UN Court said the maritime delimitation between Somalia and Kenya in the Indian Ocean

THE HAGUE:. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, has today delivered its Judgment on the preliminary
objections raised by Kenya in the case concerning Maritime Delimitation in the Indian Ocean
(Somalia v. Kenya), in which it finds that it may proceed with the maritime delimitation between
Somalia and Kenya in the Indian Ocean.
I. FACTUAL BACKGROUND
The Court notes that Somalia and Kenya, adjacent States on the coast of East Africa, are
parties to the United Nations Convention on the Law of the Sea (UNCLOS). Under Article 76,
paragraph 8, of UNCLOS, a State party to the Convention intending to establish the outer limits of
its continental shelf beyond 200 nautical miles shall submit information on such limits to the
Commission on the Limits of the Continental Shelf (CLCS). The role of the CLCS is to make
recommendations to coastal States on matters related to the establishment of the outer limits of
their continental shelf beyond 200 nautical miles. With regard to disputed maritime areas,
the CLCS requires the prior consent of all the States concerned before it will consider submissions
regarding such areas.
The Court recalls that on 7 April 2009, the Parties signed a Memorandum of
Understanding (MOU), agreeing to grant to each other no-objection in respect of submissions made
to the CLCS on the outer limits of the continental shelf beyond 200 nautical miles. Paragraph 6 of
the MOU further provides that: “[t]he delimitation of maritime boundaries in the areas under
dispute . . . shall be agreed between the two coastal States . . . after the Commission has concluded
its examination of the separate submissions made by each of the two coastal States and made its
recommendations . . .”. In the following years, both Parties raised and withdrew objections to the
consideration of each other’s submissions by the CLCS. Those submissions are now under
consideration.
On 28 August 2014, Somalia instituted proceedings against Kenya before the Court,
requesting the latter to determine, on the basis of international law, the complete course of the
single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in
the Indian Ocean, including the continental shelf beyond 200 nautical miles. As basis for the
Court’s jurisdiction, Somalia invoked the declarations recognizing the Court’s jurisdiction as
compulsory made by the two States. Kenya, however, raised two preliminary objections: one
concerning the jurisdiction of the Court, the other the admissibility of the Application.
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II. THE FIRST PRELIMINARY OBJECTION:
THE JURISDICTION OF THE COURT
In its first preliminary objection, Kenya argues that the Court lacks jurisdiction to entertain
the present case as a result of one of the reservations to its declaration accepting the compulsory
jurisdiction of the Court, which excludes disputes in regard to which the parties have agreed “to
have recourse to some other method or methods of settlement”. It asserts that the MOU constitutes
an agreement to have recourse to another method of settlement. It adds that the relevant provisions
of UNCLOS on dispute settlement also amount to an agreement on the method of settlement.
A. The Memorandum of Understanding
The Court first considers whether the MOU falls within the scope of Kenya’s reservation.
Having examined the legal status of that instrument under international law, it concludes that it is a
valid treaty which entered into force upon signature and which is binding on the Parties under
international law. The Court then proceeds to interpret the MOU.
The Court begins by observing that the object and purpose of the MOU was to constitute a
no-objection agreement, enabling the CLCS to make recommendations notwithstanding the
existence of a dispute between the Parties regarding the delimitation of the continental shelf. It
then examines paragraph 6 of the MOU, in order to establish whether it contains an agreed dispute
settlement method. The Court notes that the provision in question relates solely to the continental
shelf, and not to the whole maritime boundary between the Parties, which suggests that it did not
create a dispute settlement procedure for the determination of that boundary. It also observes that
the text of the sixth paragraph reflects that of Article 83, paragraph 1, of UNCLOS, suggesting that
the Parties intended to acknowledge the usual course that delimitation would take under that
Article, namely engaging in negotiations with a view to reaching agreement, and not to prescribe a
method of dispute settlement. It further points out that the Parties accept that the sixth paragraph
did not prevent them from undertaking such negotiations, or reaching certain agreements, prior to
obtaining the recommendations of the CLCS. Finally, it notes that the MOU repeatedly makes
clear that the process leading to the delineation of the outer limits of the continental shelf beyond
200 nautical miles is to be without prejudice to the delimitation of the maritime boundary between
the Parties, implying that delimitation could be undertaken independently of a recommendation of
the CLCS. The Court concludes from the foregoing that the MOU does not constitute an
agreement by the Parties “to have recourse to some other method or methods of settlement”.
