What is the Issue?

In August 2014, Somalia filed an application with the International Court of Justice arguing that its coastal boundary (otherwise known as Maritime Delimitation) should be a straight line from its border going out to sea. Kenya argued that the correct position for Maritime Delimitation is on the latitudinal parallel line from the furthest Southern point in Somalia. All of this matters because the coast off the Indian Ocean is believed to be significantly resource rich when it comes to energy and fish stocks and is therefore could be significantly lucrative for both states.

What is Somalia’s argument?

In Its original 10 page application dated 28^th August 2014, Somalia relied on international law and why the law should apply to Maritime Delimitation between herself and Kenya. Relying on the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Loosely translated they interpret the law to mean that they are entitled to a Maritime Delineation that is a straight line from their border. They stated in their application that they began the proceedings as “…Kenya proposed to Somalia that the Parties meet one more time in an attempt to resolve their differences over the maritime boundary… these meetings would be held in Mogadishu on 25 and 26 August 2014. Although the Somali delegation was ready to meet on those dates, the Kenyan delegation, without providing either advance notification or subsequent explanation, failed to arrive and, as a consequence, the additional round of meetings that Kenya had requested were not held.” Somalia provided a far more detailed accounting (referred to as a ‘Memorial) of their claim in July of 2015

What is Kenya’s argument?

Kenya on 13^th October 2015, responded to Somalia’s application with a preliminary objection and Memorial, stating that, “…Kenya’s acceptance of the Court’s jurisdiction, in its Declaration of 19 April 1965 under Article 36(2) of the Statute of the Court, specifically excludes: Disputes in regard to which the Parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.  Somalia’s case is thus outside the Court’s jurisdiction and otherwise inadmissible.” They proceed to outline that as a result of entering into Memorandum of Understanding (MOU) with Somalia in agreed on in 2009, procedures had been agreed for dispute resolution. The rest of their argument relied on Presidential proclamations, some statutes and oddly some manner of articulation of adverse possession which at its most basic level is a common law remedy for civilians to claim the land of title holder after making use of it for 12 years without opposition from the title holder.

How did the International Court of Justice decide the matter?

On the 12^th October 2021, the ICJ delivered its judgment mostly in favour of Somalia and against Kenya. Firstly, the court rejected Kenya’s numerous arguments especially one at the centre of Kenya’s claim saying, “…the Court finds that there is no compelling evidence that Somalia has acquiesced to the maritime boundary claimed by Kenya and that, consequently, there is no agreed maritime boundary between the Parties at the parallel of latitude. Kenya’s claim in this respect must therefore be rejected.” However, Somalia’s proposed line was however adjusted, “the Court believes that it is necessary to shift the line to the north so that… in a reasonable and mutually balanced way the cut-off effect produced by the unadjusted equidistance line due to the geographical configuration of the coasts of Somalia, Kenya and Tanzania.” 

My view

On the decision of the ICJ I would say that their reasoning as read in the judgment was clear and concise. In fairness to Somalia their argument when read in their application and Memorial was also very clear and easy to understand, which is why it is seen that they largely won even though their proposed line was adjusted northwards.

Now, if you’ve had the dis/pleasure of witnessing Kenya’s Attorney General’s office in litigation in the Kenyan courts one would immediately recognise that they are experts of delay, circular arguments and generally a law on to themselves. Their preliminary objection and the manner it appears they have proceeded in this matter is symptomatic of that general approach. There are many issues I identified in their arguments and presentation but let me just focus on three.

1. Kenya’s over reliance on the 2009 MOU

In 2015, Kenya was arguing that a 2009 MOU that had some kind of dispute resolution format that prevented the International Court of Justice from intervening. Kenya offers no indication how long the ICJ would be prevented from taking part in a dispute resolution, which to all intents and purposes would have meant that the status quo would have prevailed indefinitely to Somalia’s detriment. Furthermore, Kenya’s preliminary objection on the basis of the MOU was to effectively tell the ICJ passively, ‘…this is none of your business you should stick your nose out of the matter.’ In any case the MOU had been in existence for 5 years by the time Somalia sought a resolution so whatever procedure existed had been deemed to fail by them.

2. Preparation

From my reading of the documents filed by Somalia it appears that they had thought deeply about their approach in taking the matter to the ICJ. Somalia also seem to have spent the time and money to treat the issue with the urgency they felt the matter deserved. Led by the Deputy Prime Minister, Dr Mahdi Gulaid, they hired law firms Foley Hoag LLP from the District of Columbia and Matrix Chambers in London, the former Chair of the International Law Commission from Paris, two International Law Professors, among other specialists such as Cartographers. While Kenya was only represented by the Attorney General’s office. Just to be clear, this is an argument for centring expertise and experience as opposed to saying that their preparation was superior because they engaged foreigners.

3. Professionalism

As I noted above, Kenya’s AG office is infamous for its delay tactics. It’s clear that they pulled out all the stops to put that to effect in this case. In September of 2019 they asked for a one year delay the court obliged by giving Kenya a few months. Then Covid-19 came along to assist the AG’s office. As 2020 proceeded, the court proposed holding the hearings virtually, to which Kenya objected. The court then recommended a partially virtual hearing, which was still not to the satisfaction of Kenya. The court then proposed a full court in person hearing on the 15-19^th March 2021, Kenya responded by informing the court that they would not be appearing at all for the hearing. Kenya comes across as whiny and unprepared when working from such an important case deploying such tactics and while that may work locally it clearly did not work here.

There is a saying about everything being ‘a matter of degrees’ and this matter literally was a matter of degrees to the extent that Kenya wanted a line drawn at 90⁰ degrees while Somalia wanted the line drawn at 120⁰ degrees. The difference between these two values is in the billions of dollars for both countries and indeed the court moved the line north to 114⁰degrees. The question that I am left asking is; could a better prepared, more professional and less procedurally dismissive Kenya have got a better result if they had made similar investments in the team it recruited to deal with this case as Somalia did? The answer for me is yes.