Kenya's options in Somalia border dispute after ruling
The International Court of Justice has set the stage for confrontation between Kenya and Somalia after Nairobi vowed to reject the verdict on the Indian Ocean boundary dispute with Mogadishu.
The ICJ on Tuesday upheld Somalia’s “equidistance” formula on the boundary demarcation in the Indian Ocean waters, effectively rejecting Kenya’s long-held position of delineation “along a parallel of latitude”.
“For the foregoing reasons, the Court considers that the conduct of Somalia between 1979 and 2014 in relation to its maritime boundary with Kenya, as examined above, in particular its alleged absence of protest against Kenya’s claim, does not establish Somalia’s clear and consistent acceptance of a maritime boundary at the parallel of latitude,” ICJ President Joan E. Donoghue said in his judgment on Tuesday.
“In conclusion, the Court finds that there is 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. Kenya’s claim in this respect must therefore be rejected,” he added.
Solicitor-General Kennedy Ogeto, who was in Kenya’s legal team before the country withdrew from the case during its hearing stage citing bias, immediately protested the verdict.
“They have purported to adjust the boundary. Somalia asked for equidistance, which they have adopted and ignored our parallel of latitude plea,” Mr Ogeto told the Nation yesterday after the judgment.
“They have attempted to adjust the equidistance line as proposed by Somalia, but that adjustment, to the extent that it disregards our insistence on the parallel of latitude, is inconsequential.”
“Based on that fact, we will not accept a situation where we lose even an inch of our land. What they purport to give us is minimal. It is inconsequential,” added Mr Ogeto.
On Kenya’s next course of action, Mr Ogeto responded: “We don’t recognise that decision.” Pressed further on whether Kenya would lodge a petition at the UN Security Council (UNSC), he replied: “We will review the judgment and deliberate within government on that decision.”
Kenya has several options going forward. One step the Kenyan government had earlier signalled it could take is to lodge a protest with the UNSC, where Nairobi took over a non-permanent seat in January.
Kenya is holding the rotational presidency this month. President Kenyatta yesterday chaired a session of the UNSC.
The United Kingdom has filed a similar petition to challenge the ICJ’s ruling that favoured Mauritius in the dispute over the British Indian Ocean Territory (BIOT), also referred to as the Chagos Archipelago. The UK has contested the court’s intervention.
As the case drew to a close, Kenyan authorities had vowed to circulate their protest to all diplomats, suggesting a campaign to discredit the proceedings at the time.
Kenya could resort to the diplomatic offensive such as that taken by the UK to stop implementation of the judgment and allow negotiations by the two nations to resolve the matter amicably.
Since Kenya was unable to halt the proceedings within the court’s legal mechanism, its options within the court process are limited. The world court’s operations stipulate that, a case may be brought to a conclusion at any stage of the proceedings by a settlement between the parties or by discontinuance. That didn’t happen, and yesterday’s judgment is final, binding on the parties and without appeal.
The only other recourse available after judgment is to apply for a review, which can only be allowed upon the submission of a new fact. Kenya had insisted there is a missing map that would bolster its case and undermine Somalia’s claim.
That would have fit in the realm of new evidence “of such a nature as to be a decisive factor” to occasion a review of hostile judgment.
That is an option now not available for Kenya because it has vowed not to respect the court’s verdict and termed the judgement a product of a flawed process. The only other option for Kenya would be to resort to defiance and refusal to comply with the court order.
In 2018, the US rejected the world court’s order directing that sanctions against Iran impacted humanitarian aid or civil aviation safety. And in 1986, the US had also attacked the court after it ruled America owed Nicaragua war reparations. In the Nicaraguan case, the US chose not to submit itself to the court’s jurisdiction. The US then used its permanent seat on the UNSC to veto resolutions demanding it observe the Nicaragua ruling.
In Africa, a land and maritime border row between Cameroon and Nigeria over the Bakassi Peninsula and areas in the Lake Chad Basin was the subject of a long-running territorial dispute.
Cameroon submitted the case unilaterally invoking the ICJ’s jurisdiction and, upon commencement of the case, Nigeria initially contested jurisdiction.
Like in the Kenya and Somalia row, Nigeria argued that both states had already agreed to settle the dispute through existing bilateral channels. Nigeria later participated fully throughout the ICJ proceedings.
The ICJ’s October 2002 judgment awarded Cameroon the Lake Chad boundary as well as the Bakassi Peninsula.
Nigeria, which won some maritime-related concessions, however, was reluctant to comply with sections of the judgment that didn’t go its way.
Faced with strong pressure from the international community, Nigeria at some point signalled the possibility of resorting to war, again, which saw world powers soften the hard line position that implementation of the ruling was not negotiable.
In the end, the international community asked Nigeria to ‘establish a dialogue with Cameroon to find a way forward.’
Kenya will hope its grandstanding will, equally, payoff. Kenya’s position has been that the two countries have expressly agreed on a method of settlement other than the Court for delimitation of their maritime boundary.