The Rights and Obligations of States in Disputed Maritime Areas: What Lessons Can Be Learned from the Maritime Boundary Dispute between Ghana and Cote d'Ivoire?

Author:van Logchem, Youri

TABLE OF CONTENTS I. INTRODUCTION 123 II. DISPUTED MARITIME AREAS AND UNILATERALISM 127 III. DISPUTED MARITIME AREAS: THE INTERNATIONAL. LEGAL FRAMEWORK 131 A. Establishing a Single Maritime Boundary 132 B. Paragraph 3 of Article 83 of the LOSC 133 C. Interpreting the Obligation to Seek Provisional Arrangements 135 D. Interpreting the Obligation to Not Hamper or Jeopardize 136 E. Paragraph 3 of Article 83 of the LOSC: What Can Be Learned from the Case Law Rendered Prior to Ghana/Cote d'Ivoire? 139 1. Aegean Sea Continental Shelf (interim measures) 140 2. Guyana v. Suriname 141 IV. THE FIRST PART OF THE PROCEEDINGS BETWEEN GHANA AND COTE D'IVOIRE: INTERIM MEASURES STAGE 143 A. Cote d'Ivoire's Position on Interim Measures 143 B. Ghana's Position on Interim Measures 145 C. The Order of the Special Chamber of ITLOS 147 V. THE SECOND PART OF THE PROCEEDINGS BETWEEN GHANA AND COTE D'IVOIRE: MERITS STAGE 150 A. Cote d'Ivoire's Contentions 150 B. Ghana's Contentions 154 C. The Special Chamber's Pronouncement on the Merits 155 1. Acquiescence in the Maritime Boundary? 156 2. The Maritime Boundary Established by the Chamber 157 3. A Judgment on Delimitation: Constitutive or Declarative of Rights? 158 4. Were Paragraphs 1 and 3 of Article 83 of the LOSC Breached by Ghana? 160 5. The Special Chamber's Interpretation of the Obligation to Not Hamper or Jeopardize 162 6. Acting Unilaterally in Areas Brought under the Exclusive Jurisdiction of the Other Claimant: Can There Be International Responsibility? 164 7. The Separate Opinion of Judge Paik: The Neglected Importance of the Obligation to Not Hamper or Jeopardize 167 VI. THE IMPLICATIONS OF GHANA/COTE D'IVOIRE FOR THE RIGHTS AND OBLIGATIONS OF STATES IN DISPUTED MARITIME AREAS: A MUDDYING OF THE WATERS? 170 VII. CONCLUDING REMARKS ON BROADER IMPLICATIONS FOR DISPUTED MARITIME AREAS: DOES THE JUDGMENT PROVIDE CAUSE FOR ALARM? 176 I. INTRODUCTION

Frequently, states unilaterally undertake acts in disputed maritime areas in relation to mineral resources. This might involve a broad spectrum of categories of acts that are different in nature and aim: for example, acts paving the way for activities related to mineral resources to proceed through concessioning; activating these concessions; conducting seismic work to map out the mineral resource potential in a disputed maritime area; undertaking exploratory drilling to assess whether earlier located deposits are commercially viable; and appropriating mineral resources through exploitation. (1) Along this range of conduct, different measures of damage will be caused to the marine environment. (2) These acts, when undertaken unilaterally, regularly engender conflict between claimant states; however, the exact measure thereof varies with the specific situation and the type of conduct concerned. (3) It is not easy to answer the question of what unilateral acts can be lawfully undertaken in disputed maritime areas in relation to mineral resources from the perspective of international law--perhaps inherently so, due to the fact that the circumstances surrounding a particular disputed maritime area are entwined with determining this scope. (4) Scholars also continue to puzzle over this issue. (5)

The most recent addition to the case law relevant to the issue of unilateralism in disputed maritime areas is the judgment on the merits in the dispute between Ghana and Cote d'Ivoire (Ghana/Cote d'Ivoire) that was handed down by a Special Chamber of ITLOS (Special Chamber or Chamber) on September 23, 2017. (6) Also relevant in this regard is the interim measures order that was delivered by ITLOS previous thereto, on April 25, 2015. (7)

More specifically, this Article will seek to analyze to what extent Ghana/Cote d'Ivoire has made a positive contribution on two issues: first, the interpretation of paragraph 3 of Article 83 of the United Nations Convention on the Law of the Sea (LOSC or Convention) as such, predominantly the obligation to not hamper or jeopardize continental shelf delimitation, given that it figured quite heavily in this case; and, second--which is, to a certain extent, intermingled with the first issue--the issue of what the rights and obligations of states are in relation to mineral resources within disputed maritime areas on the basis of Ghana/Cote d'Ivoire.

