Surrounded by controversies, ICJ’s judgment in the ‘Maritime Delimitation in the Indian Ocean’ case, will finally happen in March.

On 28th August 2014, the Government of the Federal Republic of Somalia instituted proceedings against the Republic of Kenya in regard to a Maritime Delimitation dispute in their Indian Ocean boundary. The case concerns the establishment of a single maritime border between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone (“EEZ”), and continental shelf, including the continental shelf beyond 200 nautical miles (“M”).^[1]

In its application instituting the proceedings, Somalia claimed that the applicable law would be the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which Somalia and Kenya ratified in July and March 1989, respectively, and customary international law – both sources of International Law recognized in article 38.1 of the ICJ Statute^[2]. Somalia brought the case to the Court upon the declaration made under article 36.2 of the Court’s Statute by both States that provided the ICJ with Jurisdiction to entertain the case.

After Kenya raised several preliminary objections on 7 October 2015^[3], the Court decided in the Judgement from 2 February 2017 that Kenya’s submissions did not hold water and found itself competent to appreciate the case’s merits.^[4] Somalia claims that the maritime boundary between the Parties in the territorial sea, EEZ, and continental shelf should be determined under UNCLOS Articles 15, 74 and, 83, respectively.

In the territorial sea, it contends that the boundary should be a median line, as specified by Article 15, since there are no particular circumstances that would justify departure from such a line. In the EEZ and continental shelf, it argues that the boundary should be established according to the three‑step process^[5] that the Court has consistently employed in its application of Articles 74 and 83 of the Convention.

Kenya, however, contends that the maritime boundary should be a straight line emanating from the Parties’ land boundary terminus. This line would be extended due east along the parallel of latitude on which the land boundary terminus sits, through the full extent of the territorial sea, EEZ, and continental shelf, including the continental shelf beyond 200 M. Upon the delimitations that it believes are the correct ones, Kenya has offered petroleum exploration blocks to Petroleum companies. Nonetheless, Somalia contends that some of these blocks are inside what it sees as its boundary and has an interest in them.

In this sense, Somalia’s request to the ICJ was for the determination, based on international law, of the complete course of the single maritime boundary dividing all the marine areas appertaining to Somalia and Kenya in the Indian Ocean, including in the continental shelf beyond 200 M. Recently, after several decisions postponing the trial, the Court decided that the oral proceedings in the case would take place on 15 March 2021.^[6]

However, the case and the decision to finally appreciate it, are causing disturbances in some international community members, who believe that a decision by the ICJ could bring political instability to the region. The Pan African Forum has written to the Secretary-General of the United Nations, António Guterres, seeking his intervention to have the Kenya-Somalia maritime case at the International Court of Justice (ICJ) deferred. In the Forum’s Chairman’s opinion, Mr. David Matsagana, the proceedings could spark fresh tensions and new conflicts in the region that is already volatile due to the unstable diplomatic relations between the two countries.^[7]

In its letter, the Forum states that there are “millions of Africans in East Africa and in the Horn of Africa regions who are worried about the Kenya/Somalia case at ICJ”^[8] and that any ruling by the ICJ would “spark a vicious war in the region where the conflict of Somalia still ranges on”^[9]. Furthermore, the Forum claims that the President of Somalia, Mr. Mohamed Abdullahi Mohamed, only intents to use a possible judicial victory in the ICJ as a “desperate attempt to cover his immense failures at home”^[10].

When it comes to a prospective evaluation of the Court’s decision, the three-stage methodology will likely be applied by delimiting the boundaries, unless the Court agrees with Kenya that a limit (along a parallel of latitude) already exists between the parties^[11]. In the Black Sea case, the Court held that it would always apply the methodology except when there are ‘compelling reasons’ making the equidistance method unfeasible in the particular case^[12]. By unfeasibility, the Court was referring to the impossibility of drawing an equidistance line. A similar decision occurred in the Nicaragua v. Honduras case, where the Court declined to apply the equidistance method.^[13]

