Kenya and Somalia still looking at years of conflict despite ICJ ruling

The International Court of Justice ruling on the maritime dispute between Kenya and Somalia may have concluded the case brought before it seven years ago, but it has not resolved the long-running dispute between the two neighbours.

Judging from Kenya’s reaction to the judges’ decision, the court’s intervention does not seem to have guaranteed an end to the quarrel and a peaceful resolution to the row.

The Kenyan government rejected the ruling “in totality”, signalling that it considered the dispute far from resolved.

Speaking soon after the court’s ruling on October 12, 2021, Kenyan President Uhuru Kenyatta characterised the decision as “biased” and “unfair” and vowed to take any necessary measures to protect his country’s boundaries. The Kenyan government made it clear that it was not willing to give up any part of the disputed area. It also expressed concern about the impact and implications of the ruling for the Horn of Africa region, and international law generally.

Kenyatta said Kenya was an avid supporter of the rule of law and had accepted the court’s jurisdiction through a declaration in 1965. However, he insisted that the country reserved the right to exclude certain matters and situations from the court, and seeking alternative ways to deal with disputes.

“At the time, Kenya never imagined that the ICJ would violate the declaration to the extent of imposing its mandate over expressly excluded matters,” Kenyatta said.

However, the mood in Somalia was markedly different. The ruling was hailed as an important win. In a statement, Somalia President Mohamed Abdullahi Farmaajo welcomed the decision and thanked the International Court of Justice for “upholding the rule of law”.

He commended Somalia’s Eighth Parliament for rejecting the MOU signed by Kenya and Somalia in Nairobi on April 7, 2009 granting each other no-objection in respect of submissions to the Commission on the Limits of the Continental Shelf (CLCS) in the matter of the outer limits of the continental shelf beyond 200 nautical miles.

“We couldn’t have reached this victory today if it was not for their decision to nullify the MOU and instead adopt the ‘inheritance protection’ resolution,” the president said. He further thanked his predecessor, President Hassan Sheikh Mohamoud, who initiated the court process.

He noted that his country’s instability did not make the task of handling the case an easy one. Somalia has been embroiled in conflict for most of the past 30 years and this has made it difficult for the country to develop. Farmaajo attributed some of the challenges facing Somalia to the Kenyan leadership, claiming it was trying to “divert the Somali people and their government from their decision to deliberate this case in the ICJ”.

The dispute concerned about 30,000 square nautical miles of territory in the Indian Ocean claimed by both Kenya and Somalia. On August 28, 2014, Somalia instituted proceedings against Kenya at the ICJ with regard to “a dispute concerning maritime delimitation in the Indian Ocean”. The dispute area is thought to be rich in oil and gas.

In the judgment, which is final and without appeal, the court held that there was no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya that follows the parallel of latitude, as Kenya had said in its defence. The court drew a new border line close to the one claimed by Somalia, awarding it the bulk of the disputed territory. Kenya kept a part of the 100,000 square-kilometre (39,000-square-mile) area.

The ICJ panel of 14 judges sitting in The Hague further held that the starting point of the single maritime boundary delimiting the respective maritime areas between Somalia and Kenya is the intersection of the straight line extending from the final permanent boundary beacon (PB 29) at right angles to the general direction of the coast with the low-water line, at the point with coordinates 1° 39′ 44.0″ S and 41° 33′ 34.4″ E

The court unanimously rejected the claim made by Somalia in its final submission that Kenya, by its conduct in the disputed area, had violated its international obligations. Somalia wanted the Kenyan government to compensate it, claiming that it took advantage of the instability and civil war in the country. However, the court dismissed the claim.

The court recalled that both Somalia and Kenya are parties to United Nations Convention on the Law of the Sea, which provides for the use of a median line “failing agreement between the two states to the contrary unless it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two states in a [different] way”.

On the alleged agreement between the two countries, the court emphasised that since the establishment of a permanent maritime boundary is a matter of grave importance, “evidence of a tacit legal agreement must be compelling”, and must be implied or understood without question. In its submissions, Kenya had claimed that a tacit agreement existed between the two countries. However, the court said there was not enough compelling evidence that Somalia clearly and consistently accepted the boundary claimed by Kenya.

Additionally, the judges said, Kenya’s claim was contradicted by its Territorial Waters Act of 1972, which was still in force in 1979, when the agreement was allegedly made; its 1989 Maritime Zones Act; and its 2009 submission to the CLCS. The added that under these circumstances, it was reasonable for Somalia to understand that its maritime boundary with Kenya in the territorial sea, in the exclusive economic zone, and on the continental shelf would be established by an agreement to be negotiated and concluded in the future.

“The court thus concludes that there is no compelling evidence that Kenya’s claim and related conduct were consistently maintained and, consequently, called for a response from Somalia,” the court said.

Prior to the ruling, Kenya had informed the court that it would not participate in the proceedings after the judges declined to allow further adjournments that Kenya had requested ostensibly to prepare its case. It later announced that it had withdrawn from the compulsory jurisdiction of the court.

This is not the first time a ruling or jurisdiction of the International Criminal Court have been rejected. The US withdrew from the court’s compulsory jurisdiction in 1986 after the ICJ ruled that it owed Nicaragua war reparations. In 2018, it rejected an ICJ ruling mandating that its sanctions allow exemptions for exports of humanitarian and civil aviation supplies to Iran.

In 2016, China rejected a ruling the ICJ made against it in a dispute over the waters of the South China Sea. The court backed the Philippines, ruling that rocky outcrops claimed by China – some of which are exposed only at low tide – cannot be used as the basis of territorial claims.

International dispute resolution experts say Somalia is likely to ask for help from the UN to try to compel Kenya to comply with the ruling. Diplomatic talks are, therefore, likely to follow the ruling as Somalia has no military force while Kenya has already set up a military base in the disputed area.

The world and the Horn of Africa are watching to see how the two countries will resolve their differences and deal with the ruling.