ICJ verdict on maritime border a fresh test for often shaky Kenya-Somalia ties
Sunday October 17 2021
The International Court of Justice on October 12 handed down a decision mostly upholding Somalia’s claims in a long-running maritime border dispute with Kenya.
In this Q&A, Crisis Group expert Meron Elias assesses the potential impact on relations between the two countries.
What is the outcome of the court ruling?
After seven years of bitter wrangling between Kenya and Somalia for control of contested Indian Ocean waters, the International Court of Justice (ICJ) on October 12 issued an eagerly awaited judgment demarcating the two countries’ maritime boundary, ruling mostly in Somalia’s favour.
The main disagreement between the parties had centred on how the maritime border should be drawn. Kenya argued that it should run in a straight latitudinal line from the point on the coast where the countries’ land borders meet.
Somalia contended that the sea border should run southeast, perpendicular to the coast at the point where its land border with Kenya meets the sea.
The resulting disputed triangle amounted to 100,000 square kilometres of maritime space. Much of that territorial sea is believed to contain significant oil and gas deposits as well as rich fisheries.
The judges in the end trod a fine line and gave each party roughly half the disputed territory. The bench unanimously rejected Kenya’s claims that the two sides shared a decades-long understanding of where the maritime border lies.
In setting the new boundary, the court, in a split decision, largely concurred with Somalia’s reasoning as to how the boundary should be delineated.
The court also said it had attempted to “attenuate in a reasonable and mutually balanced way” any effect on Kenya’s access to the sea by granting Nairobi a substantial portion of the disputed territory.
In practical terms, the court meant that the boundary line would extend south-east, but at a reduced angle to the coast as compared to what Mogadishu had originally demanded.
The court meanwhile rejected Mogadishu’s demand for compensation for Nairobi’s historical exploitation of the contested waters, finding that Kenya had not violated its international obligations through its maritime activities in the disputed area.
Kenyan President Uhuru Kenyatta quickly rejected the decision, while Somalia’s President Mohammed Abdullahi “Farmaajo” hailed it as a historic victory.
Why did out-of-court negotiations fail?
Both Kenya and Somalia had agreed as far back as April 2009 to settle the matter through negotiations following a memorandum of understanding they jointly filed with the UN Secretariat, rather than ruling on boundaries themselves.
A senior official who served in Somalia’s Foreign Ministry in that period told Crisis Group that Kenya never took Somalia’s approaches for bilateral talks seriously at the time and that at least three attempts to meet Kenyan officials over the issue failed.
A Kenyan official confirmed this version of events, saying that Kenyan Foreign Ministry officials were “negligent”, underestimating the seriousness of Mogadishu’s demands.
With political talks stalled, Mogadishu pushed ahead with its case at the ICJ, dragging Nairobi reluctantly into proceedings in 2014.
Starting in September 2019, Kenya made repeated representations to the African Union Peace and Security Council, pressing for Somalia to withdraw the case and settle the matter through talks.
Judges in The Hague rejected Kenya’s demands to refer the case back to the African Union. Nairobi contends that the court decision, which it says significantly alters the existing approach that many countries take to delimiting boundaries along lines parallel to the equator, could result in a cascade of similar border disputes along the Indian Ocean coast.
How has the case affected relations between Somalia and Kenya?
The case has increasingly poisoned relations between Somalia and Kenya – especially over the last two years. Ties nosedived in February 2019 when Somalia held a conference in London to gauge interest in the exploration of offshore oil and gas.
Kenya protested strongly, accusing Somalia of auctioning off blocks in the disputed area. Somali authorities denied that the blocks in question were located in the disputed zone.
Meanwhile, Mogadishu contended that Nairobi has been taking advantage of the dysfunction in Somalia since the collapse of the state in 1991 to illegally annex Somali waters.
Amid the legal battle, both sides engaged in an escalatory cycle of tit-for-tat measures. These include a short-lived Kenyan ban on all flights to and from Somalia and a Somali ban on the importation of Kenyan khat, which is an economic mainstay for thousands of farmers in Kenya.
Nairobi has dangled the prospect of recognising Somaliland, whose declaration of independence in 1991 Mogadishu rejects and which no other state recognises. Kenya has also repeatedly threatened to close the Dadaab and Kakuma refugee camps, which are home to hundreds of thousands of Somali refugees.
By the end of December 2020, Kenya and Somalia had suspended diplomatic ties amid accusations from Somali federal officials against Kenya, which has deployed thousands of troops in Somalia as part of the African Union Mission in Somalia (Amisom) to combat al -Shabaab.
