Some conclusions concerning the impact of provisional measures on the threshold of jeopardizing or hampering threshold of jeopardizing or hampering

The Ghana/Côte d’Ivoire case is the second case, following the Guyana v. Suriname case, in which the duty of restraint embedded in the obligation not to jeopardize or hamper set forth in

573 Ghana/Côte d’Ivoire Order, para. 96.

574 Ghana/Côte d’Ivoire Order, paras. 99-101. It is interesting to note that the Chamber, when referring to a risk of prejudice to Ghana’s rights, did not consider it as “irreparable”. As regards the second argument against the suspension of Ghana’s activities in the disputed area, one can wonder why the Chamber regarded environmental harm resulting from the suspension of ongoing activities as more serious than that from the continuation of these activities.

575 Y. Tanaka, “Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/Côte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS”, Ocean Development &

International Law, 2015, vol. 46, p. 326; Fietta and Cleverly, op. cit., p. 136.

576 See, for example, Ghana/Côte d’Ivoire Judgment, para. 586.

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articles 74 (3) and 83 (3) of the UNCLOS was considered by the judiciary. Unfortunately, the SC in Ghana/Côte d’Ivoire did very little to clarity the meaning and scope of the obligation not to jeopardize or hamper in the context of unilateral petroleum activities in disputed maritime areas. On the contrary, the SC concluded that petroleum activities carried out by State A unilaterally in an area also claimed by State B in good faith cannot be considered a violation of the sovereign rights of State B even if this area will be attributed to State B by an international judgment.⁵⁷⁷ Moreover, the SC did not examine the validity of the standard of “(permanent) physical change to the marine environment” developed by the Tribunal in Guyana v. Suriname for identifying what type and form of unilateral hydrocarbon activity is likely to be inconsistent with the obligation not to jeopardize or hamper. Thereby, this standard is still the only guide that exists when dealing with the issue of unilateral hydrocarbon activities in disputed maritime areas.

When adopting the standard of “(permanent) physical change to the marine environment” as a threshold of jeopardizing or hampering, the Tribunal relied heavily on the criterion laid down by the ICJ in the Aegean Sea Order. In the view of the ICJ, maritime activities that pose a risk of physical damage to the seabed or subsoil, or to their natural resources might cause irreparable prejudice to those rights that are the subject of a dispute.⁵⁷⁸ The Tribunal however modified the ICJ’s criterion by including such additional component elements as “permanent” and “the marine environment”. Nevertheless, one can agree with a number of legal scholars that the benchmark used by the Tribunal was not fully justified with respect to the obligation not to jeopardize or hamper.⁵⁷⁹ In the opinion of this author, the Tribunal should have applied a less strict threshold for finding a breach of the obligation not to jeopardize or hamper, rather than referring to that used for triggering the power to prescribe provisional measures. Moreover, as discussed above in this Chapter, the SC in the Ghana/Côte d’Ivoire Order seems to have changed the content of the irreparability requirement. In the context of the right to information about resources of the disputed maritime area, it appears that the Chamber did not consider the standard of permanent physical change to the marine environment as a necessary condition to

577 Ghana/Côte d’Ivoire Judgment, paras. 592 and 594. This conclusion appears to be inconsistent with the SC’s own observations in the Ghana/Côte d’Ivoire Order concerning the sovereign rights claimed by Côte d’Ivoire in the disputed area (see Chapter 3.5.3).

578 Chapter 3.5.2.

579 See, for example, van Logchem 2014, op. cit., p. 191; Fietta’s comments on the BIICL’s Report on Undelimited Maritime Areas, op. cit., pp. 21-22.

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meet the requirement of irreparable prejudice.⁵⁸⁰ Thus, the formula provided by the Tribunal in Guyana v. Suriname should be revisited in light of the Ghana/Côte d’Ivoire Order.

If one assumes that the standard of permanent physical damage is indeed a general rule of international law defining what unilateral hydrocarbon activities are or are not consistent with the obligation not to jeopardize or hamper, the question is what phases of the exploration and exploitation are most likely to come under the scope of this standard. The standard would definitely apply to activities involving the placement of permanent installations and structures on the seabed, or activities aimed at extracting of petroleum resources located in areas of overlapping maritime claims. As follows from the discussions in Chapter 3.4.3.3, all drilling operations entail a risk of permanent physical damage to the seabed and subsoil and, therefore, are likely to be contrary to the obligation not to jeopardize or hamper. The answer to the question of the applicability of the assumed standard to seismic testing is less certain. Seismic exploration would hardly meet such a high threshold for finding a violation of the obligation not to jeopardize or hamper.

Moreover, the question arises as to whether the same standard should be applicable in the context of other unilateral activities carried out in disputed maritime areas (e.g., fisheries activities). It seems inappropriate to apply this standard to activities of a different nature.

Otherwise, it would lead to the situation in which a wide range of activities cannot be categorized as jeopardizing or hampering.

However, it is important to bear in mind that based on the analysis conducted in this Chapter, this thesis concludes that the application of the standard of permanent physical change is not justified for finding a breach of the obligation not to jeopardize or hamper. It argues that even if the mentioned standard cannot be met in the context of a particular hydrocarbon activity, it does not mean that this activity is in line with the obligation not to jeopardize or hamper. As noted above, the emphasis should be placed not on the physical effects of a hydrocarbon activity on the marine environment and its components, including the seabed and subsoil, but on its effects on the process of reaching a maritime boundary agreement. Thus, for example, seismic survey operations could have a jeopardizing or hampering effect on that process by providing one of the parties to a dispute with a considerable advantage in delimitation negotiations. A State’s (even erroneous) perception of an undelimited maritime area as rich in oil and gas resources may make that State less flexible in its negotiations with the other State. In other

580 Ghana/Côte d’Ivoire Order, para. 95.

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words, State A arguing that a petroleum operation carried out by State B in an area, which is subject to overlapping claims made in good faith by both State A and State B, is in breach of the obligation not to jeopardize or hamper would need to substantiate the effect of this operation upon the delimitation negotiations between States A and B.

3.6 The obligation to abstain from aggravating or extending a