Border row: ICJ has given Kenya a raw deal all along

Kenya’s belated withdrawal from proceedings before the International Court of Justice (ICJ) on the maritime boundary dispute with Somalia a fortnight ago needs to be understood without self-serving sentimentalism unless we want that court to have the last word on this matter.

As a coastline state on Western Indian Ocean, Kenya shares two maritime boundaries with Somalia to the north and Tanzania to the south.

In 1982 the United Nations Convention on the Law of the Sea was adopted by member states to govern and regulate all aspects of the oceans in relation to exercise of sovereignty, utilisation of living and non-living resource. Kenya and Somalia signed the Convention on December 10, 1982 and whilst Kenya ratified Convention on the Law of the Sea (UNCLOS) on March 2, 1989, Somalia did so on July 24, 1989. The convention entered into force for Somalia and Kenya on November 16, 1994.

The dispute currently before the ICJ arose in connection with securing Kenya’s and Somalia’s compliance with Article 76 paragraph 8 of the convention, which required a state party to the convention intending to establish the outer limits of its continental shelf beyond 200 nautical miles to submit information on such limits to the Commission on the Limits of the Continental Shelf.

Article 74 of the convention relates to delimitation of the exclusive economic zone between states with opposite or adjacent coasts. Basically, states are required to determine their shared boundaries by agreement on the basis of international law and where such agreement is not reached within a reasonable period of time, the states concerned shall resort to one of the judicial resolution procedures, including lodging an application before the International Court of Justice (ICJ).

In 1989 the Kenyan Parliament enacted the Maritime Zones Act (MZA) to domesticate the provisions of the UNCLOS whose objectives included the establishment and delimitation of the Exclusive Economic Zone (EEZ) of Kenya. Section 4(3) of the MZA sets out the southern boundary of the exclusive economic zone with Tanzania whilst Section 4(4) provides that the “northern boundary of the exclusive zone with Somalia shall be delimited by notice in the Gazette by the Minister pursuant to an agreement between Kenya and Somalia on the basis of international law”.

In mid 2009 Kenya and Somalia signed a Memorandum of Understanding in which they agreed to grant each other “no-objection” in respect of their respective submission to the Commission on the Limits of the Continental Shelf (CLCS) on the outer limits of the continental shelf beyond 200 nautical miles.

In February, 2014 Somalia objected to the consideration by the CLCS of Kenya’s submission on the ground that there existed a maritime boundary dispute between itself and Kenya and that the MoU was “void and of no effect". The UN commission, which held its 34th session from January 27 to March 14, 2014, agreed with Somalia despite the fact that by then no dispute actually existed. Between March 21 and August 24, 2014 efforts by mid-level officials of the two countries to resolve the issue before the commission failed because no meeting of substance was held.

On August 28, 2014 only two days after the failed meeting, Somalia filed an application before the ICJ seeking for delimitation of its maritime boundary on the premise that efforts to delimit it by negotiations had failed. Before the ICJ, Kenya objected and protested that the court did not have jurisdiction on account of its 1965 declaration when it signed the ICJ Statute and because of the 2009 MoU with Somalia, in which the parties agreed on how and when to resolve the dispute.

1965 declaration

Whilst the court unanimously held that the MoU between Kenya and Somalia was an international treaty and that Kenya had excluded the jurisdiction of ICJ in matters that Kenya preferred use of other methods, a majority of the court reasoned that somehow the said MoU and the 1965 declaration had not been done with sufficient clarity and detail as to exclude the jurisdiction of the ICJ over the matter. Consequently, the court by default rather than any reasonable doubt about Kenya’s position on its jurisdiction asserted the right to determine the dispute filed by Somalia.

In my view, after ICJ asserted jurisdiction to determine Somalia’s case without justification, that was the appropriate stage for Kenya to walk out in a legally meaningful and honourable manner as a self-respecting State for the simple reason that further participation would only serve to aggravate the miscarriage of justice and to legitimise the final verdict of the court. There are three reasons why the ICJ has served a miscarriage of justice on Kenya due to apparent compromise or sheer ineptitude, perhaps both.

First, the jurisdiction of the ICJ to determine a particular dispute between states depends on the express consent of the states involved in the dispute. Whereas Kenya signed the Statute of the ICJ and recognised compulsory jurisdiction by ICJ, it limited this jurisdiction through its declaration made on April 19, 1965 specifically in relation to disputes where the parties “have agreed or shall agree to have recourse to some other method or methods of settlement”.

After the convention on the law of the sea came into force, Kenya enacted a law that expressly provides that agreement – which presupposes negotiations – is the only method of delimiting Kenya’s maritime boundary of the exclusive economic zone with Somalia. In effect, ICJ’s jurisdiction was expressly ousted by statute besides the 1965 exclusion of its jurisdiction.

Two, under Article 74 of the Convention, Kenya has a right to reach an agreement with Somalia within a reasonable period of time on the delimitation of its northern maritime boundary. The effect of the ICJ’s decision that it had jurisdiction to determine Somalia’s case before attempts had been made over a reasonable time to reach agreement is that Kenya was deprived of its right as a sovereign state under a treaty.

Third, all judicial bodies are expected to determine disputes fairly, impartially and with integrity both in evaluation of facts and evidence and analysis and application of the law. On this score ICJ’s decision reeks of both dishonesty and malice against Kenya. No objective and reasonable judicial officer could have concluded that the engagements between Somalia and Kenya officers between March 21, 2014 and July 29, 2014 amounted to failure to reach delimitation agreement under Article 74 of the convention.

Whilst this dishonesty is partly attributable to composition of the court, which was chaired by a citizen of Somalia, the ICJ Statute does not bar a judge from a state involved in a dispute from sitting in judgement. This provision is, however, foolish idealism because it would be naïve to expect any Somali or Kenyan national – however angelic a human being and unblemished a professional – to be neutral on this matter.

Mr Kibe is a constitutional lawyer. [email protected]