Kenya faults ICJ process on Somalia maritime border row ahead of verdict

Kenya-Somalia maritime border

Kenya-Somalia maritime border dispute graphic.

Photo credit: Joe Ngari | Nation Media Group

Kenya on Friday raised a pre-verdict storm against the International Court of Justice due on Tuesday, saying the judges’ decision will be a product of a “flawed” process.

As such, Nairobi announced it had withdrawn the compulsory jurisdiction of the Court, a principle in international law that means that each state that has granted the Court this type of acceptance has the right to sue other states and that it has agreed to appear before the Court if sued.

Kenya said it advised the court on this withdrawal on September 24 but this decision will not affect the judgment of the court, technically, as rules or reservations don’t apply backwards

The move was announced in Nairobi by Foreign Affairs Principal Secretary Macharia Kamau as the ICJ prepares to announce the verdict of a maritime boundary case filed by Somalia next week on Tuesday.

Somalia had demanded a review of the maritime boundary in what could alter the ocean territory for both countries should the ICJ rule in favour of Somalia.

“The delivery of the Judgment will be the culmination of a flawed judicial process that Kenya has had reservations with, and withdrawn from, on account not just of its obvious and inherent bias but also of its unsuitability to resolve the dispute at hand,” Mr Kamau said, suggesting the suit was seen from the outset as a threat to Kenya’s territorial integrity.

“For these reasons, and in addition to withdrawing its participation from the current case, Kenya, on the 24th September, 2021, also joined many other members of the United Nations in withdrawing its recognition of the Court’s compulsory jurisdiction. As a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent.”

The Court of 13 judges, including a Somali, and presided over by American Joan Donoghue will make its final verdict on Tuesday and is expected to issue instructions on what the two countries must do. Judgements by ICJ are usually binding between states and have no option for appeal.

Article 59 of the statute of the Court says that the decision of the court has no binding force except between the parties and in respect of the particular case.

 Mr Macharia explained that Somalia filing of the case against Kenya at the court, and the court’s assumption of jurisdiction where it had non demonstrated efforts to undermine Kenya’s territorial integrity.

“The Court effectively ignored Kenya’s 1965 reservation that excluded disputes such as the present one from the Court’s jurisdiction. Ironically, while the Court declared our 2009 agreement with Somalia on how and when to address matters concerning the maritime boundary valid, it proceeded to ignore the same,” said Macharia.

Amicable negotiations

He argued that even before Somalia filed the current case, Kenya had preferred that any dispute between the two countries regarding their maritime boundary be resolved through amicable negotiations. They two countries, said Mr Macharia, had even started the process, and were discussing the how and when they would address the matters of concern.

To go against this, therefore, is a demonstration of efforts to undermine Kenya’s territorial integrity.

 “The first threat to Kenya’s territorial integrity was overt and direct, during the Shifta War of 1967 to 1969…we successfully demonstrated our steadfastness in the commitment to safeguard our territorial integrity. It is now important for every Kenyan to understand that threats to territorial integrity are now no longer necessarily overt and direct. They are demonstrative of new tactics of using pseudo-judicial processes to undermine territorial integrity,” he added.

He noted that the resultant ramifications of the judgment will impact the region economically, politically and in matters security, at a time when it is being rocked by terrorism, instability and conflict.

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