On 23 September 2017, a Special Chamber [the Chamber] of the International Tribunal for the Law of the Sea [ITLOS] rendered its Judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire). Apart from the maritime boundary delimitation, the Judgment also dealt with issues concerning oil exploitation activities in the disputed area.
This case is the first in the history of ITLOS that has addressed the lawfulness of unilateral hydrocarbon activities in a disputed maritime area; the decision is also noteworthy because it is the first judgment of an ITLOS ad hoc chamber.Footnote 1 This paper focuses on the relevant issues in the Judgment on unilateral hydrocarbon activities, which is of great interest to states and international oil companies, as it raises crucial questions as to what activities may or may not be permissible under international law pending a delimitation.Footnote 2
Ghana and Côte d'Ivoire are adjacent states,Footnote 3 bordering the Gulf of Guinea, which is rich in hydrocarbons.Footnote 4 The litigation was initiated by Ghana against Côte d'Ivoire under Annex VII to the United Nations Convention on the Law of the Sea [UNCLOS],Footnote 5 but the two states agreed to submit the dispute concerning the maritime boundary between them in the Atlantic Ocean to a special chamber of the Tribunal, based on a special agreement concluded on 3 December 2014.Footnote 6 The Special Chamber comprised three Members of the ITLOS (Judges Bouguetaia, Wolfrum, and Paik) and two Judges ad hoc (Thomas Mensah appointed by Ghana and Ronny Abraham appointed by Côte d'Ivoire).Footnote 7 According to Ghana, it had brought the proceedings to resolve a maritime boundary dispute with Côte d'Ivoire.Footnote 8 In 2009, Ghana intensified its oil activities in the disputed area following significant discoveries—especially in the TEN (Tweneboa, Enyenra, Ntomme) field,Footnote 9 an area also claimed by Côte d'Ivoire.Footnote 10 Ghana claimed that its activities “in the relevant area … have been conducted in accordance with a common understanding of a customary boundary”.Footnote 11 Due to their competing maritime claims, the disputed area arose between Ghana and Côte d'Ivoire. Despite Côte d'Ivoire's repeated requests in 2009, 2011, and 2014 to suspend any unilateral activity in the disputed area, Ghana's drilling operations continued.Footnote 12 Between 2008 and 2014, the parties engaged in ten rounds of bilateral negotiationsFootnote 13 as to what should be the appropriate method to delimit their maritime zones.Footnote 14 However, no fewer than thirty drilling operations took place between 2010 and 2014 while the two parties held bilateral negotiations.Footnote 15 Côte d'Ivoire stated that the oil exploration activities conducted by Ghana in the majority of the blocks were located entirely or partially in the disputed area.Footnote 16 The maritime areas in which some of the drilling operations took place were very close to the “customary equidistance boundary” claimed by Ghana.Footnote 17 Côte d'Ivoire pointed out that at least two deposits (the Tano West 1 and the TEN field) where Ghana conducted hydrocarbon activities straddled the provisional equidistance line drawn either by Côte d'Ivoire or by Ghana.Footnote 18 Finally, the Chamber rejected Ghana's “customary equidistance boundary” argument and fixed the course of the maritime boundary for the territorial sea, the exclusive economic zone [EEZ], and the continental shelf within and beyond 200 nm between Ghana and Côte d'Ivoire.Footnote 19 Ghana thus received a boundary that was even more favourable than the boundary claimed by it in its final submissions.Footnote 20
The question of the alleged violation of the UNCLOS and international law by Ghana's activities was raised by Côte d'Ivoire in its final submission no. 2.Footnote 21 Côte d'Ivoire asked the Chamber:
(2) to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of:
(i) the exclusive sovereign rights of Côte d'Ivoire over its continental shelf, as delimited by this Chamber;
(ii) the obligation to negotiate in good faith, pursuant to article 83, paragraph 1, of UNCLOS and customary law;
(iii) the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by article 83, paragraph 3, of UNCLOS.
Ghana requested that the Chamber reject this submission.Footnote 22 In the operative clauses, the Chamber unanimously found that Ghana did not violate the sovereign rights of Côte d'Ivoire, and Ghana did not violate Article 83, paragraphs 1 and 3, of the Convention.Footnote 23
On the one hand, the Chamber's decisions provide important guidance for states and for oil and gas companies engaged in exploration and exploitation activities in disputed maritime areas.Footnote 24 For instance, the Chamber delivered its interpretation of the ambiguous text of Article 83(3) of the UNCLOS.Footnote 25 It is to be recalled that Article 83 governs the delimitation of the continental shelf, which is identical to the text of Article 74 with regard to the delimitation of an EEZ. As part of Article 83, Article 83(3) contains the obligation to enter into provisional arrangements and the obligation not to jeopardize or hamper the reaching of the final agreement pending delimitation. Currently, there are about 200 areas where a definitive maritime boundary has not yet been established between states whose EEZ and continental shelves overlap.Footnote 26 Articles 74(3)Footnote 27 and 83(3) of the UNCLOS set out a legal framework for states pending the delimitation of the EEZ and continental shelf. The first obligation under Articles 74(3) and 83(3) attempts to promote interim regimes and practical measures that could pave the way for provisional utilization of disputed areas pending delimitation.Footnote 28 The second obligation is designed to limit activities in a disputed maritime area, as an important aspect of the Convention's objective of strengthening peace and friendly relations between nations and of settling disputes peacefully.Footnote 29 However, the temporal scope, the geographic scope, and the substantive scope of the two obligations under Articles 74(3) and 83(3) remain controversial, as the UNCLOS does not define these issues clearly. In the present case, the Chamber clarified the temporal scope of the obligations by pointing out the meaning of the term “transitional period”.Footnote 30 It also held that the two obligations under Article 83(3) constitute obligations of conduct,Footnote 31 not obligations of result.
On the other hand, this Judgment also received widespread criticism, particularly with respect to Côte d'Ivoire's submission no. 2(iii), concerning whether Ghana violated the obligation not to jeopardize or hamper delimitation under Article 83(3). Judge Paik, as a member of the ad hoc Chamber, was critical in his Separate Opinion, stating that “the reason given by the Chamber in support of its conclusion [is] insufficient and unconvincing”.Footnote 32 He further noted that if there had been no reference to the phrase “Ivorian maritime area” in Côte d'Ivoire's final submission no. 2(iii), he would have voted in favour of Côte d'Ivoire.Footnote 33
In addition, the literature has also pointed out that the Chamber's views on the non-violation of Article 83(3) by unilateral drilling are quite problematicFootnote 34 and not convincing.Footnote 35 Commentators have listed their reasons, such as “a violation of Article 83(3) UNCLOS is not contingent on whether the activities are being carried out in a state's maritime area”,Footnote 36 and that the reason given by the Chamber was a technical argument to the effect that Côte d'Ivoire had framed its request for relief narrowly due to its drafting slip.Footnote 37 As for the impact of the Judgment, there is a concern that states would be motivated by the Chamber's jurisprudence to undertake as many unilateral oil activities as possible,Footnote 38 and it has also been asserted that the Chamber missed an important opportunity to bring more clarity to the meaning of the obligation “not to jeopardize or hamper delimitation”.Footnote 39
Given these extensive criticisms, one may ask whether the Judgment is truly untenable. To what extent can the Chamber's ruling guide states or, as asserted by the criticism, “send a wrong signal to states pondering over their next move in a disputed maritime area elsewhere”?Footnote 40 In order to fully assess the Chamber's controversial ruling, particularly on submission no. 2(iii), a further step is needed. Unlike the previous literature, the main task of this paper is to systematically examine the Chamber's approaches to submission no. 2(iii), by taking into account submission nos. 1, 2(i), and 2(ii) as a whole. As will be pointed out first, within the same submission no. 2 there are inconsistent understandings of “Ivorian maritime area” by the Chamber. This perhaps would be the Achilles heel of the Judgment on the alleged violation of Article 83(3). In addition, apart from the discussions in previous written works, there is still some room for exploring several interrelated and important issues in the Judgment, such as the inconsistent characterization of the dispute, the questionable jurisdictional basis of forum prorogatum, the inconsistent approaches between the Judgment and the Order of the provisional measures, the logical gap in the Chamber's reasoning, and so on.
