Transboundary Resource Management: The Need for A Joint Development Zone between Nigeria and Ghana

Kingsley Ekwere

Transboundary Resource Management: The Need for A Joint Development Zone between Nigeria and Ghana

Kingsley Ekwere*

INTRODUCTION

The configuration of Nigeria’s coastline to the east of Nigeria/Benin line produces a stretch of line which goes out to the full 200 miles where Nigeria and Ghana have a common maritime boundary(unclear location and directions; Ghana is located west from Nigeria/Benin border for instance).Statistical evaluation by the International Seabed Authority indicates the likelihood of thick sediment on the seabed of both countries with reasonable prospect of each being able to claim an extended continental shelf.The Report further indicates a considerable overlap of mineral resources especially oil and gas straddling the maritime boundary of both countries.From this perspective,I examine the need for transboundary natural resource management to address the challenge of managing resources that are shared across the international boundary of both countries.I find that the formation of a cooperative regime to develop and manage shared resources facilitates and improves the management of natural resources to the benefit of all parties.It also helps to improve conservation and sustainable use of shared resources.A further justification for transboundary initiative between the two countries is peace and security.This study is organised in three parts.Part one offers a definition of joint development and gives a brief history of the concept.It also includes background analysis of the Gulf of Guinea.Part two examines Nigeria-Ghana maritime boundary,focusing on the current negotiations towards the delimitation of their Exclusive Economic Zones(EEZs)and Continental Shelves(CSs).We will provide strong reasons whyboth countries and other nations of the Gulf of Guinea should establish a cooperative regime to manage their shared resources.Part three will consider issues which need to be addressed during negotiations of joint development zone.

Ⅰ.DEFINITION OF JOINT DEVELOPMENT AND BACKGROUND ON THE GULF OF GUINEA

A.Definition of Joint Development

The fluid nature of petroleum or natural gas sometimes results in deposits lying across the boundary line of two or more neighbouring countries.When this happens,one country’s extraction of the deposit may undermine the potential share of other countries.Therefore it becomes necessary for these countries to agree on some form of cooperation in the exploitation of the resource. For the purpose of this study,joint development may be defined as an arrangement between governments or between government and private oil company or consortium of private companies,designed for purposes of joint exploration or exploitation of hydrocarbon resources that lie across boundary lines and straddles different jurisdictions.What comes out rather clear from this definition is that deposits of fluid petroleum or natural gas should be regarded as a single deposit and jointly managed if it straddles common boundary line.Four types of cooperative arrangement may be distinguished:(1)cooperative regime for the exploitation and management of shared resources without the necessity of a boundary line;(2)the establishment of joint exploitation zone for resources which straddles the boundary;(3)arrangements for the exploitation of resources lying across the boundary line;and(4)cooperative arrangements to facilitate the management of transboundary resources.①Churchill and Lowe,The Law of the Sea,3rd.ed.,Manchester:Manchester University Press,1999.

This study will only concentrate on the first category i.e.where states fail to reach an agreement on the general line of the boundary and decide instead to establish,either provisionally or on a long-term basis,a zone in all or part of the area where their zones overlap.

B.Origin of Joint Development

The idea of parties deciding on a co-operative regime to exploit resourcesin overlapping areas was first given by the International Court of Justice(ICJ) in the North Sea Continental Shelf cases in 1969 when the Court made reference to“a regime of joint jurisdiction,use,or exploitation for the zones of overlap or any part of them.”①ICJ Report 1969,p.53,para.101(c)(2).In particular,reference is made of the extensive discussion on the topic by Judge Jessup in his separate opinion②ICJ Report 1969,pp.66-84.,which itself was inspired by the pioneering work on the subject by William T.Onotato in 1968.③Onorato,W.T.,Appointment of an International Common Petroleum Deposit,International and Comparative Law Quarterly,vol.17,1968,pp.85-101.However,as early as the 1930s,the idea of joint development was already known in the United States.④See American Institute of Mining and Metallurgical Engineers,1930.The first application of the concept of joint development of offshore oil was the Joint Development Agreement between Japan and South Korea enforced in 1974,following their disagreement on boundary delimitation over their continental shelves.⑤For the text of the Agreement,see Charney and Alexander,1993,pp.1073-1089.The Japan-Korea model later became a working document for hydrocarbon potential and the possibilities of establishing cooperative regime in Asian countries and even in the West.A ground-breaking study of joint development of offshore oil and gas organised by the British Institute of International and Comparative Law is recognised at present as the most comprehensive treatment of the subject.

C.Background on the Gulf of Guinea

The Gulf of Guinea is one of the richest hydrocarbon areas in the world with oil and gas discoveries estimated at more than 10Bbbl(?)and a tremendous potential beyond that level.It encompasses a large number of countries from West to Central Africa:Angola,Benin,Cameroon,Central African Republic(CAR),Cote d`lvoire,the Democratic Republic of Congo(DRC),Equatorial Guinea,Gabon,The Gambia,Ghana,Guinea,Guinea-Bissau,Liberia,Nigeria, Republic of Congo,Sao Tome and Principe,Senegal,Sierra Leone,and Togo.

The region is one of the richest offshore oil producing regions in the world.Once considered unimportant and nonstrategic,the region now plays host to major consumers of oil with increased ability to explore and extract oil in ever deeper waters.This has resulted in increase of disputes and conflicts over ownership of the territory among the region’s countries.Moreover,takinginto account the geographic setting that characterises the Gulf of Guinea,the maritime claims and entitlements of some countries in the region overlap considerably.For instance,countries like Nigeria,Sao Tome and Principe and E-quatorial Guinea have already taken steps to settle disputes in areas of their overlapping claims through joint development zone and utilization agreements.

