MARITIME DELIMITATION IN THE INDIAN OCEAN KENYA VS SOMALIA I.C.J. REPORTS 2021, P. 206 BY: DR. CHRISTABELL JOSEPH

MARITIME DELIMITATION IN THE INDIAN OCEAN

KENYA VS SOMALIA

I.C.J. REPORTS 2021, P. 206

AUTHORED BY: DR. CHRISTABELL JOSEPH

Designation: Associate Professor, School of Law,

Name of the Organization: Christ University, Bangalore

Email: christabell.joseph@christuniversity.in

INTRODUCTION

Starting with  the concept of International court of justice .ICJ sometimes also referred to as the World court , is one of the six principles organs of the United Nations .It settles disputes between states in accordance with international law and gives advisory opinion on international legal issues.[1] The ICJ is located at Hague in Netherlands. The ICJ deals with the following subject matters -sovereignty, boundary, maritime disputes, trade ,natural resources, human rights ,treaty violence ,treaty interpretation and more between two states.

This whole case deals with a maritime dispute between Kenya and Somalia and how the issue is taken up by the ICJ.  Later the jurisdiction if the ICJ is challenged. The following are issues dealt with in this particular case – Kenya challenged the jurisdiction of the ICJ and whether the case can be admissible I will be analysing the decision of the ICJ and giving my opinion on the same based on the analysis in this assignment.

BACKGROUND

FACTS

This case is concerned with 100,000 sq km triangle in the Indian Ocean.[2] The dispute has been a heart of a diplomatic row between the neighbours (Kenya and Somalia). For the past four decades, Kenya has said its maritime border runs in a line due east from where the two countries meet at the coast.[3] Somalia argues that the sea frontier in the Indian ocean should follow on in the same direction as their land border.[4]

Somalia also argues that Kenya had violated its sovereignty by operating in its territorial waters and demanded reparations.[5] So this gives a triangular region which both the neighbouring states are fighting for. The two diagrams above make the triangular region clear. Another important aspect to keep in mind is that Kenya has its own naval force whereas Somalia does not have its own naval force.

In 2009 both Somalia   and   Kenya   signed   a   Memorandum   of   Understanding   (MOU)   which confirmed that both parties will make submissions to the UN agency charged with settling   maritime border disputes,   Commission on the Limits of the   Continental Shelf (CLCS). The CLCS will analyse the submissions and make recommendations without   prejudice.[6] CLCS   received   the   submissions   from   both   parties   and   also received   subsequent objections from both parties as a consequence.[7]  In August2014, Somalia initiated proceedings to take Kenya to the International Court of Justice over the maritime dispute.[8]

Kenya claims that because the MOU is the way of resolving the dispute, the Court lacks jurisdiction to hear it. According to Kenya, paragraph 6 of the MOU states that both parties concur to get advice from the CLCS regarding the outer limits of the continental shelf.[9] Kenya contends that an agreement cannot be finalised until the CLCS has made its recommendation. The Court has no jurisdiction over this situation because the CLCS's recommendation is not yet given.

ISSUES

1. Whether the MOU is a treaty?
2. Whether the ICJ has jurisdiction?
3. Whether the case is admissible?

ANALYSIS OF THE ISSUES AND EVALUATION

OF THE CASE

ISSUE 1- WHETHER THE MOU IS A TREATY OR NOT?

A written international agreement between States that is governed by international law is considered a treaty under the customary international law of treaties, which is relevant in this case because neither Somalia nor Kenya are parties to the Vienna Convention on the Law of Treaties from 1969.[10] The Parties record their agreement on a number of issues governed by international law [11]in the MOU, a written document. The presence of a clause addressing the MOU's implementation demonstrates its binding nature. Kenya requested the MOU's registration in accordance with Article 102 of the United Nations Charter, considering it to be a treaty. Somalia didn't object to that registration until almost five years later. Additionally, it is evident from the MOU's actual wording, which expressly state that it will take effect upon signature, and the details of the permission granted to the Somali Minister that this signature signified Somalia's consent to be bound by the MOU in accordance with international law. [12]The Court comes to the conclusion that the MOU is a legitimate treaty that became effective upon signature and binds the Parties in accordance with international law.

ISSUE 2- WHETHER THE ICJ HAS JURISDICTION OR NOT?

According to Kenya, the MOU's paragraph 6 states that both parties consent to requesting advice from the CLCS regarding the outer limits of the continental shelf.[13] Kenya claims that an agreement cannot be finalised until the CLCS has made its recommendations. The CLCS's recommendation is incomplete; hence the court has no jurisdiction because of this. The Court based its explanation of its decision on five key points.