This paper is divided into five parts: Part I provides some observations on the jurisdiction of Côte d'Ivoire's submission no. 2. Part II addresses the issue of the alleged violation of sovereign rights; inconsistent approaches can be found between the Judgment and the Order of the provisional measures. Part III examines the issue of the compliance of Article 83(3); several instances of the Chamber's inconsistent treatment of the same term “Ivorian maritime area” within the same submission no. 2 will be highlighted. This part also reveals the logical gap in the Chamber's reasoning. Part IV proposes a possible solution to identify the real meaning of the wording “Ivorian maritime area” within submission no. 2(iii). The last part offers some concluding remarks.
I. JURISDICTION ON SUBMISSION NO. 2
As the Chamber rightly pointed out, in order to ascertain that it had jurisdiction to entertain the claim invoking Ghana's international responsibility, it had to ascertain first whether the Special Agreement of 3 December 2014 [Special Agreement] provides for jurisdiction.Footnote 41 Therefore, the Chamber first had to characterize Côte d'Ivoire's claims.
A. Piercing the Veil of “Dispute on International Responsibility” Characterized by the Chamber
The task of the Chamber was to answer whether submission no. 2 fell within the scope of the words “dispute concerning the delimitation of their maritime boundary” in the Special Agreement. It characterized Côte d'Ivoire's submission no. 2 as “a dispute on international responsibility deriving from hydrocarbon activities in the disputed area”,Footnote 42 by taking submission nos. 2(i), 2(ii), and 2(iii) as a whole. Then it concluded that such a dispute fell outside the scope of “dispute concerning the delimitation of their maritime boundary”.Footnote 43
However, by characterizing the dispute with such a general term, it seems that the Chamber ignored or took lightly the three concrete aspects of the dispute in submission no. 2 under the veil of “a dispute on international responsibility”: the alleged violation of the sovereign rights over a continental shelf, the alleged violation of the obligation to negotiate under Article 83(1), and the alleged violation of Article 83(3). In fact, all three claims at least plausibly have a close relationship with the maritime boundary delimitation dispute.
It is notable that when the Chamber made its conclusion, it did not mention its previous statement “a dispute on international responsibility deriving from hydrocarbon activities in the disputed area”; rather, it just stated “it would stretch the meaning of the words ‘dispute concerning the delimitation of their maritime boundary’ too much to interpret it in such a way that it included a dispute on international responsibility”.Footnote 44 There is a big difference between “a dispute on international responsibility deriving from hydrocarbon activities in the disputed area” and “a dispute on international responsibility”. It is not convincing enough for the Chamber to rely just on examining the abstract relationship between the general term of “a dispute on international responsibility” and the words “dispute concerning the delimitation of their maritime boundary”.Footnote 45 As noted by the Chamber itself, “the Convention does not contain rules concerning international responsibility”,Footnote 46 and thus the expression “a dispute on international responsibility” may give an impression that such a dispute on international responsibility has a weak or remote connection with the UNCLOS, not to speak of a dispute concerning the delimitation. That is probably why the Chamber considered that “it would stretch the meaning of the words ‘dispute concerning the delimitation of their maritime boundary’ too much to interpret it in such a way that it included a dispute on international responsibility”.Footnote 47 In order to discover the real connection between the claims within submission no. 2 and the words “dispute concerning the delimitation of their maritime boundary”, the veil of “dispute on international responsibility” has to be pierced.
Therefore, it is necessary to characterize the three claims within submission no. 2 separately. With respect to submission no. 2(i), the real question the Chamber needs to answer is whether the words “dispute concerning the delimitation of their maritime boundary” embrace a dispute on the violation of sovereign rights by unilateral activities in the Ivorian maritime area as delimited by this Chamber. With respect to submission no. 2(ii), the real question is whether the words “dispute concerning the delimitation of their maritime boundary” embrace a dispute on the violation of the obligation to negotiate under Article 83(1) and customary law by unilateral activities in the Ivorian maritime area. With respect to submission no. 2(iii), the real question is whether the words “dispute concerning the delimitation of their maritime boundary” embrace a dispute on whether unilateral activities in the Ivorian maritime area constitute violation of the obligation not to jeopardize or hamper the conclusion of an agreement under Article 83(3).
One must note that the answer to the above three questions depends on the meaning of the term “concerning” in the Special Agreement. More discussion on “concerning” will be addressed in the next section.
B. Inconsistent Characterization of the Dispute
In order to decide whether the words “dispute concerning the delimitation of their maritime boundary” embrace a dispute on international responsibility deriving from hydrocarbon activities in the disputed area,Footnote 48 the Chamber put forward its own standard of “concerning”, namely, the word “concerning” may be understood to include within the scope of the dispute other issues that are not part of delimitation but are closely related thereto.Footnote 49 Although the Chamber did not say what “closely related thereto” means, it concluded that “dispute on international responsibility” cannot be embraced by the scope of “dispute concerning the delimitation of their maritime boundary”.Footnote 50 As will be demonstrated below, such a conclusion is not only inconsistent with the previous jurisprudence of international institutions, but it is also inconsistent with the Chamber's own reasoning in the present case.
In Conciliation Between The Democratic Republic of Timor-Leste and The Commonwealth of Australia, the Conciliation Commission faced a similar issue of how to interpret the term “concerning”. The matters Timor-Leste submitted include not only the issue of delimitation but also the issue of transitional arrangements between two countries in the disputed maritime areas.Footnote 51 Australia objected that the latter matter was outside Article 298 of the UNCLOS, because it did not concern the matters in that Article.Footnote 52 After examining Articles 74 and 83, the Conciliation Commission gave its interpretation as to the term “dispute concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations” within Article 298. It found that Timor-Leste's request regarding transitional arrangements did not lie outside the scope of Article 298(1)(a)(i).Footnote 53 In other words, the issue of transitional arrangements fell within the scope of “dispute concerning the interpretation or application of articles 74 and 83 relating to sea boundary delimitations”. Since the issue of transitional arrangements in the disputed maritime areas emerged from Articles 74(3) and 83(3), by analogy, the issue regarding alleged violations of Article 83(3) also fell within the scope of “dispute concerning the interpretation or application of Articles 74 and 83 relating to sea boundary delimitations”. Hence, according to the Commission, a close relationship existed between the alleged violation of Article 83(3) and Article 83 relating to sea boundary delimitation.
By contrast, the Ghana/Côte d'Ivoire case took a different view. The Chamber believed that “it would stretch the meaning of the words ‘dispute concerning the delimitation of their maritime boundary’ too much to interpret it in such a way that it included a dispute on international responsibility”.Footnote 54 In the Chamber's standard of “concerning”, there is no close relationship between the issue of an alleged violation of Article 83(3) and “dispute concerning the delimitation”. Accordingly, the Chamber’s opinion on the characterization of the dispute is inconsistent with the Conciliation Commission’s.
In addition, the Chamber's approach to the term “concerning” is inconsistent with the jurisprudence of the M/V “Louisa” case, in which the Tribunal held that:
[T]he use of the term “concerning” in the declaration indicates that the declaration does not extend only to articles which expressly contain the word “arrest” or “detention” but to any provision of the Convention having a bearing on the arrest or detention of vessels.Footnote 55
According to the Tribunal, “concerning” means “having a bearing on”; such a threshold is lower than the “closely related thereto” standard adopted by the Chamber.
Moreover, the Chamber's characterization of the dispute is contrary to its own reasoning. On the one hand, the Chamber clearly asserted that “it is evident that the dispute Between Ghana and Côte d'Ivoire on international responsibility arose out of the delimitation dispute between them”,Footnote 56 but on the other hand it held that a “dispute concerning the delimitation of their maritime boundary” does not include a dispute on international responsibility. If we suppose X represents “dispute on international responsibility”, Y represents “dispute concerning the delimitation of their maritime boundary”. Thus, a formula can be inferred from how the Chamber understood the word “concerning”:
Formula I: The relationship that Dispute X arises out of Dispute Y cannot amount to the relationship that Dispute X concerns Dispute Y.
Since the Chamber defined “concerning” as “closely related thereto”,Footnote 57 the above formula can be developed in other words: the relationship that Dispute X arises out of Dispute Y cannot amount to the relationship that Dispute X is closely related to Dispute Y.
