THE MARITIME DELIMITATION DISPUTE IN THE INDIAN OCEAN
BETWEEN SOMALIA AND KENYA:
AN ANALYSIS OF THE
JUDGEMENT ON THE PRELIMINARY OBJECTIONS
Brian Asa Omwoyo*
24TH JANUARY 2020
Introduction
Under the law of the sea regime, States have a cardinal responsibility to
negotiate agreements in good faith and resolve maritime disputes peacefully.1
This responsibility emanates from each State’s duty to the international
community to uphold and promote international peace. Inadvertently, one factor
that has always put to test the global maritime peace fabric is when there exists
overlapping claims of sovereignty over a maritime area by opposite or adjacent
littoral States. The ongoing maritime delimitation dispute between the Republic
of Kenya and the Federal Republic of Somalia at the International Court of
Justice concerning overlapping claims on maritime territory in the Indian Ocean
is the recent quest by the concerned States in having a peaceful resolution.
Following the institution of the suit by Somalia,2 Kenya raised preliminary
objections challenging both the jurisdiction of the Court and the admissibility of
the Application instituting the maritime proceedings.3 The Court, upon hearing
submissions by both parties, entered a Judgment on the preliminary objections.4
The Court, while dismissing the preliminary objections raised by Kenya, made
findings in the Judgement which are integral in the development and
advancement to the realm of Law of the Sea and Public International Law.
In particular, the Court made a determination that the Memorandum of
Understanding between Kenya and Somalia was a treaty and further pronounced
itself on the subject of maritime delineation and maritime delimitation as
* LLM(Dist)(University of Kent); PGDip (Yeosu Academy of the Law of the Sea; PGDip (SACS-The
University of Faroe Islands); PGCert (International Maritime Law)(Australian National University); LLB
Hons(MOI); PGDip(Kenya School of Law); ACIArb (Arbitrator, Kenya Chapter);Trainer of Trainer on
Maritime Legal Regime East Africa; Advocate of the High Court of Kenya.
1
Part XV of the UN Convention of the Law of the Sea( Enacted on 10 th December 1982, Came into effect 16 th
November 1994)
2
Application Instituting Proceedings filed by the Republic of Somalia in the Registry of the Court on 28th
August 2014
3
On 7th March 2015 within the time-limit set by Article 79, paragraph 1, of the Rules of Court, Kenya raised
preliminary objections to the jurisdiction of the Court and to the admissibility of the Application.
4
Maritime Delimitation in the Indian Ocean (SOMALIA v. KENYA) Preliminary Objections 2nd February 2017
1|Page
provided for under Article 76 and Article 83 of the United Nations Convention
on the Law of the Sea (hereinafter referred to as “UNCLOS”) respectively.
It is important to note that as this matter is still pending hearing and
determination before the Court5this paper shall limit its discussion on the
Judgment on the preliminary objections as was raised by Kenya. The paper shall
briefly analyse the background of the maritime dispute between Somalia and
Kenya. The paper will then analyse the legal issues which arose from the
Judgement on the Preliminary Objection. In conclusion the paper will analyse
the contributions made by this Judgment on the preliminary objections to Law
of the Sea and International Law.
1.0
Background of the Maritime dispute between Kenya and Somalia
The Republic of Kenya and the Federal Republic of Somalia are adjacent littoral
states which share a coastline along the Indian Ocean and are located on the
North-East of the African Continent. The Federal Republic of Somalia has the
longest coastline in Africa measuring approximately3,333Km in length while
the coastline of the Republic of Kenya measures approximately 1,420 Km. The
land boundary of the two States meet the Indian Ocean at Ras Kamboni which
is the land terminus on a smooth coastline.
Both Kenya6 and Somalia7 ratified the UN Convention of the Law of the Sea
and are legally bound by the obligations by dint of being State parties.
Accordingly both states are bound to ensure peaceful resolution of maritime
disputes.
The current maritime dispute between Somali and Kenya emanates from each
State’s varied stance on the appropriate direction of the maritime boundary from
the land terminus. According to Kenya the maritime delimitation boundary
ought to run parallel of latitude due east from the land boundary terminus 8
5
On 18th October 2019 the International Court of Justice (ICJ), postponed the oral hearing in the case
concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), which had been due to take place
between Monday 4 and Friday 8 November 2019 to the week beginning 8 June 2020. Press Release No
2019/41 available online at https://www.icj-cij.org/files/case-related/161/161-20191018-PRE-01-00-EN.pdf
6
Kenya ratified the UNCLOS 2nd March 1989. The Convention entered into force on 16th November 1994.
7
Somali ratified the UNCLOS 24th July 1989. The Convention entered into force for Somalia on 16th November
1994.
8
The Submission made by Kenya to the Commission on the Limits of the Continental Shelf on 6 th May 2009,
with respect to the continental shelf beyond 200 nautical miles. This was a similar position taken in the
Proclamation by the President of the Republic of Kenya, 9 June 2005 In respect to the Territorial Sea and the
Exclusive Economic Zone Legal Notice No 82 where at paragraph (1) (b) of the 2005 Proclamation provided
that “In respect of its northern territorial waters boundary with Somali Republic be on eastern latitude South of
Diua Damascian Island being latitude 1°39’34” degrees south.” This is Presidential Proclamation is found at
2|Page
while Somali, on the other hand, maintains that the maritime boundary ought to
run in the south-easterly direction from the land boundary terminus9 in the
Indian Ocean. As a result of this there exists overlapping claims of sovereignty
by both states over a triangular maritime area in the Indian Ocean measuring
approximately 100,000 square kilometres (62,000 square miles). In particular,
the disputed maritime area contains Blocks L-5, L-21, L-22, L-23, L-24 and L2510 which both States believe there is presence of oil and gas deposits. Notably,
both States have over the years unilaterally proceeded to issue concession
permits for exploration of these Blocks to multinational corporations.11
Following unsuccessful negotiation attempts by both States to resolve the
maritime delimitation dispute12, Somalia filed in the Registry of the
International Court of Justice an Application instituting proceedings against
Kenya on 28th August 2014.
