delimit the boundary "by agreement on the basis of international law, as referred to in Article 38 of the Statute of International Court of Justice, in order to achieve an equitable solution".
Article 15 of the UNCLOS, 1982 provides as follows:-
"Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line, every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each of the two States is measured. The above provision does not apply however, where it is necessary by
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reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith". Thus, the provision of this article can be dispensed with where circumstances justify it.
Article 38 of the statute of I.C.J empowers the Court to "decide a case ex aequo et bono, if the parties agree thereto".8
The indeterminacy of the legal regime, which is one major criticism of the current state of the law was stated graphically in the result-oriented decision of the International Court of Justice in the Continental Shelf [Tunisia/Libya case]:
"It is, however, the result which is predominant: the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result. It is not every principle which is in itself equitable; it may acquire this quality by reference to the equitableness of the solution. The principle to be indicated by the Court have to be selected according to the appropriateness for reaching an equitable result. From this consideration it follows that the term "equitable principles" cannot be interpreted in the abstract; it refers back to the principles and rules which may be appropriate in order to achieve an equitable result" 9 .
An illustration of the result of this absolute approach by the I.C.J in this case is shown graphically in the attached map 'A' showing the maritime boundary between Tunisia and Libya and also the award boundary line delimited by the I.C.J taking into consideration the relevant principles.
As shown on the attached map A, the Court found justification for using the 26 line because [1] it corresponds with the line perpendicular to the coast at the point of this terminus of the land frontier and [2] approximately the same line has been used for fisheries relations between the two countries for several years.
The Court determined the relevant circumstances in this case to be:
1. The change in direction of the Tunisian coast where it doubles back in a South-west-Northeast direction;
2. The Tunisian Island, North-west of Libya;
3. Existing and potential delimitation with other States;
4. The point of intersection of the land frontier; and
5. the prior conduct of the parties.
The Court therefore ordered that the delimitation following the 26 line in its initial stage and decided that the line 52 East of the North be followed at a later stage when the Tunisian coastline makes the abrupt North-East tilt.10
[see attached map 'A']
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This absolute result-oriented attitude as formulated in the I.C.J pronouncement above falls short of the...
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