However, the Chamber seems to have adopted another approach which is inconsistent with the above formula regarding the meaning of “concerning”. The Chamber ruled that “articles 286 and 288 of the Convention, according to which the jurisdiction of the dispute-settlement bodies under Part XV of the Convention concerns the interpretation and application of the Convention, do not bar it from deciding on international responsibility”.Footnote 58 Based on such a statement, it is inferred that the Chamber presupposed Article 288 to be applicable and had been satisfied in the present case; thus, the Chamber considered the dispute on international responsibility to fall within the scope of Article 288, namely, a dispute “concerning the interpretation or application of this Convention”.Footnote 59 Although the Chamber did not expressly explain what is the meaning of “concerning”, its statement indicates how it understood the word “concerning”. On the one hand, the Chamber implicitly considered that a dispute on international responsibility is included within the term “dispute concerning the interpretation or application of this Convention”. On the other hand, as the Chamber had expressly stated that “the Convention does not contain rules concerning international responsibility”,Footnote 60 a dispute on international responsibility is thus not part of a dispute on the interpretation or application of the Convention. Yet it should be noted that international responsibility arises out of a violation of international obligation; thus, a dispute over international responsibility arises out of a dispute on the interpretation or application of the Convention. If we suppose X represents “dispute on international responsibility”, Y represents “dispute on the interpretation or application of the Convention”. Therefore, the Chamber's new formula on the meaning of “concerning” here can be inferred:
Formula II: The relationship that Dispute X arises out of Dispute Y can amount to the relationship that Dispute X concerns Dispute Y.
This formula can be developed in other words: the relationship that Dispute X arises out of Dispute Y can amount to the relationship that Dispute X is closely related to Dispute Y.
Formula I (regarding the relationship between “dispute concerning delimitation” and dispute on international responsibility) is inconsistent with Formula II (regarding the relationship between “dispute concerning the interpretation or application of this Convention” and dispute on international responsibility).
Although the word “concerning” appears in two different documents, namely, the Special Agreement and Article 288 of the UNCLOS, according to Article 31(3)(c) of the Vienna Convention on the Law of Treaties [VCLT], when interpreting a treaty, “any relevant rules of international law applicable in the relations between the parties” shall be taken into account, together with the context. In the present case, Article 288 of the UNCLOS is a relevant rule of international law applicable in the relations between Ghana and Côte d'Ivoire; as a result, when interpreting the word “concerning” in the Special Agreement, the meaning of “concerning” in Article 288 shall be taken into account, together with the context. Thus, it is inappropriate to take the word “concerning” in the two legal documents in a contradictory manner. Regrettably and questionably, the Chamber had done just that, by interpreting “concerning” in the Special Agreement restrictively while interpreting “concerning” in Article 288 of the UNCLOS broadly.
C. Questionable Jurisdictional Basis of Forum Prorogatum
After considering that submission no. 2 was not covered by the Special Agreement,Footnote 61 the Chamber established its jurisdiction on the basis of forum prorogatum, as Ghana had not objected to the Chamber deciding on the allegation that it was internationally responsible; rather, Ghana argued against the claim made by Côte d'Ivoire.Footnote 62
However, this approach has or may cause three legal problems. First, it will face the problem of admissibility. Côte d'Ivoire's allegations in submission no. 2 were essentially a counter-claim,Footnote 63 as submission no. 2 was made in the counter-memorial of Côte d'Ivoire and appeared as part of the submissions.
According to Article 98(1) of the ITLOS Rules, “A party may present a counter-claim provided that it is directly connected with the subject-matter of the claim of the other party”.Footnote 64 The International Court of Justice [ICJ] has held that “directly connected” is one of the requirements for the admissibility of a counter-claim.Footnote 65 Hence, whether submission no. 2 was admissible depended on whether it was directly connected with the subject matter of the claim of Ghana. However, as pointed out above, the Chamber considered the “dispute on international responsibility” (submission no. 2, also the counter-claim) not to be closely related to the “dispute concerning the delimitation of their maritime boundary” in the Special Agreement (the subject matter of the claim).Footnote 66 If A is not closely related to B, then A is not directly connected with B. Therefore, according to the Chamber, the counter-claim was not directly connected with the subject matter of the claim. Unfortunately, this conclusion made the counter-claim—submission no. 2—inadmissible.
Second, the jurisdictional basis of forum prorogatum might be problematic, as the UNCLOS and the ITLOS Statute do not provide express provision to confer jurisdiction based on forum prorogatum. While Article 54(5) of the ITLOS RuleFootnote 67 may be seen as the basis of forum prorogatum in the framework of the ITLOS,Footnote 68 it should be noted that Article 54 only applies “when proceedings before the Tribunal are instituted by means of an application”. Article 54(5) does not refer to the case “when proceedings are brought before the Tribunal by the notification of a special agreement”. The present case was brought before the Tribunal by the Special Agreement of 3 December 2014, so Article 54(5) was not applicable. Furthermore, forum prorogatum as the basis of jurisdiction is debatable, since Côte d'Ivoire's relevant allegations were by nature a counter-claim, which might have been better dealt with under Article 98 of the ITLOS Rules,Footnote 69 rather than Article 54(5).
Third, as discussed above, given that forum prorogatum cannot serve as a basis for the exercise of jurisdiction, a further legal problem the Chamber would encounter is the applicability of Article 293 of the UNCLOS. Article 293(1) reads: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”Footnote 70 It is apparent that the words “under this section” describe and limit the scope of the jurisdiction of the Tribunal. Since the jurisdiction established by the Chamber was based on forum prorogatum, a new type of jurisdictional basis which falls outside this section (part 15 of the UNCLOS), it follows that Article 293 was not applicable in this case. Thus, the Chamber's statement that “article 293, paragraph 1, of the Convention provides for the possibility to have recourse to other rules of international law”Footnote 71 is untenable, due to the inapplicability of Article 293 here.
D. Possible Solutions for the Jurisdiction Issue
Given that forum prorogatum is not appropriate to provide a jurisdictional basis for submission no. 2, then what could be the ground for the Chamber's jurisdiction? If one disaggregates the claims in submission no. 2, it could be inferred that these claims concern the delimitation of the maritime boundary. Since submission 2(ii) is about the obligation to negotiate in good faith under Article 83(1), it is difficult to see how a dispute over whether the correct procedure for delimiting a continental shelf boundary had been followed (Article 83(1)) could be anything other than a matter concerning the delimitation of a continental shelf. As for submission 2(iii) with regard to Article 83(3), if one follows the approaches of the Conciliation Between The Democratic Republic of Timor-Leste and The Commonwealth of Australia case or the M/V “Louisa” case as mentioned above, it would not be hard to find that the issue on the alleged violation of the obligation not to jeopardize or hamper delimitation concerns the maritime delimitation. Regarding submission 2(i), it is obvious that a matter on the alleged violation of the exclusive sovereign rights over the continental shelf as delimited by the Chamber Footnote 72 concerns delimitation of the continental shelf, because the term “as delimited by the Chamber” clearly indicates its close connection to delimitation.
Even if one still insists that Côte d'Ivoire's submission no. 2 falls outside the scope of “dispute concerning the delimitation of their maritime boundary”,Footnote 73 without prejudice to the above solutions, there is another way to establish its jurisdiction. It is helpful to re-examine the legal implications of Ghana's conduct in the proceedings. As noted by the Chamber, Ghana did not object to the jurisdiction on alleged international responsibility.Footnote 74 The Chamber was right that “this conduct leads the Chamber to conclude that Ghana accepted its jurisdiction to decide on the claim of international responsibility on the merits”.Footnote 75 However, as this case was brought before the Chamber by means of the Special Agreement, not by means of an application under Article 54(5) of the ITLOS Rule, a better explanation is that Ghana accepted the jurisdiction not by forum prorogatum, but rather by its intention of giving special meaning to the term “concerning” in the Special Agreement.
The rules on how to interpret the term “dispute concerning the delimitation of their maritime boundary” in the Special Agreement are subject to the relevant rules in the VCLT, as the Special Agreement Between Ghana and Côte d'Ivoire constitutes a “treaty”. According to Article 31(4), a special meaning shall be given to a term if it is established that the parties so intended.Footnote 76 In the present case, Ghana's interpretation of the terms in the Special Agreement can be inferred from Ghana's conduct. Since Ghana did not object to the jurisdiction on international responsibility, but argued against the claim made by Côte d'Ivoire, by its conduct Ghana's intention was for submission no. 2 to be covered by the words “dispute concerning the delimitation of their maritime boundary” in the Special Agreement.
