UN top court favours Somalia in Indian Ocean border dispute

THE HAGUE, Netherlands

Kenya yesterday lost its long-standing Indian Ocean boundary dispute with Somalia after the UN top court ruled in favour of Mogadishu.

A panel of International Court of Justice (ICJ) judges sitting in The Hague said Kenya had not proved that Somalia had previously agreed to its claimed boundary. The ICJ is the principal judicial organ of the United Nations. 

The 14-judge panel instead drew a new line that has split the disputed area into two, saying the best solution is an equitable solution.  

The court said it would be inappropriate to delimit a boundary based on a median line, an argument that Somalia was canvassing. 

Kenya’s border currently runs horizontally into the Indian Ocean, and that is how the country wanted it to stay.  

But Somalia insisted its southern boundary should run southeast as an extension of the land border. 

“The court finds that there is no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya that follows the parallel of latitude,” the judges ruled. 

The court then went ahead to put up a provisional equidistance line in the disputed area between Kenya and Somalia, giving Mogadishu up to half of its claim of the disputed border. 

The case concerned a 38,000 square mile (100,000 sq km) triangle in the Indian Ocean that is thought to be rich in oil and gas. 

The court set out to define the boundary using beacons set in a 1934 treaty agreement between the colonial powers, Italy and Britain, pursuant to international law and conventions. 

The court dismissed Kenya's claim to a parallel latitude (horizontal) boundary with Somalia as having never existed in the first place, although that is how Kenya's boundary with Tanzania is drawn. 

This means Somalia won the case with a slight adjustment to the north of its proposal to rely on the provisional equidistant line. 

The court dismissed Kenya’s argument that the fisherfolk in Lamu and its surrounding areas would have their livelihoods affected by having the equidistance line. 

Fish landing sites are located near or close to the Lamu archipelago and would therefore be unaffected by having the equidistance line. 

The court said it believes the current security situation in Somalia is not of a permanent nature, saying it does not justify an adjustment of the provisional equidistant line. 

“The court decides that the starting point of the single maritime boundary delimiting the respective maritime areas between the Federal Republic of Somalia and the Republic of Kenya is the intersection of the straight line extending from the final permanent boundary beacon (PB 29) at right angles to the general direction of the coast with the low-water line, at the point with coordinates 1° 39' 44.0" S and 41° 33' 34.4" E (WGS 84),” the court ruled. 

It said that, from the starting point, the maritime boundary in the territorial sea follows the median line until it reaches the 12-nautical-mile limit at the point with coordinates 1° 47' 39.1" S and 41° 43' 46.8" E (WGS 84) (Point A). 

The court ruled that from the end of the boundary in the territorial sea (Point A), the single maritime boundary delimiting the exclusive economic zone and the continental shelf up to 200 nautical miles between Kenya and Somalia follows the geodetic line starting with azimuth 114° until it reaches the 200-nautical-mile limit. 

These would be measured from the baselines from - 2 - which the breadth of the territorial sea of Kenya is measured, at the point with coordinates 3° 4' 21.3" S and 44° 35' 30.7" E (WGS 84) (Point B).  

“The court decides that, from Point B, the maritime boundary delimiting the continental shelf continues along the same geodetic line until it reaches the outer limits of the continental shelf or the area where the rights of third states may be affected.” 

However, it is not clear what happens next after the government last Friday withdrew its membership from the ICJ and announced it would not recognise yesterday’s judgment. 

The court spared Kenya from any reparation claim by Somalia, ruling that the country did not break any international laws by its drilling and prospecting activities in the disputed area. 

“The court rejects the claim made by the Federal Republic of Somalia in its final submission concerning the allegation that the Republic of Kenya, by its conduct in the disputed area, had violated its international obligations,” the court ruled. 

Somalia had also argued that Kenya had violated its sovereignty by operating in its territorial waters and demanded reparations. 

At stake were sovereignty, undersea riches and the future of relations between Kenya and Somalia, especially with President Uhuru Kenyatta maintaining that the country will not cede any boundary. 

For the past four decades, Kenya has said a line due east of the point where the two countries meet on the coast represents the maritime border. 

Somalia, however, argued in court that the sea frontier in the Indian Ocean should follow on in the same direction as the land border. 

Kenya first established this maritime boundary along the parallel latitude by presidential proclamation in 1979. 

In 2009, the two countries signed a memorandum of understanding, certified by the United Nations, to negotiate their boundaries. 

But five years later, Somalia said the talks had failed and it went to the ICJ instead. 

On August 28, 2014, Somalia instituted proceedings against Kenya with regard to a dispute concerning the delimitation of maritime spaces claimed by both states in the Indian Ocean. 

 In its application, Somalia requested the court “to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles". 

However, on October 7, 2015, Kenya raised preliminary objections to the jurisdiction of the court and the admissibility of the application. 

On February 2, 2017, the court rendered its judgment on the preliminary objections raised by Kenya.  

The court rejected those objections, finding that it had jurisdiction to entertain the application filed by Somalia and that the application was admissible.