Kenya loses first round in battle with Somalia on maritime border
By Kamau Muthoni | February 3rd 2017
International Court of Justice (ICJ) yesterday dismissed Kenya's opposition to Somalia's case on maritime boundary.
By a majority of 13 judges, the top UN court ruled that it had powers to hear the dispute between the two countries.
Kenya had put up the argument that Somalia had jumped the gun as the Memorandum of Understanding (MoU) expressly provided for negotiations as a way of settling the impasse, but the court found that the treaty was not binding to one-method process.
"The court observes although the applicant breached the treaty, it does not affect its case. Somalia's objection does not render its application inadmissible," said Justice Ronny Abraham.
A majority of the judges agreed that the court's powers on maritime was only limited if the MoU signed provided for an alternative way of settling the dispute.
The judges found that the Kenya-Somalia agreement signed in 2009 did not give a particular way of ending the row.
"The court finds the preliminary objection (by Kenya) must be rejected," Abraham concluded.
In the case, lawyers representing Kenya told the bench of 15 ICJ judges that the Horn of Africa nation's focus on its case was misplaced, as it was still struggling with terrorists who had turned to attack Kenyans from both the contested ocean territory and on land.
Lawyer Payam Akhavan said Somalia could not dispute that Kenya's navy has been keeping the disputed area safe for years, and that there was a danger of Al Shabaab taking over the contested waters if the forces left.
Kenya is insisting on a negotiated settlement process.
The judges were also told that Somalia had never protested Kenya's occupancy of the area for 30 years, and that it only raised the issue when an MoU was signed and oil exploration started.
"Is it fair to fault Kenya in such circumstances? Kenya has behaved in an exemplary conduct," said the lawyer.
The court also heard that Somalia avoided the question on whether an MoU had a binding effect.
Kenya submitted that the process was only to come to effect after the two countries negotiated on the basis of international law.
The court heard that Kenya had already enacted a law dictating that it cannot be subject to a court of law if there is an agreement in place to settle a dispute through another method.
Somalia, on the other hand, accused Kenya of plotting to evade the court in a bid to retain contested maritime boundary.
In its argument, Somalia told the court that the MoU method of settlement would lock it out of the contested waters beyond 2033.
The Horn of Africa argued that Kenya was trying to outwit the court in order to use its political muscle to shove it out of the waters that have fish and potentially viable for oil.
"It is the first time Somalia is appearing before an international court. Somalia is faced with instability, hunger and terrorism. On the other hand, Kenya has refused to exercise refrain from the disputed area. Kenya has been there since 1979 and Somalia cannot agree with the misguided attitude," lawyer Paul Reichler for Somalia said.
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