In addition, an alternative line of inquiry will be considered: the question of whether, in relation to the remaining scope for unilateralism in disputed maritime areas, there has been a blurring of the distinction between lawful and unlawful unilateral acts because of how the Chamber in Ghana/Cote d'Ivoire framed its reasoning and the conclusions it reached in relation thereto. There is a general caveat in relation to the scope remaining for unilateralism in disputed waters concerning mineral resources under international law: it has never fully crystallized. (8) After analyzing the case law rendered before Ghana/Cote d'Ivoire, it could be stated with greater certainty that unilateral conduct causing irreparable prejudice to rights would be prohibited in a disputed maritime area. (9) However, the judgment of the Special Chamber in Ghana/Cote d'Ivoire, discussed in Part V.C., raises some fundamental questions regarding the state of international law in relation to unilateral conduct in disputed maritime areas. (10)

In terms of organization, this Article is divided into two parts. The first Part will offer a more general introduction to the topic at hand, while Part II will discuss unilateralism in disputed maritime areas. Attention will be first directed towards disputed territorial sea, exclusive economic zone (EEZs), and continental shelf areas as general phenomena. This is necessary because the Special Chamber in Ghana/Cote d'Ivoire was called upon to effect a delimitation of these maritime zones conjointly. After shortly describing how disputed maritime areas came into being and can be dealt with, the international legal framework applicable to these areas in the period prior to delimitation will be laid out. Relevant in this regard are Articles 15, 74, and 83 of the LOSC. (11) Special emphasis will be placed on paragraph 3 of Article 83 of the LOSC, dealing with disputed continental shelf areas and fulfilling a central role in the argumentation of Cote d'Ivoire, as described in particular in Parts IV.A and V.A; the modalities of this paragraph will be laid out in Parts III.B--III.E. Paragraph 3 reads, in full, as follows:

Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. (12) Two cases, respectively dealt with by the ICJ and an arbitral tribunal and delivering their decisions some three decades apart, have contributed to a more advanced understanding of how to interpret the rules and obligations of international law that are relevant in pinpointing the existing scope for unilateralism in disputed EEZ and continental shelf areas: that is, in 1976 in Aegean Sea Continental Shelf (interim measures) and in 2007 in Guyana v. Suriname. (13) Both cases involved disputed maritime areas, in which acts in relation to mineral resources were undertaken unilaterally, and against which one of the parties to the dispute protested. Guyana v. Suriname will be looked at as to how paragraph 3 of Article 83 of the LOSC has been understood in this case. Also, the ICJ's decision in Aegean Sea Continental Shelf (interim measures) will be analyzed. In its award in Guyana u. Suriname, the tribunal attributed a central role to what the ICJ held in the aforementioned interim measures procedure in interpreting paragraph 3. (14) Guyana v. Suriname has been argued, wrongly in the view of this author, to have resolved the conundrum of what scope is reserved for unilateralism in relation to mineral resources within disputed EEZ/continental shelf areas. (15) Although the decision in Guyana v. Suriname, heavily building on the ICJ's ruling in Aegean Sea Continental Shelf (interim measures), can be applauded for clarifying, to a certain extent, the scope for unilateral acts relating to mineral resources, the award and the reasoning of the tribunal has tended to provoke questions of its own. One of these questions is the extent to which it is appropriate to apply, by analogy, the findings of this tribunal to disputed maritime areas in a general sense and, thus, to consider it to be the final word on what scope remains for unilateralism in disputed maritime areas. (16)

An important aspect to Ghana/Cote d'Ivoire is that Ghana was on the verge of starting to produce oil from previously drilled wells. (17) Questions about the lawfulness of the unilateral acts by Ghana already rose to the fore in the interim measures phase. (18) The primary measure of interim protection sought from the Special Chamber was to order Ghana to put all mineral resource activity within the disputed area on hold prior to delimitation. (19) An important motivation for Cote d'Ivoire to take this position was as follows: through the unilateral acts of Ghana, the exclusivity of its sovereign rights over the continental shelf was infringed upon to an extent that the resulting damage was irreparable. (20) In formulating this argument, Cote d'Ivoire relied heavily on the obligation incumbent on Ghana to not hamper or jeopardize the final delimitation of a disputed continental shelf area, which is contained in paragraph 3 of Article 83 of the LOSC. (21) During the merits phase, this line of argument was repeated by Cote d'Ivoire. (22) As a result, the Chamber was called upon to interpret the wide and diversified range of unilateral conduct by Ghana in relation to the disputed continental shelf area...

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