Blow as Kenya loses maritime case at the International Court of Justice

Wednesday, October 13th, 2021 00:00 | By
International Court of Justice president Judge Joan Donoghue delivers the ruling at the Hague, yesterday.

Kenya yesterday suffered a setback in its maritime dispute with Somalia after the International Court of Justice (ICJ) sided with the latter.

The ruling by the Hague-based court means Kenya risks losing several offshore oil blocks to her neighbour which filed the case in 2014.

In its ruling, ICJ presented a proposed new maritime boundary which divides the disputed area into two, with Mogadishu gaining a huge chunk of the territory thought to be rich in oil and gas deposits.

The judgment was read by ICJ president Judge Joan Donoghue (US), who led a 15-member bench at the Peace Palace in The Hague.

But in a sharp rejoinder, Kenya maintained its decision to disregard the ruling, accusing the court of bias.

Foreign Affairs Principal Secretary Ambassador Macharia Kamau told People Daily last evening that the Kenya Government stood by a statement it issued last Friday, warning that it will not recognise yesterday’s judgment on the maritime dispute.

“Please refer to my statement last week,” the PS said in a short text message, signalling the government’s resolve to disregard the judgment.

On Friday, Kenya had accused the ICJ of siding with Somalia in the dispute.

The government accused the judges of proceeding with the case despite a 2009 agreement between the two countries on how to resolve the row amicably.

“The delivery of the judgment would be the culmination of a flawed judicial process that Kenya has had reservations with, and withdrawn from,” the Foreign ministry said, accusing the court of “obvious and inherent bias” in resolving the dispute.

“As a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent.  

“The court’s assumption of the jurisdiction where it has none is demonstrative of new tactics to use pseudo-judiciary processes to undermine the territorial integrity,” the statement further stated.

Devastate economy

The government, while assuring Kenyans that it was fully seized of the case, however, warned that the judgment will have profound security, political, social and economic ramifications in the region and beyond.

The statement added: “Such rulings are unfortunate in a region that is already under the torment of terrorism, instability and conflict.”

Yesterday, Agriculture Cabinet Secretary Peter Munya warned that Kenya would not cede an inch of its territory and property irrespective of the judgment.

He said that Kenya’s territorial integrity must be respected locally, in the region and beyond.

Speaking at Mataara Tea Factory in Gatundu North, Kiambu county, Munya stated that Somalia was using the international court to deny Kenya what it rightfully owns.

He said that the move by the neighbouring country was also meant to devastate Kenya’s economy but urged citizens to join hands and defend what is rightfully theirs.

“They are trying to use international courts to destroy our country. We will not surrender even an inch. Our territorial integrity must be respected across the globe,” he said.

Immediately after yesterday’s ruling, Somalia’s Information minister Osman Dubbe welcomed the judgment and congratulated Somalis on “regaining their territory”.

According to the ICJ, the revised maritime border on the exclusive economic zones for the continental shelves of Somalia and Kenya will achieve an equitable solution.

 The territory in question is a 100,000 square kilometre (38,610 square mile) triangular patch created by projecting the Kenya-Somali border eastward into the Indian Ocean.

At the centre of the dispute is the control of lucrative oil and natural gas blocks.

While Kenya argued that the blocks are within its maritime borders, Somalia has accused Nairobi of encroaching on its territory. However, its plea for the court to order the Kenya government to pay reparations for occupying the disputed territory was thrown out by judges.

The court also ruled that Kenya had failed to prove that there was a sea boundary between the two states. 

Somalia had  argued that no maritime boundary existed between the two states and asked the court to plot a boundary line using the equidistance or special circumstances method for the delimitation of the territorial sea and the equidistance or relevant circumstances method for the maritime areas beyond the territorial sea.

In its view, an unadjusted equidistance line throughout all maritime areas achieves the equitable result required by international law.

Kenya, on its part, contended  that there was already an agreed maritime boundary between the parties, because Somalia had acquiesced to a boundary that follows the parallel of latitude and that the two countries had considered this to be an equitable delimitation, in light of both the geographical context and regional practice.

The judges, however, ruled  that there was no agreed maritime boundary between the two states that follows the parallel of latitude. 

No evidence

According to the judges, Kenya has not consistently maintained its claim that the parallel of latitude constitutes the single maritime boundary with Somalia.

“Kenya’s claim was contradicted by its Territorial Waters Act of 1972, which remained in force in 1979, its 1989 Maritime Zones Act and its 2009 submission to the CLCS.

Under these circumstances, it was reasonable for Somalia to understand that its maritime boundary with Kenya in the territorial sea, in the exclusive economic zone and on the continental shelf would be established by an agreement to be negotiated and concluded in the future,” ruled the judges.

The court, however, noted that Kenya had not violated its international obligations in regards to the disputed area and that there was no evidence that Kenya’s maritime activities conducted in the disputed area including those now settled in favour of Somalia were not done in good faith. 

Somalia had argued that Kenya had violated its sovereignty by operating in its territorial waters and demanded reparations.

“The court notes that, in 2014, the parties engaged in negotiations on maritime delimitation and that, in 2016, Kenya suspended its activities in the disputed area and offered to enter into provisional arrangements with Somalia.

In light of these circumstances, the court cannot conclude that the activities carried out by Kenya in the disputed area jeopardised or hampered the reaching of a final agreement on the delimitation of the maritime boundary,” they ruled.

In 2009, the two countries agreed to settle the boundary dispute through negotiation. But five years later, Somalia said the talks had failed and filed a case at the ICJ.

The ICJ, which does not have an enforcement mechanism, is supposed to be the final arbiter in disputes between nations.

If Kenya ignores the ruling, the issue could be escalated to the UN Security Council.

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