2.0
The maritime delimitation dispute between Somalia and Kenya at the
International Court of Justice
As indicated above the maritime dispute between Somalia and Kenya emanates
from each country’s overlapping claim on sovereignty over the maritime
disputed area in the Indian Ocean. The triangular maritime disputed area is
formed as a result of each State’s varied position on the direction of the
maritime boundary delimitation line from the land boundary terminus to the
Indian Ocean.
page 96 of the Law of the Sea Bulletin No 61 of 2006 available online at
https://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulletin61e.pdf
9
Submission by the Federal Republic of Somali to the Commission on the Limits of the Continental Shelf on
21st July 2014;
10
Sketch No 3 in the Application for Institution of Proceedings filed by Somalia to the International Court of
Justice and filed in the Registry of the Court on 28 August 2014
11
Kenya awarded Block L‑5 to the American company Anadarko Petroleum Corporation in 2010 (though
subsequent reports appear to indicate that Anadarko gave up its interest in late 2012 or early 2013). Blocks L 21, L‑23 and L‑24 — which lie entirely (in the case of L‑21 and L‑23) or predominantly (in the case of L‑24)
on the Somali side of a provisional equidistance line — were awarded to the Italian company Eni S.p.A. in
2012. Block L‑22 was awarded to the French company Total S.A. the same year. (Based on the information
currently available to the Government of Somalia, Block L‑25 remains under negotiation.) at Paragraph 25 of
the Application instituting proceedings between Somali and Kenya. ;In 2019 Somalia put on auction offshore oil
blocks in the contested territory of the Kenyan port of Lamu https://www.theeastafrican.co.ke/news/ea/Somaliaputs-contested-oil-block-territory-up-for-auction/4552908-5149860-a2mv48z/index.html
12
The Foreign Ministers of Kenya and Somalia held a meeting on 21 March 2014, at which it was agreed that a
technical meeting be held among relevant officials. A first bilateral meeting was held in Nairobi on 26 and 27
March 2014. On 28 and 29 July 2014, a second bilateral meeting was held in the same city which was attended
by the two Foreign Ministers. Other meetings failed to materialise.
3|Page
Somalia in its Application instituting the maritime proceedings against Kenya
urged 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 in the
continental shelf beyond 200nautical miles.” Kenya entered appearance and
pursuant to Article 79 of the Rules of Court, raised two preliminary objections
on the jurisdiction of the Court and the admissibility of the Application.
It is important to note from the onset that upon the institution of the maritime
proceedings by Somalia, the Court did not issue any provisional measures to be
observed by both States pending the hearing and determination of the maritime
dispute as envisaged under Article 290 of the UNCLOS.13This could be viewed
as significant drawback in the ensuring of a peaceful settlement of maritime
dispute since the Court has on numerous occasions14 issued provisional
measures for to be observed by the parties while the matter is pending before
the Court. The provisional measures are usually issued by the Court to ensure
that the status quo is maintained or at least no party to continue to violate the
other party’s sovereign right pending the determination of the dispute. The lack
of issuance of the provisional measures by the Court in this matter was a foul
start in the settlement of this maritime dispute since both States continued to
device ways to assert their respective sovereignty claims over the maritime
disputed areas.15
However, despite the above stated drawback by the Court, the importance of
this maritime case in the development of law of the sea regime cannot be
13
Article 290(1) of UNCLOS provides
“If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has
jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional
measures which it considers appropriate under the circumstances to preserve the respective rights of
the parties to the dispute or to prevent serious harm to the marine environment, pending the final
decision.”
14
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Measures, Order of 5 July 1951, ICJ Reports 1951,
89, 93; Fisheries jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v. Iceland), Interim
Protection, Orders of 17 August 1972, 12, 17; 30,; Nuclear Tests (Australia v. France) (New Zealand v.
France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973, 99, 106; 135, 142; United States
Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15
December 1979, ICJ Reports 1979, 3, 21; Frontier Dispute (Burkina Faso/Republic of Mali), Provisional
Measures, Order of 10 January 1986, ICJ Reports 1986, 3, 11.;Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]),
Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, 3, 25; Land and Maritime Boundary between
Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I. C. J. Reports 1996, p. 13
15
Kenya-Somalia Tiff On Oil Blocks Not New<https://allafrica.com/stories/201902240075.html>
Defiant Somalia puts contested oil block territory up for auction https://www.msn.com/en-xl/africa/africa-topstories/defiant-somalia-puts-contested-oil-block-territory-up-for-auction/ar-AACBK8i?li=BBJGzsi>
4|Page
understated. In order to understand the significance of this maritime dispute in
the development of the realms of Law of the sea and Public international law
this paper shall analyse the prayer as contained in the Application instituting the
maritime proceedings as presented by Somalia. In particular this paper shall
analyse the two aspects of the prayer which the Court has been called upon to
determine: “the complete course of the single maritime boundary dividing all
the maritime areas appertaining to Somalia and Kenya in the Indian Ocean”;
and “including in the continental shelf beyond 200nm”.
2.1
The complete course of the single maritime boundary dividing all
the maritime areas appertaining to Somalia and Kenya in the
Indian Ocean
The role of the law on maritime delimitation, as provided for in UNCLOS, is to
ensure predictability while taking note of the relevant factors in order to achieve
the ultimate goal, which is an equitable result.16The maritime legal regime as
enshrined under UNCLOS distinctly provides for delimitation of maritime
boundaries between littoral States with regards to each maritime zone namely:
the delimitation of the territorial sea17; the delimitation of the exclusive
economic zone18 and the delimitation of the continental shelf.19However,
despite this distinction, the common outcome of maritime delimitation exercise
on each maritime zone as contemplated under UNCLOS is the attainment of an
equitable result.
Somalia, in its prayer, seeks the Court to determine a single maritime boundary
that delimits collectively the Territorial sea, the Exclusive Economic Zone and
continental shelf in the Indian Ocean between Kenya and itself. It is noteworthy
that the law of the sea regime, as enshrined for under UNCLOS, neither
mentions nor provides for single maritime delimitation boundaries. The
questions that arise are: Does UNCLOS envisage the usage of single maritime
delimitation boundaries? If so, why does UNCLOS have express and distinct
provisions for the delimitation the maritime zones? How does the Court grant
prayers sought by littoral States which on a strict construction of the UNCLOS
has no legal basis?
Yoshifumi.Tanaka , “Predictability and Flexibility in the Law of Maritime Delimitation”, (Oxford 2006), 4-5.
Article 15 of the UN Convention of the Law of the Sea
18
Article 74 of the UN Convention of the Law of the Sea
19
Article 83 of the UN Convention of the Law of the Sea
16
17
5|Page
The notion of littoral States seeking the Court to establish single all-purpose
maritime delimitation boundaries is not a novel concept. The pursuit of the
determination of single all-purpose maritime delimitation boundaries has gained
credence and legitimacy through State practice.20 This is so because despite the
maritime legal framework expressly providing for the delimitation of each
distinct maritime zone, littoral States have over the years, approached the
international court21 and tribunals22 for the determination on the course of single
all-purpose maritime delimitation boundaries as a resolution for their respective
maritime disputes. States were seeking the delimitation of both the superjacent
water column and the sea bed between the littoral States.