The exact text of paragraph 6 reads:[14]

 The   delimitation   of   maritime   boundaries   in   the   areas   under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis   of   international   law   after   the   Commission   has   concluded   its examination  of  the  separate  submissions  made  by  each  of  the  two coastal States and made its recommendations to two coastal States concerning   the   establishment   of   the   outer   limits   of   the   continental shelf beyond 200 nautical miles.[15]

First, its object and purpose were to constitute a no-objection agreement, enabling the CLCS  to  make  recommendations notwithstanding  the  existence  of  a  dispute between the Parties regarding the delimitation of the continental shelf. [16]

Secondly, the sixth paragraph relates solely to the continental shelf, and not to the whole maritime boundary between the Parties, which suggests that it did not create dispute settlement procedure for the determination of that boundary.[17]

 Thirdly, the MOU makes it clear time and  again that the process leading to the delineation of the outer limits of the continental shelf beyond 200 nautical miles is to be done without regard to the delineation of the maritime boundary between the Parties, indicating that delimitation could be done independently of a CLCS recommendation.[18]

Fourth, the text of the sixth paragraph of the MOU is similar to Article 83, Paragraph 1 of the UNCLOS, which suggests that the parties intended to acknowledge the typical path that delimitation would take under that Article, which is engaging in negotiations with a goal of reaching agreement, rather than dictating a procedure for resolving disputes.[19]

Fifth, the Parties acknowledge that the sixth paragraph did not prevent them from engaging in such negotiations or from concluding specific agreements prior to receiving the CLCS's recommendations.[20] The travaux préparatoires, albeit limited, and the circumstances surrounding the MOU's conclusion have also been looked at by the Court, and these, in its opinion, confirm that the MOU was not intended to set up a process for the resolution of the Parties' maritime boundary dispute.[21]

ISSUE-3 WHETHER THE CASE IS ADMISSABLE OR NOT?

Kenya argues that the Application is not acceptable since the parties had agreed in the MOU to negotiate the delineation of the disputed boundary and to do so as soon as the CLCS had finished reviewing the parties' submissions.[22] The Court must reject this part of Kenya's second preliminary objection because it already determined that the MOU did not contain such an arrangement.

Kenya claims that Somalia violated the MOU by opposing to CLCS consideration of Kenya's contribution, only to assent once more right before filing its Memorial,[23] rendering the Application inadmissible. Kenya claims that Somalia violated the MOU by withdrawing its consent, which resulted in significant expenses and delays. A State "seeking remedy before the Court must come with clean hands," according to Kenya, and Somalia has not done that.

The Court points out that the potential violation of a treaty at issue in the case by an applicant does not, by itself, impact the application's admissibility.[24] Furthermore, the Court observes that neither Somalia nor any other party is relying on the MOU as a tool for granting the Court jurisdiction or as a source of substantive law affecting the merits of this matter. [25]Hence, Somalia's objection to Kenya's submission being considered by CLCS does not make the Application inadmissible. In view of the aforementioned, the Court determines that the preliminary objection to Somalia's application's admissibility must be dismissed. The verdict came in the year 2017. Somalia was happy with the verdict because it is a weaker state in comparison to Kenya.

Hence analysing the three issues in depth my personal opinion is in line with the decision given by the ICJ. Dividing the triangular region common to both the states was a wise and far decision made by the ICJ.

WHY THE PATICULAR SOLUTION WAS CHOSEN

Under UNCLOS, using the equidistance approach is not required. However, the Court emphasised that it did not see any cause to change from its "ordinary" approach in the absence of compelling reasons that would have made it unsuitable [paras 128–131]. Hence, the Court used its typical three-stage procedure.

In order to arrive at an equitable outcome, the Court secondly evaluated whether any pertinent factors required the alteration or shifting of the temporary equidistance line. The equidistance limit was mostly determined by the general geographic circumstances. The Court determined that none of the other non-geographical grounds raised by Kenya required a change. Because they linked to ambiguous and shifting elements and were not, however, "permanent circumstances," economic and security factors could not be taken into account [paras 156–160].

 The Court further emphasised the possibility of unfair outcomes when equidistance lines are drawn from coasts that are noticeably concave. In order to lessen the loss of Kenya's potential entitlements as a result of the coastline's concavity, the Court only made one small change. The coastlines of the two parties were taken into consideration by the court, together with the coastline's concavity in a larger geographic region spanning from Somalia to Tanzania [paras 164–165, 168]. Even while the equidistance moves the boundary's final position to the north [paras 173–174], it still gives Somalia the majority of the disputed territory. The coastline is certainly concave, according to the Court, when Somalia, Kenya, and Tanzania's continental shores are viewed as a whole. [para 168]. This method is flawed since it takes into account a concavity outside of the parties' pertinent coastlines. Judges Abraham, Yusuf, and Robinson all criticised it as a result in their respective judgements.