On the other hand, the fact that submission no. 2 was submitted by Côte d'Ivoire indicates that Côte d'Ivoire also acknowledged that submission no. 2 was covered by the term “dispute concerning the delimitation of their maritime boundary”. In sum, there existed an agreed-upon special meaning of the term “dispute concerning the delimitation of their maritime boundary” between Ghana and Côte d'Ivoire. In other words, both Ghana and Côte d'Ivoire, by their conduct, understood the term “concerning” in a broad way so as to include submission no. 2. According to the VCLT, Article 31(4) is the exception for Article 31(1), so the special meaning of the term “concerning” between the parties should prevail over the Chamber's narrow interpretation of “concerning”. Therefore, the Chamber's opinion that “it would stretch the meaning of the words ‘dispute concerning the delimitation of their maritime boundary’ too much to interpret it in such a way that it included a dispute on international responsibility” should give way to the agreed-upon special meaning of “concerning” by the parties. As a result, the jurisdictional basis of Côte d'Ivoire's submission no. 2 can be established by the Special Agreement on the basis of the parties’ mutual understanding of “concerning”.
II. THE ALLEGED VIOLATION OF SOVEREIGN RIGHTS
Having decided its jurisdiction, the Chamber turned to Côte d'Ivoire's submission no. 2(i) regarding the alleged violation of exclusive sovereign rights by Ghana's activities. The Judgment and the Order are compared in this section, as they both concern whether unilateral activities can cause prejudice to the rights of a party.
A. Self-Contradiction in the Order of the Provisional Measures
On 27 February 2015, Côte d'Ivoire submitted to the Special Chamber a request for the prescription of provisional measures, pursuant to Article 290, paragraph 1, of the Convention.Footnote 77 Côte d'Ivoire requested the Special Chamber to prescribe provisional measures requiring Ghana to take all steps to suspend all ongoing oil exploration and exploitation operations in the disputed area.Footnote 78 On 25 April 2015, the Special Chamber delivered its Order, deciding that Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area.Footnote 79
It is easy to overlook that the Chamber adopted self-contradictory approaches in the Order of the provisional measures. On the one hand, with respect to the rights of Côte d'Ivoire, it considered that:
[T]his situation (activities result in significant and permanent modification of the physical character of the area in dispute) may affect the rights of Côte d'Ivoire in an irreversible manner if the Chamber were to find in its decision on the merits that all or any part of the area in dispute belongs to Côte d'Ivoire.Footnote 80
Similarly, the Chamber considered that “the acquisition and use of information about the resources of the disputed area would create a risk of irreversible prejudice to the rights of Côte d'Ivoire should the Chamber, in its decision on the merits, find that Côte d'Ivoire has rights in all or any part of the disputed area”.Footnote 81
However, with regard to the rights of Ghana, the Chamber took a different approach. It ruled that “suspending all exploration or exploitation activities conducted by or on behalf of Ghana in the disputed area, including activities in respect of which drilling has already taken place, would therefore cause prejudice to the rights claimed by Ghana and create an undue burden on it”.Footnote 82 This decision is inconsistent with the Chamber's approach to the potential prejudice to the rights of Côte d'Ivoire, which clearly set a fundamental precondition that any prejudice to the sovereign rights relies on “if the Chamber were to find in its decision on the merits that all or any part of the area in dispute belongs to Côte d'Ivoire”.Footnote 83 When considering the effect this suspension of these activities would have on Ghana's rights, the Chamber did not require this kind of precondition, namely: if the Chamber were to find in its decision on the merits that all or any part of the area in dispute belongs to Ghana. The Chamber rather simply concluded with certainty that the suspension “would therefore” cause prejudice to the rights claimed by Ghana and create an undue burden on it.
If one adopts the Chamber's approach regarding the alleged prejudice to the rights of Côte d'Ivoire in the Order, the conclusion on the issue of the potential prejudice to the rights of Ghana was supposed to be: pending the final decision on the merits, one cannot yet decide whether the suspension of all exploration or exploitation activities would definitively cause prejudice to the rights claimed by Ghana, and we still do not know whether the burden on Ghana would be undue or not. Such a conclusion runs contrary to what the Chamber had done.
B. Contradiction Between the Judgment and the Order of the Provisional Measures
In the Judgment, the Chamber held that:
[M]aritime activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States.Footnote 84
This means that Ghana's activities in the overlapping claimed area before the Judgment on delimitation was delivered cannot be considered as violating the sovereign rights of Côte d'Ivoire.
Nevertheless, as mentioned above, the Chamber's reasoning in the Order of the provisional measures regarding the potential prejudice to the rights of Côte d'Ivoire is: the alleged prejudicing to the sovereign rights relies on which country owns that area. Compared to the Chamber's reasoning on the merits that the alleged violation of sovereign rights does not depend on who is the owner of that area, one can find that the Chamber adopted inconsistent approaches in the Judgment and the Order.Footnote 85
Furthermore, the Chamber's approach on the merits also departs from the jurisprudence of the Aegean Sea case,Footnote 86 in which the ICJ held that:
Whereas seismic exploration of the natural resources of the continental shelf without the consent of the coastal state might, no doubt, raise a question of infringement of the latter's exclusive right of exploration; whereas, accordingly, in the event that the Court should uphold Greece's claims on the merits, Turkey's activity in seismic exploration might then be considered as such an infringement and invoked as a possible cause of prejudice to the exclusive rights of Greece in areas then found to appertain to Greece …Footnote 87
Its rationale underlying these statements suggests that the alleged violation of the exclusive sovereign rights by unilateral seismic exploration (let alone unilateral exploitation) depends on who is the owner of that area where such activity is carried out.
However, the Chamber's approach on the merits regarding the alleged violation of sovereign rights seems in line with the Chamber's approach in the Order of the provisional measures as to the potential prejudice to the rights claimed by Ghana, as both approaches rest on the premise that both Ghana and Côte d'Ivoire have sovereign rights in the disputed area. This is because first, the Chamber considered that “both States concerned have an entitlement to the relevant continental shelf on the basis of their relevant coasts”,Footnote 88 and second, when the Chamber holds that:
[M]aritime activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States.Footnote 89
It must have presupposed that there had already existed sovereign rights—otherwise there would be no such sovereign rights to be violated. Thus, it follows that, before delimitation, the Chamber presupposed and thus recognized the existence of the sovereign rights of Ghana and Côte d'Ivoire in the disputed maritime area, just as it has done in the Order of the provisional measures regarding its definitive conclusion on the prejudice to the rights claimed by Ghana.
C. Potential Effect to the Regime of Provisional Measures
The approach adopted by the Chamber at the merits stage will affect the regime of provisional measures. Under such an approach, before the Judgment is delivered, unilateral activities in the disputed area would not violate the sovereign rights of another state if the disputed area was the subject of claims made in good faith by both states. Therefore, it follows that, in the future provisional measures cases concerning unilateral activities in the disputed area, there would be no necessity to “preserve the respective rights of the parties”,Footnote 90 since there would be no violation of the sovereign rights of any state, as long as the disputed area was the subject of claims made in good faith by both states, and if a party's activities were carried out before the Judgment was delivered. How far can such an approach which was adopted by the Chamber affect future provisional measures cases concerning unilateral activities? This question will be left to future courts or tribunals.
III. THE ALLEGED VIOLATION OF ARTICLE 83(3) OF THE UNCLOS
Côte d'Ivoire's submission 2(iii) was that Ghana had violated the obligation not to jeopardize or hamper delimitation under Article 83(3) of the UNCLOS. The Chamber rejected this claim based on two reasons. First, Ghana finally suspended its activities by implementing its obligations in accordance with the Order of the Chamber of 25 April 2015.Footnote 91 This reason is unconvincing because the transitional period to which the obligation under Article 83(3) applies began well before the order of provisional measures,Footnote 92 and complying with the Order of the Chamber of 25 April 2015 cannot exonerate Ghana from its responsibility,Footnote 93 since the legal function between the regime of provisional measures and the obligation not to jeopardize or hamper is quite different.Footnote 94
The Chamber's second reason was that Ghana had undertaken hydrocarbon activities only in an area attributed to it;Footnote 95 hence, the activities of Ghana did not meet the qualification of the relevant submission of Côte d'Ivoire, since they did not take place in the “Ivorian maritime area”. Two aspects of the second reason render it unconvincing: its self-contradictory legal reasoning and the logical gap therein.
