Somalia v Kenya at the International Court of Justice: Politigation

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A dispute concerning maritime delimitation in the Indian Ocean between Somalia and Kenya is at the International Court of Justice (ICJ/Court).

A dispute concerning maritime delimitation in the Indian Ocean between Somalia and Kenya is at the International Court of Justice (ICJ/Court). Many theories could be advanced for Somalia's case against Kenya. Rational choice theory appears more relevant. Any submission that the parties have exhausted the settlement of this international dispute by peaceful means would not hold water. To present to the Court or the citizens of both countries that the central purpose of the MoU was to secure the non-objection of each State to make submissions to the Commission on the Limits of the Continental Shelf (CLCS/Commission) really is to leave them at sea. Certainly, neither party could anchor an argument that there is a legal basis for this case.

Three fundamental questions need to be answered:

1. Why did Somalia and Kenya enter into a Memorandum of Understanding (MoU) on 7 April 2009 allegedly to secure the non-objection of each State to make submissions to the CLCS when the matter of maritime delimitation is unambiguously dealt with by United Nations Convention on the Law of the Sea (UNCLOS) 1982?

2. Why did Somalia not adhere to the MoU and make the submissions to the CLCS on or before 13 May 2009 when Kenya did so on 6 May 2009?; and

3. Why did Somalia institute proceedings on 28 August 2014, a month after its submissions to the CLCS, against Kenya at the ICJ?

This case is purportedly founded upon the MoU, which was signed by Somalia and Kenya to grant “no objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission on the Limits of the Continental Shelf”. This was done “in the spirit of co-operation and mutual understanding”. Of significance is that both agreed to submit, before 13 May 2009, to the Secretary General of the United Nations “preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles. This submission may include the area under dispute. It will solely aim at complying with the time period referred to in article (4) of Annex II to the United Nations Convention on the Law of the Sea (UNCLOS)”. [Emphasis added] The purpose of this would be to request the Commission’s recommendations with respect to the maritime delimitation.

To examine the language used in the MoU, such as “may include” or “in the spirit of co-operation and mutual understanding” will simply open a Pandora’s Box. Since this case does not fall short of conspiracies, it seems better to analyse the legal basis for it and see if there is one. The parties say that the MoU is to comply with Article (4) of Annex II to UNCLOS. This reads as follows: “Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice”. [Emphasis added]

UNCLOS entered into force for Somalia and Kenya on 16 November 1994. This means that both had to make submissions to the CLCS by not later than 15 November 2004. However, the ‘Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea’ dated 29 May 2001 (1) was that:

“(a) In the case of a State Party for which the Convention entered into force before 13 May 1999, it is understood that the ten-year time period referred to in article 4 of Annex II to the Convention shall be taken to have commenced on 13 May 1999;

(b) The general issue of the ability of States, particularly developing States, to fulfil the requirements of article 4 of Annex II to the Convention be kept under review. [Emphasis added]

This means that by agreement of the States Parties to the UNCLOS the 10-year time limit was extended and the starting date was 13 May 1999. Moreover, the ‘Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfil the requirements of article 4 of annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained in SPLOS/72, paragraph (a)’ dated 20 June 2008 (2) was that:

“(a) It is understood that the time period referred to in article 4 of annex II to the Convention and the decision contained in SPLOS/72, paragraph (a), may be satisfied by submitting to the Secretary-General preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission in accordance with the requirements of article 76 of the Convention and with the Rules of Procedure and the Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf”.

Furthermore, there is no legal consequence stipulated by the Convention if a State failed to make a submission to the CLCS because the rights over a State’s continental shelf were inherent and would not be adversely affected by non-compliance with the time period. This being the case, why did Somalia and Kenya deem it necessary to sign the MoU?

Somalia and Kenya disagree about the location of the maritime boundary in the area where their maritime entitlements overlap. Somalia contends that it should be as an extension of its southeastern land borders and Kenya argues that it should run along the line of latitude on its eastern border. On 6 May 2009 Kenya submitted to the CLCS, eight days before the expiry period of the 10 years, the relevant information pertaining to the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured, which Somalia also submitted on 21 July 2014, albeit five years following the expiry of the relevant period. The Commission is to consider submissions by both countries and to make recommendations pursuant to Article 76 of UNCLOS. Based on the CLCS’s recommendations the States would be obliged to establish the continental shelf outer limit. To date no recommendations have been made by the CLCS. If and when the CLCS makes recommendations, Article 8 of UNCLOS permits the States to “make a revised or new submission to the Commission” if Kenya or Somalia is dissatisfied with its recommendations. As a result, this would mean that there is no legal basis for the case at the ICJ!

