In October 2021, the International Court of Justice delivered its judgment on one of the
most contentious maritime disputes of recent times.
Seven years after Somalia brought a case against neighbouring Kenya,
the Court unveiled the new boundary between the two countries.
But although the ruling is legally binding, Kenya refuses to accept it/
Indeed, it no longer even accepts the Court's jurisdiction.
So, has the dispute been resolved?
And what happens now?
Hello and welcome. If you're new to the channel, my name is James Ker-Lindsay and here I take an
informed look at international relations, conflicts and the origins of countries.
We tend to think of territorial conflicts in terms of land borders.
However, one of the most common forms of territorial dispute in international politics
revolves around maritime boundaries.
As well as territorial waters, this also includes exclusive economic zones,
which cover things like fishing rights and the exploitation of the seabed.
While there's no agreed figures on the number of such disputes,
it's believed that there are anywhere between two to 400 around the world at the moment.
Covering every continent, they often involve countries with otherwise good relations.
Even the United States and Canada have outstanding maritime disputes.
While such disputes are most usually resolved by direct negotiations,
they can also be settled by external arbitration or adjudication.
The highest judicial body in the world is the International Court of Justice;
the principal judicial organ of the United Nations.
As well as providing legal guidance - advisory opinions as they're formally
known - for the UN organisation and its members, it also provides rulings
on contentious cases brought before it by UN members that have accepted its jurisdiction.
But while the Court's judgments are considered binding and final, they're not always accepted.
All this was recently highlighted in one of the most interesting maritime cases to
come before the Court in recent years: the boundary dispute between Somalia and Kenya.
Kenya and Somalia lie in East Africa on the western shore of the Indian Ocean.
Officially, Somalia's territory is around 640 000 square kilometres,
or a quarter of a million square miles.
This makes it the 43rd largest of the 193 members of the United Nations.
However, since 1991 it hasn't exerted effective control over Somaliland in the north.
For its part, Kenya is 580,000 square kilometres,
or 225 000 square miles, putting it in 48th place amongst UN members.
Our story starts with the European colonisation of Africa in the late 19th century.
Having been part of Italian East Africa, and then a UN protectorate under Italian rule,
on 1 July 1960 Italian Somaliland merged with British Somaliland - which had gained
independence just days earlier - to form the Somali Republic.
Meanwhile, Kenya, which had been a British crown colony since 1920 and fought a bitter
armed struggle to end imperial rule, became independent three years later, in December 1963.
At first, relations between the two countries were strained.
Acting with Mogadishu's encouragement, Somalis living in Kenya's northeastern region
waged a secessionist rebellion to unite with Somalia; a conflict known as the Shifta War.
This saw the two countries break off diplomatic relations until 1967,
when they signed an agreement to de-escalate the situation.
In the years that followed, relations in fact improved and would remain relatively
stable - notwithstanding Somalia's descent into conflict and state collapse in the 1990s.
In 2005, and against the backdrop of growing speculation about oil and gas deposits off the
east coast of Africa, Kenya issued a presidential proclamation setting out its maritime boundaries.
Building on an earlier 1979 decree, and mirroring its maritime boundary with Tanzania to the south,
Nairobi stated that the boundary with Somalia stretched eastwards
parallel to the line of latitude from the point where their land border met the sea.
In contrast, Somalia took the view that the boundaries should be an adjusted continuation
of the land border between their countries heading in a broadly south-easterly direction.
The resulting triangle-shaped wedge of disputed territory, which not only included potential
energy deposits but also fishing grounds, covered over 100,000 kilometres or 40,000 square miles.
In 2009, the two countries signed a memorandum of understanding on resolving the dispute.
As signatories to the UN Convention on the Law of the Sea, the main international treaty governing
maritime boundaries, they agreed to refer the matter to the Commission on the Limits of
the Continental Shelf for its recommendations with a view to then negotiating a settlement.
However, little progress was made in the period that followed.
Arguing that the dispute was now deterring energy companies from exploring and exploiting
oil and gas reserves, and accusing Nairobi of dragging its feet on talks,
on 28 August 2014, Somalia asked the International Court of Justice to determine their boundary.
From the start, Nairobi contested the case.
First of all, it argued that Somalia had in fact agreed to the Kenyan maritime boundary
by failing to challenge its statements in 1979 and 2005.
Secondly, even though Somalia and Kenya had both accepted the court's compulsory jurisdiction,
in 1963 and 1965 respectively, Kenya challenged both the court's jurisdiction to hear this case
and the admissibility of Somalia's application.
As far as it was concerned, the fact that the sides had agreed
to negotiations precluded the Court from taking up the matter.
However, the court disagreed.
In a judgment delivered in February 2017,
it ruled that the case was both within its jurisdiction and admissible.
As a result, the process now moved on to the next stage: public hearings.
Originally set for September 2019, following repeated Kenyan requests
the hearings were postponed first to November 2019, then to June 2020,
and finally to March 2021, when the Court decided against any further postponements.
In the meantime, relations between Kenya and Somalia had
deteriorated dramatically over a range of issues.
While Kenya was angry at Somalia's engagement with energy companies,
Somalia accused Nairobi of colluding with Somalian opposition groups
and for hinting that it might be willing to recognise Somaliland.
On top of this, a row also broke out about Kenya's role in an African Union mission in Somalia.
All this became so serious that in December 2020 Mogadishu broke
off diplomatic relations with Nairobi.
