By Gatuyu Justice

There at the International Court of Justice (ICJ), Somalia and Kenya are embroiled in a maritime legal spat. Somalia, the applicant, is raising hue with Kenya’s method of maritime delimitation in the Indian Ocean.

The umpire, the ICJ, this being the principal judicial organ of the United Nations, as mandated by the UN Charter, is expected to settle the dispute “in conformity with the principles of justice and international law to avoid breaches of the peace.” The two neighbours have submitted to the jurisdiction of the court; good start.  For then, any court ruling that is made, it binds.

“The coastline of my maritime boundary runs due east. We measure from where the land border meets the coast.” Kenya argues. “No” Somalia screams. “Your boundary extends perpendicular to the coastline.” What if Somalia has her way? Then, Kenya stands to lose a reportedly mineral rich triangle of ocean waters stretching over 100,000 square kilometers.

Preliminary objection

The matter will not be considered on merit, yet. For Kenya raises a preliminary objection. Kenya disputes the jurisdiction of the court in hearing the matter. She argues the case ought to be resolved by way of mechanisms outlined in the 2009 bilateral agreement between the two countries. Somalia is rebuffing the submission. She cries that bilateral agreements should not torpedo her right to seek redress before the court.

The ICJ will balance these contentions to dispose the preliminary objection. Many scenarios may play; the most likely scenario being for the court to look at the bigger picture, and admit the case. If the court was to hold the case as inadmissible, a bad precedent would be set.  The court will be shying away from its core mandate; to settle disputes that may dismantle peace. Coercing a country in bilateral mechanisms she has no faith in would be unfortunate. Poor Kenya, she may lose the first round, and pave way for the real battle thereafter.

The subject of maritime boundary delimitations is technical and complicated. It is a pathway to realisation of the resources in oceans and seas. It is vital for strategic reasons. Often states may have overlapping claims, and this forestalls exploitation of ocean resources. To date there is no certainty as to modalities of maritime delimitations.

Historic perspective

The date was September 28, 1945; President Truman declared United States had ‘original, natural and exclusive right to the continental shelf of its shores.’ This declaration will trigger flurry of other claims and counterclaims. Sovereignty disputes between states were erupting, international peace was in danger.

Arvid Pardo, Malta’s Ambassador was alarmed. In his 1967 address to the United Nations, he called for sobriety. This started off global efforts to regulate the ocean, culminating into the enactment of the United Nations Convention on the Law of the Seas (UNCLOS), undisputed constitution for the oceans setting modalities of claiming maritime zones. But UNCLOS has chunks of grey areas.

Through the Maritime Zones Act and the Merchant Shipping Act, Kenya domesticated UNCLOS. Through the Gazette Notice No 55 of 2005 deposited with the United Nations, Kenya claimed her entitled maritime zones: territorial sea of 12 nautical miles (22 KMs) from the baseline; contagious zone of 12 nautical miles from the end of territorial sea; and exclusive economic zone (EEZ) of 200 nautical miles from the baseline.

Assume the case has gone to full hearing. Somalia will ask the court to delimit the maritime boundary on “equidistance line”. Kenya will root for the ‘parallel of latitude’ mode. UNCLOS does not provide for any specific modality, In fact, it allows the states to agree and in absence of agreement, resort to dispute settlement mechanism.

Kenya will further erect tent on predict she controlled the triangle Somalia claims since 1924, and thus entitlements due to ‘historical rights’. In response, Somalia may retrieve the recent International Court of Arbitration decision that invalidated China’s ‘nine-dash line’ claims in South China Sea, which indicated historical claims will not automatically bequeath territory.

Kenya may it back. She will cite the Organisation of Africa Unity declarations which instructed on immutability of boundaries of states left by colonial masters. This was to avert disputes among states. The disputed triangle; can Kenya prove it was part of her territory then?

Ripple effects

Maritime borders of the other countries along the Eastern Coast of Africa go due east. A ruling in favour of Somalia will trigger further maritime disputes between Kenya and Tanzania, which will turn to Mozambique, then to Madagascar then to South Africa. There will be undesirable ripple effects. The ICJ in the Delimitation of Maritime Boundary in the Gulf of Maine Area held the criteria for delimiting marine boundaries should be that suitable for multi-purpose delimitation.

The method Somalia proposes is only unique to her desires. Upholding it would be inapposite. This is the strength in the Kenya’s case. Past jurisprudence will not give much hope. In the North Sea Continental Shelf cases, the court said sea boundaries are determined on case by case basis.

Nevertheless, the underbelly of the dispute is ocean mineral resources. Perhaps, should settle the dispute amicably, or maybe share the disputed region. Nigeria and the archipelago of Sao Tome and Principe have done so in some contested waters.

In his spare time, the author thinks a lot about seas and oceans.  jgatuyu@gmail.com