It is prudent to understand the history of State practice on the usage of single
maritime delimitation boundaries in resolving maritime disputes. The Gulf of
Maine23 was the first case in which the Court was asked by the parties to make
a determination of a single maritime delimitation boundary in the maritime
dispute. The Court held that a single maritime delimitation boundary covers
both the water column and the continental shelf and thus would require a
combination of criteria used in each maritime zone. The single maritime
delimitation boundary does not give preference of the application of one
criterion for delimitation of one particular maritime zone over the criterion used
in delimitation of other maritime zones involved.
In particular the Court held:
“It is doubtful whether a treaty obligation which is in terms confined to
the delimitation of the continental shelf can be extended, in a manner that
would manifestly go beyond the limits imposed by the strict criteria
governing the interpretation of treaty instruments, to a field which is
Nugzar Dundua, “Delimitation of Maritime Boundaries Between Adjacent States”(2006-2007) United Nations
The Nippon Foundation Fellow
21
Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States
of America) ICJ 1984 Reports 323;Case Concerning Maritime Delimitation in the Area between Greenland and
Jan Mayen(Denmark v Norway)ICJ 1993Report; Maritime Delimitation and Territorial Questions between Qatar
and Bahrain(Qatar v Bahrain)ICJ 2001 Reports p 40;Case Concerning the Land and Maritime Boundary
between Cameroon and Nigeria( Cameroon v Nigeria: Equatorial Guinea intervening) ICJ Reports 2002 p 303;
Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v Honduras) ICJ 2007 Reports p.659; Maritime Delimitation in the Black Sea(Romania v Ukraine)
ICJ Reports 2009 p. 61;
22
( Eritrea v Yemen) Permanent Court of Arbitration 1999; (Barbados v Trinidad and Tobago)Arbitration
2006;The Guyana v Suriname Arbitration 2007; Dispute Concerning the Delimitation of the Maritime
Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v Myanmar) ITLOS 2012;
23
Gulf of Maine Case(Canada v United States Case)(1984)ICJ Reports
20
6|Page
evidently much greater, unquestionably heterogeneous, and accordingly
fundamentally different”24
The Chamber also held that the fact that one criterion could provide an
equitable solution with respect to delimitation of the continental shelf the same
could not be assumed it could provide a similar outcome when the criterion is
applied on the delimitation of other maritime zones.25 Despite of the Court
giving credence for States to use single maritime delimitation boundaries, the
Court fell short to give legal justification on how the UNCLOS allows the usage
of single maritime delimitation boundaries. The Court further failed to define
the equitable criteria to be applied when determining a single maritime
delimitation boundary for the attainment of an equitable result in line with
UNCLOS.
It is noteworthy that the Court, in giving credence to the usage of single
maritime boundaries observed that there was certainly no rule in international
law which refuted the determination of a single all-purpose maritime
delimitation boundary and thus there could be no impossibility of allowing its
usage in maritime delimitation.26 Interestingly, in subsequent maritime disputes,
the Courts and Tribunal have proceeded to determine single maritime
delimitation boundaries albeit with little or no analysis as to the legal
justification of the usage of single maritime delimitation boundaries as
envisaged under UNCLOS.
Proponents of the usage of single maritime delimitation boundaries in the
resolution of maritime disputes such as Dundua posit that the single maritime
boundaries are convenient as they bring certainty and simplicity in maritime
delimitation since they avoid the disadvantages of plurality in delimitation of
the different zones.27She argues that the justification for the use of single allpurpose maritime boundary delimitation is based on the parallelism of the
continental shelf with that of the Exclusive Economic Zone.28 In this she bases
her justification of her argument on the fact that the Exclusive Economic Zone
as defined under the UNLOS includes the seabed and the water column and
24
Ibid
Ibid
26
Ibid
27
Supra note 20
28
Ibid
25
7|Page
accordingly equates the legal regime of the continental shelf is identical to that
of the Exclusive Economic Zone.29
However other scholars have maintained that the provisions in the UNCLOS on
delimitation for each maritime zone, when distinctly read, clearly demonstrate
the uniqueness in the delimitation exercise of each maritime zone. According to
Anderson, under the UNCLOS, the provision concerning delimitation of the
territorial sea expressly provides for the application of equidistance/special
circumstance while the provisions on delimitation of the continental shelf and
the Exclusive Economic Zone only focus on the outcome which is equitable
solution and does not provide for the criteria to be applied.30 To add to this
debate Tanaka describes the provisions on delimitation of the continental shelf
and Exclusive Economic Zone as enshrined under the UNCLOS as “empty
rules” since they do not provide for the means of attaining the equitable
solution.31
However, while addressing the issue on criterion to be used in the delimitation
of continental shelf and Exclusive Economic Zone the Tribunal in Guyana v
Suriname32 held that that Courts and tribunals dealing with the delimitation of
the continental shelf and the Exclusive Economic Zones have gradually
embraced the equidistance line where a provisional line would be drawn but
later adjusted in the light of relevant circumstances to be able to reach an
equitable solution. It could be stated that when determining a single all-purpose
maritime boundary the court or tribunal has to combine the criteria for
delimitation of the different maritime zones as provided by UNCLOS and apply
the established legal principles so as to achieve an equitable solution.
Tanaka observes that it is interesting how the courts and tribunals, despite being
aware of the varying criteria and principles to be applied on the different
maritime zones, have proceeded to determine the single all-purpose maritime
delimitation boundaries.33The Court and Tribunal have both fallen short or
failed to provide the legal justification for the usage of the single all-purpose
maritime delimitation boundaries. He further posits that this unpredictability on
the determination on the usage of a single all-purpose maritime boundary can be
29
Ibid
D.H ANDERSON, Maritime Boundaries and Limits: Some Basic Legal Principles (2001) available online at
www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf2/ANDERSON.PDF
31
Supra note 23
32
Award in the arbitration regarding the delimitation of maritime boundary between Guyana and Suriname
Award of 17th September 2007
33
Supra note 23
30
8|Page
cured by ensuring consistency in the use of legal principles to ensure the treaty
laws and customary rules complement each other to ensure the attainment of an
equitable solution.34
With this prayer maritime delimitation dispute between Somalia and Kenya
further seek to operationalise Preamble 7 of the UNCLOS which calls for the
progressive development of law of the sea which is necessary for the
maintenance of international peace and security. Once this prayer is determined
it will contribute to the state practice on the usage of single all-purpose
maritime boundary in the delimitation of adjacent littoral states.
2.2
Including the continental shelf beyond 200nm
Article 76 of UNCLOS provides:
“The continental shelf of a coastal state comprises the seabed and subsoil of
the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from which
the breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance.”
