By Thomas Verfuss
A boarder oil and gas dispute between Kenya and Somalia, which led to the ‘ambassadors crisis’ on Saturday, has been pending before the International Court of Justice (ICJ) in The Hague since 2014.
The ICJ — unlike the ICC, which may be more familiar to many Kenyans — does not deal with criminal cases against individuals, but with civil disputes between states, very much the same way neighbours can bring a dispute before a national judge in a civil case. By putting a legal dispute before the ICJ judges in the Peace Palace, states can get their disputes resolved peacefully by an independent third party, according to international law, instead of engaging in a diplomatic crisis or even going to war.
The ICJ is the “principal judicial organ of the United Nations” – consisting of the highest ranking judges in the world.
In August 2014, Somalia brought a case against Kenya before the ICJ about their “maritime boundaries”. The case is not so much about some water in the Indian Ocean, but about the oil and gas reserves presumably under it.
Somalia submitted that the borderline should be a “median line” (which is formed of points at the same distance from both coasts) as specified in Article 15 of the UN Convention on the Law of the Sea (UNCLOS). Somalia stated that Kenya’s position that the maritime border should be points of the same latitude as where the land border meets the sea has no basis in international law and ICJ jurisprudence.
In 2015, Kenya submitted preliminary objections to the jurisdiction of the court and the admissibility of the case brought by Somalia. This kind of step is very frequently taken by countries that are afraid to lose the case on the merits – simply: the government in Nairobi is afraid that the ICJ judges will say that Somalia is right. Judgments by the highest judges in the world are legally binding and without appeal (as there is no higher judge): states parties to the conflict are obliged to implement what the ICJ has decided.
In February 2017, when almost three years had been lost with litigation about preliminary matters, the court found that it has jurisdiction to entertain Somalia’s claim. The case thus entered the phase on the merits. The first phase of such a case before the ICJ is always the exchange of written memorials, followed by oral pleadings in the Peace Palace.
Somalia and Kenya had until December 2018 to file their written pleadings. “The subsequent procedure has been reserved for further decision,” the court stated last year, but no date for oral pleadings on the merits has been announced yet.
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