Equidistance vs Equity

[This post was originally made in April last year at the height of the controversy over Ghana’s decision to petition the ITLOS regarding its maritime dispute with the Ivory Coast.]

'Check that line out. How would YOU tilt it?'
'There, the Prize!'
Now that I have read the case dossier of the ongoing Ghana – Ivory Coast maritime dispute, and of course the case is still young and the full merits are far from argued, I’m intrigued as to why Ghana decided to go the route of arbitration and to curtail the diplomatic negotiations so abruptly. Some of these negotiations in other places went on for a decade so the seeming doggedness of the Ivorianscould have been anticipated.

Let me get this straight right from the start, the Ghanaian team pressing our rights in Hamburg is eminently qualified. But they are lawyers. They take their client’s brief. And when the client is a state, eminence should never be a barrier to citizens asking critical questions.

Now, it is important to note that only about half of the world’s maritime borders have been conclusively settled (thus the current situation between Ghana and Ivory Coast is far from being out of the norm). But of those that have been, 90% were settled through bilateral negotiations. NINETY PERCENT! There must be a good reason why.

The reason is simple: the rules for maritime boundary delimitation are compendious and quite arbitrary. In fact, fewer than 10% of maritime disputes are taken through the path that Ghana unilaterally chose in September 2014.

This is not to question the wisdom and knowledge of the Ghanaian legal team, but to ask if we were a bit overconfident.

Look at the two maps attached. Whether or not the whole or part of a bloc lies in Ghanaian or Ivorian waters may not be as straightforward as we’ve been told – it depends on the angle of the line.

Ghana is the party making what we passionately believe is the orthodox argument: we are saying that: simply stand at the land border and draw a perpendicular line downwards to get a MEDIAN line. We have referred to this as simply following conventional ‘equidistance principles’. We have always been indignant about the Ivorian claims, insisting that they have no case at all.

Yet, while it is true that most bilateral negotiations commence with the view that equidistance is a routine STARTING point for discussions, international tribunals have increasingly begun to cite another principle, the ‘equitable’ doctrine. It is now well established that the equidistance method is not privileged in anyway, but is rather one of several valid frameworks for ensuring just outcomes.

In fact, in a seminal 1990 work, the President of the ITLOS itself, the same tribunal our matter is now before, Dolliver Nelson, made it clear that the ‘equidistance’ dogma is not settled in international law, and that in many rulings the equidistance position is modified to address any circumstances that may breach equity should that principle be dogmatically followed.

And the international courts indeed have never shied away from modifying the equidistance position. Cases in point: Qatar vs Bahrain; 1982 – Tunisia and Libya; Libya vs Malta; Nicaragua vs Honduras; etc.

In fact, it is intriguing to note that the method being proposed by Ivory Coast (over the equidistance principle) is the same one used by the International Court in the case of Nicaragua vs Honduras. This is the ‘angle bisector’ method. In that case also, the argument adduced was that the geographical nature of the coast line makes an equidistance line inequitable.

Now take a careful look at how Cape Three Points juts into Ivory Coast. The question Ivory Coast has been trying to get the court to consider is whether the coastal border is the best reflection of the overall boundary between the two countries. Whatever the merits of that point, they go further then to argue that the overall lay of the coast is not straight enough to make the equidistance method the best approach to yielding equitable ‘distributional outcomes’. This means that the outcome of this case is not restricted to ‘winner takes all’. The Tribunal can also split the disputed area between the 2 parties, in any ratio that makes judicial sense to it.

I can see why most level-headed Ghanaians, many much better informed than I am, dismiss the Ivorians as seeking mere mischief. Sentimentally, I’m also in the camp that wants to go stand at Cape Three Points and hoot across the border. There could also be something in the allegations that French oil interests are behind all these machinations.

However, one can still take a hard look and come to other, cold, conclusions that whilst the Ivorians are annoying, they are not plucking these claims from the air.

Ghana, the US, UK and some other countries have always been part of an international alliance of countries that favour the equidistance principle. Ivory Coast, France and Spain have always been in the camp that favours the ‘equitable’ doctrine. So, these arguments are not just being manufactured on the go for this dispute. We are talking about longstanding and deeply held divisions between civil law and common law countries on the right principles for delimiting maritime borders (same division was evident in the Cameroon vs Nigeria case, in which equidistance prevailed).

And what is scary is that international judges don’t think that one approach Is necessarily superior. They look at ALL RELEVANT FACTORS. Thus, much depends on how much evidence one can muster to justify why an abstract line in the sea should be drawn one way or another.

I agree with those who say that we should blame the colonialists for this annoying fight, but that provides no relief, except to argue in favour of the notion that in the spirit of African comity, the two countries should open parallel bilateral negotiations, even as the special chamber of the Tribunal has itself said.

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