1. BACKGROUND HISTORY
On 3 December 2014, Ghana and Côte d’Ivoire entered into a Special Agreement to submit the maritime border dispute to a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) following the breakdown of formal bilateral negotiations to resolve the impasse. Further on 27 February 2015, Côte d’Ivoire filed a Request for the prescription of provisional measures to the Special Chamber requesting ITLOS to grant temporary provisional measures for Ghana to suspend all oil exploration and production activities in the disputed maritime boundary pending the resolution of the full case in late 2017.
It is important to note that as far back as late 2008, just a year after Ghana’s first ever commercial discovery of oil and gas resources, Professor Raymond Bagulo Bening of the Department of Geography and an authority on African boundaries, drew the attention of the Ghanaian authorities on the need to partition the eastern portion of the Tano Lagoon and to define the maritime boundary between Ghana and La Côte d’Ivoire in view of the extensive oil exploration activities by both countries in their territorial seas (Bening, 2008).
However, as he suggests, Government of Ghana took no notice of these suggestions until Côte d’Ivoire raised the issue of the maritime boundary with the United Nations in 2010. It is also important to note that though land boundaries were generally delimited and demarcated during the colonial times, very little attention was paid the determination of the maritime boundaries. Ghana argues that the common maritime boundary between the two countries though not formally delimited, has been mutually recognized for decades in numerous ways such that both countries have carried out oil and gas exploration and production taking into account this ‘gentleman’s agreement’.
2. WHAT IS AT STAKE?
The disputed area (see charts below) covers portions of the TEN and the Deepwater Tano blocks in Ghana’s territorial waters. Tullow, Kosmos, Vanco and others are exploring for commercial oil plays in this ultra-deepwater terrain. The disputed maritime area is estimated to hold about 2 billion barrels of oil reserves and another 1.2 trillion cubic feet of natural gas. In April 2013, media reported that France’s Total had struck oil on the CI-100 block off Ivory Coast’s maritime border and adjacent Ghana’s. The block lies in close proximity to the producing Jubilee field and the now being developed Tweneboa-Enyenra-Ntomme (TEN) Fields.
3. REQUEST OF BOTH PARTIES
In its request, Côte d‘Ivoire asked the Special Chamber to prescribe as provisional measures that Ghana shall:
“Take all steps to suspend all oil exploration and exploitation operations under way in the disputed area;
Refrain from granting any new permit for oil exploration and exploitation in the disputed area;
Take all steps necessary to prevent information resulting from past, present or future exploration operations in the disputed area conducted by Ghana, or with its authorization, from being used in any way whatsoever to the detriment of Côte d’ivoire;
And, generally, take all necessary steps to preserve the continental shelf, the waters super-adjacent to it, and its subsoil; and
Suspend, and refrain from, any unilateral activity entailing a risk of prejudice to the rights of Côte d’Ivoire and from any unilateral action which could lead to aggravating the dispute”
Ghana requested the Special Chamber to simply “deny all of Côte d’Ivoire’s requests for provisional measures.”
4. RULING OF THE SPECIAL CHAMBER
In its somewhat ‘maintaining-the-status-quo ruling’, the Special Chamber needed only to satisfy itself that the rights which Côte d’Ivoire claims on the merits and seeks to protect are “at least plausible” on the balance of probabilities.
The Court sought to safeguard the respective sovereign and economic rights of both countries which may be adjudged in its final Judgment based on the merits to belong to either Party. The court also in an earlier case made the point that it may not prescribe provisional measures unless it finds that there is “a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute”. As judge ad-hoc Thomas Mensah notes in his supplementary to the ruling, provisional measures have as their object “preservation of the respective rights of the parties in the case, pending the final decision on the merits”.
The Special Chamber ruled that Côte d’Ivoire had presented enough material to show that the rights it seeks to protect in the disputed area were plausible and that there exists a link between the rights Côte d’Ivoire claims and the provisional measures it sought. However, the Chamber dismissed Côte d’Ivoire’s claims of harm to the marine environment by saying they had not adduced enough evidence in support of it. Côte d’Ivoire gave Ghana the leeway by saying that it “does not necessarily mean that all activities in a disputed area are to be excluded, but such activities are lawful only if they do not imperil … the judicial … decision ultimately established”. Thus, ex-post, she would not materially suffer any losses should Ghana continue with current activities.
Ghana maintained there would be serious financial implications and she “would be severely harmed if the provisional measures requested by Côte d’Ivoire were ordered” such that large swathes of the Deepwater Tano Concession Block, including the TEN fields would be threatened with irreparable harm as development activities are in an advanced stage having already passed the 50% completion mark.
The Special Chamber was of the view that “the on-going EXPLORATION AND EXPLOITATION ACTIVITIES conducted by Ghana in the disputed area will result in a modification of the physical characteristics of the continental shelf” to the extent that irreparable prejudice would have been done which cannot be fully compensated by financial reparations – i.e. Côte d’Ivoire will be irreversibly affected and can never be able to restore the status quo ante in respect of the seabed and subsoil.
The Special Chamber finally concluded thus:
“Prescribes, pending the final decision, the following provisional measures under article 290, paragraph 1, of the Convention:
a) 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 as defined in paragraph 60;
b) Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire;
c) Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment;
d) The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end;
e) The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.
