Talk out border dispute

The Kenya-Somalia maritime border dispute at the International Court of Justice (ICJ) took an interesting turn recently when Kenya declined to participate in the proceedings, citing “procedural unfairness” at the court. 

Kenya has consistently discouraged Somalia from pursuing the matter at the Hague-based court. But Mogadishu seems to believe that only the ICJ will deliver justice. The parties may ultimately have to negotiate a lasting solution, regardless of the verdict.

First, while the ICJ ruling, in theory, is expected to be binding, in practice, that depends on whether the parties will be willing to enforce it. ICJ has no machinery to enforce its decisions unless they are sanctioned by the United Nations Security Council (UNSC) — the only other UN organ that can do so.

Secondly, if the maritime dispute ends up as a deliberation at the UNSC, politics is likely to take pre-eminence over the law. UNSC is a political institution, comprising states with vested interests.

With international players already taking sides in the dispute, an unanimous decision of the five permanent members of UNSC, which have veto power — the United States, France, United Kingdom, China and Russia — is very unlikely, meaning no enforceable decision can be reached.

Resolving the dispute

The US and France support Kenya while the UK backs Somalia. At the time that Kenya is a non-permanent member of UNSC, it is likely that it will lobby other states to support its position of resolving the dispute through negotiation.

Thirdly, while the territory in dispute is said to be rich in offshore oil and gas, the overall good neighbourliness between Kenya and Somalia is more important than any economic benefits.

Though neither conclusive nor general, studies also point that natural resources like oil and gas, if not properly managed, could end up being a “resource curse”.

Finally, and importantly, although international organisations like ICJ have a clear mandate of solving international disputes, it is always more rewarding to exhaust bilateral channels before escalating matters to regional and international institutions.

Dr Kirui (PhD) teaches history and government at the University of Eldoret. [email protected].