Mixing Oil and Water: The Role of Natural Resource Wealth in the Resolution of the Maritime Boundary Dispute between Ghana and Côte D'ivoire

INTRODUCTIONA $4.9 billion offshore oil project has the capacity to bring eagerly awaited economic stability to the West African country of Ghana.1 The endeavor appears to be a win-win situation for both Ghana and Tullow, the British firm at the helm of developing the "TEN" field offof the western coast of Africa.2 Although drilling has already begun and production is expected to begin during the summer of 2016, the project-along with the anticipated financial windfall for the developing African nation-has been compromised in light of a maritime boundary dispute with neighboring Cote D'Ivoire.3During the colonial era, the colonizing powers drew the international boundary lines that the West African countries ultimately inherited upon gaining political independence, paying far greater attention to the determination of land boundaries than maritime boundaries.4 The two African countries similarly showed little urgency in delimitating the boundary line following independence, but this changed upon the discovery and subsequent exploration of offshore petroleum resources in the now-disputed area.5 The ongoing territorial dispute most recently culminated in an order from the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS), which-without ruling on the merits of the dispute itself-stated that Ghana can continue to develop the offshore oil project throughout the ongoing proceedings but may not undertake any additional drilling.6 Although a ruling on the merits is not expected until 2017, the order signifies an important step in furtherance of the project, which is expected to ultimately yield up to 80,000 barrels of oil per day for Ghana.7Part 1 of this Comment provides background on the facts of the boundary dispute, specifically in the context of the procedural history of the legal proceedings of the Special Chamber of the ITLOS. Part II of this Comment discusses the parties' contentions, and the subsequent order set forth by the Special Chamber. Part III examines the boundary dispute within the larger framework of cross-border disputes and economic development- specifically highlighting the notion that although there are a number of potential ways the case may be resolved, Ghana's extensive exploration of the disputed area and reliance on the anticipated oil windfalls will play a role in the final outcome.I. BACKGROUNDOn September 19, 2014, arbitral proceedings between the Republic of Ghana and the Republic of Cote D'Ivoire commenced under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS).8 Subsequently, the two parties formed a Special Agreement to submit the maritime boundary dispute to a special chamber of ITLOS.9 On January 12, 2015, ITLOS granted the request to form a special chamber and on February 27, 2015, received a request for the prescription of provisional measures (Request) from Cote D'Ivoire pursuant to Article 290 of UNCLOS.10 Under UNCLOS, once a court or tribunal establishes that it has jurisdiction over a dispute, it may prescribe any provisional measures consistent with the goals of preserving the rights of the parties to the dispute and protecting the maritime environment until a final decision is reached.11 This power arises only where there is a need to avert a real and imminent risk of irreparable prejudice occurring before the delivery of a final decision, which may only be determined on a case-by-case basis.12The Request submitted by Cote D'Ivoire asked that the Special Chamber prescribe provisional measures that Ghana suspend all exploration and exploitation in the disputed area; refrain from granting any new permits that allow exploration and exploitation in the disputed area; prevent information gathered pursuant to exploration in the disputed area from being used in any detrimental way against Cote D'Ivoire; take all steps necessary to preserve the continental shelf, its waters, and its subsoil; and abstain from any unilateral activity that would prejudice the rights of Cote D'Ivoire or aggravate the dispute. …