In order to ensure that the altered equidistance line did not result[26] in an unfair outcome, the Court used an ex-post facto (dis)proportionality test for the third and final stage of delimitation. It examined if there was any obvious imbalance between the proportions of the various coastal lengths and the proportions of the pertinent maritime areas granted to each party [paras 175–177]. The proportion of Kenya's maritime zones to Somalia's maritime zones was 1:1.30 [para 176]. The territorial sea, EEZ, and continental shelf within and beyond 200nm were all determined by the Court to have a single maritime boundary as the adjusted equidistance line [para. 196].he boundary's final positioning to the north [paras. 173–174].

Hence with a lot of difficulty the ICJ finally came up with this particular solution

WHAT HAPPENED POST THE ICJ VERDICT AND RECOMMENDATIONS

As soon as the verdict came Kenya rejected the verdict and were ready for a war to defend they’re maritime territory. Somalia on the other hand celebrated the verdict. Osman Dubbe, minister of information, culture and tourism, congratulated the Somali people for having succeeded in capturing they’re seas.[27]

 Another aspect is that is the real issue between Kenya and Somalia is not just about the maritime dispute but about money. The triangular area which both the states were fighting for is rich in oil and gas resources. Also Somalia has control over an oil and gas rich chunk of the Indian Ocean.[28]

The second problem is related to an issue that effects international organisations .Kenya decided to not accept the verdict of the ICJ. The ICJ’s are not successfully able to enforce they’re judgments.

Thirdly another issue and the biggest issue is that Kenya and Somalia are hot beds of terrorism. These bilateral issues will clear become advantageous to the terrorism group in both the states. The only way to is that both the states maintain a diplomatic relationship with each other going ahead. Kenya ought to look at other diplomatic avenues for settling its maritime conflict with Somalia. Because to case scheduling and Somalia's resistance to discussions, the window for such manoeuvres is quickly shrinking. Kenya should step up its diplomatic efforts to mediate a resolution to the conflict, maybe with the assistance of an impartial third party. The threats to the security and stability of the region are intolerable given the ambiguity of the legal system and the price of on-going conflicts. To help Somalia modify its approach to negotiations and compromise for regional peace, the best for both parties, there is a need to establish a constructive incentive framework for alternative settlement.  With regards to the decisions of the ICJ there should be another body just to enforce the decisions of the ICJ and severe repercussions should be imposed on states for not abiding by the decision of the ICJ.

[1] Nicholas A Loannides, A commentary on the dispute concerning the Maritime delimitation in the Indian Ocean( Somalia vs Kenya), October22nd 2021, https://www.ejiltalk.org/a-commentary-on-the-dispute-concerning-the-maritime-delimitation-in-the-indian-ocean-somalia-v-kenya/

[2] Edmond J Pamba,Kenya Somalia dispute, March 8th 2019, https://horninstitute.org/kenya-somalia-diplomatic-tension-and-the-maritime-dispute-the-greatest-test-of-kenyas-diplomacy-yet/

[3] Id.

[4] Id.

[5] Id.

[6] Maritime law in the Indian Ocean.

[7] https://www.studocu.com/ph/document/university-of-san-carlos/constitutional-law-1/somalia-v-kenya/9346581

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] https://www.dw.com/en/icj-sides-with-somalia-in-kenya-maritime-border-dispute/a-59482142

[13] 14 Barry L. Rev. 73 (2010).
Foreign Fishing Piracy vs. Somalia Piracy - Does Wrong Equal Wrong, Diaz, Leticia M., Dubner, Barry Hart
[ 24 pages, 73 to 96 ].

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Nicholas A Loannides, A commentary on the dispute concerning the Maritime delimitation in the Indian Ocean( Somalia vs Kenya), October22nd 2021, https://www.ejiltalk.org/a-commentary-on-the-dispute-concerning-the-maritime-delimitation-in-the-indian-ocean-somalia-v-kenya/

[18] Edmond J Pamba, Kenya Somalia dispute.

[19] Id.

[20] Ibid.

[21] Ibid.

[22] Xiaohui Wu, Case Note: Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Judgment on Preliminary Objections, 17 Chinese J. INT'l L. 841 (2018).

[23] Id.

[24] Eduardo Augusto S. da C. Schneider, Piracy at Sea: Somalia as a Case Study, 12 BRAZ. J. INT'l L. 302 (2015).

[25] Pablo Arconada Ledesma, From Irredentism to State Disintegration: Greater Somalia during Siad Barre Regime (1969-1991), 2018 REV. Universitara Sociologie 94 (2018).

[26] Id.

[27] Edmond J Pamba,Kenya Somalia dispute, March 8th 2019, https://horninstitute.org/kenya-somalia-diplomatic-tension-and-the-maritime-dispute-the-greatest-test-of-kenyas-diplomacy-yet/

[28] Id.