Further, former ICJ president, Judge Guillaume, has already affirmed that “In all cases, the Court (…) must first determine provisionally the equidistance line. It must then ask itself whether there are special or relevant circumstances requiring this line to be adjusted with a view to achieving equitable results.”^[14] Accordingly, the International Tribunal for the Law of the Sea (ITLOS) has recently also applied the three-stage methodology in the maritime delimitation case between Ghana and Cote D’Ivoire, calling it the “established approach.”.^[15]

In this sense, the oral proceedings that are soon going to take place in the Hague are long-awaited by the parties and by a part of the International Community. The question relating to whether the Court will stick to its consolidated jurisprudence and apply the equidistance method or be compelled by Kenya’s arguments that a boundary already exists between the parties, will be answered, and the political consequences of the decision will unfold. Certainly, this is going to be a remarkable decision in the Law of the Sea field.

By Augusto Guimarães Carrijo, a student at the Federal University of Uberlândia, under the supervision of Dr. Felipe Kern Moreira, IBDMAR’s Director.

^[1] INTERNATIONAL COURT OF JUSTICE. Maritime Delimitation in the Indian Ocean (Somalia v Kenya). Application instituting proceedings (2014). Available at: https://www.icj-cij.org/public/files/case-related/161/161-20140828-APP-01-00-EN.pdf.

^[2] UNITED NATIONS. Statute of the International Court of Justice, 18 Apr. 1946. Available at: https://www.icj-cij.org/en/statute.

^[3] INTERNATIONAL COURT OF JUSTICE. Maritime Delimitation in the Indian Ocean (Somalia v Kenya). Preliminary objections of Kenya (2015). Available at: https://www.icj-cij.org/public/files/case-related/161/19074.pdf.

^[4] INTERNATIONAL COURT OF JUSTICE. Maritime Delimitation in the Indian Ocean (Somalia v Kenya). Judgment (2017). Available at: https://www.icj-cij.org/public/files/case-related/161/161-20170202-JUD-01-00-EN.pdf.

^[5] Accordingly to Somalia, pursuant to the three-step method, courts and tribunals will (1) draw a provisional equidistance line; (2) determine whether there are “relevant circumstances” that render the provisionally‑drawn equidistance line inequitable ; and (3) test the proposed delimitation line to determine whether it results in any gross disproportion.

^[6] INTERNATIONAL COURT OF JUSTICE. Maritime Delimitation in the Indian Ocean (Somalia v Kenya). Press release 2020/13. Available at: https://www.icj-cij.org/public/files/case-related/161/161-20200522-PRE-01-00-EN.pdf.

^[7] CAPITAL NEWS. Pan African Forum Wants ICJ To Defer Kenya-Somalia Maritime Dispute For Fear Of Fresh Tensions. 17 feb. 2021. Available at: https://www.capitalfm.co.ke/news/2021/02/pan-african-forum-wants-icj-to-defer-kenya-somalia-maritime-dispute-for-fear-of-fresh-tensions/.

^[8] PAN AFRICAN FORUM. Deferral of the Kenya /Somalia Maritime Dispute in (ICJ). Letter to Sir Antonio Gutierres, 16 feb. 2021. Available at: http://www.panafricanforumltd.com/Deferral_Of_The_Kenya_Somalia_Maritime_Dispute.html.

^[9]  Ibidem

^[10] Ibidem

^[11] OLORUNDAMI, Fayokemi. The Kenya/Somalia Maritime Boundary Delimitation Dispute. In: YIHDEGO, Z.; DESTA, M; HAILU, M.; MERSO, F (org.). Ethiopian Yearbook of International Law. Cham: Springer, 2017, pp. 173-185. p. 180

^[12] INTERNATIONAL COURT OF JUSTICE. Maritime Delimitation in the Black Sea (Romenia v. Ukraine), Judgment, (2009), para. 106. Available at: https://www.icj-cij.org/public/files/case-related/132/132-20090203-JUD-01-00-EN.pdf.

^[13]  INTERNATIONAL COURT OF JUSTICE, Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, (2007) ICJ Rep 659, para 277

^[14] GUILLAUME, GILBERT. Statement made by Judge Guillaume to the Sixth Committee of the General Assembly of the United Nations. 2001.

^[15]  ITLOS, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte D’Ivoire in the Atlantic Ocean (Ghana/Côte D’ivoire) Judgment, (2017) para 402.