New twist to Somali border case against Kenya

By Fauxile Kibet

The maritime case filed by Somalia against Kenya has taken a new twist following a recent ruling by the International Court of Justice (ICJ) ruling that allowed Mogadishu to file a response to a case in which it has sued Kenya.

In August 2014, Somalia sued Kenya arguing that the border between the two neighboring countries should be extended South of Kiunga and not eastwards as it currently is.

Kenya however argued that such a move could precipitate a border dispute with Tanzania as the adjustment would affect its borders.

Kenya and Somalia are in contest with an approximately 100,000 square kilometers that forms a triangle east of the Kenyan coast. The case is seen to be propelled by suspected oil deposits in the contested area which Somalia in its case argues that Kenya would exploit Somalia’s resources should it win the case.

The ruling by the ICJ now renews the legal tussle between the two states and it is seen as a ruling that could bring an end to the years long border row.

On Monday, the court directed Mogadishu to respond to Kenya’s argument that the border should remain as it is until June 2018, after which Kenya will have another chance to file its own response.

“The court issued this decision taking into account the views of the parties and the circumstances of the case. The subsequent procedure has been reserved for further decision,” read a statement issued by the court.

Kenya has also argued that the court lacked jurisdiction over the case and that the two countries had signed a Memorandum of Understanding to have the case resolved through the United Nations Commission on the Limits of the Continental Shelf (UNCLCS), an argument Kenya says should first be exhausted.

In December, Kenya also filed an argument before the ICJ arguing that the best way to handle the case was through the United Nations Convection on the Law of the Sea (UNCLOS) and argues continued its activities in the disputed area was based on bilateral agreements between the countries’ heads signed in 1979.

“Kenya asserts that all her activities, including navy patrols, fisheries practice, marine and scientific research and oil exploration are within the marine boundary established by Kenya and recognized and respected by both parties since 1979,” Outgoing Kenya’s Attorney General Prof Githu Muigai stated in a response to Somalia’s suit at the International Court of Justice (ICJ) in August 2014.

 

PARTNERSHIP

But maritime experts argue that Kenya and Somalia should enter into a joint partnership in exploring and sharing the natural resources available in the contested area – even as the legal avenues aimed at resolving the dispute continues.

In 2003, Sao Tome and Principe and Nigeria which had a similar border dispute established Joint Development Zones (JDZ) as a temporary solution as they continued seeking a solution over a maritime dispute.

Experts argue that Somalia could benefit more by jointly exploiting the Oil and Gas in the disputed area rather than pursuing an independent control over the region.

Joint Development Zones have come to play when two contesting parties fail to reach an amicable settlement over a contested border and when the resources found within the contested area cannot be effectively exploited by either of the countries acting alone.

The Kenya – Somalia border case comes at a time when most countries globally are being drawn into border conflicts as technological expansion has led to better search and extraction of resources from sea – key being oil and gas.

Therefore, either country winning the case will be critical as the final ruling that will be issued by The Hague based court will be binding upon the countries concerned.

“Judgments are final and without appeal. If either of the parties challenges their scope or meaning, it has the option to request an interpretation. In the event of the discovery of a fact hitherto unknown to the Court, which might be a decisive factor, either party may apply for revision of the judgment,” the ICJ states.