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