MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA v. KENYA) PRELIMINARY OBJECTIONS___________

DÉLIMITATION MARITIME DANS L’OCÉAN INDIEN(SOMALIE c. KENYA)
EXCEPTIONS PRÉLIMINAIRES

2 FEBRUARY 2017 JUDGMENT

2 FÉVRIER 2017 ARRÊT

TABLE OF CONTENTS

CHRONOLOGY OF THE PROCEDURE

1. INTRODUCTION

2. THE FIRST PRELIMINARY OBJECTION: THE JURISDICTION OF THECOURT

   1. The Memorandum of Understanding

      1. The legal status of the MOU under international law

      2. The interpretation of the MOU

      3. Conclusion on whether the reservation contained in Kenya’sdeclaration under Article 36, paragraph 2, is applicable by virtue of the MOU

   2. Part XV of the United Nations Convention on the Law of the Sea

   C. Conclusion

3. THE SECOND PRELIMINARY OBJECTION: THE ADMISSIBILITY OFSOMALIA’S APPLICATION

Paragraphs

1-14 15-30

31-134 36-106 36-50 51-105

106 107-133 134

135-144 145

OPERATIVE PARAGRAPH

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2017
2 February General List No. 161

INTERNATIONAL COURT OF JUSTICE

YEAR 2017

2 February 2017

MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA v. KENYA)

PRELIMINARY OBJECTIONS

Geography  Somalia and Kenya both parties to United Nations Convention on the Law of the Sea  Article 76, paragraph 8, of UNCLOS  Role of Commission on the Limits of the Continental Shelf  Article 4 of Annex II of UNCLOS  Annex I of CLCS Rules of Procedure Commission requires prior consent from all States that are parties to unresolved land or maritime disputes  2009 Memorandum of Understanding (MOU)  History of each Party’s submissionsto CLCS with respect to outer limits of continental shelf beyond 200 nautical miles  Objections by both Parties to CLCS’s consideration of each other’s submissions raised and withdrawn Consideration of Parties’ submissions by CLCS.

*
Jurisdiction based on declarations under Article 36, paragraph 2, of Statute of the Court 

Two objections raised  Jurisdiction and admissibility. *

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Kenya’s first preliminary objection.

Contentions by Kenya  Court lacks jurisdiction as a result of one of Kenya’s reservationsto its optional clause declaration  Disputes in regard to which parties have agreed "to haverecourse to some other method or methods of settlement” excluded from the Court’s jurisdiction MOU is an agreement on such other method of settlement  Relevant provisions of UNCLOS on dispute settlement also amount to agreement on method of settlement.

Analysis by the Court  Legal status of MOU under international law  Signing of MOU and registration with United Nations Secretariat  MOU a written document recording Parties’agreement on certain points governed by international law  Provision addressing entry into force indicative of instrument’s binding character  Somali Minister for National Planning duly authorized as signatory  MOU to enter into force upon signature  No ratification requirement in MOU  MOU is a valid treaty that entered into force upon signature and is binding on Parties under international law.

Interpretation of MOU Rules of interpretation in Articles31 and 32 of Vienna Convention  Ordinary meaning, context and object and purpose to be considered as a whole Role of CLCS in process of delineation of outer limits of continental shelf beyond 200 nautical miles  Distinction between delineation and delimitation.

Title of MOU  Meaning of individual paragraphs  Title and first five paragraphs indicative of a purpose MOU a no-objection agreement enabling CLCS to make recommendations despite existence of a dispute  Whether sixth paragraph of MOU contains agreed dispute settlement method Sixth paragraph relating only to continental shelfDelineation of outer limits of continental shelf beyond 200 nautical miles without prejudice to maritime boundary delimitation  Similarity in language between Article 83, paragraph 1, of UNCLOS and sixth paragraph of MOU  Sixth paragraph did not prevent Parties from engaging in negotiations in good faith to reach agreement  No temporal restriction contained in sixth paragraph in that regard  Sixth paragraph not prescribing a method of dispute settlement Parties did not consider themselves bound to wait for CLCS recommendations before engaging in negotiations  Interpretation confirmed by travaux préparatoires and circumstances in which MOU was concluded Initiative of Special Representative of UN Secretary-General for Somalia  Assistance provided by Norway  Conclusion that MOU not an agreement "to haverecourse to some other method of methods of settlement” within meaning of Kenya’s reservation toits optional clause declaration  Kenya’s reservation not applicable.

Whether Part XV ("Settlement of Disputes”) of UNCLOS amounted to agreement on a method of settlement of maritime boundary dispute within meaning of Kenya’s reservation Structure and provisions of Part XV  Article 282  Ordinary meaning of Article 282

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encompasses agreement to Court’s jurisdiction resulting from optional clause declarations Interpretation confirmed by travaux préparatoires  Procedure before the Court to apply "in lieu”of procedures under Section 2 of Part XV  Part XV does not provide for "other method” of dispute settlement within meaning of Kenya’s reservation  Finding that the Court hasjurisdiction gives effect to intent reflected in Kenya’s declaration  Present case does not, by virtue of Part XV, fall outside scope of Parties’ consent to the Court’s jurisdiction.