Therefore, it does not fall within the scope of Kenya’s reservation to its declaration recognizing the
Court’s jurisdiction.
B. Part XV of the United Nations Convention on the Law of the Sea
The Court next considers whether Part XV of UNCLOS (entitled “Settlement of disputes”)
amounts to an agreement on a method of settlement for the maritime boundary dispute within the
meaning of Kenya’s reservation. It focuses on Article 282 of the Convention in particular, which,
while making no express reference to an agreement to the Court’s jurisdiction resulting from
optional clause declarations, nevertheless provides that an agreement to submit a dispute to a
specified procedure that applies in lieu of the procedures provided for in Section 2 of Part XV may
not only be contained in a “general, regional or bilateral agreement”, but may also be reached
“otherwise”. The Court is of the view that the phrase “or otherwise” in Article 282 encompasses
agreement to the jurisdiction of the Court resulting from optional clause declarations. It concludes
from this that under Article 282, the optional clause declarations of the Parties constitute an
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agreement, reached “otherwise”, to settle in the Court disputes concerning the interpretation or
application of UNCLOS, and that the procedure before the Court shall thus apply “in lieu” of
procedures provided for in Section 2 of Part XV. Accordingly, this dispute does not, by virtue of
Part XV of UNCLOS, fall outside the scope of Kenya’s optional clause declaration.
III. THE SECOND PRELIMINARY OBJECTION:
THE ADMISSIBILITY OF SOMALIA’S APPLICATION
The Court recalls that, according to Kenya, the Application is inadmissible for two reasons.
First, Kenya argues that the Parties had agreed in the MOU to delimit their boundary by negotiation
only after the completion of the CLCS review of their submissions. Having previously found that
the MOU did not contain such an agreement, the Court also rejects this aspect of Kenya’s second
preliminary objection. Second, Kenya contends that Somalia’s withdrawal of its consent to the
consideration by the CLCS of Kenya’s submission was in breach of the MOU. The Court is of the
view that the violation by Somalia of a treaty at issue in the case does not per se affect the
admissibility of its Application. In light of the foregoing, the Court finds that the preliminary
objection to the admissibility of Somalia’s Application must be rejected.
IV. OPERATIVE CLAUSE
In its Judgment, which is final and without appeal, the Court
(1) (a) by thirteen votes to three,
Rejects the first preliminary objection raised by the Republic of Kenya in so far as it is based
on the Memorandum of Understanding of 7 April 2009;
(b) by fifteen votes to one,
Rejects the first preliminary objection raised by the Republic of Kenya in so far as it is based
on Part XV of the United Nations Convention on the Law of the Sea;
(2) by fifteen votes to one,
Rejects the second preliminary objection raised by the Republic of Kenya;
(3) by thirteen votes to three,
Finds that it has jurisdiction to entertain the Application filed by the Federal Republic of
Somalia on 28 August 2014 and that the Application is admissible.
Composition of the Court
The Court was composed as follows: President Abraham; Vice-President Yusuf;
Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue,
Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian; Judge ad hoc Guillaume;
Registrar Couvreur.
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Vice-President YUSUF appends a declaration to the Judgment of the Court;
Judge BENNOUNA appends a dissenting opinion to the Judgment of the Court; Judges GAJA and
CRAWFORD append a joint declaration to the Judgment of the Court; Judge ROBINSON appends a
dissenting opinion to the Judgment of the Court; Judge ad hoc GUILLAUME appends a dissenting
opinion to the Judgment of the Court.
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A summary of the Judgment appears in the document entitled “Summary No. 2017/1”. This
press release and the summary and full text of the Judgment are available on the Court’s website
(www.icj-cij.org), under the heading “Cases”.
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Note: The Court’s press releases do not constitute official documents.
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