In the Application instituting the proceedings Somalia urges the Court to delimit
all maritime areas “including the continental shelf beyond 200nm. It is
noteworthy that in Nicaragua v. Honduras35 the Court held:
“any claim of continental shelf rights beyond 200 miles [by a State party
to UNCLOS] must be in accordance with Article 76 of UNCLOS and
reviewed by the Commission on the Limits of the Continental Shelf
established thereunder.”36
On 7thApril 2009, Kenya and Somalia signed a “Memorandum of
Understanding between the Government of the Republic of Kenya and the
Transitional Federal Government of the Somali Republic 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
34
Ibid
Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea(Nicaragua v Honduras) Judgement ICJ Reports 8th October 2007
36
Ibid at paragraph 319
35
9|Page
Continental Shelf”37 (Hereinafter referred to as “MOU”. As per the title the
main purpose of the MOU was to ensure both States do not object to each
other’s submissions of their respective claim on the continental shelf beyond
200nm to the Commission on the Limits of the Continental Shelf (CLCS).38
This was in accordance with Article 76 and Annex II of UNCLOS. From the
submissions made by both Somalia and Kenya to the CLCS both States have
entitlements to a continental shelf extending beyond 200 nm in the Indian
Ocean.
An ordinary reading of this prayer, in the Somalia/Kenya case, one would be
tempted to construct it to mean that there exist the continental shelf within
200nm and the continental shelf beyond 200nm. This interpretation is not
correct as there is only one continental shelf. The question of delimitation of the
outer continental shelf /continental shelf beyond 200nm was first addressed by
the Arbitral Tribunal in Barbados v Trinidad and Tobago39 where it held:
“The Tribunal considers that the dispute to be dealt with by the Tribunal
includes the outer continental shelf, since (i) it either forms part of, or is
sufficiently closely related to, the dispute submitted by Barbados, (ii) the
record of the negotiations shows that it was part of the subject-matter on
the table during those negotiations, and (iii) in any event there is in law
only a single “continental shelf” rather than an inner continental shelf
and a separate extended or outer continental shelf.”40
The International Tribunal of the Law of the Sea (ITLOS) in
Bangladesh/Myanmar 41 while considering whether it had jurisdiction to
delimit the continental shelf beyond 200 nm held:
“Article 76 of the Convention embodies the concept of a single
continental shelf. In accordance with article 77, paragraphs 1 and 2, of
37
Deposited with the UN Secretary General in accordance with Article 102 of the United Nations Charter and
registered on 11 June 2009 under Certificate of Registration No 46230. Kenya and Somalia available online at
https://treaties.un.org/doc/Treaties/2009/06/20090611%2010-39%20AM/Other%20Documents/COR-Reg46230-Sr-58096.pdf
38
On 14th April 2009 Somalia submitted the Preliminary information indicative of the outer limits of the
continental shelf enclosing a copy of the MOU to the CLCS. On 6 May 2009, Kenya made a submission on the
continental shelf beyond 200 M to the CLCS- Kenya’s submission to the CLCS claims that the outer limit of its
continental shelf lies fully 350 M from its coast.
39
“Arbitration between Barbados and the Republic of Trinidad and Tobago relating to the delimitation of the
exclusive economic zone and the continental shelf between them” Award of the Permanent Court of Arbitration
delivered on 11th April 2006
40
Ibid paragraph 213
41
Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of
Bengal(Bangladesh/Myanmar) Judgment ITLOS 14th March 2012
10 | P a g e
the Convention, the coastal State exercises exclusive sovereign rights
over the continental shelf in its entirety without any distinction being
made between the shelf within 200 nm and the shelf beyond that limit.
Article 83 of the Convention, concerning the delimitation of the
continental shelf between States with opposite or adjacent coasts,
likewise does not make any such distinction.”42
In the Bay of Bengal43 case the Permanent Court of Arbitration held:
“The Tribunal emphasizes that article 76 of the Convention embodies the
concept of a single continental shelf. This is confirmed by article 77,
paragraphs 1 and 2 of the Convention, according to which a coastal State
exercises exclusive sovereign rights over the continental shelf in its
entirety. No distinction is made in these provisions between the
continental shelf within 200 nm and the shelf beyond that limit. Article 83
of the Convention, concerning the delimitation of the continental shelf
between States with opposite or adjacent coasts, likewise makes no such
distinction.”44
The above position was further affirmed in Ghana/Cote D’Ivoire45 where the
Special Chamber held:
“The Special Chamber emphasizes that there is in law only a single
continental shelf rather than an inner continental shelf and a separate
extended or outer continental shelf.”46
Another question that arises is whether the Court/Tribunal in the maritime
dispute can delimit the continental shelf beyond the 200nm as requested by
Somalia and Kenya who have made submissions to the CLCS. Article 76(10)
expressly provides that the question of delineation which is handled by the
CLCS are without prejudice to the question of delimitation of the continental
shelf between States which is performed by the Courts and Tribunals.
42
Ibid
In the Matter of the Bay of Bengal Maritime Boundary Arbitration between The People’s Republic of the
Bangladesh and The Republic of India (Bangladesh/India)Award delivered by the Permanent Court of
Arbitration on 7th July 2014
44
Ibid paragraph 77
45
Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Cote D’Ivoire in the Atlantic
Ocean ITLOS Judgement delivered on 23rd September 2017
46
Ibid paragraph 490
43
11 | P a g e
This position was well addressed in the Bangladesh/Myanmar case where the
Tribunal held:
“There is a clear distinction between the delimitation of the continental
shelf under article 83 and the delineation of its outer limits under article
76. Under the latter article, the Commission is assigned the function of
making recommendations to coastal States on matters relating to the
establishment of the outer limits of the continental shelf, but it does so
without prejudice to delimitation of maritime boundaries. The function of
settling disputes with respect to delimitation of maritime boundaries is
entrusted to dispute settlement procedures under article 83 and Part XV
of the Convention, which include international courts and tribunals.”47
The Tribunal further held that:
“A decision by the Tribunal not to exercise its jurisdiction over the
dispute relating to the continental shelf beyond 200 nm would not only
fail to resolve a long-standing dispute, but also would not be conducive to
the efficient operation of the Convention. In the view of the Tribunal, it
would be contrary to the object and purpose of the Convention not to
resolve the existing impasse. Inaction in the present case, by the
Commission and the Tribunal, two organs created by the Convention to
ensure the effective implementation of its provisions, would leave the
Parties in a position where they may be unable to benefit fully from their
rights over the continental shelf.”48
This position was reaffirmed in the Bay of Bengal where the Tribunal held:
“In the view of the Tribunal, the consequence of these decisions by the
CLCS is such that, if the Tribunal were to decline to delimit the
continental shelf beyond 200 nm, the outer limits of the continental shelf
of each of the Parties would remain unresolved, unless the Parties were
able to reach an agreement. In light of the many previous rounds of
unsuccessful negotiations between them, the Tribunal does not see that
such an agreement is likely. Accordingly, far from enabling action by the
CLCS, inaction by this Tribunal would in practice leave the Parties in a
position in which they would likely be unable to benefit fully from their
rights over the continental shelf. The Tribunal does not consider that
47
48
Supra note 41
Ibid
12 | P a g e
such an outcome would be consistent with the object and purpose of the
Convention.”49
Also in Ghana/Cote D’Ivoire the Special Chamber held:
“The Special Chamber can delimit the continental shelf beyond 200 nm
only if such a continental shelf exists. There is no doubt about this in the
case before the Special Chamber. Ghana has already completed the
procedure before the CLCS. Côte d’Ivoire has made its submission to the
CLCS and, although as yet the latter has not issued any recommendation,
the Special Chamber has no doubt that a continental shelf beyond 200 nm
exists for Côte d’Ivoire since its geological situation is identical to that of
Ghana, for which affirmative recommendations of the CLCS exist.”50
Both Kenya and Somalia have made their respective submissions to the CLCS
on their entitlement on the continental shelf beyond 200nm.With neither State
contesting of the other State’s entitlement to the continental shelf beyond
200nm the Court can proceed to delimit the continental shelf as prayed.
