By: Alex Oude Elferink
Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.
The Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), which has been decided by a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) is a further addition to a long series of maritime boundary cases. In writing the concluding chapter of the edited volume Maritime Boundary Delimitation: The Case Law; Is it Consistent and Predictable?, the author of this post and his co-editors Tore Henriksen and Signe Veierud Busch made a forecast about the outcome of Ghana/Côte d’Ivoire on the basis of the existing case law – the text of the chapter was finalized on 10 May 2017 (on file with the author). This concerned the following points:
First, there is no reason to assume that […] the Chamber of the ITLOS will not apply the three-stage approach. Second, the coastal geography […] is such that we expect that a strict equidistance line, or an equidistance line very similar to the strict equidistance line, will be adopted as the provisional delimitation line. Third, we do not expect a radical departure from the equidistance line after the second-stage consideration of the relevant circumstances […]. Hydrocarbon licensing is likely to be considered as a potential relevant circumstance […], but it is not expected that this practice requires a shifting of the provisional line.
We also anticipated that the Chamber would “have no difficulty in determining the relevant coasts and the relevant area”. We indicated a couple of options for the relevant coasts of both parties, and for both Ghana and Côte d’Ivoire the Chamber adopted a relevant coast that was among the options we presented (for the Chamber’s selection see para. 379 and Sketch-map No. 2). Similarly, we submitted that:
[t]he relevant area can be expected to be bounded by the relevant coasts and the outer limits of the maritime zones of the parties. Depending on the definition of the relevant coasts, the lateral limits of the relevant area will be either perpendiculars to the general direction of these coast, lines of longitude (meridians) or the (potential) maritime boundaries with neighboring States.
As a matter of fact, the Chamber used the relevant coasts, meridians and the outer limits of the continental shelf beyond 200 nautical miles to define the relevant area (see paras 383-386 and Sketch-map No. 3). We concluded our analysis by noting that:
Our assessment of Ghana/Côte d’Ivoire […] strongly suggests that the law and methodology as developed by the case law result in a degree of predictability. It would not even seem unreasonable to submit that [it] suggest[s] a high degree of predictability.
Although the Special Chamber’s approach to the delimitation of the maritime boundary in Ghana/Côte d’Ivoire to a large degree aligns with the earlier case law and arguably contributes to the objective of predictability of the delimitation process, to which the Chamber explicitly refers (paras 281 and 289), there are a couple of points in the judgment that may seem to raise some concerns in that respect. The current post focusses on those points.