Economic interests are often at the root of border disputes 

The judgment of the International Court of Justice (ICJ) in the Indian ocean maritime boundary delimitation case between Kenya and Somalia set many Kenyans’ tongues wagging upon its delivery. The judgment was a stark introduction on the application of international law in internal state affairs for most Kenyans. 

Territorial disputes – whether of physical land or maritime – constitute a good number of the cases before the ICJ and other international arbitral tribunals that determine international boundaries.

One famous case on maritime delimitation is the dispute between the United States of America and Canada regarding the Gulf of Maine. By its geographical location, the gulf lies off the northeast coast of the US, surrounded by the states of Maine, New Hampshire and Massachusetts. On the Canadian side, it is surrounded by New Brunswick and Nova Scotia. 

In 1964, Canada issued oil and gas exploration permits for a part of the gulf known as Georges bank. The US also granted exploration permits around the same time for the same section without protesting the claims by Canada until 1969 when it sought to have a moratorium pending determination of the boundary. Shortly thereafter, it asserted ownership of the whole of the Georges bank.

The two countries then engaged in a “fishing feud” in the area of the Georges bank claimed by both. They negotiated treaties regarding these claims in which they agreed to refer the dispute to the ICJ for a binding decision. Another treaty sought to have the fishing access rights of both countries’ citizens and vessels upheld irrespective of the eventual decision. The US Congress did not approve the treaty on fisheries access. The dispute then went to the ICJ in 1981. A decision was made in 1984 in which the ICJ drew a single maritime boundary for the Gulf of Maine and gave Canada about a sixth of Georges bank.

This case is significant in international maritime law because it was the first case where the parties requested the ICJ to actually draw the boundary line. In previous decisions, the parties had simply asked the court to determine the rules and principles for resolving a maritime boundary dispute.

Maritime disputes

But territorial and maritime disputes are not always as straight forward as the one over the Gulf of Maine. They can involve a number of issues and many parties. One such complicated case involved a series of islands contested by Nicaragua and Colombia in the first instance. 

In 2001 Nicaragua instituted a case against Colombia concerning title to some islands in the San Andres Archipelago. While this was still pending, Costa Rica filed an application for permission to intervene in that case. Costa Rica’s claim was that the area under contest by Nicaragua and Colombia was actually its territorial waters. Shortly thereafter, Honduras filed a claim asserting ownership to an area in the Caribbean Sea. 

The decision of the court, rendered in 2012, was that of all the parties, Colombia had proven that it had always had continuous and effective control of the contested area and that it was the rightful sovereign over the islands. On the maritime boundaries, the court constructed a provisional median line between the Nicaraguan coast and the western coasts of the Colombian islands and opposite Nicaragua, what is now known as splitting the difference. The court explained that the intention and overall outcome must be one that presents an inequitable result.

In Asia, Bangladesh and Myanmar had a dispute on the delimitation of their boundary on the Bay of Bengal in 2012. Between 1974 and 1986, the two countries negotiated the boundary without agreement. The differences flared when oil and gas were discovered in the disputed area. 

Myanmar started awarding oil drilling rights, which prompted a Bangladesh warship to order the removal of the offshore rig set up by the company to which Myanmar had given the drilling rights. In 2009, Bangladesh initiated compulsory arbitration under the UN Convention on the Law of the Sea. This was historic because it was the first boundary dispute decided by the International Tribunal for the Law of the Sea rather than ICJ. 

One important decision here was that Bangladesh’s claim to St Martin’s Island was given full effect by delimiting the boundary of the territorial sea with Myanmar. Bangladesh agreed to “guarantee free and unimpeded navigation by Myanmar’s vessels to a right of innocent passage”.

The competing claims between Indonesia and Malaysia over the islands of Litigan and Sipadan off the coast of Borneo were litigated before the ICJ in 1998. Finding no legal treaty or historical agreement as to the ownership, the court noted that Malaysia’s regulation of the commercial collection of turtle eggs and establishment of a bird sanctuary on the islands indicated that it had sufficient administrative and effective control over the islands to justify that territory as part of its jurisdiction.

Outrage among Kenyan

Another interesting case was that between Qatar and Bahrain regarding t Zubarah, the Hawar Islands and the island of Janan, all of which are located between the Qatari peninsular and Bahrain. Both states were British colonies and therefore asserted the historical aspects of how the British had treated these islands to independence. The ICJ held for Qatar’s interest over Zubarah and Janan Islands but found that the Hawar islands rightly belonged to Bahrain based on history.

In Africa, Cameroon and Nigeria had a dispute before the ICJ over the Bakassi peninsular and the Lake Chad region. The parties’ arguments were based on treaties made on the ownership, history of the region and effective control over the territory. The court rejected Nigeria’s claims and awarded the territory to Cameroon.

These cases between states over maritime boundaries point to the fact that the cases are, at their roots, commercial disputes triggered either by the desire to exploit minerals over contested spaces or fishing rights, and in some cases, commercial navigation rights for ships.

This is certainly the case with the Kenya and Somalia dispute since the area in contention is believed to contain deposits of oil and gas. Somalia had even started auctioning blocs in the area for exploration.

One thing is clear though, that the arbitral tribunals on international boundaries disputes start with an examination of whether there are agreements between the parties on how to set the boundaries. In other words, the parties are always better off negotiating the boundaries first.

Going by the outrage among Kenyans this week, one can conclude that court decisions, whether at the municipal level involving individuals, or international and involving states, will always be about economic interests. They will also always arouse the same reaction: disapproval on one side and a call to abide by the rule of law for the party that considers itself favoured by the decision. 

The writer is the Head of Legal at Nation Media Group PLC