Kenya weak in border row, try other possibilities

On August 28, 2014, Somalia instituted proceedings against Kenya at the International Court of Justice (ICJ) in The Hague, the Netherlands, over delimitation of their single maritime boundary.

Somalia says principles of international law were not adhered to because Kenya drew the border unilaterally.

ECONOMIC ZONE

Through a task force, in 2009 Kenya resolved to extend the external limits of “its” continental shelf by 150 nautical miles. The country proclaims a continental shelf of up to 200 nautical miles but the United Nations Convention on the Law of the Sea (UNCLOS) permits its extension by 150 nautical miles. Kenya, therefore, applied to the relevant international body — the Commission on the Limits of the Continental Shelf.

The commission is required to first circulate such applications to UNCLOS member states to ensure that they have no reservations concerning the matter. Upon seeing the circular in 2014, Mogadishu raised an objection to the request. As a result, Kenya’s request was declined.

The months that followed saw unsuccessful diplomatic attempts by Kenya and Somalia to solve the dispute.

Kenya then put in a preliminary objection, arguing that the ICJ lacks jurisdiction to hear the case, on the basis of a 2009 memorandum of understanding (MoU) between the two parties resolving the dispute. But on February 2, 2017, the ICJ ruled that it had jurisdiction.

In essence, and as held by the ICJ, the MoU was meant to complement Kenya’s application for an extension. The agreement was aimed at ensuring that Somalia would not object to that extension.

The MoU was registered with the secretary-general of the United Nations and its focus was the delineation of the continental shelf. In fact, the ICJ ruled that the MoU was only concerned with the continental shelf while the case before it focuses on the determination of the maritime boundary, in respect of the territorial sea, the exclusive economic zone and the continental shelf.

PATRIOTIC ELEMENT

Moreover, the provisions of the MoU allude to the fact that the delimitation was to be by way of agreement after the commission had given Kenya its recommendations.

On the claim that Kenya delimited the maritime border unilaterally, it is a general rule evident in Articles 15, 74 and 83 of the UNCLOS and case law — such as the Malta/Libya case in the ICJ and the Gulf of Maine case between Canada and the United States — that maritime delimitation should be done by way of agreement. Kenya, through the Presidential Proclamation of 2005, delimited its coastal border with Somalia using the parallel of latitude method, without involving Somalia.

Doing so could contravene the Maritime Zones Act and the repealed Territorial Waters Act, which stipulate that the coastal border would be delimited by a gazette notice, following an agreement by the two states.

And then, there lacks the face of Kenya in the proceedings at the ICJ. Nairobi has appointed foreigners — such as British lawyers Karim Khan and A.V. Lowe, QC — to handle the case at the expense of our qualified and competent professors of the law of the sea and maritime law. More surprising, the ad hoc judge appointed by Kenya to sit at the ICJ is a Frenchman and former ICJ judge.

It is worth noting that the alleged auctioning of the oil blocks in Somalia was done in Britain. I believe the element of patriotism, crucial to such a case on the national interest, is lacking.

Further, the current president of the ICJ is Somali. The ICJ’s rules of operation dictate that, in case of an impasse, the president breaks the tie. It is pointless to debate on which side he would take.

PROXY WARS

There is a misconception that if the ICJ decides in favour of Somalia and uses the equidistance method of delimitation the ruling would have a ripple effect on the borders between Kenya and its neighbours in the south. It would not.

The Kenya-Tanzania border was delimited by agreement in 1976. As a result, the Tanzania, Mozambique and Madagascar border would not be affected. Again, in case of such a judgment, Kenya would not be landlocked — though the extent of its Exclusive Economic Zone (EEZ) would be substantially reduced, and so will the continental shelf.

Interdependence between Somalia and Kenya calls for diplomatic resolution of the dispute. Military action will only aggravate the situation and invite intervention that could lead to proxy wars on our territorial waters.

Kenya should approach a third party state, a mutual friend to it and Somalia, to initiate negotiations aimed at exploring possibilities of an out-of-court settlement before the ICJ judgment since the rules allow that.

Ms Sambu, an advocate-trainee at the Kenya School of Law, is a specialist in public international law, the law of the sea and maritime law. [email protected]