A. Self-Contradiction in the Chamber's Reasoning of “Ivorian Maritime Area”
The Chamber adopted inconsistent approaches to the interpretation of the wording “Ivorian maritime area” in different situations. It demonstrated (a) self-contradictory understandings of the term “Ivorian maritime area” between submission nos. 2(i)/2(ii) and 2(iii); (b) self-contradictory understandings of “Ivorian maritime area” between the two reasons when addressing submission no. 2(iii); and (c) self-contradictory understandings of “Ivorian maritime area” in submission no. 2(iii) between the dispute characterization phase and the merits phase.
1. Contradiction between submission nos. 2(i)/2(ii) and 2(iii)
It needs to be emphasized that Côte d'Ivoire's submission nos. 2(i), 2(ii), and 2(iii) all share the same wording “in the Ivorian maritime area” in the chapeau of submission no. 2. However, the Chamber understood “the Ivorian maritime area” contained in submission nos. 2(i) and 2(ii) in one way, and it treated “the Ivorian maritime area” in submission no. 2(iii) in another way.
Côte d'Ivoire's submission no. 2(i) requested that the Chamber declare that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constituted a violation of the exclusive sovereign rights of Côte d'Ivoire over its continental shelf, as delimited by the Chamber. When considering this submission, the Chamber first pointed out that “Ghana, when carrying out hydrocarbon activities in the TEN field, was or should have been aware that such activities were taking place in an area also claimed by Côte d'Ivoire”.Footnote 96 It continued that:
[T]he Chamber must now establish whether hydrocarbon activities carried out by a State in a disputed area before the area in question has been delimited by adjudication may give rise to international responsibility when these activities are carried out in a part of the area attributed by the judgment to the other State.Footnote 97
Compared to Côte d'Ivoire's submission no. 2(i), the statement “in a disputed area before the area in question has been delimited by adjudication” corresponded to the wording “in the Ivorian maritime area” in submission no. 2(i), and the statement “a part of the area attributed by the judgment to the other State” corresponded to the wording “as delimited by this Chamber” in submission no. 2(i). Since the “disputed area before the area in question has been delimited by adjudication” also meant an area claimed by Côte d'Ivoire (and Ghana as well) before delimitation, it demonstrates that the Chamber clearly acknowledged that the wording “Ivorian maritime area” in submission no. 2(i) meant the area that was in dispute claimed by the parties, before it was delimited by adjudication.
Côte d'Ivoire's submission no. 2(ii) requested that the Chamber declare that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constituted a violation of the obligation to negotiate in good faith, pursuant to Article 83, paragraph 1, of the UNCLOS and customary law. When considering this submission, the Chamber held that “negotiations took place between Ghana and Côte d'Ivoire over six years, with 10 meetings between 2008 and 2014. Those meetings all dealt with the issue of maritime delimitation.”Footnote 98 The expression “all dealt with the issue of maritime delimitation” must have been based on a presumption that the “Ivorian maritime area” within submission no. 2(ii) meant an area that had not been delimited because there would be no need for the parties to negotiate a delimitation issue if the relevant area had been delimited by adjudication. In addition, since the Chamber treated Ghana's activities as preserving the status quo,Footnote 99 and according to Ghana's statement that “its activities in the disputed area have been conducted in accordance with a common understanding of a customary boundary, and reflect the status quo”,Footnote 100 it follows that the Chamber acknowledged that Ghana's activities were undertaken in the disputed area. Thus, it indicates that the Chamber treated the “Ivorian maritime area” contained in submission no. 2(ii) as a disputed area claimed by Côte d'Ivoire before delimitation, not an area which had been delimited.
Nevertheless, the Chamber contradicted the above approach to the term “Ivorian maritime area” when dealing with submission no. 2(iii). Submission no. 2(iii) asked the Chamber to declare that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constituted a violation of the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by Article 83(3) of the UNCLOS. The Chamber found that “Ghana has undertaken hydrocarbon activities only in an area attributed to it”, and “the activities of Ghana … did not take place in the Ivorian maritime area”.Footnote 101 Such a conclusion by the Chamber rests on the premise that the wording “Ivorian maritime area” within submission no. 2(iii) meant an area which has already been attributed (to Côte d'Ivoire). Then it follows from the Chamber's reasoning that the nature of such an “Ivorian maritime area” is an area which had been delimited, rather than an area claimed by Côte d'Ivoire before delimitation.
As can be seen, two distinct meanings of the same “Ivorian maritime area” were adopted in the same Judgment. In submission nos. 2(i) and 2(ii), “Ivorian maritime area” meant the undelimited area claimed by Côte d'Ivoire, while in submission no. 2(iii), without any explanation by the Chamber, “Ivorian maritime area” was seen as the delimited area attributed to Côte d'Ivoire.
Particularly, since submission nos. 2(ii) and 2(iii) contain the same “Ivorian maritime area” in the chapeau of submission 2, and both submissions refer to the same Article 83, it would be reasonable to follow that the reason given by the Chamber in respect of submission no. 2(iii) concerning its interpretation of “Ivorian maritime area” can be applied to submission no. 2(ii) in a same manner. It is recalled that the Chamber held:
[T]he Chamber takes into account that Ghana has undertaken hydrocarbon activities only in an area attributed to it. This is particularly relevant in this case in the light of paragraph 2 (iii) of the final submissions of Côte d'Ivoire which reads: “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of … the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by article 83, paragraph 3, of UNCLOS”. Hence the activities of Ghana do not meet the qualification of the relevant submission of Côte d'Ivoire since they did not take place in the Ivorian maritime area. It is therefore impossible to state that Ghana has undertaken activities which have jeopardized or hampered the conclusion of an agreement as envisaged by article 83, paragraph 3, of the Convention.Footnote 102
By analogy, the same reasoning should have been applied to submission no. 2(ii), by replacing the content of underlined sentences as follows:
[T]he Chamber takes into account that Ghana has undertaken hydrocarbon activities only in an area attributed to it. This is particularly relevant in this case in the light of paragraph 2(ii) of the final submissions of Côte d'Ivoire which reads: “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of … the obligation to negotiate in good faith, pursuant to article 83, paragraph 1, of UNCLOS and customary law”. Hence the activities of Ghana do not meet the qualification of the relevant submission of Côte d'Ivoire since they did not take place in the Ivorian maritime area. It is therefore impossible to state that Ghana has undertaken activities which have violated the obligation to negotiate in good faith, pursuant to article 83, paragraph 1, of UNCLOS and customary law.
However, ironically, this was not the case, as the Chamber surprisingly did not maintain a uniform treatment of the meaning of “Ivorian maritime area” in submission nos. 2(iii) and 2(ii).Footnote 103
Taken in isolation, the plain interpretation of the term “Ivorian maritime area” may contain two meanings, namely, the “undelimited area claimed by Côte d'Ivoire” and “delimited area attributed to Côte d'Ivoire”. However, according to its structure, submission no. 2 is composed of the chapeau and three other units, namely, submission nos. 2(i), 2(ii), and 2(iii). The chapeau, as the opening words or introductory words, naturally suggests that the purpose of submission no. 2 is to generally refer to the factual description of submission no. 2 which covers submission nos. 2(i), 2(ii), and 2(iii), not to give submission no. 2(iii) a distinct treatment, as the Chamber did—for if that were its purpose, submission no. 2(iii) would appear as a separate submission. It follows that the wording “Ivorian maritime area” within the chapeau shared by submission nos. 2(i), 2(ii), and 2(iii) together should be seen as containing the same meaning. Since “undelimited” and “delimited” represent two distinct points in time, in the context of the chapeau of submission no. 2, the wording “Ivorian maritime area” logically cannot be interpreted as an undelimited area and a delimited area at the same time. As a result, there is an obvious and serious contradiction here in the Chamber's reasoning.
