• Somalia bypassed the AU, Igad and the EAC for a Eurocentric arbiter long discarded by major powers — the ICJ
UN members appreciate that only when states are unable to resolve their dispute peacefully can they then submit it to tribunal ITLOS, court ICJ or any other arbitral body
When Somalia filed a maritime boundary dispute at the International Court of Justice (ICJ) in 2014, it drove a wedge between two countries whose relationship is like that of Siamese twins.
Kenya has long been a protector and defender of Somalian interests, yet it now found itself at loggerheads with its northeastern neighbour.
To date, theories are awash as to what really prompted Somalia to take Kenya to the ICJ at The Hague, yet there are so many systems of dispute resolution in Africa.
Perhaps only historians will tell when they analyse the various cases. That notwithstanding, was the ICJ the only option for Somalia? In the recent past, theories have been posited of the possible decline of the ICJ, the judicial organ of the United Nations and the preeminent international court.
On one hand, there have been allegations on the impartial application of the law by the judges on the pretext of serving national interests. On the other hand are claims that the court has been a victim of conflicting interests among member states, who use and control it.
While African states have in the past rushed to the ICJ and the Permanent Court of Arbitration to resolve territorial or boundary disputes, concerns persist on the partiality of these judicial bodies.
There have been accusations that the courts apply Eurocentric international law that compromises the interests of African countries. Further, there are concerns that the composition and staffing of these courts remain unrepresentative of Africa.
UNCLOS, ICJ AND THE RELUCTANCE OF STATE PARTIES
Chapter 1 of the Constitution of Kenya, 2010, recognises the supremacy of the Constitution, confirming that the Constitution is not subject to challenge by or before any court. It affirms that the general rules of international law form part of the laws of Kenya and recognises that any treaty or convention ratified by Kenya forms part of the laws of Kenya.
Why, then, the debacle with Somalia?
On June 11, 2009, the Secretariat of the United Nations registered a Memorandum of Understanding between Somalia and Kenya to Grant to Each Other No-Objection in Respect of Submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission on the Limits of the Continental Shelf.
The MoU, registered under registration number I-46230, recognised there existed a "maritime dispute" between the two coastal states, whose extent covered an overlapping area of the continental shelf. It noted further that despite the two states having differing interests on the area under dispute, they remained determined to work together to safeguard and promote their common interest with respect to the establishment of the outer limits of the continental shelf beyond 200 nautical miles.
The Transitional Federal Government of Somalia indicated at the time of the signing of the MoU that it would submit to the United Nations Secretary-General preliminary information indicative of its intention to proclaim the outer limits of the continental shelf beyond 200 nautical miles.
This, it stated in the MoU, was solely to comply with the time limits stipulated in Annex II of the Commission on the Limits of the Continental Shelf (CLCS). Article 4 of Annex II indicates that where a coastal state intends to establish the outer limits of its continental shelf beyond 200 nautical miles, it must submit to the Commission supporting scientific and technical data within 10 years of the entry into force of the Convention for that particular state.
The Law of the Seas Convention (LOSC) was entered into force for Somalia on November 16, 1994, and on July 21, 2014, the Federal Government of Somalia submitted to the CLCS information on the limits of the continental shelf beyond 200 nautical miles.
During the signing of the MoU, Somalia stated that its position would not in any way prejudice the positions of the two coastal States with respect to the maritime dispute between them; nor would it prejudice the future delimitation of maritime boundaries in the area under dispute, including the delimitation of the continental shelf beyond 200 nautical miles.
The Government of Kenya on its part did not object to the inclusion of the areas under dispute in the submission by the Somali Republic.
Further, the two states, according to the MoU, agreed to make separate submissions to the CLCS, requesting the Commission to make recommendations with respect to the outer limits of the continental shelf beyond 200 nautical miles without regard to the delimitation of maritime boundaries between them.
In fact, the two states gave their consent to the consideration by the Commission of their submissions in the area under dispute. They further agreed that the submissions made before the Commission and the recommendations approved by the Commission would not prejudice the positions of the two countries with respect to the maritime dispute between them; nor would it be prejudicial to the future delimitation of maritime boundaries in the area under dispute.
The MoU, which entered into force on June 7, 2009, registered that the delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, would be agreed between the two countries on the basis of international law.
This would be after the Commission had concluded its examination of the separate submissions made by each of the states, and made its recommendations to the two concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles.
What, then, prompted Somalia to act in the manner it did against Kenya?
THE UNCLOS COMPULSORY DISPUTE SETTLEMENT REGIME
The United Nations Convention on the Law of the Sea (UNCLOS), to which Kenya is a signatory, introduced in December 1982 what was considered an innovative and far-reaching compulsory dispute settlement system that was viewed as necessary to balance the interests of all states against the increased jurisdictional competences given to coastal states by the Convention.
In addition to providing for compulsory recourse to a range of existing procedures including conciliation, arbitration and the ICJ, the Convention also provided for the establishment of a new standing international court, the International Tribunal for the Law of the Sea (ITLOS) and its specialist Sea-Bed Disputes Chamber.
Part XV of UNCLOS deals with the settlement of disputes concerning the interpretation or application of the Convention, taking into consideration that there exists a general obligation on states to settle their disputes by agreement and to do so peacefully.
