Kenya's new demands as judges decide row with somalia

The International Court of Justice (ICJ) judges have retreated to compile a judgment in the Indian Ocean boundary dispute case between Kenya and Somalia, as Nairobi made three demands. 

Kenya is pushing for withdrawal of the case, postponement until when its preparations are not hampered by Covid-19 and admission of new evidence, including a missing map it argues undermines Somalia’s claim.   

This week Kenya boycotted public hearings, leaving Somalia to argue its case in one-sided proceedings that closed on Thursday at The Hague.

ICJ’s President Joan Donoghue, however, announced even without Kenya’s participation, the court will rely on previous documents filed by Kenya, which accuses the world court of bias. 

“The court regrets the decision of Kenya not to participate in the oral proceedings. It recalls, however, that the court has available to it the counter-memorial and rejoinder filed by Kenya, as well as multiple volumes of materials that were produced by Kenya and which, pursuant to the decision of the court as communicated to the parties by the Registrar’s letter of 11 March 2021, are part of the case file,” Judge Donoghue said on Monday when the oral proceedings opened.

However, the Kenyan Ministry of Foreign Affairs yesterday protested that the court cannot compel Kenya to participate in the proceedings.

“Kenya has informed the court that any insistence on its participation in the proceedings defeats Kenya’s right to a fair hearing,” read a statement released by Nairobi yesterday.

With the close of public hearings in the case concerning maritime delimitation in the Indian Ocean, judge Donoghue announced the court will now retire for deliberation.

“The agents of the parties will be advised in due course as to the date on which the court will deliver its judgment,” she added.

However, Kenya, which has vowed to protest the court’s conduct at the United Nations Security Council, insists the case should be terminated.

“Kenya reached the decision not to participate in the hearings and remains steadfast that this dispute should be withdrawn from the court and resolved through bilateral negotiations,” said the Ministry of Foreign Affairs. 

Before Kenya notified the court of its withdrawal from the case on March 11, it had applied the previous month to be allowed to submit new evidence that has been “missing” and is “highly relevant.”

“Most particularly, the Republic of Somalia ("Somalia"), while asserting that its 1988 Maritime Law's reference to a ‘straight line’ refers to an equidistance line, conveniently failed to produce the map included in the law,” Kenya stated in court papers filed in February.

“This Somali map, which the court should reasonably expect Somalia to produce, is critical since it has the potential of undermining Somalia's entire claim … Whatever Somalia's missing map depicts is categorically not an equidistant line."

According to Kenya, the Covid-19 pandemic, which has disrupted operations worldwide, has made it difficult to trace some of the evidence, which Kenya understands is located in historical and national archives around the world.

Yesterday, the Foreign Affairs ministry insisted Kenya will only be party to proceedings if the world court suspends the case and allows it more time to compile its defence.

“Kenya has collected, and continues to collect substantial additional evidence in this matter. Such evidence will be of value only if Kenya is given ample opportunity to prepare it for proper and effective presentation to the court. The current timelines – and in the context of the pandemic – have not afforded Kenya such an opportunity,” read the statement. 

The Kenyan government has accused some world powers pursuing “commercial interests” of meddling in the case on the disputed oil-rich area.

“Kenya has also informed the court that influential third party commercial interests are fuelling the case that threatens to destabilise the peace and security of an already fragile region,” said the statement.

“The speed at which the matter was rushed before the court and the players involved in this dispute, pointed to a well-orchestrated strategy of pitting the countries against each other in total disregard to the precarious security situation in the region. Influential third parties are intent on using instability in Somalia to advance predatory commercial interests with little regard to peace and security in the region,” it added.

“Any consideration of this equidistant claim sets a dangerous precedent as it will not only reward Somalia’s belligerent conduct but also has the potential of disturbing already established boundaries,” said Kenya’s Foreign Affairs ministry.

According to court filings, Kenya’s continued research and analysis has, nevertheless, yielded significant evidence.

Part of the evidence will demonstrate that for over three decades, Somalia never disputed Kenya’s position of their maritime boundary along the parallel line of latitude.

The new evidence, Kenya argues, will also refute Somalia's argument that it was unable to protest against Kenya's claim to a boundary along the parallel of latitude during Somalia's civil war.

“Much of the documentation, such as Somalia's relationship with Soma Oil & Gas, is already known to Somalia. Ensuring that the court's eventual judgment is based on the totality of relevant evidence -- and thus not vulnerable to criticism relating to procedural and substantive fairness -- will benefit Somalia as much as Kenya,” Kenya’s Attorney General Kihara Kariuki wrote in a letter dated February 22, this year, addressed to the court’s registrar, Mr Philippe Gautier.

The court on March 11 allowed production by Kenya of the new evidence on the understanding that Somalia would have the opportunity to respond. It’s on the same day that Kenya informed the court it won’t participate in public hearings that concluded this week.

Under the circumstances, and unless there’s a dramatic intervention, the court looks set to write a judgment, while relying on Kenya’s past filings in 2017 and 2018, which the court’s president referred to this week.

The first is the counter-memorial filed on December 18 2017 in which Kenya essentially argued it’s not in dispute that it first gave notice of its maritime boundary at the parallel of latitude in the 1979 exclusive economic zone (EEZ) proclamation.

That claim was reaffirmed in the 2005 EEZ Proclamation, and that it claimed the extension of that line beyond 200 metres in the outer continental shelf in its 2009 Commission on the Limits of the Continental Shelf (CLCS) submission.

Kenya argued in its submissions that Somalia did not either protest that line or claim a contrary equidistance line as its maritime boundary until 2014.

The Kenyan government contended that diligent searches of the archives of the UN Office of Legal Affairs and the Kenyan Ministry of Foreign Affairs have never revealed any evidence of a protest.

“During this 35-year period, furthermore, the parties’ conduct in regard to fisheries, marine scientific research, oil concessions, and maritime patrols and enforcement, was consistent with a maritime boundary at the parallel of latitude.”

“In brief, between 1979 and 2014, Kenya claimed and exercised jurisdiction, and Somalia acquiesced and consented to, a maritime boundary at the parallel of latitude as an equitable delimitation,” Kenya argued in the filing on December 18, 2017.

Following Somalia’s response to these submissions, Kenya filed another rejoinder on December 18, 2018.

“Kenya has demonstrated in its counter-memorial, and Somalia has not disputed in its reply, that since at least 1979, Kenya has formally proclaimed and established, under the relevant rules of international law, its maritime boundary at the parallel of latitude as an equitable delimitation under international law.”

The Kenyan government argued Somalia’s defence has been “confused and contradictory.”

“At one point in its reply, Somalia claims that there is no obligation to protest under international law … Somalia also claims on the one hand that it protested against Kenya’s position and on the other hand that it was unable to protest because of the outbreak of civil war in 1991,” court papers read.