Kenya has rebutted Somalia’s claim that negotiations to resolve the maritime boundary dispute between the two had been exhausted before it moved to the International Court of Justice (ICJ).

In their second bid to oppose the case, Kenya’s legal team argued all the meetings between the two countries over the issue were only preparatory and were meant to draw up agenda for discussion.

British lawyer, Prof Vaughan Lowe told the Court that Somalia did not in inform Kenya that it was getting fatigued with the talks, and only, suddenly went to Court.

“Objectively, there is no evidence that the parties had reached deadlock on the negotiations. Subjectively, Kenya remained committed to negotiations. It remains open to date,” Kenya argued.

Somalia sued Kenya in August 2014 before the ICJ seeking a determination of the actual flow of a sea boundary between the two countries.

Mogadishu wants the Court to help determine whether the borderline should flow eastwards as demanded by Kenya or diagonally to the south from the land border as it wants, insisting “diplomatic negotiations, in which their respective views have been fully exchanged, have failed to resolve this disagreement.”

Kenya’s Attorney-General Githu Muigai said the Somali case should be dropped because it was introducing an element of uncertainty in the relations between the two countries as well as the general cooperation for maritime security in the region.

“Maritime boundary delimitation requires sensitive bilateral negotiations. After a volatile transitional period, preliminary negotiations began in 2014, but they were cut short by Somalia… This dispute is a test in our new era in our bilateral relations.”

“Kenya does not want deadlock or perpetual uncertainty. We want a solution that will contribute to permanent peace in the region.”

The disputed area is thought to have rich deposits of oil, but Prof Muigai said Kenya had suspended any exploratory activities as a sign of commitment to await a solution, through negotiations.

On Tuesday, Somalia insisted that it was Kenya which pulled the plug on negotiations after it failed to turn up for a meeting in Mogadishu in August of 2014.

Those talks were part of a MoU the two countries signed in 2009 to specifically deal with the dispute through negotiations and with guidance from the UN Commission on the Limits of the Continental Shelf.

Kenya agrees that there had been two meetings in 2014 up to July 2014, but which were only at “technical level” and meant to boost confidence between the two sides that there was a solution on the horizon.

The said that meeting which was to happen in August failed because Kenya did not show up citing, in court documents, that its delegation would not be assured of safety. Somalia accused Kenya of a no-show without explanation, but Nairobi argues even the third meeting was only about “bridging the gap of differences between the two sides.

Bridgeable gaps

“The parties were still operating on the basis that there were bridgeable gaps between them…” Kenya said in turn criticising Mogadishu of going to court just three days after the meeting failed.

The Kenyan legal team argued the Court lacked jurisdiction since both Kenya and Mogadishu had agreed on an alternative dispute settlement.

Prof Lowe for example argued that when Kenya joined the UN, it indicated in 1965 that it would agree to the Court’s general jurisdiction only as long as there were no alternative methods of resolving disagreements.

“There is no reason to suggest that the parties were ignorant of their obligations when they signed on the agreement. The MoU stipulated a method and a time, after the CLOS (UN Commission for the Limitation of Continental Shelf) determination for delimitation. That time hadn’t arrived,” Prof Lowe said.

“At the time when the rest of the world is moving for non-judicial methods of dispute settlement, Somalia seems to be swimming in the opposite direction. Somalia cannot simply ignore its obligations to the MoU.”

Mogadishu had on Tuesday refuted the argument that the 2009 deal prevented it from resorting to courts, saying the agreement was not even specific about the boundary but was to deal with the limits of each country’s continental shelf.

Somalia is basing its arguments on Articles 15, 74 and 83 of the 1982 United Nations Convention on the Law of the Sea, which both countries ratified in 1989.

The cited articles state that where two states share coasts adjacent or opposite each other, neither state should extend territorial boundaries beyond the median line “every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured” except where there is an agreement to do so.

In Kenya’s situation, it means Somalia wants the boundary to extend diagonally to the south at Kiunga into the sea, and not eastwards as it is today. But that may also affect Kenya’s sea border with Tanzania.

The area in contest is about 100,000 square kilometres, forming a triangle east of the Kenya coast. In 2009, Kenya and Somalia reached an MoU, which was then deposited to the UN in 2011.

The agreement had stated that the border would run east along the line of latitude although further negotiations were to be held through the UN Commission on the Limits of the Continental Shelf.

This agreement also stated that maritime boundary adjustments would only occur after the commission had established the outer limits of shelf and that both sides would avoid courts as much as possible over the matter.