Last Tuesday, the International Court of Justice (ICJ) at The Hague in the Netherlands, handed down its decision on the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) case. The ICJ, in its 79-page judgement (inclusive of five very detailed maps), ruled in favour of Somalia.
As is quite often the case in bitter disputes of this nature, the loser, Kenya, has announced that it does not intend to abide by the ruling, rejecting it “in totality” and accusing the court of justice of bias. In March, just before the first public hearings were to begin, Kenya withdrew from the proceedings stating that its legal team had not been given enough time to prepare. It had also objected to the presence, on the panel of judges, of Abdulqawi Ahmed Yusuf, a Somali national who had served as the court’s president until February. Kenya’s decision not to be part of the proceedings, can be viewed as legal and political bungling which one would hope the Kenyan government must now be regretting, as it finds itself among the rogue nations which defy the decisions of international fora.
According to a media release from the ICJ, on 28th August of 2014, Somalia had initiated proceedings against Kenya with regard to the dispute. The release stated that Somalia, in its application, which included three sketch maps, contended that both “States disagree about the location of the maritime boundary in the area where their maritime entitlements overlap” and asserted that diplomatic negotiations to resolve the matter had failed. It added that Somalia had requested the court to establish the maritime boundary between the two parties in the territorial sea, exclusive economic zone (EEZ) and the continental shelf in accordance with, respectively, Articles 15, 74 and 83 of the United Nations Convention on the Law of the Sea (UNCLOS), which both parties had ratified in 1989.
The disputed area is a 38,000-sq mile (100,000-sq km) triangle in the Indian Ocean that is thought to have vast deposits of oil and gas resources, and is also rich in fishing sites. For the past four decades, the two states have been at loggerheads over how the boundary line should be demarcated. Kenya has claimed that the line of separation should run due east from where the two neighbours meet at the coast, in a straight line parallel to the equator. Somalia, meanwhile, whose 3,000 km coastline is the longest in Africa, argued that the sea frontier should follow the same direction as their land border. In 2009, the two states had agreed in a Memorandum of Understanding, backed by the UN, to settle the boundary dispute through negotiation. However, these talks, as they more often tend to do, went nowhere, and five years later, Somalia headed for the ICJ.
In its ruling the ICJ’s line split the triangle in two, reducing Kenya’s claim by approximately 44 percent. This decision, along with Kenya’s pronouncement that it will not abide by the court’s ruling, will certainly escalate the already heightened tension existing between the two neighbours. Although the court’s rulings are final, and without appeal, there is no way to enforce them. As Kenya follows the lead of other countries, including the USA and China, in choosing to ignore the court’s rulings, Somalia might have to resort to Article 54 of the UN Charter which asserts that member states should comply with court decisions, and any party should seek recourse from the Security Council if the other party fails to perform its obligations.
Later that evening on KTN News, a Kenyan English-language television station, the ICJ’s ruling was reviewed by a three-member panel comprising a political science professor specializing in International Affairs, a law professor and a maritime legal expert. Rather surprisingly, the participants’ discussion centred on the mishandling of the case by their government rather than the ICJ ruling. The panelists (whose political affiliations were undisclosed) were very critical of the Kenyan government’s apparent laissez-faire approach to the dispute, and the decision to opt out once it was realized that it was a losing cause.
Among the criticisms voiced were the squandering of money earmarked for the case, failing to attend negotiation talks prior to Somalia opting to approach the ICJ, and failing to seek alternative diplomatic avenues or resolution options such as the African Union or the International Tribunal for the Law of the Sea which might have been better suited to the cause. Other Kenyan government shortsightedness included underrating the impoverished Somalia as a ‘failed and weak state,’ which has international friends keen on investing in the country and failing to recognize and emulate the current trend of peaceful diplomatic negotiations which is taking place among neighbouring states along the East African coastline with regards to maritime border settlements. However, at the end of the day, Kenya and Somalia are closely bound at the hip in more ways than one and will most likely return to the table to arrive at a working compromise.
In Guyana’s territorial controversy with our Western neighbour, no such silver lining will ever appear. The opportunity for political fodder is just too tempting to forego for those who covet our land. Nevertheless, given how some attributes of the Somalia – Kenya case mirrors our situation, it is hoped that Takuba Lodge was closely following the proceedings and making copious notes as we pursue a similar path with no intention of conceding a blade of grass.
