Longstanding maritime dispute between Kenya and Somalia was ruled on October 12. The International Court of Justice in The Hague, the UN’s main judicial organ, issued its decision on legal proceedings which lasted for over 7 years.
Maritime border, an old story
In August 2014, Somalia asked the International Court of Justice (ICJ) to define the maritime border with Kenya,. The purpose was to create a legal existence to its territorial sea and exclusive economic zone (EEZ).
To define a maritime border is complex. Most of the regulation can be found in the United Nations Convention on the Law of the Sea (UNCLOS). But the complexity of UNCLOS, due to geographical specificities, and the abundant jurisprudence require in case of diasgreement an arbitration of a third party.
So far, no border ?
On March 1979, the Kenyan Foreign Minister gave notice of its claimed maritime boundary to the UN Secretary General. The idea was to transmit the text of the proclamation to all permanent missions of UN Member States.
Although informally informed that Kenya was claiming an EEZ delimited by the parallel, Somalia did not protest. According to a letter dated 8 November 2017, the UN have confirmed in these terms:
“Extensive searches of the archives of the Office of Legal Affairs have not revealed the existence of any communication made by other states on the two proclamations of 1979 and 2005.”
And so Kenya used Somalia’s silence on the matter to say that the border was accepted. It was until the Somali government’s complaint to the ICJ.
The question of the delimitation of maritime borders became important only in the last decade with the exploration of maritime ressources. (Gas, petrol, fishes, etc.)
A territory disputed for economic reasons
Indeed, the disputed area between the two countries represents a triangle of 100,000 km², full of natural resources such as fishes and oil. Both countries have already launched oil exploration projects in the area.
Thus, countries tried to secure their economies and to get EEZ as much as possible.
7 years of proceedings
If the claims of a maritime border took effect with the complaint in 2014, negotiations came from earlier.
In 2009 an agreement was signed between Nairobi and Mogadishu but the war in Somalia and the deadly attacks in Kenya froze the legal proceeding.
In February 2019, tensions increased and Kenya recalled its ambassador from Somalia in reaction to Mogadishu’s decision to sell oil and gas fields on the disputed area. Still, Somalia’s actions is not unilateral, as Nairobi granted exploitation permits in the area in the past.
In 2019, a mediation led by Egyptian President Abdel Fattah al-Sissi led to a commitment by the Kenyan and Somali heads of state to “restore relations with the former status” and to “take diplomatic measures to build confidence between the two governments.” But relations were tumultuous and Somalia broke off all diplomatic relations with Kenya on last December.
On March, both countries were heard before the ICJ and during the opening, Kenya announced that it would refuse to appear before the ICJ for two reasons: the lack of time to prepare properly for the case due to the Covid 19 pandemic and the virtually form of the trial.
In the JUDGMENT MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA. KENYA) of ICJ,the court declared there was no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya following the parallel of latitude. ICJ defined a the new maritime boundary.
Kenya government “totally rejects and does not recognize the conclusions” of the ICJ, said President Uhuru Kenyatta. His country had recently announced that it will no longer accept the authority of this court.
However the judgement is binding for the parties concerned, even if the court does not have restrictive means to enforce the decision. Though, if a state is not complying with a judgment of the Court, the other state may seek sanctions from the UN Security Council. But who can really enforce it?