3.0
The Judgement on the Preliminary Objection
Upon the institution of the maritime proceedings, Kenya entered appearance
and pursuant to Article 79 of the Rules of Court, raised two preliminary
objections on the jurisdiction of the Court and the admissibility of the
Application.51 The preliminary objections, as shall be seen herein, were majorly
based on the operative paragraphs contained in the MOU. The Court upon
hearing both parties entered a Judgement on 2nd February 2017 whose findings
therein contribute significantly to the development of the realms of Public
International Law and Law of the Sea.
3.1
The Legal status of the Memorandum of Understanding
between Somali and Kenya
The place of Memorandum of Understandings in International Law has always
elicited debate as to whether it is as source of international law under Article 38
of the ICJ Statute. Memorandums of Understandings have been described by
some scholars as “soft law”.52 This is because they are political commitments by
49
Supra note 43 paragraph 82
Supra note 41 paragraph 491
51
On 7 October 2015, within the time-limit set by Article 79, paragraph 1, of the Rules of Court, Kenya raised
preliminary objections to the jurisdiction of the Court and to the admissibility of the Application.
52
Raustiala, K. (2005), “Form and Substance in International Agreements,” 99 Am.J.Int’l L. 581
50
13 | P a g e
States which can be made legally binding by the terms enshrined therein and
inclusion of date of entry into force for its operation on the parties concerned.53
The MOU between Somalia and Kenya was entered on 7th April 2009 and was
signed by the Kenyan Minister of Foreign Affairs and the Somalia Minister of
National Planning and International Cooperation. On 11th June 2009, at the
request by Kenya, the MOU was registered by the Secretariat of the United
Nations pursuant to Article 102 of the UN Charter54. The question that arose
during the public hearing was whether Kenya and Somalia are legally bound by
the terms as contained in the MOU? In order to answer this question one has to
look at the form and the terms as contained in the MOU.
The operative paragraph 7 of the MOU stated that “The Memorandum of
Understanding shall enter into force upon its signature”. According to Kenya
the terms of the MOU became operational and legally binding upon both States
signing it. Somalia on the other hand argued that the Minister who signed did
not have full powers to sign the MOU on behalf of Somalia. It also argued that
the MOU was “non-actionable” since it had not been approved and ratified by
its Transitional Federal Parliament55.
On the first challenge on the validity of the MOU as raised by Somalia with
regards to the lack of full powers by the Minister of National Planning and
International Cooperation to enter into international agreements, the Court took
cognizance of the fact that both Kenya and Somalia were not parties to the
Vienna Convention on the Law of Treaties.
The issue of “full powers” was well addressed in Cameroon v Nigeria:
Equatorial Guinea Intervening56 where the Court held:
“The rules concerning the authority to sign treaties for a State are
constitutional rules of fundamental importance. However, a limitation of
a Head of State's capacity in this respect is not manifest in the sense of
Article 46, paragraph 2, unless at least properly publicized. This is
particularly so because Heads of State belong to the group of persons
who, in accordance with Article 7, paragraph 2, of the Convention "[iln
53
Dinah L. Shelton, Soft Law in HANDBOOK OF INTERNATIONAL LAW (Routledge Press, 2008).
The Secretariat registered it on 11 June 2009, and published it in the United Nations Treaty Series (UNTS,
Vol. 2599, p. 35).
55
Letter from the Permanent Representative of Somalia to the United Nations dated 2 March 2010,
56
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002,,
54
14 | P a g e
virtue of their functions and without having to produce full powers" are
considered as representing their State.”57
The Court in the Somali/Kenya maritime dispute held that the MOU having
been registered by the Secretary General in accordance with Article 102 of the
UN Charter it accordingly became a treaty.58 Furthermore the Court took a
queue from the decision in Cameroon/Nigeria case and held that pursuant to
customary international law and Article 7 of the Vienna Convention of the Laws
of Treaties Heads of States, Heads of Governments and Ministers for Foreign
Affairs are considered as representing their State for the purpose of performing
all acts relating to the conclusion of a treaty.59 Accordingly both the Minister for
National Planning and International Cooperation for Somalia and the Minister
for Foreign Affairs for Kenya had full powers to sign the MOU as both
Ministers had each been “duly authorized by their respective Governments”.60
The Court accordingly was thus satisfied that both Ministers were properly
authorised and empowered to sign the MOU on behalf of their respective
Governments.
On the second challenge on the validity of the MOU Somalia contended that the
MOU though signed it was “void and of no effect” since the Transitional
Federal Parliament of Somalia had not ratified it as was required under the
Somali internal law. Furthermore, it was Somali’s claim that on the date of
signing of the MOU its Minister had orally informed the Kenyan representatives
of the requirement of ratification by the Transitional Federal Government.
In analysing this challenge as raised by Somalia the Court analysed the findings
made in Cameroon/Nigeria case where a similar contention had been raised by
Nigeria challenging the validity of the Maroua Declaration. It was held:
“The Court cannot accept the argument that the Maroua Declaration was
invalid under international law because it was signed by the Nigerian
Head of State of the time but never ratified. Thus while in international
practice a two-step procedure consisting of signature and ratification is
frequently provided for in provisions regarding entry into force of a
treaty, there are also cases where a treaty enters into force immediately
upon signature. Both customary international law and the Vienna
57
Ibid page 242
Supra Note 4 paragraph 42
59
Ibid paragraph 43
60
Ibid
58
15 | P a g e
Convention on the Law of Treaties leave it completely up to States which
procedure they want to follow. Under the Maroua Declaration, “the two
Heads of State of Cameroon and Nigeria agreed to extend the delineation
of the maritime boundary between the two countries from Point 12 to
Point G on the Admiralty Chart No. 3433 annexed to this Declaration”.