The ICJ held public hearings in the week of 19 to 23 September 2016 where the disputants presented their submissions on preliminary objections to the jurisdiction of the Court and to the admissibility of Somalia’s application because Kenya argues that the Court does not have jurisdiction. These proceedings are in complete disregard to Article 2(3) of the Charter of the United Nations 1945, which states that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”. This provision is obligatory to preserve international peace, security, and justice. The essence of this is that communal goals of the world in general are more of a priority than States’ national desires. It is to encourage cooperation and interdependence between member States so as to strengthen universal peace. Somalia argues, however, that she instituted proceedings only because diplomatic negotiations have failed; meaning that peaceful resolution of the disagreement became unattainable. This then raises the question why is Kenya not adhering to Article 2(3) and publicly calling for renewed and more serious diplomatic negotiations; if at all any should in fact take place, and avoid interruption to the economic and diplomatic relations between the two nations?

So why did Somalia institute proceedings at the ICJ, without waiting for an outcome from the CLCS? It would seem logical to say ‘to get her hands on the 100,000 square kilometers triangle containing large oil and gas deposits because Kenya awarded licenses to foreign companies to explore for oil in the disputed area’. Kenya contracted with international energy companies to develop eight offshore blocks in the disputed territory. But this happened in 2010 and 2012. Kenya awarded Block L-5 to Anadarko Petroleum Corporation in 2010; blocks L-21, L-23 and L-24 to Eni S.p.A. in 2012; and Block L-22 to Total S.A. also in 2012. This really enraged Somalia! Yet, Somalia filed the application at the ICJ only in 2014 requesting that the Court “to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles” and “to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean”.

A more plausible answer would, however, be ‘politigation’. On 30 October 2016 Somalia is due to elect a President. The House of the People and the Upper House of Parliament will decide if the incumbent President Hassan Sheikh Mohamud; the incumbent Prime Minister Omar Abdirashid Ali Sharmarke; or the former President Sheikh Sharif Sheikh Ahmed, the only real contenders with both clan and financial support, should lead Somalia into its next phase of stablisation. In 2009 when the MoU was signed, the Prime Minister and the former President were in office in their respective roles. They may be able to answer why it was signed and why no action was taken against Kenya in 2010 when Kenya awarded the contract to Anadarko. Lack of any legal action may be explained by the then Parliament’s unanimous rejection of the MoU on 1 August 2009 and the Government’s refusal to entertain talks with Kenya because the maritime boundary remains the same since 1 July 1960 when Somalia became an independent State, before Kenya attained its independence on 12 Dec 1963, meaning that the disputed area belongs to Somalia because the relevant boundaries were demarcated at that time. Therefore, there was no dispute at hand. That explains why the two individuals under whose watch the MoU was signed are running for presidency.

But the current President can shed light on the decision not to take Kenya to the ICJ since taking office in 2012 when Kenya awarded more contracts for exploration of the disputed area and doing so only in 2014 . Rational choice theory explains the determinants that influence decision making when choice is available to a decision maker. An individual will always prefer the choice with the greatest benefit to them and in their self-interest. Thus, it would not be illogical to perceive the case as litigation based on political motivation, hence politigation, to tarnish his opponents and weaken their chances of moving into Villa Somalia.

Politics is complex! On the account of the 2012 presidential election, however, when the former President peacefully handed over the realm to the current President, it would be erudite to predict that President Mohamud will be persuaded to return the favour to his predecessor. Besides that, the former President has since been educated at Boston University on ‘the former-Presidents-in-Residence fellowship’ initiated by Boston University and at Oxford University. He has become friends with influential individuals and nations, who are providing him with the necessary financial backing. Moreover, there is no evidence that the former President benefitted from having the MoU signed.

In the meantime, the Court will deliberate whether or not it does indeed have jurisdiction to decide Somalia’s application. If the decision is in the affirmative then the proceedings will progress to determination of the merits of Somalia’s application. Before the Court delivers its judgment on the matter, it would be very sensible if the parties, regardless who wins the election, could withdraw the case and settle the matter amicably. Or, the parties could bring the case to a conclusion by discontinuance because there is no appeal against a judgment once promulgated. (3) Amicable settlement would demonstrate respect to the UN Charter, but more importantly it would ensure that the neighbours maintain peace, security and justice for their countries.

Refferences:

1. SPLOS/72
2. SPLOS/183
3.Article 60 of the Statute of the International Court of Justice

Omar Said Imam Abasheikh
Barrister, England
Contract Specialist in defence sector, United Arab Emirates

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