Meanwhile, just days before the scheduled public hearings,
Kenya dropped the bombshell announcement that it was withdrawing from the case.
As only the second time that this had ever happened in the Court's history,
Nairobi argued that the hearings should have been postponed again
due to the Covid pandemic - even though the Court had said that the hearings could
take place online - and it also argued that needed more time to brief a new legal team.
Additionally, it insisted that the President of the Court,
Abdulqawi Ahmed Yusuf, a Somali, should not be involved in the case.
In the end, the hearings went ahead as planned with just Somali participation.
However, the situation would become even more complex just a few months later.
Although relations eased between Nairobi and Mogadishu over the course of the summer,
just weeks before the court was due to deliver its judgment
Kenya announced that it had revoked its recognition of the compulsory jurisdiction
of the Court and that it wouldn't accept the final judgment.
While politically and symbolically this was significant,
its formal legal implications were in fact limited.
As the ICJ spokesman noted, the decision
could not have retrospective effect and it would have no impact on the case.
Despite Kenya's refusal to take part in the hearings,
and notwithstanding its decision to reject the Court's jurisdiction,
the justices decided they had the information they needed to decide on the case.
On 12 October 2021, they delivered their ruling.
First of all, they unanimously rejected Kenya's position
that there was in fact an agreed boundary between the two countries.
Following on from this, in a series of further decisions, they set out the exact boundary of
the territorial sea and the boundary of the exclusive economic zone between the countries.
Rejecting both the Somali and Kenyan stated positions,
they essentially drew a point between the two.
Finally, they rejected Somalia's claim for compensation against Kenya
for activities that had taken place in a disputed area.
While the ruling fell short of Somalia's original claims,
it was nevertheless hailed as a huge victory in Mogadishu.
In a televised address, Somalia's president, Mohamed Farmajo, thanked those involved.
At the same time, and pointedly noting that Somalia hadn't asked to have Kenya as a neighbour,
he issued a direct appeal for Nairobi to accept the supremacy of international law
and forego its claims to the territory awarded to Somalia.
As expected, the judgment brought about a swift and angry reaction from Kenya.
In his own televised speech, the Kenyan president, Uhuru Kenyatta rejected the judgment in totality.
Accusing the Court of having overreached its authority,
and seemingly accusing it of having become a tool against African nations,
he said that as president he'd sworn an oath to preserve the territory
of "this our great republic and bequeath the same intact and unencumbered to the next president".
Although he promised to resolve the matter through peaceful means,
he also insisted that it would put a strain on relations between the two countries.
So, what happens now?
In one sense, not a lot.
While the ICJ is a formal part of the United Nations and its rulings are considered binding
and final - there's no appeals process - it has no direct power to enforce its judgments.
But this isn't to say that these aren't without significance.
It certainly has legal, political and moral weight in the eyes of the world.
There is now a formal maritime boundary between Somalia and Kenya.
This means that, while Nairobi has committed itself to using peaceful means to resolve the
dispute, if any confrontations do take place in the area now judged as Somali territorial waters
Nairobi will be seen as the aggressor.
It's no longer disputed territory.
And there are potential ways that Somalia could reinforce this message,
such as pursuing a resolution in the General Assembly
or pursuing resolutions in other international and regional bodies, such as the African Union.
However, whether these steps would be successful is of course another matter.
More generally, it could well have wider reputational and political implications for Kenya.
Of course, Kenya is certainly not the first country to reject a ruling.
Most famously, the United States rejected one in 1986,
when the Court ruled that its support for rebels in Nicaragua had been illegal.
A that time, it had called the court a "semi-legal, semi-juridical,
semi-political body which nations sometimes accept and sometimes don't."
But Nairobi clearly sees itself as a leader in Africa;
a continent where territorial boundaries are seen as particularly sacrosanct.
So, its decision will not look good.
Nor will it look good internationally, especially as Kenya is a member of the UN Security Council in
2021 and 2022, and held the Council's rotating presidency when the judgment was delivered.
Ultimately, for all these reasons one could in fact argue that it's
in Kenya's best interest to be seen to protect and preserve international law.
Of course, it is galling for countries to have to accept findings that go against them.
But this is how the system works.
Ultimately, looked at from the bigger picture it's about accepting
that while international law can work for and against states in specific circumstances,
the preservation of the system of law is in the best interests of all.
As one Kenyan law professor neatly put it, "Kenya must remember that respect for the rule of law
matters most when it's inconvenient to you. Nairobi needs to accept and move on."
Maritime disputes are one of the most common forms
of territorial difference in international politics.
While most resolve peacefully through negotiations,
one of the tried and tested ways to resolve them is to refer them to judicial bodies.
The most important of these is the International Court of Justice.
One of the most interesting maritime issues to come before the Court in recent years
has been Somalia's case against Kenya concerning their maritime boundary in the Indian Ocean.
But while Somalia hailed the final judgment - a judgment that was widely viewed as equitable
and in line with standard practices in such cases - Kenya has wholly rejected
it and even rejected the standing of the Court.
However, while Nairobi may think that it's taking a stand for national sovereignty
and protecting its narrow economic interests, in a continent where territorial boundaries
have so much significance, and where every effort should be made to encourage
the peaceful resolution of disputes and the preservation of international law,
many would argue that it has in fact only undermined its own longer-term interests - as
well as the interests of the rest of Africa and even the wider international community.
I hope you found that interesting. If so, here are some more videos that you might find useful.
Thanks so much for watching and see you in the next video.