About the author: Rhia Mehta is a contributor to Travaux. She is pursuing her LL.M. degree at Berkeley Law.
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A triangular portion of the continental shelf extending into the Indian Ocean through the borders of Somalia and Kenya, allegedly a treasure-trove of oil and gas, has been a subject of dispute between the two nations for the past four decades. In 2009, the nations decided to resolve the dispute through negotiations, as enlisted in the Memorandum of Understanding entered into by them. When talks fell through in 2014, Somalia escalated the dispute for resolution before the international forum in the Hague. On October 12, 2021, the International Court of Justice delivered its judgment on the dispute, finally delineating the maritime boundary. The methods used by the International Court for this purpose, also sought to be crystallized as the standard procedure to be applied when determining maritime boundaries in resolving international disputes, favored Somalia’s proposal.
Undoubtedly, the judgment was received with great jubilance by Somalia. Additionally, it has also assumed great importance within the political realm of the country, with President Mohamed Abdullahi Farmaajo placing the judgment on his mantle to receive political gain. In contrast, Kenya has accused the ICJ of bias and refused to afford any recognition to the judgment. After participating in the proceedings up until the submission of all written pleadings, Kenya, as late as in 2021, intimated the ICJ of its refusal to make oral arguments. Initially, Kenya attempted to cite the COVID-19 pandemic and its consequent impediments, including poor internet connectivity in Nairobi, as reasons to avoid a virtual hearing. However, when nine months later Kenya notified the United Nations (UN) Secretary-General of its decision to withdraw its declaration under Article 36(2) of the ICJ Statute, it was clear that Kenya (a) anticipated an unfavorable ruling; and (b) had no intention of abiding by it. This assumption was subsequently confirmed by Kenya’s reaction rejecting the judgment in toto.
Given Kenya’s reaction, it appears that the finality of the ICJ’s judgment does not determine the end of Somalia’s struggle to enforce its claim over the disputed waters. The ICJ’s judgment may be binding, but it is not enforceable. Somalia will have to seek the UN Security Council’s aid in enforcing the judgment, as per Article 94(2) of the UN Charter. It is also in Somalia’s favor that Kenya has domesticated the Statute of the International Court as well as the UN Charter by adopting them into its Constitution, stating the “general rules of international law” as “the law of Kenya.”
However, the availability of the aforementioned legal resorts do not appear to deter Kenya from its active defiance of the judgment. Kenya has publicly vowed to protect its “inherent right” to “its territory” by way of pursuing “all available means.” At this juncture, it is pertinent to recollect that Kenya has only recently upgraded its naval base near the disputed waters to a full military base. Further, it is Kenya’s declared belief that enforcement of the judgment will lead to a hazardous strain in the relation between the two nations.
Kenya’s outright refusal to abide by the judgment is further confirmed by the nation’s withdrawal from the ICJ under Article 36(2). Pertinently, in 1965 Kenya had submitted the five circumstances which could attract the ‘compulsory jurisdiction’ of the ICJ; the present case fell squarely within these circumstances. Regardless, Kenya alleges that the ICJ neither had the jurisdiction nor the competence to preside over the resolution of this dispute. The defying nation has even gone as far as attacking the morality and integrity of a presiding Somalian Justice of the ICJ, also an author of the judgment, citing an alleged bias in favor of his nationality.
The purpose of this article is not to gauge the merits of Kenya’s actions but to decipher from them the sliding significance and status of the ICJ. Kenya’s actions in the present case evince a nation’s obvious response to contemporaneous ‘fight or flight’ situations. The present is a clear demonstration of nations pledging their allegiance to the concept of global unity and integration by putting themselves under the international community’s scrutiny. However, when its application is put to the test, in contests involving the nations’ personal interests, the nation will often choose its own interests, citing sovereignty, whilst unhesitatingly undermining all its previous textual commitments to international unions and authorities.