On 28 August 2014, the Government of the Federal Republic of Somalia (hereinafter “Somalia”) filed in the Registry of the International Court of Justice (hereinafter “the Court”) an application instituting proceedings against the Republic of Kenya (hereinafter “Kenya”) concerning a dispute in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone … and continental shelf, including the continental shelf beyond 200 nautical miles.”
In its application, Somalia sought to found the jurisdiction of the Court on the declarations made, pursuant to Article 36, paragraph 2, of the Statute of the Court, by Somalia on 11 April 1963 and by Kenya on 19 April 1965.
By an Order of 16 October 2014, the President of the Court fixed 13 July 2015 as the time-limit for the filing of the memorial of Somalia and 27 May 2016 for the filing of the counter-memorial of Kenya. Somalia filed its memorial within the time-limit so prescribed.
On 7 October 2015, within the time-limit set by Article 79, paragraph 1, of the Rules of Court, Kenya raised preliminary objections to the jurisdiction of the Court and to the admissibility of the application.
Decision of the Court
In its first preliminary objection, Kenya asserted that one of the reservations in its declaration accepting the compulsory jurisdiction of the Court applied to in the case filed by Somalia. Kenya’s declaration, in its relevant part, provides that:
“the Republic of Kenya … accepts, in conformity with paragraph 2 of Article 36 of the Statute of the International Court of Justice until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special Agreement, and on the basis and condition of reciprocity, the jurisdiction over all disputes arising after 12th December, 1963, with regard to situations or facts subsequent to that date, other than:
1. Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.”
In Kenya’s view, the said declaration applied because Kenya and Somalia had entered into the “Memorandum of Understanding between the Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to grant to each other No-Objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission on the Limits of the Continental Shelf” (hereinafter the “MOU”) and that the sixth paragraph of the MOU which read “[t]he delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law after the Commission has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations to two coastal States concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles”, provided some other method of settlement within the meaning of its optional declaration clause made when becoming a State Party to the Statue of the Court..
However, on the first preliminary objection, the Court found that the parties did not, in the MOU, especially the sixth paragraph thereof, agree on a method of delimitation of their maritime dispute.
In criticism of the Court’s decision, it appears that while the Court was correct in dismissing the preliminary objection on the premise upon which it had been made, i.e. that the sixth paragraph of the MOU created another dispute settlement mechanism, the Court did not go further than the improperly premised preliminary objection to consider the import of article 83 (2) of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), which reads “[i]f no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.” It appears that article 83 (2) of UNCLOS implies that the dispute resolution procedures provided for in Part XV of UNCLOS can only be resorted to by States concerned in a dispute if no agreement has been reached within a reasonable period of time, and it does seem that Somalia and Kenya had by their MOU decided that a reasonable period of time excluded the period between the entry into force of the MOU and the conclusion by the Commission on the Limits of the Continental Shelf (hereinafter “CLCS”) of the examination of the separate submissions by Kenya and Somalia.
The second aspect of Kenya’s first preliminary objection had Kenya arguing that article 287, paragraph 1, of UNCLOS, which is contained in Part XV, provides that States parties may make a written declaration choosing one or more fora for the binding settlement of disputes concerning the interpretation or application of the Convention and that pursuant to Article 287, paragraph 3, States parties that have not made such a declaration are deemed to have accepted arbitration in accordance with Annex VII to UNCLOS. In Kenya’s view, both Kenya and Somalia had not made any declarations and so were deemed to have opted for arbitration. The Court correctly dismissed this aspect of the first preliminary objection, pointing out that article 282 provided that, “[I]f the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.” The Court found that the words, “or otherwise” were wide enough to include the optional clause declarations which both Kenya and Somalia had made when becoming Parties to the Court’s Statute.
Kenya’s second preliminary objection was with regard to admissibility of the case. Here, Kenya made two arguments, i.e. firstly, that the Somalia’s application was inadmissible because the Parties had agreed in the MOU to negotiate delimitation of the disputed boundary, and to do so only after completion of CLCS review of the Parties’ submissions and secondly, that Somalia’s application was inadmissible because Somalia breached the MOU by objecting to CLCS consideration of Kenya’s submission, only to consent again immediately before filing its Memorial. According to Kenya, the withdrawal of consent was a breach of Somalia’s obligations under the MOU that gave rise to significant costs and delays. Kenya also contended that a State “seeking relief before the Court must come with clean hands” and that Somalia has not done so. Consequently, it argued, Somalia’s application was inadmissible.
The Court in dismissing the first aspect of the preliminary objection based its decision on the fact that the MOU did not create a separate mechanism for delimitation. Again, the Court, incorrectly, did not consider the import of article 83 (2) of UNCLOS. The second aspect of the second preliminary objection was properly dismissed.
All in all, the basis upon which Kenya’s preliminary objection was made was, with respect, correctly dismissed. The 6th paragraph of the MOU does not create a dispute settlement mechanism and Kenya was plainly wrong in even attempting to advance that point. However, the Court ought to have looked further than the preliminary objection and carefully considered article 83 (2) of UNCLOS to determine whether the matter was ripe for the application of the provisions of Part XV of UNCLOS.