2. Contradiction between the two reasons for submission no. 2(iii)
In order to answer “whether the hydrocarbon activities of Ghana … jeopardized or hampered the reaching of the final agreement”,Footnote 104 the Chamber gave two reasons. The first reason is that “Ghana finally suspended its activities by implementing its obligations in accordance with the Order of the Chamber of 25 April 2015 namely, inter alia, to ensure that no new drilling either by Ghana or under its control would take place in the disputed area”.Footnote 105 The expression “in the disputed area” shows that the Chamber clearly acknowledges that Ghana's activities took place in an area that was disputed by both parties. This wording “in the disputed area” indicates that the Chamber understands the term “Ivorian maritime area” in Côte d'Ivoire's submission 2(iii) as “disputed area” or undelimited area.
However, when it came to the second reason, the Chamber did not use “the disputed area” any more. It rather stated that “Ghana has undertaken hydrocarbon activities only in an area attributed to it”, and “the activities of Ghana … did not take place in the Ivorian maritime area”.Footnote 106 As discussed above, in this part, “an area attributed to it” indicates that the Chamber understood “Ivorian maritime area” in submission no. 2(iii) as a delimited area. Therefore, the above two reasons contain two distinct and contradictory meanings of the same term “Ivorian maritime area” in submission no. 2(iii).
It also needs to be highlighted that the Chamber's understanding of “Ivorian maritime area” as a delimited area (attributed to Ghana) contradicts the question the Chamber asked itself, “whether the hydrocarbon activities of Ghana in the disputed maritime area, after realizing that that area was also claimed by Côte d'Ivoire, jeopardized or hampered the reaching of the final agreement as claimed by Côte d'Ivoire”.Footnote 107 After asking this question, the Chamber surprisingly changed its position by answering that “the Chamber takes into account that Ghana has undertaken hydrocarbon activities only in an area attributed to it … the activities of Ghana … did not take place in the Ivorian maritime area …”.Footnote 108 “An area attributed to it” is no longer a “disputed maritime area”. By answering whether Ghana's activities actually took place in Côte d'Ivoire's delimited area, the Chamber did not really answer whether the activities of Ghana in the disputed maritime area jeopardized or hampered reaching the final agreement, a question raised by the Chamber itself.
3. Contradiction from the dispute characterization to the merits-decision stage
From a procedural point of view, self-contradictory understandings of “Ivorian maritime area” can be further found in the dispute characterization phase and the merits-decision phase. In the jurisdictional phase, the Chamber had to characterize the dispute between the two parties. As held in Legality of Use of Force (Serbia and Montenegro v. Belgium), the subject of the dispute can be seen both from the statement of “facts upon which the claim is based” and from the manner in which the “claims” themselves are formulated.Footnote 109 The characterization of the dispute reflects how the Chamber understands the claims and facts at the jurisdictional stage.
Moreover, in order to objectively determine the subject matter of the dispute between the parties, it is for the Court to “isolate the real issue in the case and to identify the object of the claim”.Footnote 110 Thus, characterization of the dispute reflects the real issue and the object of the claim. In the present case, during the jurisdictional stage the Chamber clearly characterized that the dispute as reflected in submission no. 2 was “a dispute on international responsibility deriving from hydrocarbon activities in the disputed area”.Footnote 111 Such a characterization of the dispute reflects that the Chamber understands the real issue of the case and the object of Côte d'Ivoire's claim as the legality of the hydrocarbon activities in the disputed area, but not in an area attributed to Côte d'Ivoire after delimitation by the Court. Thus, the Chamber's understanding of the wording “Ivorian maritime area” in Côte d'Ivoire's submission no. 2 is the disputed area pending delimitation.
Nevertheless, at the merits phase, the Chamber interpreted “Ivorian maritime area” as an area that had already been delimited and attributed to Côte d'Ivoire. The Chamber at the merits stage seems to have ignored the premise on which it characterized the dispute, namely: the disputed area. It abandoned its previous identification of the real issue and real object of Côte d'Ivoire's submission no. 2(iii), namely, the alleged violation of Article 83(3) by Ghana's activities in the disputed area pending delimitation. Thus, its understanding of the term “Ivorian maritime area” at the merits stage contradicts the one at the dispute characterization stage.
Under the Chamber's interpretation of “Ivorian maritime area” in submission no. 2(iii), the object of the claim would have been to adjudge that the activities undertaken unilaterally by Ghana in the area that is attributed to Côte d'Ivoire by delimitation constituted a violation of Article 83(3). However, this was not the case if one takes into account the arguments of both parties before the Court. Côte d'Ivoire submitted that “Ghana's unilateral activities in the disputed area … constitute violations of the specific obligations provided for in paragraph 3 of article 83”.Footnote 112 Ghana pointed out that “any activity in a disputed area must therefore be judged … on the basis of its likely effect on the process of reaching a final agreement”.Footnote 113 One can see that neither party even mentioned the area that is attributed to Côte d'Ivoire by delimitation, rather, the parties’ arguments focused on the disputed area before delimitation. Thus, there is no dispute existing between Ghana and Côte d'Ivoire with regard to the violation of Article 83(3) as to Ghana's activities in the area that was attributed to Côte d'Ivoire after delimitation, as there was no disagreement between them with regard to the legality of Ghana's activities in the area that was attributed to Côte d'Ivoire after delimitation. As held in Nuclear Tests, “the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists between the parties”.Footnote 114 It follows that the Chamber would have had no jurisdiction if it took the term “Ivorian maritime area” in submission no. 2(iii) as an area that was actually attributed to Côte d'Ivoire after delimitation.
The Chamber's inconsistent treatment of the “Ivorian maritime area” in submission no. 2(iii) may also cause problems for the operative part of the Judgment. As held by the ICJ, “the scope of the operative part of a judgment of the Court is necessarily bound up with the scope of the dispute before the Court”.Footnote 115 By misinterpreting the meaning of “Ivorian maritime area” in submission no. 2(iii), the Chamber in fact was not dealing with the original real dispute characterized by the Chamber in the previous jurisdictional phase. Therefore, the conclusion in the Operative clauses that “Ghana did not violate article 83, paragraphs 3, of the Convention”Footnote 116 deviated from the scope of the dispute characterized by the Chamber, thus becoming problematic.
B. The Logical Gap in the Reasoning of Submission No. 2(iii)
Apart from the contradiction, there also exists a logical gap in the reasoning process when addressing submission no. 2(iii). It is helpful to reformulate submission no. 2(iii) as follows:
Suppose submission no. 2(iii) equals X. X is composed of A and B and C, then:
X = A + B + C
A = The activities undertaken by Ghana do exist;
B = The activities undertaken by Ghana were in the Ivorian maritime area;
C = The activities undertaken by Ghana violate the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by Article 83, paragraph 3, of UNCLOS.
In the Judgment, the Chamber held that:
Ghana has undertaken hydrocarbon activities only in an area attributed to it … the activities of Ghana do not meet the qualification of the relevant submission of Côte d'Ivoire since they did not take place in the Ivorian maritime area. It is therefore impossible to state that Ghana has undertaken activities which have jeopardized or hampered the conclusion of an agreement as envisaged by article 83, paragraph 3, of the Convention.Footnote 117
“Ghana has undertaken hydrocarbon activities” means proposition A is true; “they did not take place in the Ivorian maritime area” means proposition B is false; “the activities of Ghana do not meet the qualification of the relevant submission of Côte d'Ivoire” means proposition X is false; “It is therefore impossible to state that Ghana has undertaken activities which have jeopardized or hampered the conclusion of an agreement as envisaged by article 83, paragraph 3, of the Convention” means that proposition C is false. By translating the logic symbols into the reasoning process of the Chamber, then we can find:
Because proposition A is true;
And because proposition B is false;
Therefore proposition X is false;
Therefore proposition C is false
The above translation makes it easier to find the logical gap in the reasoning. Since proposition X is composed of A and B and C, if any element of X is false, it will make X false. However, the opposite is not necessarily true. Even though proposition X is false, it cannot be deduced whether proposition C is false or not. Thus, the Chamber can only demonstrate:
Because proposition A is true;
And because proposition B is false;
Therefore, proposition X is false. (X = A + B + C)
There is a logical gap between “proposition X is false” and “proposition C is false”; however, the Chamber's reasoning just leapt straight from proposition X to proposition C. It is thus necessary to distinguish between the issue of whether “the activities of Ghana meet the qualification of Côte d'Ivoire's submission no. 2(iii)” and the issue of whether “the activities of Ghana constitute a breach of the obligations under article 83(3)”. The logical gap between these two propositions should have made the Chamber incapable of drawing the conclusion that “Ghana has not violated article 83, paragraphs 3, of the Convention” (proposition C).Footnote 118
IV. A SYSTEMATIC APPROACH TO IDENTIFYING THE REAL MEANING OF “IVORIAN MARITIME AREA” WITHIN SUBMISSION NO. 2(iii)
Having disclosed that the contradiction originated from the Chamber's departure from the language of “Ivorian maritime area” within submission no. 2(iii), it is necessary to identify the real meaning of the wording “Ivorian maritime area” in the context of submission no. 2. To this end, it is essential to look for what Côte d'Ivoire really requested, by systematically analyzing Côte d'Ivoire's submissions as a whole.
