In less than a fortnight the International Court of Justice is expected to deliver a verdict in a maritime delimitation case between Kenya and Somalia concerning a 160,000 sq km triangle in the Indian Ocean.
Kenya has expressed its dismay with the ICJ for reasons ranging from inconsistent court proceedings, the ravishing impacts brought by the global Covid-19 pandemic to perceived bias by the then ICJ President. Somalia is holding its breath for a ruling in its favour in a case Kenya already withdrew from.
Whereas the ICJ’s primary role is to deliver a ruling on the coordinates of the two countries’ maritime border the decision will also have far-reaching consequences on the already frosty relations between the two neighbours, trade, social relations among cross-border communities and security.
Given the repercussions the decision might have and the lack of huge commercial activity ongoing in the disputed triangle, the hastiness in restarting the case amid the dissatisfaction expressed by one party and their withdrawal thereafter has raised eyebrows.
Considering the incapability of the ICJ to enforce its judgments, a party simply ignoring its ruling would have precedent from three worthy permanent members of the United Nations Security Council.
First, Kenya’s arguments for withdrawal are not necessarily fictional and are similar to those raised by other parties, who have ignored previous verdicts, including lack of jurisdiction by the court.
A majority of the judges agreed on various aspects on the MoU signed by the two countries including, Somalia did not protest the registration of the MoU as a treaty until after five years, the two ministers were authorised to sign the agreement and numerous mentions of maritime delimitation in the MoU.
Despite that, the ICJ went ahead to declare its jurisdiction over Somalia’s application against Kenya. The ruling will have future implication on the Law of Treaties and core issues in the use of MoUs.
Secondly the existence of a global pandemic was no new information raised by Kenya to the court, with the ICJ having instituted measures such as videoconferencing and limited physical appearance, among many others.
According to Kenya’s Attorney General Kihara Kariuki, the pandemic had hindered its preparation for the case. He cited security challenges with videoconferencing, especially with sharing of classified documents and the need for in person testimonies for it to defend itself “fairly, fully and transparent.”
While there have been three previous postponements Kenya changed its legal team at a period when there was restricted international and local travel, limiting the team’s ability to prepare including analysis and sharing of classified evidence as opposed to Somalia whose team has been in place since the commencement of the case.
Another sticking point throughout the entire case has been the presence of judge Abdulqawi Yusuf, a Somali national who started as the vice president of the court before rising to the presidency position. To date the judge who has been present throughout the case has not dissented in any rulings favouring his home country.
Judge Yusuf previously represented Somalia at the Third United Nations Conference on the law of the sea where it was stated that delimitation of the EEEZ and continental shelf should not be effected in accordance with the principle of equidistance but rather by application of equitable principles. To Kenya, having a partisan judge as the President of the ICJ in this crucial case was similar to participating in a predetermined case with little chance of a just process.
Lastly, and of utmost importance to both Kenya and Somalia, is the lack of an environmental and social impact assessment by the court that would indicate how the ruling could affect the people living along the border and the welfare of marine life, especially endangered mammals.
It is well known that a majority of the catch from the Indian Ocean by Kenyan fishermen comes from the Lamu archipelago, the centre of the dispute between the two countries. A ruling in favour of Somalia thus has the potential to drive tens of thousands into unemployment, make them food insecure, increase cross-border tension and drive the county of Lamu into the brink of economic collapse with its GDP reliant on fishing.
With the exploitation of oil and gas also at the centre of this case there is a recognition that the ruling could be a basis for potential marine pollution and insecurity, with IOCs operating in Somalia previously cited by the UN for arming militias fueling armed conflict.
Researcher, policy analyst and community relations expert in the Kenyan Blue Economy
