161- Maritime Delimitation in the Indian Ocean (Somalia vs Kenya)
On August 28th 2014, Somalia filed before the International Court of Justice (ICJ) an application instituting proceedings against Kenya concerning the establishment of a single maritime boundary in the Indian Ocean between the two countries, delimiting the territorial sea, the exclusive economic zone (EEZ) and the continental shelf, including the part that extends beyond the 200-nautical-mile limit. Indeed, both parties are claiming sovereignty over certain marine areas and diplomatic negotiations have proved fruitless.
Somalia is therefore asking the Court to delimit, in accordance with international law (customary and general), the United Nations Convention on the Law of the Sea (UNCLOS) in its articles 15, 74 and 83 as well as any other instrument than it will deem relevant the complete course of the single maritime border separating all the maritime areas under Somalia and Kenya in the Indian Ocean, including the continental shelf beyond the 200 nautical mile limit. Somalia further asks the Court to determine the precise geographic coordinates of the single maritime boundary in the Indian Ocean.
In response, Kenya raised preliminary objections regarding:
- The lack of jurisdiction of the Court to hear this dispute on the grounds that the parties had signed a Memorandum of Understanding (MoU) on April 7th, 2009, in which they agreed to delimit their entire maritime border by negotiated agreement, taking into account the recommendations of the Commission on the limits of the continental shelf and by agreement.
- The inadmissibility of the application because the declaration of acceptance of the jurisdiction of the Court made by Kenya specifies that the latter excludes from the jurisdiction of the ICJ “the disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”.
The Court ruled on these issues in its judgment of February 2nd, 2017 and concluded that the Memorandum of Understanding was a valid treaty in accordance with international law which entered into force on the day of its signature but that it dealt primarily with the question of the delimitation of the continental shelf of the two countries and not of the delimitation of the entire border. Moreover, the formulas contained in the MoU did not fall within the scope of the reservation of the declaration of acceptance made by Kenya to the ICJ. Accordingly, the Court affirms its jurisdiction over the matter and the admissibility of the application.
In its Counter-Memorial filed on December 18th, 2017, Kenya maintains that it has claimed the parallel as being its maritime border with Somalia since at least 1979. Indeed, according to the country, Somalia was made aware that Kenya was claiming the parallel as a maritime border at least 3 times (in 1979, 2005 and 2009). Furthermore, according to the Respondent State, the latter has never protested to Kenya; it has never claimed any other maritime border until February 2014. Finally, according to the Kenyan Government, the two countries adopted behaviours that were consistent with the existence of a maritime border along the parallel (naval patrols, police operations maritime, fishing activities, scientific research and exploration oil by both countries, all of which complying with the existence of a parallel maritime border). Kenya therefore contends that the Court must take into account the consistent behaviour of the two countries from 1979 to 2014.
In its reply dated June 18, 2018, Somalia maintained that not only was Kenya contradicting itself in its statements, but that there had also been no acquiescence on the part of the applicant at the border supposedly established by tacit agreement between both states. In addition, Somalia asserts that it wishes to apply the standard 3-step method of delimiting maritime borders in accordance with applicable law and that finally Kenya has violated the sovereign rights and jurisdiction of Somalia by engaging in seismic and drilling activities in the disputed area.
Kenya filed a rejoinder on these points on December 18th, 2018 and public hearings were held from March 15th to 24th, 2021. The Court has delivered its judgment on October 12th, 2021 and ruled that:
- Contrary to Kenya’s assertions, there is no maritime boundary agreed between the parties;
- Likewise, the parallel line cannot be construed here as a maritime boundary between both States;
- The starting point of the maritime boundary is 1° 39′ 44,0″ south latitude and 41° 33′ 34,4″ east longitude;
- From this starting point, a median line must be drawn up to the 12 nautical miles;
- The delimitation of Exclusive Economic Zone (EEZ) and continental shelf below the 200 nautical mile point follow the classic 3 stage method of delimitation methodology:
- Establishment of a provisional equidistance line from the most appropriate base points on the coasts of the parties;
- Consideration of any relevant circumstances that could justify any adjustment to the provisional line: here the geographic configuration creates a cut-off effect, that, if not corrected would be to the detriment of Kenya. It is therefore necessary to move the provisional line to the north
- Application of the disproportionality test to make sure that the delimitation achieves an equitable result as is the case here.
- For the delimitation of the border beyond the 200 nautical miles, the parties must extend the demarcation line previously drawn up until such point that it reaches the outer limits of the Parties’ continental shelves which are to be delineated by Somalia and Kenya,
respectively or until it reaches the area where the rights of third States may be affected;
- Kenya has not violated its international obligations as no borders previously existed and Somalia failed to prove that:
- Kenya had acted in bad faith while carrying its activities in the disputed areas;
- The activities carried out by Kenya had an averse effect on the conclusion of the case.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.