(2) Unanimously Decides that Ghana and Côte d’Ivoire shall each submit to the Special Chamber the initial report referred to in paragraph 105 not later than 25 May 2015, and authorizes the President of the Special Chamber, after that date, to request such information from the Parties as he may consider appropriate.
(3) Unanimously Decides that each Party shall bear its own costs.”
5. MEDIA FRENZY
Post the ruling, a lot of media houses in their usual quick-to-publish attitude misreported the essence of the ruling. This included Daily Graphic, Joy 99.7 FM and Reuters. I would entreat the media to take their time to understand to get technical expertise on such matters before rushing to press. It pays to take time to understand the technical issues and/or its effects on investor community and Ghana’s investment profile. Fundamentally, it is not all hunky-dory for Ghana. No, not at all!
6. IMPLICATIONS AND ECONOMIC IMPACTS OF THE RULING
The outcome of the ruling has certain implications for Ghana’s emerging oil and gas industry even at the prima facie level as the Court granted parts of the provisional measures sought by Ivory Coast.
Luckily, the TEN field, currently in the development phase with over US$2bn already incurred by Tullow and other JV partners will not have to be suspended for at least two years pending the resolution of the case in 2017. In its trading statement and operational update of 15 January 2015, Tullow Oil reported the important TEN development project is now over 50% complete and remains within budget and on-track to deliver first oil in mid-2016.
In another separate report, Tullow announced that all 1 pre-first oil wells have been drilled ahead of schedule and currently suspended in preparation for the completions to be installed by April 2016. In all 24 wells including gas and water re-injection wells are needed for full field development but the Phase 1 development consisting of the 10 former wells would not be affected.
The TEN Project is of huge strategic importance to Ghana and any significant derailment of the project is time Ghana can ill-afford to waste. The TEN project together with Jubilee and Sankofa gas anchor Ghana’s medium term energy security goals as gas from the field is expected to significantly contribute to thermal power generation as we wean ourselves of supply from the ever unreliable West African Gas Pipeline (WAGP) at about 80,000 bbls of oil per day and an initial 30mmscfd of gas in 2017 to be ramped up to 170mmscfd.
There is currently no contingency plan within Ghana’s budgetary provisions to forestall the impact of curtailed production on public finances. Ghana and its partners have potentially averted the loss of about US$2.2bn of revenues if production had been curtailed even at a conservative $70 per barrel oil price. We do however need to have a backup plan and also estimate the impact of lost revenues on public finances post 2017 if things don’t go our way.
Petroleum activities have become a critical source of government revenue rising from 5.9% of domestic revenue in 2011 to 13.5% in 2014 and given Ghana’s current fiscal and liquidity challenges, this has become a critical budgetary funding source.
Further, a moratorium on oil production activities even for two years would have negatively impacted on Ghana’s current account position, external reserve buffers and ultimately the stability of the local currency.
7. CONCLUDING THOUGHTS
Though the Special Chamber did not provide explicit notes on what it meant by exploration and exploitation activities, the latter is generally understood to include development drilling. Pending the Court’s full ruling in about two years’ time, the suspension of NEW exploration activities (licensing, seismic surveys, etc) does not in any way affect all future exploration as the substantive case has not been fully adjudicated upon. I am, however, worried that Reuters Africa and our quick-to-publish media houses in their haste, sent wrong signals, which are completely oblivious to the facts of the ruling to the investor community. Have we for once thought what this could have done to Tullow Oil’s shares if the mischief had not been corrected?
Technically, Côte d’Ivoire have won Round 1 of this bout given they had nothing to lose ex-ante and Ghana has been forced to curtail parts of its oil exploration activities in the disputed maritime boundary. Though the merits of Côte d’Ivoire’s case remain highly improbable in my opinion, I think we should also have a contingency plan in place. There would be significant risks should the substantive case be ruled in favour of Côte d’Ivoire come 2017 with regard to contract renegotiation and transfer of rights, sunk investment costs, project delays and a host of legal challenges.
We need to anticipate some of these things and act strategically within a broader national and regional interest. CONFRONTATION will only compound the problem.
8. END NOTES
 These are rights of sovereignty over the territorial sea and its subsoil namely the (1) the right to explore for and exploit the resources of [the] seabed and the subsoil thereof by carrying out seismic studies and drilling, and installing major submarine infrastructures there; (2) the right to exclusive access to confidential information about its natural resources and (3) the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment.
 Paragraph 60 reads “the disputed area lies between the coordinates of the line drawn by Côte d’Ivoire, as described in paragraph 27, and the coordinates of the line which according to Ghana would be the maritime boundary between the two countries, as described in paragraph 29”.
 This is the report and information on compliance with any provisional measures prescribed.
By: Theo Acheampong
The author is the Co-Founder and CEO of Africa Economics LLC, a boutique consultancy offering broad-based macro-socioeconomic analysis, market research, business analytics and intelligence services with a focus on frontier emerging markets in Sub-Saharan Africa. He is a Chemical Engineer and Petroleum Economist by training and is currently pursuing a PhD in Petroleum Economics at the University of Aberdeen, Scotland.