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International Court rules on the Maritime Boundary between Kenya and Somalia


International Court rules on the Maritime Boundary between Kenya and Somalia

International Court rules on the Maritime Boundary between Kenya and Somalia

In 1829, the English adventurer Sir Walter Raleigh wrote:

For whosoever commands the sea commands the trade; whosoever commands the trade of the world commands the riches of the world, and consequently the world itself.”[1]

“Control over the world” cannot be the goal of individual states anymore (at least not as an explicitly stated objective) but access to the seas and jurisdiction over maritime zones are vital for countries, even land-locked ones. Globalization is one obvious reason. Today, ships transport 90 percent of international trade, and worldwide shipping volume is expected to double by 2025. Maritime transport has become a vital and vast services sector. Carriers, ports and third parties in liner and bulk shipping are key players in the maritime value chain. And technology has made it possible to mine the mineral riches found in the oceans.

But International Law has also changed fundamentally. Coastal states can exercise different forms of jurisdiction over adjacent waters. The United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982 and constitutes the legal framework for marine and maritime activities. There are new challenges; oceans play a vital role in in the efforts to tackle climate change.

This Blog briefly discusses the recent judgment on 12 October 2021 by the International Court of Justice (ICJ) in the dispute between Somalia and Kenya about the demarcation of the maritime boundary between them. This is an important case. It deals with the peaceful settlement of a dispute between two Member States of the African Union and has consequences for ownership of fishery and other resources.

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. Somalia, however, argued that the maritime boundary in the Indian Ocean should follow the same direction as their land border. It has invoked certain principles in UNCLOS to support this argument. In 2009, both nations agreed in a memorandum of understanding, backed by the UN, to settle the boundary dispute through negotiations. But five years later, Somalia said the talks had failed and it went to the ICJ instead.

The ICJ has now ruled largely in favour of Somalia in this long-running dispute, but Kenya rejected the ruling "in totality" before accusing the ICJ of bias.[2] Somalia had also argued that Kenya had violated its sovereignty by operating in its territorial waters and demanded reparations. The judges, however, rejected this argument.

The judges decided that Kenya had not proved that Somalia had previously agreed to its claimed border. Instead, they drew a new line which has split the disputed area in two. Kenya argued unsuccessfully that the ICJ should not be involved as the 2009 memorandum of understanding was binding. Then in March it refused to take part in hearings after having asked for a delay to brief a new legal team. It also objected to the presence on the ICJ panel of a Somali judge, saying he should recuse himself.

Kenya's government described the case as a "flawed judicial process". It added that there was "inherent bias" and that the court was an unsuitable way to resolve the dispute. However, the ICJ was supposed to give a final and binding decision. Now that Kenya has rejected the ruling, the issue could be escalated to the UN Security Council. The stalemate continues.

What happens between Kenya and Somalia has wider implications. They share a maritime boundary in a geopolitically and military sensitive part of the world. There are other unresolved intra-African disputes over maritime boundaries. If left unaddressed, maritime boundaries issues may result in additional disputes over coastal and inland navigable waterways. Kenya’s reaction will be closely watched by the other neighbours it has territorial disputes with.[3] Many other African nations will be watching too.

[1] For reference, see https://www.bartleby.com/73/2044.html

[2] BBC 13 Oct 2021.

[3] The East African,16 Oct 2021.

About the Author(s)

Gerhard Erasmus

Gerhard Erasmus is a founder of tralac and Professor Emeritus (Law Faculty), University of Stellenbosch. He holds degrees from the University of the Free State, Bloemfontein (B.Iuris, LL.B), Leiden in the Netherlands (LLD) and a Master’s from the Fletcher School of Law and Diplomacy. He has consulted for governments, the private sector and regional organisations in southern Africa. He has also been involved in the drafting of the South African and Namibian constitutions. He grew up in Namibia.

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