Conclusion that neither MOU nor Part XV of UNCLOS within scope of Kenya’s reservationto its optional clause declaration  Kenya’s preliminary objection to jurisdiction rejected.

*Kenya’s second preliminary objection.

Contention by Kenya that Application is inadmissible for two reasons  First argument that under MOU Parties agreed to delimit their boundary by negotiation only after CLCS review of their submissions  Previous finding by the Court that MOU did not contain such agreement Premise of objection rejected  Second argument that Somalia’s withdrawal of consent to CLCSconsideration was in breach of MOU  Invocation of clean hands doctrine  Finding of the Court that admissibility of an application not per se affected by breach of a treaty at issue in a case  No need to address in general question of whether conduct of Applicant might render application inadmissible  Kenya’s preliminary objection to admissibility rejected.

JUDGMENT

Present: President ABRAHAM; Vice-President YUSUF; Judges OWADA, TOMKA, BENNOUNA, CANÇADO TRINDADE, GREENWOOD, XUE, DONOGHUE, GAJA, SEBUTINDE, BHANDARI, ROBINSON, CRAWFORD, GEVORGIAN; Judge ad hoc GUILLAUME;Registrar COUVREUR.

In the case concerning maritime delimitation in the Indian Ocean,

between

the Federal Republic of Somalia,

represented by

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H.E. Mr. Abdusalam Hadliyeh Omer, Minister for Foreign Affairs of the Federal Republic of Somalia,

as Agent;

H.E. Mr. Ali Said Faqi, Ambassador of the Federal Republic of Somalia to the Kingdom of Belgium,

as Co-Agent;

Ms Mona Al-Sharmani, Attorney-at-Law, Senior Legal Adviser to the President of the Federal Republic of Somalia,

as Deputy-Agent;

Mr. Paul S. Reichler, Attorney-at-Law, Foley Hoag LLP, member of the Bars of the United States Supreme Court and the District of Columbia,

Mr. Alain Pellet, Emeritus Professor, University of Paris Ouest, Nanterre-La Défense, former member and former chairman of the International Law Commission, member of the Institut de droit international,

Mr. Philippe Sands, Q.C., Professor of International Law at University College London, Barrister at Matrix Chambers, London,

as Counsel and Advocates;

Mr. Lawrence H. Martin, Attorney-at-Law, Foley Hoag LLP, member of the Bars of the United States Supreme Court, the District of Columbia and the Commonwealth of Massachusetts,

Ms Alina Miron, Professor of International Law at the University of Angers,

Mr. Edward Craven, Barrister at Matrix Chambers, London,

Mr. Nicholas M. Renzler, Attorney-at-Law, Foley Hoag LLP, member of the Bars of the District of Columbia and the State of New York,

as Counsel;
Ms Lea Main-Klingst, Matrix Chambers, London,
as Junior Counsel;
Mr. Mohamed Omar, Senior Adviser to the President of the Federal Republic of Somalia, Mr. Ahmed Ali Dahir, Attorney-General of the Federal Republic of Somalia,

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H.E. Mr. Yusuf Garaad Omar, Ambassador, Permanent Representative of the Federal Republic of Somalia to the United Nations, New York,

Admiral Farah Ahmed Omar, former Admiral of the Somali Navy and Chairman of the Research Institute for Ocean Affairs, Mogadishu,

Mr. Daud Awes, Spokesperson of the President of the Federal Republic of Somalia,
Mr. Abubakar Mohamed Abubakar, Director, Maritime Affairs, Ministry of Foreign Affairs, as Advisers;
Ms Kathryn Kalinowski, Foley Hoag LLP, Washington, DC,
Ms Nancy Lopez, Foley Hoag LLP, Washington, DC,
as Assistants,
and

the Republic of Kenya, represented by

Professor Githu Muigai, E.G.H., S.C., Attorney-General of the Republic of Kenya,

as Agent;

H.E. Ms Rose Makena Muchiri, Ambassador of the Republic of Kenya to the Kingdom of the Netherlands,

as Co-Agent;

Mr. Vaughan Lowe, Q.C., member of the Bar of England and Wales, Emeritus Professor of International Law, University of Oxford, member of the Institut de droit international,

Mr. Payam Akhavan, LL.M. S.J.D. (Harvard), Professor of International Law, McGill University, member of the State Bar of New York and of the Law Society of Upper Canada, member of the Permanent Court of Arbitration,

Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre-La Défense, former member of the International Law Commission,

Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, member of the Bar of England and Wales,

Mr. Karim A. A. Khan, Q.C., member of the Bar of England and Wales, as Counsel and Advocates;

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Ms Amy Sander, member of the Bar of England and Wales,

Ms Philippa Webb, Reader in Public International Law, King’s College, London, member ofthe Bar of England and Wales and of the New York Bar,