In the Court’s view, that Declaration entered into force immediately upon
its signature.”61
On the claim by Somalia that it had notified Kenya of the requirement of
ratification by the Transitional Federal Parliament, the Court took cognizance of
the findings in Cameroon/Nigeria case with respect to similar claims which
were raised by Nigeria. The Court therein held:
“With regard to the Nigerian argument that Cameroon knew, or ought to
have known, that the Head of State of Nigeria had no power legally to
bind Nigeria without consulting the Nigerian Government, the Court
notes that there is no general legal obligation for States to keep
themselves informed of legislative and constitutional developments in
other States which are or may become important for the international
relations of these States.”62
The Court in Somalia/Kenya made a finding that:
“In this respect, the Court observes that under customary international
law, reflected in Article 45 of the Vienna Convention, a State may not
invoke a ground for invalidating a treaty on the basis of, inter alia,
provisions of its internal law regarding competence to conclude treaties
if, after having become aware of the facts, it must by reason of its conduct
be considered as having acquiesced in the validity of that treaty. Somalia
did not begin to express its doubts in this respect until sometime later, in
March 2010.”63
From the foregoing it is apparent that the MOU as entered by Somalia and
Kenya upon its registration with the Secretary General of the United Nations
constituted a treaty. The MOU took effect and became legally binding upon the
signing of the same by Ministers from both States.
61
Ibid paragraph 264
Ibid
63
Supra note 4 paragraph 49
62
16 | P a g e
3.2
Jurisdiction of the Court to hear the maritime delimitation
dispute between Somali and Kenya
The Court and Tribunals, as listed under Article 287 of UNCLOS, shall have
jurisdiction to determine any dispute concerning the interpretation and
application of the Convention.64 The State parties shall by a written declaration
choose the procedure for which they would prefer their dispute to be
determined.
It is worth noting that in 1965 Kenya made a Declaration Recognising as
compulsory the jurisdiction of the International Court of Justice, in conformity
with Article 36 paragraph 2 of the Statute of the International Court of
Justice.65The Declaration expressly made reservation of its application on:
“Disputes in regard to which the parties to the dispute have agreed or shall
agree to have recourse to some other method or methods of settlement.”
Accordingly it is on this reservation clause as contained in the Declaration that
Kenya raised its first preliminary objection challenging the jurisdiction of the
Court to handle the maritime dispute. Kenya based its challenge on the
jurisdiction of the Court on two grounds. Firstly, that Somalia and Kenya had
expressly agreed in the MOU on a method of settlement of the maritime dispute
which was by an agreement which was to be concluded after the CLCS had
made its recommendation on their respective submissions concerning claims of
continental shelf beyond 200nm.Secondly, that since neither Kenya nor Somalia
had made a declaration choosing their preferred method of settlement which are
provided for under Article 287(1) of the UNCLOS then it ought to be deemed
that both parties have accepted to settle their maritime dispute by way of
arbitration as contemplated under Article 287(3) of the UNCLOS.
Somalia in rebuttal argued that the MOU does not provide for a method of
settlement of the maritime dispute. It also argued that the Declaration made by
both States under Article 36 paragraph 2 of the Statute of the Court took
precedence over other procedures in UNCLOS. Somali relied on Article 282 of
UNCLOS which provides that unless the parties otherwise agree, if the parties
have agreed on a procedure, upon a declaration by any party to the dispute for
64
Article 286 of UNCLOS
“Declaration Recognising As Compulsory the Jurisdiction of the International Court of Justice, in
Conformity with Article 36 paragraph 2 of the Statute of the International Court of Justice” No 7697 United
Nations - Treaty Series Volume 531 p 114 issued on 12th April 1965
65
17 | P a g e
submission to a procedure that entails a binding decision, then that procedure
shall apply in lieu of any other procedures enshrined in Part XV of UNCLOS.
On the First ground Kenya relied on the operative paragraph 6 of the MOU.
The paragraph read:
“The delimitation of maritime boundaries in the areas under dispute,
including the delimitation of the continental shelf beyond 200 nautical
miles, shall be agreed between the two coastal States on the basis of
international law after the Commission has concluded its examination of
the separate submissions made by each of the two coastal States and
made its recommendations to two coastal States concerning the
establishment of the outer limits of the continental shelf beyond 200
nautical miles.”
According to Kenya, the two States had expressly agreed on a method of
settlement by way of a “two-step sequencing procedure” which demanded that
an Agreement on maritime delimitation shall be entered by both States after the
CLCS had issued its recommendations on the submissions concerning outer
limits of the continental shelf.66 It was the argument by Kenya that it had been
expressly agreed in the MOU by both States that the delineation of the
continental shelf beyond 200nm must take precedence over the delimitation
process by the Court.67 Thus the Court had no jurisdiction to determine the
delimitation before the completion of the delineation process by the CLCS.
This argument cannot stand by virtue of Article 76(10) of UNCLOS which
provides that the process of delineation of the continental shelf as conducted by
the CLCS is without prejudice to the delimitation of the continental shelf being
conducted by the Courts and Tribunals. The delineation process and
delimitation process are distinct from each other.68
Accordingly, the Court in analysing this contention by Kenya held that:
66
See the Oral submissions by Professor Githu Muigai, during the Public sitting held on Monday 19 September
2016, at 10 a.m., at the Peace Palace, President Abraham presiding, in the case concerning Maritime
Delimitation in the Indian Ocean (Somalia v. Kenya) Preliminary Objections VERBATIM RECORD pages 17
67
See the Oral Submissions by Professor Payam Akhavan during the Public sitting held on Monday 19
September 2016, at 10 a.m., at the Peace Palace, President Abraham presiding, in the case concerning
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Preliminary Objections VERBATIM RECORD
pages 18-23
68
Supra note 41
18 | P a g e
“It may be the case that, as the Parties agree, the endpoint of their
maritime boundary in the area beyond 200 nautical miles cannot be
definitively determined until after the CLCS’s recommendations have
been received and the outer limits of the continental shelf beyond 200
nautical miles established on the basis of those recommendations. This is
consistent with Article 76, paragraph 8, of UNCLOS. A lack of certainty
regarding the outer limits of the continental shelf, and thus the precise
location of the endpoint of a given boundary in the area beyond 200
nautical miles, does not, however, necessarily prevent either the States
concerned or the Court from undertaking the delimitation of the
boundary in appropriate circumstances before the CLCS has made its
recommendations.”69
The Court further held:
“The Court does not consider that the sixth paragraph of the MOU can
be interpreted as precluding the Parties from reaching an agreement on
their maritime boundary, or either of them from resorting to dispute
settlement procedures regarding their maritime boundary dispute, before
receipt of the CLCS’s recommendations.”70
The Second ground challenging the jurisdiction of the Court by Kenya was that
since both parties had not agreed on a preferred method of settlement and
accordingly the maritime dispute ought to proceed to Arbitration in accordance
with Annex II of UNCLOS. This argument, according to Kenya was in line with
the reservation optional clause they had entered against Article 36 paragraph 2
of the Statute of the Court.