These officials claimed that Nairobi was meddling in Somali politics by taking the side of Ahmed Madobe, president of Somalia’s Jubaland state, in his separate dispute with Mogadishu.
In March 2021, Kenya withdrew its legal team from the court’s proceedings in The Hague. Kenya claimed that the ICJ, which until that February had been headed by Judge Abdulqawi Ahmed Yusuf, a Somali national, was biased.
Although diplomatic relations were restored between the countries in May after Qatari mediation, Kenya began hardening its stance again as the ruling approached.
In what was viewed as an effort to ratchet up pressure on Mogadishu, President Kenyatta on September 23 presided over a ceremony upgrading a military station located near the disputed waters into a full naval base.
In an October 8 statement, just prior to the ruling, Kenya denounced the ICJ and what it said was a “flawed” court process. Invoking the memory of Nairobi’s defeat of ethnic Somali rebels who fought to secede from Kenya and join Somalia in the 1960s, a senior Kenyan official also said the country would be as resolute in defending its territorial integrity as it was during that revolt.
After the judgment was announced, positions continued to harden. Kenyatta stated that the court’s judgment would “strain the relations between the two countries”. Leading contenders in Kenya’s forthcoming 2022 elections meanwhile have urged authorities not to cede “an inch of the country”.
While some Kenyan officials told Crisis Group they were surprised by the judges’ efforts to find a middle ground, as they expected the judgment to lean more toward Somalia’s position, they said they would still reject the judgment.
Somalia’s political class is treating the decision as a victory for the country, and many are positioning themselves to reap political dividends.
In recent weeks, all the main contenders have cast themselves as champions of Somali sovereignty facing off against what they portray as the country’s overbearing southern neighbour.
President Farmaajo, in particular, has had poor relations with Nairobi since coming to office and almost certainly will look to the ruling for a political boost as he gears up for the delayed elections in Somalia.
His opponents, including former presidents Hassan Sheikh Mohamud and Sheikh Sharif Ahmed, however, say Farmajo merely benefited from a court case they had set in motion during their respective periods in office and that they deserve more credit.
Strained relations will likely continue to affect efforts by Nairobi and Mogadishu to confront al Shabaab’s lethal insurgency.
Instead of focusing on how to reverse al Shabaab’s control of large swathes of south-central Somalia, including Jubaland, Mogadishu has been sending troops to fight forces allied to Jubaland President Ahmed Madobe.
Madobe partly relies on the Kenyan military to help him secure Jubaland’s capital and main port, Kismayo. Although, as Crisis Group has reported, the drivers of the clash between Mogadishu and Madobe are internal – the former seeks to centralise power and resources while the latter favours greater devolution – tensions between Kenya and Somalia over the maritime dispute could provoke Kenya to double down on military support for Madobe.
How can Nairobi and Mogadishu rebuild ties going forward?
Both sides have a strong interest in repairing relations. Somalia and Kenya are historically, culturally and economically interlinked.
Many citizens of both countries share a common ethnic heritage and the neighbours’ social and trade links have proven deep and enduring. Thousands of Kenyans, particularly teachers and traders, work and live in Somalia.
Tens of thousands of Somalis likewise live in Kenya, including many university students who attend Kenyan colleges.
The repeated ructions between the sides tend to disrupt the lives of scores of ordinary citizens and hinder the wider effort to stabilise Somalia, which will require continued involvement by Kenya (a key Amisom troop contributor) and other neighbours.
Despite strong views on the judgment on both sides, especially in Kenya, all have an interest in de-escalation and greater cooperation.
Thus, while in the short run Nairobi and Mogadishu are likely to exchange more barbed words, a direct armed confrontation over the maritime dispute is unlikely, notwithstanding the sometimes belligerent rhetoric.
Some Somali officials have privately told Crisis Group that Mogadishu may ask a third country to patrol the oceans to counter Kenya’s claims, but that prospect seems remote as Somalia’s allies are likely to press instead for a more amicable settlement.
Along those lines, the most promising way to manage the risk of confrontation would be talks to agree on a mutually acceptable approach to enforcing the judgment.
Qatar, which has good relations with both Kenya and Somalia and as noted above helped mend fences between the two earlier in 2021, has quietly offered to mediate.
Nairobi and Mogadishu should accept this offer and use any talks to establish mechanisms for further dialogue.
Although both sides have repeatedly promised to revive the Somalia-Kenya Joint Commission for Cooperation – a forum bringing together high-level officials from both sides to discuss bilateral ties – they have taken little action on this front. The two neighbours should restart this platform to regularly discuss their many shared interests and smooth over disputes.