Kenya has lost its bid to stop a top UN court from hearing a maritime border dispute case between Nairobi and Mogadishu.
Judges at the International Court of Justice (ICJ) dismissed Kenya’s arguments that there exists an alternative method to resolve the matter which was yet to be exhausted.
In its ruling on Thursday, the ICJ president Ronny Abraham said the agreement signed between Kenya and Somalia did not bind the parties to settle the dispute out of court.
“The question before the Court is whether the parties agreed to a method of delimitation (of the area under dispute) other than the court,” Judge Abraham said, adding that the agreement failed to establish the procedure to settle the matter.
“It does not, however, prescribe a method of settlement," the judge said.
"Consequently, this case does not, by virtue of the MoU, fall out of this Court,” he said, reading the ruling in which only 4 of the 13 judges of the Court dissented.
The ICJ said the pact signed by Kenya’s former Foreign minister Moses Wetang’ula and Somalia’s ex-Minister of Planning and International Cooperation, who is currently running for president, Abdirahman Abdishakur was a valid bilateral agreement.
But the 66 year-old French judge said the document did not require parliamentary approval as had been argued by Mogadishu because the two ministers were authorised representatives of their respective governments.
Led by Attorney-General Githu Muigai, Kenya’s legal team had argued that the ICJ lacked jurisdiction since the two countries had an alternative dispute mechanism.
Kenya said that since it joined the UN in 1965, it had indicated that it would only agree to the ICJ’s general jurisdiction only if there lacked an alternate method to resolve disagreements.
But this was rejected by Court.
“The Court finds that Kenya’s preliminary objection to the Somali case must be rejected. This dispute, does not fall outside Kenya’s scope of optional declarations,” the judge said.
The ruling means that the case will proceed before the Court, giving the Mogadishu its first win in the legal battle that is likely take some years to be settled.
Kenya had maintained that the case was an unnecessary stumbling block to the fledgling relations between the two countries, especially on security cooperation.
But while Somalia acknowledged Nairobi’s support in the fight against the Al Shabaab terrorist group, Ms Mona Al-Sharmani, a senior presidential advisor had told the Court the very existence of the dispute was an unnecessary divergence that needed to be resolved.
Somalia took Kenya to the ICJ in The Hague in August 2014 after six years of negotiations over the ocean boundary proved futile.
The two countries assert ownership of a triangular area of about 100,000 square kilometres of marine territory that is said to have oil and gas deposits in the Indian Ocean.
Somalia, which lies to the north of Kenya, wants the borderline from its coast to run southeast, while Nairobi wants it to run eastwards as it is currently.
In 2009, the two countries signed an MoU that stated that the border would run east along the line of latitude but allowed further negotiations to be held under the UN Commission on the Limits of the Continental Shelf to establish the actual marine boundary.
The pact was deposited with the UN in 2011.
Kenya also argues that the agreement stated that the maritime boundary adjustments would only occur after the commission had established the outer limits of the continental shelf and that both sides would avoid courts as much as possible over the matter.
However, Somalia says Kenya frustrated the talks forcing it to seek the Court’s determination of the border row.
The Court said it will announce a date for the hearing.