Case commentary on Maritime delimitation in the Indian Ocean (Somalia vs. Kenya)
Somalia and Kenya share a land boundary in East Africa which meets the Indian Ocean to the south-east. This maritime area supposedly holds large reserves of hydrocarbons which both States have been eager to exploit.Â On 28th August 2014, Somalia filed an Application instituting proceedings against Kenya with regard to the dispute concerning the delimitation of maritime spaces claimed by both States in the Indian Ocean.
In its Application, Somalia asked the Court âto determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 [nautical miles]â.
Somalia and Kenya gained their independence in 1960 and 1963, respectively. Both Parties signed the United Nations Convention on the Law of the Sea on 10th December, 1982. They ratified it on 2nd March, 1989 and 24th July, 1989 respectively, and the Convention entered into force for them on 16th November, 1994.
The dispute in the delimitation of the maritime boundary could be dated back to 1979.Â There were proclamations by the President of the Republic of Kenya dated 28th February 1979 and 9th June, 2005. Both claimed a boundary at the parallel of latitude, but Kenyaâs legislation referred to a boundary along a median or equidistance line. In Formal Notes of 26th September, 2007 and 4th July 2008, Kenya requested Somalia to confirm its agreement to a boundary along the parallel of latitude, but Somalia did not provide such confirmation.
In 2009, Kenya and Somalia reached aÂ Memorandum of Understanding according to which the two States agreed to delimit their maritime boundary by negotiations. The Somalian Parliament later rejected this agreement on 1st August, 2009. In 2012, Kenya awarded exploration licenses for eight offshore blocks in the Indian Ocean to foreign oil companies, including Italy-based Eni, France-based Total, and US-based Anadarko Petroleum. Somalia protested, contending that Kenya had contravened Somaliaâs Law No. 37 which defines Somaliaâs continental shelf and Exclusive Economic Zone. This precipitated the filing of this suit by Somalia.
The parties adopted fundamentally different approaches to maritime delimitation. Somalia argued that no maritime boundary exists between the two States and asked the Court to plot a boundary line using the equidistance/special circumstances method (for the delimitation of the territorial sea) and the equidistance/relevant circumstances method (for the maritime areas beyond the territorial sea). To this end, she argued that its maritime boundary should run in the same direction as the south-easterly path of the Statesâ common land boundary. Accordingly, an unadjusted equidistance line throughout all maritime areas would achieve the equitable result required by international law.
On the other hand, Kenya contended that the parties had already agreed to a maritime boundary as Somalia has acquiesced to a boundary that followed the parallel of latitude. In any event, Kenya claimed that the boundary should take a 45-degree turn at the shoreline and run in a latitudinal line. The Parties disagreed about the location of the maritime boundary in the area where their maritime entitlements overlap.
On 7th October, 2015, Kenya submitted a preliminary objection to the jurisdiction of the Court and admissibility of the case on the basis of Article 36(2) of the Statute of the Court, which specifically excludes disputes in regard to which the Parties to the dispute have agreed to have recourse to some other method of settlement. Kenya pointed to the 2009 Memorandum of Understanding between the Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic signed on 7 April 2009 that had an express provision to reach an understanding on the maritime delimitation by negotiations. She argued that the MoU was an international treaty, duly registered pursuant to the Charter of the United Nations, that is legally binding on the Parties.
For its part, Somalia argued that the MoU did not establish a method for resolving the delimitation dispute between the Parties and that, consequently, Kenyaâs reservation does not apply in the present case. The MoU, she argued, did not impose any obligation but merely acknowledged the Partiesâ pre-existing obligations under UNCLOS. Further, she presented a letter addressed to the Secretary-General of the United Nations dated 10th October, 2009, where the Prime Minister of the Transitional Federal Government informed the Secretary-General of the rejection of the MoU, and ârequested the relevant offices of the UN to take note of the situation and treat the MOU as non-actionable.â In another letter to the Secretary-General of the United Nations dated 4th February 2014, the Somali Minister of Foreign Affairs and International Co-operation maintained that âno MoU is in forceâ, highlighting that ratification thereof had been rejected by the Parliament of Somalia. Finally, Somalia argued that allowing a Minister to sign binding bilateral agreement was ânot customary for Somaliaâ.
The Court noted that Somalia has never directly notified Kenya of any alleged defect in its consent to be bound by the MoU and thus concluded that the MoU is a valid treaty that entered into force upon signature and is binding on the Parties under international law despite the later rejection by the Somalian Parliament. Moreover, the Court observed that under customary international law, Somalia may not seek to revoke an international law obligation by virtue of internal law provisions regarding competence to conclude treaties; there was no reason to suppose that Kenya was aware that the signature of the Minister may be insufficient.
In interpreting the MoU, the Court observed that in reading the sixth paragraph of the MoU and in view of the entire agreement, it related solely to the delineation of the continental shelf, and not to the whole maritime boundary between the Parties, which suggests that it did not create a dispute settlement procedure for the determination of that boundary. It is important to note that delineation involves drawing the line between the coastal State and the âAreaâ (the part the High Sea defined as the âcommon heritage of mankindâ) and delimitation involves establishing the line between two coastal States.