It also acknowledges the right for states to agree at any time to settle their disputes by any preferred means among themselves, as long as there is an amicable settlement of the dispute. Arguably, this can be done by way of general, regional or bilateral agreements that are considered legally binding.
It is appreciated by the membership of the United Nations that only when states are unable to resolve a dispute peacefully can they then submit it to either the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice or any other arbitral body.
The nature of the compulsory dispute settlement provisions has in the past come under heavy criticism from member states, including the Permanent Members of the United Nations Security Council (UNSC), who argue that the provisions have contributed to the crumbling of various aspects of the Law of the Sea and of international law in general.
Scholars and experts on the Law of the Sea have argued that years after the coming into force of the UNCLOS, and several years since the establishment of ITLOS, there is now urgent need to review the future of compulsory dispute settlement under UNCLOS.
Interestingly, in 2010, Judge Jose Luis Jesus, former President of ITLOS, when presenting a paper on “the Role of ITLOS in the Settlement of Law of the Sea Disputes”, confirmed that since 1998, when ITLOS received its first case, a total of 18 cases had been filed. Thirteen of these had been resolved, several discontinued, while others were underway. This trend has continued, considering an analysis of the several cases submitted.
A comprehensive study by Eric Posner and the University of Chicago Law School on the Decline of the International Court of Justice carried out in 2010 established that of the 105 cases that had been submitted to the Court between 1945 and 2004, only 25 cases had complied with the decision of the court, while 28 had refused to comply on various disputes.
In terms of maritime or border disputes, of the 49 cases that had been submitted during the same period, nine cases registered non-compliance, 16 cases either ignored the judgements or abandoned the matter, and only 18 abided with the ICJ judgements.
Some of the interesting cases under review included United States of America versus United Kingdom in 1955; Nicaragua versus Honduras in 1999, and Nicaragua versus Columbia in the same year; Malaysia versus Singapore in 1999; Romania versus Ukraine in 2004; Cameroon versus Nigeria in 1994; and Germany versus Iceland in 1972.
Recent contentious (cases presented by states and governments) maritime dispute cases submitted at the ICJ after Posner’s study include Romania versus Ukraine, which ended in 2009; Burkina Faso versus Niger, ended in 2013; Peru versus Chile, ended in 2014; and Costa Rica versus Nicaragua, ended in 2018.
The ICJ is the only international court with general subject matter jurisdiction over international legal disputes, though it continues to face challenges, as member states of the United Nations refuse to submit to its jurisdiction, while many others refuse to comply with its judgements.
This has been the case especially for the permanent members of the United Nations Security Council, who have withdrawn from the court’s compulsory jurisdiction. United States of America withdrew in 1985, Russia/USSR never submitted to the ICJ, France withdrew in 1974, and China in 1972. The United Kingdom has yet to withdraw.
The study also indicated that countries with large economies, such USA, China, Japan, India, Germany, U.K., France, Italy, Brazil and Russia, had not filed proceedings at the ICJ.
It was noted that China, Japan, Brazil, and Russia (USSR) had never brought a proceeding, nor had they appeared as respondents beyond the filing stage.
During the time of the study, among the top 30 states (measured by current GDP), only Japan, the UK, India, Canada, Mexico, Spain, Australia, the Netherlands, Poland, the Philippines, Pakistan, Belgium and Egypt had submitted to compulsory jurisdiction.
The turning point for the ICJ came in the Nicaragua versus United States case of 1984. This was the first major case in which a developing country challenged a major power.
Nicaragua argued that the US had violated international law by mining its harbours. The U.S. responded that the ICJ did not have jurisdiction over the case, and in any event, the US was acting legally by participating in the collective security of Honduras and El Salvador in response to Nicaragua-supported rebellions in both countries.
While the American defence was reasonably strong, ICJ ruled in favour of Nicaragua, ordering the US to pay reparations. However, the judgment was never enforced. Despite encouraging states to bring proceedings before the ICJ, it may have dampened the enthusiasm of western states for the ICJ.
The United States withdrew from the ICJ the following year after the judgement had been delivered.
WHAT THIS MEANS FOR KENYA
This, therefore, begs several fundamental questions. Is the ICJ the ideal place to resolve the maritime dispute between Somalia and Kenya? Was it procedurally right for Somalia to go to the ICJ, while at the same time presenting for auction subjects of the maritime dispute?
There is also the question of whether Somalia abandoned the MoU it signed with Kenya in 2009 and all its contents. Why did Somalia not seek recourse at the African Union under the African Union Convention on Cross-Border Cooperation?
Was Igad not an option for Somalia to present its case? What of the East African Community? Did Somalia play the race card by opting for a Eurocentric legal system, as opposed to mediation and conciliation, as practised within the African traditional methods of dispute resolution?
If the race card was pulled, would not the Arab League have listened to Somalia instead of the ICJ? What, then, would be the consequences of the ICJ favouring Somalia against Kenya in the maritime dispute?
Is Kenya prepared to be locked out a huge chunk of the sea after centuries of having access to it? Did Somalia abandon its Siamese twin at the altar of commercial interest? What would be the consequence of such abandonment, in light of Kenya’s territorial integrity?
Only time will tell.