The judgment of the International Court of Justice dated October 12, 2021 relating to the maritime delimitation in the Indian Ocean (Somalia v. Kenya)

On Tuesday, October 12, 2021, the International Court of Justice in The Hague rendered an expected judgment in the case opposing the Federal Republic of Somalia to the Republic of Kenya in the context of the delimitation of their respective maritime spaces.

At issue is a maritime area of some 100,000 km², rich in food resources and possibly hydrocarbons, claimed by the two neighbouring states.

In this case, Somalia considered that the disputed maritime zone was its own and should be delimited by a maritime border to be defined, in the extension of the Kenyan land border, towards the southeast. Kenya, on the other hand, took the view that the maritime boundary already existed, had been accepted by Somalia and should be drawn horizontally to the east of its coast.

When an agreement on the issue failed and the dispute between the two states persisted, Somalia filed an application with the International Court of Justice in 2014 to have the issue resolved. Kenya, for its part, responded by arguing that the Court lacked jurisdiction.

A first judgment was therefore rendered by the Court on February 2, 2017, which retained its jurisdiction to hear the case. Proceedings were held and a judgment was issued, although Kenya refused to participate in the hearings.

In its 2021 judgment, the Court first addressed the existence of a maritime boundary that had already been recognized by the States and concluded by finding that there was “no compelling evidence that Somalia has acquiesced to the maritime boundary claimed by Kenya and that, consequently, there is no agreed maritime boundary between the Parties at the parallel of latitude. »

Having concluded that there was no pre-existing maritime boundary between the two States, contrary to Kenya’s assertion, the ICJ then set about identifying this new maritime boundary. To do so, it relied in particular on the principles set out in the United Nations Convention on the Law of the Sea of 1973 and distinguished between the territorial sea (a zone of 12 nautical miles over which the sovereignty of the coastal State is exercised) and the exclusive economic zone (a zone extending up to 200 nautical miles and over which the State exercises its sovereign and economic rights).

With regard to the identification of the territorial sea of each State, the Court relies on article 15 of the 1973 Convention, which provides for the use of “median line for the territorial sea unless there is an agreement to the contrary based on a claim by historical title and or special circumstances“. On the basis of its sovereign appreciation and taking into account certain geographical constraints, the Court then drew the border delimiting the territorial waters of Somalia and Kenya.

With regard to the delimitation of the exclusive economic zone and the continental shelf, the Court relied on articles 74 and 83 of the 1973 Convention to decide that, in the absence of an agreement between the States parties, it was up to the Court to decide the dispute. In doing so, it set out its method of maritime delimitation, which “is based on objective, geographical criteria, while at the same time taking into account any relevant circumstances bearing on the equitableness of the maritime boundary“.

With this method, the Court establishes a maritime boundary between Kenya and Somalia using a line of equidistance between the two States, delimiting the exclusive economic zone and the continental shelf of each, for the benefit of Somalia.

Considering therefore that the potential amputating effect of this boundary for Kenya “is nonetheless still serious enough to warrant some adjustment to address the substantial narrowing of Kenya’s potential entitlements“, the Court corrects the delimitation in its further development, leaving part of the disputed area to Kenya.

The Court finally concludes by ruling that Kenya, which had authorized drilling activities in the area, “has not violated its international obligations through its maritime activities in the disputed area“, contrary to what Somalia had claimed.

The International Court of Justice therefore ruled in favor of Somalia, which was awarded most of the disputed maritime area. The judges were, however, careful to spare the fairness and adverse consequences for Kenya by awarding it a part of this zone.

While the Somali President welcomed the decision of the International Court of Justice, the Kenyan government made it known via a communiqué from its Ministry of Foreign Affairs that it was contesting the decision, one month after announcing to the UN that it would no longer recognize the right of Kenya to use the sea.

By Ali Bougrine and Victor Arnould

References :

  • International Court of Justice, Judgment of 12 October 2021 Maritime Délimitation in the Indian Ocean (Somalia v. Kenya) GL n°161
  • Le Monde Afrique « La Somalie se voit accorder la majeure partie de la zone maritime revendiquée par le Kenya » 12 octobre 2021

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