The Court affirmed that it had jurisdiction over the matter by holding that âthe Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice.â
Withdrawal of Kenya from the oral proceedings
Effective 12th March, 2021 Kenya informed the Court that it did not intend to take part in the hearings for a myriad of reasons. Kenya protested against perceived bias in the courtâs refusal to entertain its request to delay the hearings. Kenya had pleaded that the COVID-19 pandemic struck when it had just recruited a new legal team to mount its defence. The team had not had a chance to meet and prepare for the case due to pandemic protocols.
Kenya had also questioned the composition of the bench handling the case. She raised this against Judge Abdulqawi Yusuf, who was one of the 11 on the bench, and is not only a Somali citizen but had previously presented Somalia. At the Third United Nations Conference on the Law of the Sea, Yusuf advanced Somaliaâs argument on the dispute. He had said the delimitation of the exclusive economic zone of Somalia and the continental shelf should not be effected in accordance with the principle of equidistance but rather by the application of equitable principles. Given his previous leanings, Kenya argued that he is likely to rule in Somaliaâs favour and should voluntarily remove himself from the case which argument was rejected by the Court.
Kenya also claimed that there were third parties with commercial interests interested in the case. It claimed that these parties were pushing Somalia to carry on with the case even though it threatens to destabilize the peace and security of an already fragile region.
In all, the Court while regretting Kenyaâs decision, the Court was satisfied that it had all the necessary information about Kenya’s views, including arguments advanced by Kenya in previous phases of the proceedings.
Decision of the Court
In its decision, the Court held that there is no agreed maritime boundary between Somalia and Kenya. The conduct of the parties did not show that Somalia had clearly and consistently acquiesced to the maritime boundary claimed by Kenya at the parallel of latitude.
The Court applied its ‘standard’ delimitation methodology. This evidenced a desire to maintain consistency with the existing case law on maritime boundary delimitation. The Court applied four distinct steps. First, it identified the relevant coasts and baselines and the exact extent of overlapping entitlements. Second, it ascertained whether there was any pre-existing boundary agreement, tacit or explicit, relating to the delimitation of the maritime areas in question. Third, it delimited the territorial sea by applying the median line-special circumstances rule. Fourth, it turned to the delimitation of the exclusive economic zone (EEZ) and continental shelf within and beyond 200 nm.
The starting point of the single maritime boundary delimiting the respective maritime areas between Somalia and Kenya is the intersection of the straight line extending from the final permanent boundary beacon (PB 29) at right angles to the general direction of the coast with the low-water line. From the starting point, the maritime boundary in the territorial sea follows the median line described in paragraph 117 [of the Judgment] until it reaches the 12ânauticalâmile limit at the point with specific coordinates (Point A). The maritime boundary delimiting the EEZ and the continental shelf follows the geodetic line starting with azimuth 114-Degree until it reaches the 200ânauticalâmile limit measured from the baselines with coordinates at (Point B). From Point B, the maritime boundary delimiting the continental shelf continues along the same geodetic line until it reaches the outer limits of the continental shelf or the area where the rights of third States may be affected.
The main implication of the judgment is that the Court embraced a more objective definition of treaties and identified the significance of context as well as the intention of the parties in treaty interpretation. By doing so, the Court further established itself as the default adjudicator in the law of the sea disputes unless the reservation to its jurisdiction is sufficiently precise.
Effects of the Judgment
In âredrawingâ the maritime boundary between Kenya and Somalia, Somalia didn’t get everything. However, Somalia got the bigger chunk. This drastically reduced Kenyaâs Exclusive Economic Zone, and maritime space thus not only affecting Kenyaâs economic activities in the sea but also its defense posture and access to the sea.
The win-lose outcome might threaten bilateral relations between Somalia and Kenya, and regional stability in the Horn of Africa. The politics of State sovereignty and the politics of interpreting a win-lose outcome as aggression and qualifying the âvictorâ as revisionist and threat to the âloserâsâ national security might escalate diplomatic fall-out.
Ordinarily, the next step after the judgment is for the parties to establish mechanisms of implementing the judgment. We await to see how this judgement will be enforced in light of the press statement by the President of Kenya on 12th October, 2021 announcing that Kenya does not recognise the judgment of the Court, and will not cede an inch of her territory to Somalia.
Further, the international court does not have an enforcement agency and relies on the goodwill of parties to conflict to comply with rulings or the United Nations Security Council to enforce its ruling through coercive diplomacy.
Concerning the jurisdiction of dispute resolution mechanisms, signatories of UNCLOS that have reservations to the Courtâs jurisdiction with one that looks like Kenyaâs may now find themselves bound by the International Court of Justiceâs compulsory jurisdiction.
If a party wishes to raise an objection of jurisdiction, it will need to demonstrate that there exists an alternative dispute resolution mechanism that is otherwise agreed by the parties. The International Tribunal on the Law of the Sea in the Southern Bluefin Tuna cases held that a simple commitment to settle the dispute by peaceful and diplomatic means would not amount to such an alternative. The alternative dispute resolution mechanism must be shown to be sufficiently general to cover the issues of the law of the sea. The ICJâs ruling in Somalia Vs. Kenya can be seen as the Courtâs declaration that its mandate is sufficiently general to cover law of the sea disputes.