Mr. Eirik Bjorge, Junior Research Fellow in Law at the University of Oxford,

as Counsel;

Hon. Senator Amos Wako, Chair of the Senate Standing Committee on Legal Affairs and Human Rights,

Hon. Samuel Chepkonga, Chair of the Parliamentary Committee on Justice and Legal Affairs,

Ms Juster Nkoroi, E.B.S., Head, Kenya International Boundaries Office,

Mr. Michael Guchayo Gikuhi, Director, Kenya International Boundaries Office,

Ms Njeri Wachira, Head, International Law Division, Office of the Attorney-General and Department of Justice,

Ms Stella Munyi, Director, Legal Division, Ministry of Foreign Affairs,

Ms Stella Orina, Deputy Director, Ministry of Foreign Affairs,

Mr. Rotiken Kaitikei, Foreign Service Officer, Ministry of Foreign Affairs,

Ms Pauline Mcharo, Senior Principal State Counsel, Office of the Attorney-General and Department of Justice,

Ms Wanjiku Wakogi, Governance Adviser, Office of the Attorney-General and Department of Justice,

Mr. Samuel Kaumba, State Counsel, Office of the Attorney-General and Department of Justice,

Mr. Hudson Andambi, Ministry of Energy, as Advisers,

THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:

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1. On 28 August 2014, the Government of the Federal Republic of Somalia (hereinafter"Somalia”) filed in the Registry of the Court an Application instituting proceedings against theRepublic of Kenya (hereinafter "Kenya”) concerning a dispute in relation to "the establishment ofthe 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 seeks 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.

2. In accordance with Article 40, paragraph 2, of the Statute of the Court, the Registrar immediately communicated the Application to the Government of Kenya; and, under paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.

3. Since the Court included upon the Bench no judge of Kenyan nationality, Kenya proceeded to exercise its right conferred by Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case; it chose Mr. Gilbert Guillaume.

4. By an Order of 16 October 2014, the President 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.

5. 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. Consequently, by an Order of 9 October 2015, the Court, noting that, by virtue of Article 79, paragraph 5, of the Rules of Court, the proceedings on the merits were suspended, and taking account of Practice Direction V, fixed 5 February 2016 as the time-limit for the presentation by Somalia of a written statement of its observations and submissions on the preliminary objections raised by Kenya. Somalia filed such a statement within the time-limit so prescribed, and the case thus became ready for hearing in respect of the preliminary objections.

6. Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the Registrar addressed to States parties to the United Nations Convention on the Law of the Sea the notifications provided for in Article 63, paragraph 1, of the Statute of the Court. In addition, the Registrar addressed to the European Union, which is also party to that Convention, the notification provided for in Article 43, paragraph 2, of the Rules of Court, as adopted on 29 September 2005, and asked that organization whether or not it intended to furnish observations under that provision. In response, the Director-General of the Legal Service of the European Commission indicated that the European Commission, which represents the European Union, did not intend to submit observations in the case.

For Kenya:

For Somalia:

Mr. Githu Muigai,
Mr. Payam Akhavan,
Mr. Karim A. A. Khan,
Mr. Mathias Forteau,
H.E. Ms Rose Makena Muchiri, Mr. Alan Boyle,
Mr. Vaughan Lowe.

Ms Mona Al-Sharmani, Mr. Alain Pellet,
Mr. Paul S. Reichler, Mr. Philippe Sands.

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7. By a communication dated 21January2016, the Government of the Republic of Colombia, referring to Article 53, paragraph 1, of the Rules of Court, asked to be furnished with copies of the pleadings and documents annexed in the case. Having ascertained the views of the Parties in accordance with that same provision, the Court decided, taking into account the objection raised by one Party, that it would not be appropriate to grant that request. By a letter dated 17 March 2016, the Registrar duly communicated that decision to the Government of Colombia and to the Parties.

8. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and the documents annexed would be made accessible to the public on the opening of the oral proceedings.

9. Public hearings on the preliminary objections raised by Kenya were held from Monday 19 to Friday 23 September 2016, at which the Court heard the oral arguments of:

10. At the hearings, a Member of the Court put questions to the Parties, to which replies were given in writing within the time-limit fixed by the President in accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to Article 72 of the Rules of Court, each of the Parties submitted comments on the written replies provided by the other.

*

11. In the Application, the following claims were presented by Somalia:

"The Court is asked to determine, on the basis of international law, the completecourse of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 [nautical miles].

Somalia further requests the Court to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.”

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12. In the written proceedings on the merits, the following submissions were presented on behalf of the Government of Somalia in its Memorial:

"On the basis of the facts and law set forth in this Memorial, Somalia respectfully requests the Court:

1. To determine the complete course of the maritime boundary between Somalia and Kenya in the Indian Ocean, including in the continental shelf beyond 200 [nautical miles], on the basis of international law.

2. To determine the maritime boundary between Somalia and Kenya in the Indian Ocean on the basis of the following geographical coordinates: