Summary of the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

 

Source of image

The above diagram depicts the maritime zones in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS was adopted in 1982 at a conference in Montego Bay, Jamacia, and came into force in November 1994. There are 157 signatories and 168 parties to the treaty. UNCLOS came about from preventing possible conflict over states engaging in any threatening or exploitative activities. From conferences in 1958, 1960 and 1974, the conference of 1982 resulted in UNCLOS.

A maritime dispute over the outer limits of the continental shelf beyond 200 nautical miles between the Republic of Kenya and Federal Republic of Somalia was taken to the International Court of Justice in 2014.

The maritime territory in dispute can be seen here:

Source of image.

Both the Republic of Kenya and Federal Republic of Somalia are claimants over the maritime territory, which is presumed to have large amounts of oil and gas reserves. According to the Kenyan news channel K24TV, if Kenya lose the disputed territory, they stand to lose three potential oil blocks set to be a high source of gas and oil. Kenya have already issued prospective licences to three foreign companies for use of these resources.

Background

  • On 7th April 2009 Somalia and Kenya signed an agreement bound by international law. This written document was a Memorandum of Understanding (MOU).
  • The MOU confirmed that both parties will make submissions to the UN agency charged with settling maritime border disputes, Commission on the Limits of the Continental Shelf (CLCS). CLCS will analyse the submissions and make recommendations without prejudice.
  • CLCS received the submissions from both parties, (Kenya on 6th May 2009 and Somalia on 14th April 2009) and also received subsequent objections from both parties as a consequence.
  • In August 2014, Somalia initiated proceedings to take Kenya to the International Court of Justice over the maritime dispute.

What did Kenya say?

  • Kenya raised two objections to this. One concerning the jurisdiction of the Court, the other the admissibility of the application.
  • Kenya has said the Court lacks jurisdiction to entertain the dispute as the MOU is the method of settlement in the dispute.
  • Kenya said that, according to paragraph 6 of the MOU, both parties agree to ask the CLCS for recommendations with respect to the outer limits of the continental shelf.
  • Kenya argue that no final agreement can be reached until after the recommendation of the CLCS. As the recommendation of the CLCS has not been complete, this therefore gives no jurisdiction of the Court.

What did the International Court of Justice say?

  • The Court found that the MOU is a valid treaty and is binding on the two parties.
  • The Court found that the MOU contains no such agreement that proceedings by the Court can only take place until after the recommendation from the CLCS has been completed.
  • The Court found that taking the dispute to Court does not breach the MOU by having recourse to another method of settlement.

Court judgment of 2nd February 2017

  • 13 votes to 3 the Court rejects Kenya’s argument that the Court has no jurisdiction for proceeding in this case.
  • 15 votes to 1 the Court rejects Kenya’s objection to the dispute based on interpretation of Part XV of UNCLOS.
  • 15 votes to 1 the Court rejects Kenya’s argument that Somalia's application for Court proceedings cannot be admissible due to the recommendation of the CLCS not being complete.
  • 13 votes to 3 the Court finds it has jurisdiction to accept Somalia’s request for proceedings to be taken by the Court.

What does this mean and what happens now?

  • According to the press release in February 2017 by the Court, Kenya have until 18th December 2017 to submit a counter-memorial concerning the maritime dispute to the Court.

Further reading

Judgment by the International Court of Justice on February 2017

 

 

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