It should be noted that both States had reservations on Article 36 paragraph 2
but its only Kenya which raised it to challenge the jurisdiction of the Court in
which Somalia had preferred to institute the maritime dispute. This presents a
scenario in which the Court is called upon to make a determination where there
are two unilateral declarations.
69
70
Supra note 4 Paragraph 94
Ibid paragraph 95
19 | P a g e
In determining whether the Court has jurisdiction to determine a matter the
Permanent Court of International Justice in the case concerning the Factory at
Chorzow71 held:
“It has been argued repeatedly in the course of the present proceedings
that in case of doubt the Court should decline jurisdiction. It is true that
the Court’s jurisdiction is always a limited one, existing only in so far as
States have accepted it: consequently, the Court will, in the event of an
objection-or when it has automatically to consider the question-only
affirm its jurisdiction provided that the force of the arguments militating
in favour of it is preponderant. The fact that weighty arguments can be
advanced to support the contention that it has no jurisdiction cannot of
itself create a doubt calculated to upset its jurisdiction. When considering
whether it has jurisdiction or not, the Court’s aim is always to ascertain
whether an intention on the part of the Parties exists to confer
jurisdiction upon it.”72
This position was affirmed in Nicaragua v Honduras73 where the Court held:
“The Court will therefore in this case have to consider whether the force
of the argument militating in favour of the jurisdiction is preponderant,
and to “ascertain whether an intention on the part of the Parties exists to
confer jurisdiction upon it.”
Thus in order to ascertain the intention of the Parties to a dispute with respect to
conferment of the jurisdiction to the Court, it is necessary to ensure the
declaration is “interpreted as a unity” as was pronounced by the Court in Spain
v. Canada74. In this case the Court held:
“[a]ll elements in a declaration under Article 36, paragraph 2, of the
Statute which, read together, comprise the acceptance by the declarant
State of the Court’s jurisdiction, are to be interpreted as a unity, applying
the same legal principles of interpretation throughout”
In taking into consideration the intent of the Declaration by Kenya the Court
analysed the travaux préparatoires of UNCLOS and in particular on Article
71
Factory at Chorzow (Germany v Poland)PCIJ Series A No 9 delivered on July 26, 1927
Ibid page 32
73
(Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1988,
74
(Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
72
20 | P a g e
282. The Court found that under Article 282, the optional clause declarations of
the Parties constitute an agreement, reached “otherwise”, to settle in this Court
disputes concerning interpretation or application of UNCLOS, and the
procedure before this Court shall thus apply “in lieu” of procedures provided for
in Section 2 of Part XV. The Court thus Kenya’s challenge to its jurisdiction
held “that neither the MOU nor Part XV of UNCLOS falls within the scope of
the reservation to Kenya’s optional clause declaration.”75
3.3
Admissibility of the Application by Somali to institute the
maritime Dispute
Kenya raised a preliminary objection on the admissibility of the Application by
Somalia instituting the maritime proceedings. The preliminary objection on
admissibility as raised by Kenya was based on two grounds. Firstly, that the
MOU already had an agreement for settlement of the maritime dispute by way
of negotiation between the Parties which shall be entered after the CLCS has
issued its recommendation on the submissions on the continental shelf beyond
200nm. Secondly, that the claim by Somalia was disingenuous since it was
Somali which, prior to instituting the maritime proceedings, had contravened
the MOU by raising an objection at the CLCS on the submissions made by
Kenya on the continental shelf beyond 200nm.
On the first ground Kenya argued that the MOU demanded that the maritime
dispute was to be settled by a negotiated agreement which was to be arrived at
after the CLCS had issued its recommendations on the submissions of the
continental shelf beyond 200nm.76 Kenya further argued that the negotiation
avenue has not been exhausted as Somali was not keen on the negotiations
which would have settled the maritime dispute.77
Somalia argued that the MOU did not establish an agreed method of dispute
settlement as claimed by Kenya. Somalia further argued that it instituted the
maritime proceedings following the failed negotiation attempts which were
75
Supra note 4 paragraph 134
See the Oral submissions by Professor Mathias Forteau, during the Public sitting held on Monday 19
September 2016, at 10 a.m., at the Peace Palace, President Abraham presiding, in the case concerning
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Preliminary Objections VERBATIM RECORD
page35-47
77
See the Oral submissions by H.E. Ms Rose Makena Muchiri , during the Public sitting held on Monday 19
September 2016, at 10 a.m., at the Peace Palace, President Abraham presiding, in the case concerning
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Preliminary Objections VERBATIM RECORD
pages 48-54
76
21 | P a g e
derailed because of Kenya’s insistence that the maritime delimitation boundary
should follow a parallel of latitude from the land terminus.78
The Court held that in analysing the sixth paragraph of the MOU did not
constitute an agreement to have recourse to some other method or methods of
settlement.79 Accordingly the first ground challenging the admissibility of the
Application institute the maritime proceedings, as was raised by Kenya, was
unfounded.
On the second ground that Somalia acted in bad faith in instituting the maritime
suit despite the fact that Somalia is the one that had breached the MOU by filing
an objection at the CLCS against the submission by Kenya on the continental
shelf beyond 200nm.Somalia argued that the Court has never recognised the
“unclean hands” doctrine which Kenya wanted to invoke as a ground to
challenge admissibility of its Application. The Court ruled that the claim that
Somali breached the MOU by objecting to the submissions by Kenya at CLCS
was a non-issue and has no probative effect to the case. The Court expressly
held that “Somalia is neither relying on the MOU as the instrument conferring
jurisdiction of the Court nor as a source of substantive law governing the merits
of this case”.80
Accordingly the Court dismissed the preliminary objection raised by Kenya
challenging the admissibility of the Application instituting maritime
proceedings as filed by Somalia.
4.0
Conclusion
The maritime dispute between Somalia and Kenya presents an opportunity for
the development of both the Law of the sea and Public international law. The
Court in its Judgement pronounced itself on the Memorandum of Understanding
between the Parties and demonstrated how the same became binding on them.
