AMU Intelligence Original

ICJ Draws a New Maritime Border between Kenya and Somalia

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By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies

One of the core topics in public international law is maritime law. Maritime law has a long history; it was one of the first issues nations addressed in regard to legal regulations. Vessels traveling across national borders were the most common encounter between sovereign powers and required coming to mutual agreements.

While maritime law is a niche field as far as the legal practice is concerned, the maritime industry is very big and influences the global economy. In recent months, problems with the global supply chain are the direct result of bottlenecks in the shipping industry.

At our university, current students often belong to the maritime world. For instance, some students are part of the U.S. Navy, the Coast Guard or other related military branches.

When I teach LSTD 401 Introduction to Maritime Law, students learn basic legal terminology that anyone who is part of the maritime industry should know. On occasion, the class also discusses current events in the maritime world, such as the recent case involving Kenya and Somalia.

Resolving a Maritime Border Dispute between Somalia and Kenya

Last week, the International Court of Justice (ICJ) in The Hague made a decision concerning a very important question in maritime law. In the case of Maritime Delimitation in the Indian Ocean, pitting Kenya against Somalia, the ICJ had to decide where the maritime border between these two nations should be drawn.

The decision involved two separate questions:

  • What should be the point where the border line starts?
  • In which direction should the border line be drawn?

Somalia claimed that the maritime border should continue in a straight line to the sea, while Kenya wanted the line to be drawn according to latitude.

The Definition of Territorial Waters

This is a good opportunity to explain one of the basic terms in maritime law: territorial waters. According to the 1982 United Nations Law of the Sea Convention, a country’s territorial waters extend up to 12 nautical miles outward from the shoreline of that country.

However, where do you start drawing the line that stretches outward 12 nautical miles?  Usually, it starts with finding the low-water line off the coast. The territorial waters are then measured from that low-water line and end up to 12 nautical miles away from the starting point.

But what happens in cases where the shore is eroded or there are many large and small islands that populate the area? In such a case, a straight baseline may be used.

This baseline is created by drawing a straight line from appropriate points along the geographic baselines. The territorial waters are then measured outward 12 nautical miles from the straight line, instead of each geographical location’s baseline.

The Legal Arguments from Kenya and Somalia

Kenya said that Somalia acquiesced to its claim that the maritime boundary between them follows the parallel of latitude and that there is an agreed-upon boundary between the two countries. Kenya based its argument on its course of conduct or omission; Somalia had knowledge of Kenya’s claim concerning the border and never rejected those claims in any way.

Kenya also claimed that Somalia’s failure to reject its border claims constituted consent by Somalia. In other words, Kenya regarded Somalia’s behavior as a tacit agreement.

In the case, Kenya brought up about a dozen documents, beginning with a 1972 document where Kenyan officials made their claim regarding the maritime border. Somalia never objected to these public statements.

Somalia rejected all these assertions by Kenya and maintained it made several objections throughout the years to the Kenyan claim about the location of the maritime border. When it comes to boundaries, claimed Somalia, lack of action is not enough to draw borders.

Somalia explained that its relative lack of action concerning the Kenyan claims had an explanation. According to the final judgment document from the ICJ: “Kenya’s purported displays of authority in the disputed area were in any event sporadic, infrequent and recent, and were undertaken at a time when, on account of civil war, there was no functioning Somali government able to monitor such activities or exercise effective control over them.”

The Final Decision

The International Court of Justice came to an interesting decision. The 14-judge panel decided to draw its own border line.

The line splits the contested border area into two almost equal parts, with one half going to Kenya and the other half to Somalia. The Court also decided that even though Kenya took unilateral moves in this disputed area, its actions do not constitute an infringement on the sovereignty of Somalia.

Basically, the Court determined that the two countries should just let bygones be bygones and from now on, there is a clean slate concerning the disputed border. The justification given by the Court is that Somalia did not put effort into proving their unilateral actions and Kenya was willing to take part in talks concerning the maritime border.

This final judgment, however, has a potential problem. The legitimacy of making unilateral moves in disputed areas can serve as a flashpoint; the Court could have chosen more limiting language for unilateral action.

Kenya Rejected the ICJ’s Decision and the Dispute May Go to the United Nations

Kenya was not happy with the decision. The BBC reported that Kenya rejected the decision in its totality. President Uhuru Kenyatta said the ruling would “strain the relations between the two countries,” while Somalia’s Information Minister Osman Dubbe tweeted that the decision was welcomed by the Somali people.

Both parties had to agree as to the jurisdiction of the court and accept this legal ruling, so this decision is binding. The Kenyan rejection of the final decision will ensure that this matter will be brought before the United Nations Security Council.

Kenya’s action may cause it to face a backlash from the UN Security Council. The Security Council might choose to make an example of Kenya by imposing sanctions. After all, the smaller actors in global politics pay prices that the big players brush off. 

Dr. llan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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