The International Court of Justice (ICJ) rendered its judgment on the maritime dispute between Kenya and Somalia on 12th October, 2021. In this dispute, Somalia accused Kenya of adjusting the equidistance line in the maritime area to favor itself. In making these allegations, the country relied on the geodetic line, with an initial azimuth of 114° until the intersection, within the 200-nautical-mile limit from the Coast of Kenya. Evidence was tabled before the court to that effect. Kenya, on the other hand, argued that Somalia had already acquiesced in Kenya’s adjustment, and that Kenya had resorted to doing so as a result of the parallel of latitude. Upon advice by the Attorney General, Kenya did not participate in subsequent court proceedings to defend her position.

The law in the area of maritime delimitation between states with opposite coasts states that the delimitation must be effected using an agreement between the states, and where such agreement cannot be obtained, delimitation should be effected by seeking for recourse from a competent third party. This position was solidified in the case of Canada vs United States (Delimitation of the Maritime Boundary in the Gulf of Maine Area) ICJ Reports 1984, p 299. Maritime delimitation, therefore, cannot be effected unilaterally by either of the concerned states, as was held in United Kingdom v Norway (1951, p 132) ICJ Reports.

An essential stage in delimitation is determining whether a country is entitled to extend its continental shelf, and whether that entitlement overlaps with the entitlements of another country. In the current case, for instance, both Kenya and Somalia are claiming the continental shelf of up to 350 nautical miles, on the basis of scientific evidence. In such cases, as discussed above, the countries should seek for this issue to be resolved by a competent third party. The countries did this by filing their submissions before the Commission on the Limits of the Continental Shelf (CLCS). The Commission has not yet issued its recommendations, in light of the conclusion of the matter before the ICJ.

One ill-advised step that Kenya took regarding this issue, in our considered view, was to dispute the jurisdiction of the ICJ to determine this dispute. This is because both Kenya and Somalia are parties to the United Nations Convention on the Law of the Sea (UNCLOS). This Convention has specific provisions regarding the delimitation of exclusive zones and the continental shelf, within 200 nautical miles. The Convention states that delimitation in this case would entail the identification and determination of two key areas: relevant coasts and relevant areas.

We are, therefore, of the considered view that Kenya should apply for the court to review its judgment, and that it should request for another opportunity to defend its position. It should also admit the jurisdiction of the court. Resorting to military showdown will destabilize peace in the coastal region.

By: Frank Singoey

MMS Advocates

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