The Court also added on the discourse on how the Court ascertains the intention
of the Parties whenever there is a reservation towards the compulsory
jurisdiction of the Court under Article 36 of the Statute of the Court.
78
See the Oral submissions by Ms Mona Al-Sharmani, during the Public sitting held on Monday 20th
September 2016, at 10 a.m., at the Peace Palace, President Abraham presiding, in the case concerning
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Preliminary Objections VERBATIM RECORD
Page 14-15
79
Supra note 4 paragraph 106
80
Ibid paragraph 142
22 | P a g e
On the matter proceeding to full hearing and determination this maritime
dispute presents a myriad of opportunities for the Court to clarify a number of
issues which the Court and Tribunals have over the years overlooked and thus
continue to spur uncertainty and lack of clarity. Based on the emerging State
practice on the usage of single maritime delimitation boundaries in the
resolution of maritime disputes the Court has an opportunity to justify its place
and usage in resolving maritime disputes. In particular, the Court has an
opportunity to address concisely and authoritatively how single maritime
delimitation boundaries apply in the extant legal maritime regime for the
attainment of an equitable solution in maritime delimitation.
Reference Materials
Books
Yoshifumi Tanaka, “Predictability and Flexibility in the Law of Maritime
Delimitation”, (Oxford 2006)
Articles
Clive Schofield, Oil & Gas: An Equidistant Line Could Settle Somalia-Kenya
Maritime Dispute (2015)www.AFKInsidernewsletter.org
Dinah L. Shelton, Soft Law in HANDBOOK OF INTERNATIONAL LAW
(Routledge Press, 2008).
Raustiala, K. (2005), “Form and Substance in International Agreements,” 99
Am.J.Int’l L. 581
Walker, T, Why Africa Must Resolve Its Maritime Boundary Disputes (2015)
Policy Brief 80, Institute for Security Studies, ISS Pretoria.
D.H ANDERSON, Maritime Boundaries and Limits: Some Basic Legal
Principles (2001)
Nugzar Dundua, “Delimitation of Maritime Boundaries Between Adjacent
States” (2006-2007) United Nations The Nippon Foundation Fellow
Yoshifumi Tanaka, “Reflections of Maritime Delimitation in the Nicaragua/
Honduras Case” (2008) Max Planck Institute 903-937
Cases
23 | P a g e
Maritime Delimitation in the Indian Ocean (SOMALIA v. KENYA) Preliminary
Objections Judgement delivered on 2nd February 2017
Gulf of Maine Case(Canada v United States Case)(1984)ICJ Reports
Award in the arbitration regarding the delimitation of maritime boundary
between Guyana and Suriname Award of 17th September 2007
Case Concerning Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea(Nicaragua v Honduras) Judgement ICJ Reports
8th October 2007
“Arbitration between Barbados and the Republic of Trinidad and Tobago
relating to the delimitation of the exclusive economic zone and the continental
shelf between them” Award of the Permanent Court of Arbitration delivered on
11th April 2006
Dispute Concerning Delimitation of the Maritime Boundary Between
Bangladesh and Myanmar in the Bay of Bengal(Bangladesh/Myanmar)
Judgment ITLOS 14th March 2012
Factory at Chorzow (Germany v Poland)PCIJ Series A No 9 delivered on July
26, 1927
(Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1988,
(Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
I.C.J. Reports 1998,
In the Matter of the Bay of Bengal Maritime Boundary Arbitration between The
People’s Republic of the Bangladesh and The Republic of India
(Bangladesh/India)Award delivered by the Permanent Court of Arbitration on
7th July 2014
Dispute Concerning Delimitation of the Maritime Boundary Between Ghana
and Cote D’Ivoire in the Atlantic Ocean ITLOS Judgement delivered on 23rd
September 2017
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002,
24 | P a g e
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Measures, Order of 5
July 1951, ICJ Reports 1951, 89, 93;
Fisheries jurisdiction (United Kingdom v. Iceland) (Federal Republic of
Germany v. Iceland), Interim Protection, Orders of 17 August 1972, 12, 17; 30,;
Nuclear Tests (Australia v. France) (New Zealand v. France), Interim
Protection, Order of 22 June 1973, ICJ Reports 1973, 99, 106; 135, 142;
United States Diplomatic and Consular Staff in Tehran (United States of
America v. Iran), Provisional Measures, Order of 15 December 1979, ICJ
Reports 1979, 3, 21;
Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order
of 10 January 1986, ICJ Reports 1986, 3, 11.;
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]),
Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, 3, 25;
Land and Maritime Boundary between Cameroon and Nigeria, Provisional
Measures, Order of 15 March 1996, I. C. J. Reports 1996, p. 13
Legal Instruments
UN Convention on the Law of the Sea (1982)
Memorandum of Understanding between the Republic of Kenya and the Federal
Republic of Somalia (2009)
Submissions by the Republic of Kenya to the Commission on the Limits of
Continental Shelf
Submission by the Federal Republic of Somalia to the Commission on the
Limits of Continental Shelf
“Declaration Recognising As Compulsory the Jurisdiction of the International
Court of Justice, in Conformity with Article 36 paragraph 2 of the Statute of the
International Court of Justice” No 7697 United Nations - Treaty Series Volume
531 p 114 issued on 12th April 1965
Online reference
25 | P a g e
Kenya and Somalia are facing off in Court over an oil-rich triangle of the Indian
Ocean (September 2016) Quartz Africa Weekly Brief
https://www.theeastafrican.co.ke/news/ea/Somalia-puts-contested-oil-blockterritory-up-for-auction/4552908-5149860-a2mv48z/index.html
“In respect of its northern territorial waters boundary with Somali Republic be
on eastern latitude South of Diua Damascian Island being latitude 1°39’34”
degrees south.” This is Presidential Proclamation is found at page 96 of the Law
of the Sea Bulletin No 61 of 2006 available online at
https://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bul
letin61e.pdf
Press Release No 2019/41 available online at https://www.icj-cij.org/files/caserelated/161/161-20191018-PRE-01-00-EN.pdf
Certificate
of
Registration
No46230
Kenya
and
https://treaties.un.org/doc/Treaties/2009/06/20090611%20239%20AM/Other%20Documents/COR-Reg-46230-Sr-58096.pdf
The
Kenya/Somalia
tiff
on
oil
https://allafrica.com/stories/201902240075.html>
Blocks
Not
Somalia-
New
Defiant Somalia puts contested oil block territory up for auction
https://www.msn.com/en-xl/africa/africa-top-stories/defiant-somalia-putscontested-oil-block-territory-up-for-auction/ar-AACBK8i?li=BBJGzsi
26 | P a g e