As held in Nuclear Tests (Australia v. France), it was essential to consider what Australia really requested,Footnote 119 and:
[t]he Court must ascertain the true object and purpose of the claim and in doing so it cannot confine itself to the ordinary meaning of the words used; it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic exchanges brought to the Court's attention, and public statements made on behalf of the applicant Government. If these clearly circumscribe the object of the claim, the interpretation of the submissions must necessarily be affected.Footnote 120
The ICJ has also held that “it is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties”,Footnote 121 and “to isolate the real issue in the case and to identify the object of the claim”.Footnote 122
Hence, in order to identify the real object of Côte d'Ivoire's submission no. 2(iii), the Chamber cannot confine itself to the ordinary meaning of the wording “Ivorian maritime area” used by Côte d'Ivoire in the submission; it must also take into account Côte d'Ivoire's submissions as a whole, and the arguments of Côte d'Ivoire before the Court. If these clearly circumscribe the object of Côte d'Ivoire's claim, the interpretation of submission no. 2(iii) must necessarily be affected.
Accordingly, first, Côte d'Ivoire's submission nos. 2 and 1 should be taken into account as a whole. Submission no. 1 reads that “Côte d'Ivoire requests the Chamber … to declare and adjudge that the sole maritime boundary Between Ghana and Côte d'Ivoire follows the 168.7° azimuth line, which starts at boundary post 55 and extends to the outer limit of the Ivorian continental shelf”.Footnote 123 It is in this context that Côte d'Ivoire continued its submission no. 2, which requested that the Chamber declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constituted a violation of exclusive sovereign rights, Article 83(1) and Article 83(3). The wording “Ivorian maritime area” in submission no. 2 cannot be interpreted out of the context of the maritime area claimed by Côte d'Ivoire within submission no. 1. Thus, by taking into account Côte d'Ivoire's previous claim of its maritime boundary line, the natural interpretation of the wording “Ivorian maritime area” in submission no. 2 would mean the area claimed by Côte d'Ivoire in submission no. 1.
Second, the arguments of Côte d'Ivoire also indicate its purpose of submission no. 2(iii). Côte d'Ivoire based “its claim upon an alleged violation of Côte d'Ivoire's sovereign rights by Ghana by conducting or licensing hydrocarbon activities in an area over which Côte d'Ivoire claims to have sovereign rights”.Footnote 124 In particular, Côte d'Ivoire claimed that “Ghana's drilling in the disputed area must be characterized as a violation of paragraph 3 of article 83” and “that it is not necessary for drilling to have taken place in an area which you declare to be Ivorian”.Footnote 125 This means that Côte d'Ivoire clearly distinguished between the concepts “in the disputed area” and “in an area which you [the Tribunal] declare to be Ivorian”; it follows that Côte d'Ivoire was not asking the Chamber to judge the lawfulness of Ghana's activities undertaken “in an area which you [the Tribunal] declare to be Ivorian”, but “in the disputed area”. Therefore, the Chamber's understanding of “Ivorian maritime area” within submission no. 2(iii)—an area attributed to Côte d'Ivoire after delimitation—was contrary to the real intention of Côte d'Ivoire.
Third, the point can be further strengthened by the fact that even Ghana also treated the wording “Ivorian maritime area” within submission 2(iii) as pertaining to a disputed area before delimitation. According to Ghana's interpretation of Article 83(3), “Article 83(3) does not require States to refrain from any particular type of activity—however defined—in a disputed area … Any activity in a disputed area must therefore be judged … on the basis of its likely effect on the process of reaching a final agreement”.Footnote 126 Ghana did not argue its activities were not carried out in the “Ivorian maritime area”; rather, it argued it did not violate Article 83(3) on the basis of its interpretation of Article 83(3), which indicated that Ghana's argument rested on the premise that Ghana itself acknowledged that its activities were undertaken in the disputed area or the area claimed by Côte d'Ivoire. Ghana did not argue that the “Ivorian maritime area” should be read as an area attributed to Côte d'Ivoire after delimitation. If “Ivorian maritime area” meant an area attributed to Côte d'Ivoire after delimitation, Ghana would have argued that Article 83(3) was inapplicable in this case, as the temporal scope of Article 83(3) is the period pending delimitation, not a period after delimitation. Therefore, Ghana indirectly acknowledged the “Ivorian maritime area” in submission 2(iii) as a disputed area before delimitation, not an area actually attributed to Côte d'Ivoire after delimitation, as the Chamber thought.
Fourth, the real meaning of “Ivorian maritime area” can be inferred from the temporal dimension of Côte d'Ivoire's submission no. 2. Submission no. 2 contained two aspects: the geographic dimension and the temporal dimension. On the one hand, “Ivorian maritime area” represented its geographic dimension. On the other hand, the reference to “article 83, paragraph 3” in submission no. 2 indicated its temporal dimension.
In accordance with Article 83(3), “pending agreement … the States concerned … shall make every effort … during this transitional period, not to jeopardize or hamper the reaching of the final agreement”.Footnote 127 The temporal scope of Article 83(3) is the transitional period. The Chamber clearly confirmed that “the transitional period referred to means the period after the maritime delimitation dispute has been established until a final delimitation by agreement or adjudication has been achieved”.Footnote 128
Since the transitional period ends when delimitation has been achieved, Article 83(3) is not applicable to a period after delimitation. If “Ivorian maritime area” was interpreted as an area attributed to Côte d'Ivoire after delimitation, as the Chamber did, it will contradict the temporal scope of Article 83(3), thus making submission no. 2(iii) a self-contradictory claim. Therefore, to ask the Chamber to declare that Ghana's activities in an area attributed to Côte d'Ivoire after delimitation violated the obligation not to hamper pending delimitation under Article 83(3), sounds like the famous logical fallacy of asking someone to draw a rectangular circle. Conversely, if “Ivorian maritime area” were to be interpreted as an area claimed by Côte d'Ivoire before delimitation, it would match the temporal scope of Article 83(3)—the transitional period—thus making submission no. 2(iii) make sense. Therefore, it is better to interpret “Ivorian maritime area” as an area claimed by Côte d'Ivoire before delimitation.
Fifth, careful notice should be given to the change of the formulation in Côte d'Ivoire's submission no. 2 during the proceedings. In its Counter-Memorial, Côte d'Ivoire asked the Chamber:
(2) to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area, as delimited by this Chamber, constitute a violation of:
(i) the exclusive sovereign rights of Côte d'Ivoire over its continental shelf; …Footnote 129
However, in its Rejoinder, Côte d'Ivoire asked the Chamber:
(2) to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of:
(i) the exclusive sovereign rights of Côte d'Ivoire over its continental shelf, as delimited by this Chamber.Footnote 130
Côte d'Ivoire's final submission no. 2 maintained the same thing that it did in its Rejoinder. From its Counter-Memorial to the final submission, the wording “as delimited by this Chamber” was placed in different positions in the above two versions of submission. In the final submission no. 2, “as delimited by this Chamber” disappeared from the chapeau of submission no. 2, but it was added to submission no. 2(i).
When we read “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area, as delimited by this Chamber”, the wording “as delimited by this Chamber” is used to modify its previous part: the Ivorian maritime area. However, when we read “the exclusive sovereign rights of Côte d'Ivoire over its continental shelf, as delimited by this Chamber”, the wording “as delimited by this Chamber” is used to modify its previous part: its continental shelf.
