• Foreign Affairs Principal Secretary Macharia Kamau said Kenya will also not recogniSe ICJ's judgment on the Kenya-Somalia maritime dispute scheduled for October 12.
• Kenya withdrew from the ICJ case in March this year on account of procedural unfairness at the court, betrayal and external interference.
Image: DOUGLAS OKIDDY
Kenya has announced withdrawal of its recognition of the International Court of Justice's compulsory jurisdiction.
In a statement on Friday, Foreign Affairs Principal Secretary Macharia Kamau said Kenya will also not recognise ICJ's judgment on the Kenya-Somalia maritime dispute scheduled for October 12.
"The delivery of the judgment will be the culmination of a flawed judicial process that Kenya has had reservations with, and withdrawn from, on account not just of its obvious and inherent bias but also of its unsuitability to resolve the dispute at hand," Ambassador Kamau said.
He said as a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent.
Sought for comment on Somalia's reaction to the move by Kenya, Ambassador Ahmed Nur said, "Somalia's Ministry of Foreign Affairs would issue a statement in due course."
The ICJ on September 24 announced it will deliver the judgement on the seven-year maritime case on October 12, even though Kenya had withdrawn from the matter.
The row is over the ownership of more than 100,000 square kilometres of Indian Ocean waters.
Somalia claims its maritime boundary should run in the same direction as the southeasterly path of the country’s land border, while Kenya argues the border should take a 45-degree turn at the shoreline and run in a latitudinal line.
Kenya withdrew from the ICJ case in March this year on account of procedural unfairness at the court, betrayal and external interference, among other reasons, according to the Foreign Affairs ministry.
It has been pushing for the matter to be settled out of court.
Kamau said Kenya has all along maintained – even before Somalia filed the case – that any dispute between the two countries regarding their maritime boundary should be resolved through amicable negotiations.
"In fact, in 2009, the two countries entered into an agreement on how and when to amicably address matters concerning the maritime boundary.
He further noted that Kenya reiterated this position when Somalia filed the case at the ICJ.
"Ironically, while the court declared our 2009 agreement with Somalia on how and when to address matters concerning the maritime boundary valid, it proceeded to ignore the same," he said.
Kenya further accuses the ICJ of assuming jurisdiction "where it had none", by ignoring Kenya’s 1965 reservation that excluded disputes such as the present one from its jurisdiction.
Kenya also raised concerns with the composition of the membership of the bench conducting the case citing the case of Somali citizen, Judge Abdulqawi Yusuf, who has previously represented Somalia at the Third United Nations Conference on the law of the sea.
According to the charter, state parties to the ICJ statute may “at any time declare that they recognize as compulsory and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court” .
Each state that has recognized the compulsory jurisdiction has the right to bring any other state, which has accepted the same obligation, before the court.
The declarations recognizing the jurisdiction of the court as compulsory take the form of a unilateral act of the state concerned and are deposited with the United Nations Secretary General.
By signing the charter, a UN member state undertakes to comply with the decision of the court in any case to which it is a party.
And if a state feels the other party has failed to perform the obligations under a judgment by the Court, it may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to effect the judgment.
Dr Ahmed Hashi, an expert on Horn of Africa, told the Star on the phone that Kenya withdrew from the ICJ because it felt the ICJ systems were not fair to it.
"In any case, dialogue was the better option. Kenya and Somalia coming together and seeking solutions to the problem. It is nor right that every time African countries have a problem that they run to an European court," Hashi said, noting that Kenya is not obligated to implement the judgment.
Former Foreign Affairs editor at the Nation Media Group John Gachie said Kenya is trying to reopen negotiations.
"This is a political, diplomatic and to some extent security move by Kenya not to be caught pants down and seeks to reopen the entire process," Gachie, and expert in Horn of Africa, said on the phone.
He added that Kenya is trying to preempt an unfavourable decision by the court.
"Through the move, Kenya is saying it will not be party to the ruling and probably wants to push to another area of negotiations," he noted.
Gachie also noted that the judgment will have further implication for Tanzania, Mozambique and South Africa's maritime boundaries.
The US in October 2018 also withdrew from ICJ's mandatory jurisdiction. Then national security adviser John Bolton announced that the US was withdrawing from the Optional Protocol on Compulsory Jurisdiction to the Vienna Convention on Diplomatic Relations, the treaty that provides the ICJ with compulsory jurisdiction over VCDR-related disputes.
Bolton linked the withdrawal to claims filed against it before the ICJ by Iran and Palestine.
In 2016, China said it would not accept a ruling against it in a ICJ Tribunal over disputed waters of the South China Sea.
President Xi Jinping said China’s “territorial sovereignty and marine rights” in the seas would not be affected by the ruling.
The ruling declared large areas of the sea to be neutral international waters or the exclusive economic zones of other countries.
In 2012, Colombia withdrew from the ICJ after its ruling in its maritime dispute with Nicaragua.
However, Kenya's withdrawal, like others, is unlikely to have an impact on the case, as the ICJ has previously declined to cease ongoing proceedings where the basis for jurisdiction is revoked.
PS Kamau, however, maintained Kenya is committed to safeguarding and protecting its territorial integrity.