ISSAfrica.com: ICJ draws line in Kenya and Somalia's troubled Waters
Posted by: Berhane Habtemariam
Date: Thursday, 28 October 2021
Despite unease on both sides, each country could gain from the ruling if they were willing to restore relations.
By Timothy Walker and Mohamed Gaas
28 October 2021
The International Court of Justice’s (ICJ) decision on 12 October regarding the maritime boundary between Kenya and Somalia is unlikely to please either party. After seven years of growing resentment over the issue, the ICJ ruled that there was no de facto maritime boundary, effectively rejecting most of Kenya’s claims.
To placate both parties, the court drew a new boundary that kept some of the disputed area under Kenyan jurisdiction but still awarded a sizeable chunk to Somalia.
The dispute was triggered mainly by the desire for ownership over ocean zones where lucrative oil blocks can be created to auction off for exploration. Both countries referred to the zones in terms of territory and sovereignty. This inflamed the debate and made resolution difficult as both felt threatened by the prospect of the other gaining at their expense.
Each state could benefit from the ICJ’s jurisdiction award as it effectively gives them the title deeds to all resources in their parts of the ocean. But the fallout from the dispute is unlikely to result in any immediate benefits for either country.
Somalia said the maritime boundary should follow the trajectory of the land boundary as it crosses the coastline and projects out to sea in a straight line. By the time this line terminates at 200 nautical miles out, about 370 km, the total area over which it could exercise exclusive economic resource ownership rights would be huge.
"The ICJ ruled that there was no de facto maritime boundary, effectively rejecting most of Kenya’s claims"
Kenya countered that the boundary ran along the parallel of latitude according to its laws and proclamations. It argued that Somalia had given its tacit consent because it never seriously objected to these proclamations and thus acquiesced to the Kenyan claim.
The ICJ unanimously rejected the notion that a border already existed, pointing out that Somalia had never clearly and consistently accepted Kenya’s ‘parallel of latitude’ boundary. The court decision is therefore more favourable for Somalia because the boundary was de facto still in dispute.
Given climate change and the need to move away from fossil fuels, the value of developing oil and gas resources in this maritime area is debatable. If these resources are to be extracted, it will make more sense to consider the potential benefits for both states and their people, rather than just one country, with a winner-takes-all mentality.
There are possible solutions, such as creating joint development zones, which could allow both countries to benefit from marine resources. Down the line, this would create regional prosperity and economic integration between Somalia and Kenya. Many maritime security issues, such as illegal fishing and smuggling, are transnational and require the two countries to work together or support international institutions designed to enhance maritime security.
So even with the ICJ ruling, there are some potential positives to the situation, provided both countries are willing to build trust, restore relations and explore the possibilities. This won’t be easy considering that Kenya – anticipating an unfavourable decision – indicated it would have serious objections to the outcome even before it was made.
"Possible solutions include creating joint development zones that could enable both countries to benefit"
But there are several examples of countries that opposed ICJ decisions or those of other tribunals such as the International Tribunal for the Law of the Sea, ultimately accepting and binding themselves to the court’s judgment.
Some examples from other parts of Africa include conflicts between Côte d’Ivoire and Ghana, and Nigeria and Cameroon. In both instances, the parties accepted the ruling and subsequently engaged with each other to the benefit of all. Most maritime disputes can also ultimately be resolved through good offices, arbitration and mediation.
For both Kenya and Somalia, compliance with the ruling is more important than trying to exert control over each other. The international community may pressure Kenya, perhaps behind closed doors, to accept the verdict and avoid undermining key institutions and principles anchoring the law of the sea.
Given its foreign policy of strengthening global ocean governance, it would be costly for Kenya diplomatically to dispute the decision. It hosted a successful global Blue Economy summit in 2018, and President Uhuru Kenyatta is a vital member of the High Level Panel for a Sustainable Ocean. And Kenya is co-hosting the 2022 UN Ocean Conference with Portugal. The country has earned significant credentials as a global ocean governance leader – a status it might not want to jeopardise.
"Most maritime disputes can ultimately be resolved through good offices, arbitration and mediation"
Kenya also currently holds the rotational presidency of the United Nations Security Council for the month of October, during which it chaired a high-level open debate on diversity, state building and peace.
It may take a while to repair Kenya and Somalia’s diplomatic relations, which had been undergoing a rapprochement of sorts after years of disagreements. It’s unfortunate that despite their strong cultural and economic ties – which bind them more closely than any other countries in the region – the two ended up in a bitter maritime dispute and an ICJ ruling.
The ICJ should be the last mechanism states turn to after exhausting other diplomatic avenues. Both countries tried to reach an accord over the past few decades, but the 2014 request by Somalia to have the ICJ decide indicated it had lost confidence in the bilateral process.
The African Union (AU) has a border programme and a new boundary resolution strategy that should have assisted before the issue got as far as it did. A salutary lesson is that countries should first try to agree among themselves, or get help from regional structures and organisations such as the AU. But the border programme needs to be better capacitated to be effective.
Most contests over boundaries in Africa exist on land, which means resources, funding and training have gone towards land boundary resolution. The Kenya–Somalia dispute should alert African states and the AU to the need to catalogue maritime disputes and identify ways to resolve them without destabilising countries and regions.
Timothy Walker, Maritime Project Leader, ISS Pretoria and Mohamed Husein Gaas, Senior Researcher, Horn of Africa Security and Analysis, ISS Addis Ababa