According to its ordinary meaning, the term “delimited” represents the past tense, so “as delimited by this Chamber” means after having been delimited by this Chamber. Thus, the original submission no. 2 “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area, as delimited by this Chamber” means: to declare and adjudge that the activities undertaken unilaterally by Ghana in the delimited Ivorian maritime area.
Similarly, the expression in the final submission no. 2(i) that “the exclusive sovereign rights of Côte d'Ivoire over its continental shelf, as delimited by this Chamber” means: the exclusive sovereign rights of Côte d'Ivoire over its continental shelf, after its continental shelf had been delimited by this Chamber. In this regard, the wording “Ivorian maritime area, as delimited by this Chamber” refers to the area that has already been delimited. This can be confirmed by the Chamber's statements that:
[T]he Chamber must now establish whether hydrocarbon activities carried out by a State in a disputed area before the area in question has been delimited by adjudication may give rise to international responsibility when these activities are carried out in a part of the area attributed by the judgment to the other State.Footnote 131
Notably, the words “attributed by the judgment to the other State” correspond to the meaning of “as delimited by this Chamber” in submission no. 2(i), and the words “in a disputed area before the area in question has been delimited” correspond to the words “Ivorian maritime area” in the chapeau of submission no. 2.
Therefore, the deleted wording “as delimited by this Chamber” from the chapeau of submission no. 2 suggests a conclusion that Côte d'Ivoire's true intention was to use “as delimited by this Chamber” only to describe and limit submission no. 2(i), but not submission no. 2. The careful difference of the changed place of “as delimited by this Chamber” between the Counter-Memorial and the final submission signifies that Côte d'Ivoire wished to avoid being thought to be limiting its claim to the maritime area which had been delimited. If the expression “Ivorian maritime area” already means an area which has been delimited, then there would be no need to add “as delimited by this Chamber” to modify submission no. 2(i). Since “Ivorian maritime area” was under the chapeau of submission no. 2, by definition submission no. 2 includes 2(i), 2(ii), and 2(iii). Given that, there is no special reason to treat the same expression differently. The wording “Ivorian maritime area” in the final submission no. 2(iii), as its meaning in submission no. 2(i), should mean an area claimed by Côte d'Ivoire before delimitation, rather than an area which has been delimited.
Sixth, as mentioned above, the characterization of the claim reflects how a court or tribunal understands the real issue and real object of the claim.Footnote 132 The Chamber's characterization of submission no. 2 as “a dispute on international responsibility deriving from hydrocarbon activities in the disputed area”Footnote 133 has confirmed that the Chamber's understanding of the “Ivorian maritime area” within submission no. 2 (which includes submission no. 2(iii)) means the disputed area—in other words, the area claimed by Côte d'Ivoire pending delimitation.
In the light of the above reasons, according to the real object of Côte d'Ivoire's claim and the contextual reading of the term “as delimited by this Chamber”, and taking into account the context of submission no. 2 as a whole, it follows that a more proper interpretation of “Ivorian maritime area” is “an area claimed by Côte d'Ivoire before delimitation”, as it is in harmony with the whole context of submission no. 2. Thus, the Chamber's understanding of “Ivorian maritime area” in submission no. 2(iii), which referred to an area which has been delimited, is wrong. As a result, its conclusion that “hence the activities of Ghana do not meet the qualification of the relevant submission of Côte d'Ivoire since they did not take place in the Ivorian maritime area” is untenable.
V. CONCLUSION
Overall, the Ghana/Côte d'Ivoire case did not maintain a consistent approach on the question of hydrocarbon activities in the disputed area. On the Jurisdiction, there exists inconsistent characterization of the dispute; on the Merits, there exists contradictory reasoning between the Judgment and the Order of the provisional measures, and there are also contradictory understandings of “Ivorian maritime area” within submission no. 2.
It seems that the Chamber was playing linguistic games by artificially misinterpreting the wording “Ivorian maritime area” in the chapeau of submission no. 2. It is important to distinguish between the two meanings of the same “Ivorian maritime area”: the Chamber interpreted it as an area claimed by Côte d'Ivoire before delimitation when dealing with submission nos. 2(i) and 2(ii), whereas it treated “Ivorian maritime area” as an area attributed to Côte d'Ivoire after delimitation when dealing with submission no. 2(iii).
In order to find the real meaning of “Ivorian maritime area”, we must take a systematic approach by interpreting this wording in the context of Côte d'Ivoire's submissions as a whole. Accordingly, such a systematic approach clarifies that “Ivorian maritime area” in the final submission no. 2(iii) should mean an area claimed by Côte d'Ivoire before delimitation, rather than an area which is attributed to Côte d'Ivoire after delimitation. Therefore, the “formalistic reason”Footnote 134 that Judge Paik worried about can be eliminated, and the concern that “a decision in favor of Côte d'Ivoire on this point (the alleged violation of article 83(3)) given the state of the pleadings would likely have been open to the objection that it was ultra petita”Footnote 135 can be eliminated as well.
In addition, there was a logical gap in the Chamber's reasoning with regard to submission no. 2(iii). It is necessary to distinguish between the issue of whether “the activities of Ghana meet the qualification of Côte d'Ivoire's submission no. 2(iii)” and the issue of whether “the activities of Ghana constitute a breach of the obligations under article 83(3)”, as these two issues are independent of each other; whether or not the former proposition is false cannot determine that the latter is false.
Côte d'Ivoire must have learned from this case how important it is to draft submissions adequately and clearly, and to avoid any “drafting slip”.Footnote 136 However, it is also important for a court or tribunal to interpret the submissions carefully and systematically, by seeing the big picture of the context of all the submissions.
It is regrettable that the Chamber decided to address submission no. 2(iii) via an inconsistent legal construction through which it easily disposed of and rejected the claim raised by Côte d'Ivoire regarding the violation of Article 83(3). Consequently, the lack of consistency in the present case may jeopardize the persuasiveness of the Judgment. In this regard, unlike the view that “the successful resolution of this case may encourage other States to submit their unresolved maritime boundaries for delimitation by an ITLOS ad hoc chamber”,Footnote 137 this paper anticipates that states would be more careful to submit their maritime boundaries disputes by an ITLOS ad hoc chamber, as the maritime boundaries disputes normally may involve issues concerning unilateral activities in the disputed maritime area; however, such issues have not been convincingly addressed by the present case.
As the second international Judgment relating to Article 83(3),Footnote 138 although the Judgment in some respects interpreted Article 83(3),Footnote 139 the Judgment in fact circumvented the application of Article 83(3) by rejecting Côte d'Ivoire's claim based on the reason that “the activities of Ghana do not meet the qualification of the relevant submission of Côte d'Ivoire”.Footnote 140 Accordingly, this Judgment did not clarify Article 83(3) in relation to what types of conduct are prohibited and permitted in the disputed areas.
From the perspective of the result of the Judgment, the Chamber's finding that “Ghana did not violate article 83, paragraph 3 of the Convention” diverges from the jurisprudence of the previous Guyana/Suriname arbitration in which the Tribunal held that activities that do not lead to a permanent physical change to the marine environment should be permissible in a disputed area,Footnote 141 whereas activities that cause a permanent physical change may jeopardize or hamper the reaching of a final delimitation agreement as a result of the perceived change to the status quo and the prejudice of the position of the other party in the delimitation dispute.Footnote 142 In the Ghana/Côte d'Ivoire case, the Chamber's finding may imply that “intensive hydrocarbon activities with accompanying massive financial investment in the disputed area”Footnote 143 which had taken place over several years could be permissible. Nevertheless, due to the inconsistent approaches, it is expected that future courts or tribunals may not easily uphold the jurisprudence of the Chamber on the non-violation of the obligation not to jeopardize or hamper delimitation. Furthermore, due to the inconsistent approaches, states should not feel that the Chamber's decision on the non-violation of Article 83(3) is an encouragement to intensify unilateral activities in the disputed maritime area. In this sense, disputing states are well advised to enter into provisional arrangements with their neighbouring countries, as this would be a more legitimate and less risky way than unilateral activities to explore and exploit natural resources pending maritime delimitation.