Ⅱ.NIGERIA-GHANA MARITIME BOUNDARY

Although Nigeria and Ghana are separated by the Republics of Benin and Togo,they nevertheless share the same maritime boundaries owing to the unique geomorphology of their coastlines.Both countries have signed and ratified the 1982 United Nations Convention on the Law of the Sea(UNCLOS 111)①United Nations Convention on the Law of the Sea,opened for signature on December 10, 1982,in force on November 16,1994,1833 U.N.T.S.396,reprinted in UNITED NATIONS,THE LAW OF THE SEA:UNITED NATIONS CONVENTION ON THE LAW OF THE SEA(UN Pub.Sales No.E.83.V.5)[hereinafter“UNCLOS111”].which gives them the right to 200 mile EEZ.While the two governments have commenced negotiations on the delimitation of the boundary between them,there is as yet no broad agreement on the general line of their common boundary.It is undisputed,of course,that both nations have the right to a 200 mile EEZ under the Convention.However,insisting on a 200-mile EEZ may result in claiming an area which enters considerably into each other’s zone.It would be appropriate under these circumstances to turn the affected area,measured approximately 8-12 nautical miles,into a Joint Development Zone(JDZ).

Joint development is increasingly used in overlapping boundary areas to set aside contentious issues and promote resource development.The basis for a JDZ is provided in Article 74(3)UNCLOS III which states that:

Pending agreement as provided for in Paragraph 1,the States concerned in the spirit of understanding and co-operation shall make every effort to enter into provisional agreements of practical nature and during the transitional period not jeopardize or hamper the reaching of final agreement.Such agreements shall be without prejudice to final delimitation.

The establishment of a co-operative regime between Nigeria and Ghanahas several advantages.Some of these advantages are listed below:

(a)Development takes precedence over politics.

International boundaries are political issues.Governments often find it difficult to reach a compromise on boundary disputes.Joint Development Zone puts development before politics and allows countries to set aside maritime boundary claims to concentrate on exploration and exploitation of resources for the benefit of their people.It underscores the need to exploit and share resources before demarcating boundaries.Less emphasis is placed on actual boundaries while energies are channelled towards unlocking the resources of the sea and the seabed.

Nigeria and Ghana share several things in common.Apart from emerging from almost the same colonial history,they enjoy the best of diplomatic,economic and cultural ties.These gains could be enhanced further if both countries could explore ways of jointly developing their shared resources before demarcating boundaries.

(b)Formation of a co-operative regime improves the management of shared resources.

Shared resources or straddling stocks are those resources distributed over or crossing the maritime boundary between two or more national boundaries. Co-operative development is an important step towards the management of these resources.

(c)It leads to conservation and sustainable use of shared resources.

Shared resources always have the misfortune of depletion,and overuse ultimately ruins them.Without proper management,shared resources can become a free-for-all where individuals benefit from taking as much as they could,while leaving the costs of exploitation and depletion to others.A shared resources framework offers a better approach in the management of these resources for the benefit of both present and future generations.The establishment of a JDZ between the two countries will greatly reduce the pressure on shared resources for the benefit of all.

(d)Peace and security.

Disputed boundaries may lead to skirmishes or outright war.Shared resources must be a connector and not a divider.Cooperative arrangement to jointly develop,manage and protect shared resources optimizes their utilization and defuses any potential conflict.JDZ promotes peaceful cooperation and encourages the development of synergies between different users.Peace and security is the key to sustainable management of shared resources.Thus,con-flicts which are likely to emerge from the exploitation and management of shared resources between the two countries may be avoided with the establishment of a JDZ.

The above mentioned benefits of JDZ,though not exhaustive,are an encouragement for states to set aside the intricate issues of delimitation in favour of more immediate economic or practical interests.Once resources are known to lie in geological structures straddling an international boundary line,its effective exploitation should be undertaken by a single regime based on agreed cooperation between the concerned parties.

Ⅲ.ISSUES TO BE ADDRESSED WHILE NEGOTIATING JOINT DEVELOPMENT ZONE

Once a cooperative regime has been agreed upon,the next vital step is for the parties to address a wide range of issues,such as the definition of the size, extent,and boundary of the proposed JDZ,the duration of the zone,the administrative structure and control mechanism,revenue sharing formula,licensing rounds,prevention of pollution and protection of the marine environment,protection of third states and their nationals,security and policing within the zone, and settlement disputes between the participating governments and their licensees.

The issues highlighted above are very complex,and need to be handled with skill and care.A series of complex compromises between different claims and interests,both governmental and commercial,are generally required.In practice,the spirit of give-and-take is the bedrock of JDZ,since parties are always expected to settle for less.

Ⅳ.CONCLUSION

The nature of straddling deposits in the seabed area of the continental shelf between Nigeria and Ghana,presents an opportunity for both countries to put in place a JDZ,especially as they are known to have the prospects of claiming an extended continental shelf.The economic benefits can be very considerable.

(Editor:HUANG Haiqi; English Editor:Avram Agov)

*Kingsley Ekwere,holds a Ph.D from the University of Hamburg and is also a lecturer at the Faculty of Law,University of Uyo,Nigeria.