ICJ judgment creates tough decisions for future relations of Kenya and Somalia
Saturday October 16 2021
The decision on the dispute over the maritime boundary between Somalia and Kenya in the Indian Ocean, which was handed down on October 12 by a 14-bench of the International Court of Justice sitting in The Hague, is still reverberating.
While Somalia is jubilant of its “victory,” Kenya has disparaged the decision and questioned the court’s impartiality and jurisdiction. It has also accused the Court of being compromised.
The reaction was expected in view of Kenya’s actions since losing the petition — challenging the Court’s jurisdiction, accusing it of partiality, and refusing to make oral submissions. Since Somalia filed the case in August 2014, there have been indications that Kenya would disagree with a judgment that did not award it the contested area.
Kenya’s reaction is being closely watched, as President Uhuru Kenyatta’s government is under internal political pressure to disrespect the judgment and use force, if necessary, to retain the claimed maritime territory.
President Kenyatta is completing his last term in office, and he does not want history to judge him as the leader who lost Kenya’s territory to a neighbouring state. Kenyans recall his father Jomo Kenyatta, the founding president, vowing to “never cede an inch of Kenya” and calling on citizens “to defend its territory with the last drop of blood in their bodies”.
Kenya’s reaction is also being closely examined by the other neighbours it has territorial disputes with.
Questions are also being asked if its status as an influential player in the Horn of Africa has been dented. The country is a member of the African Union Peace and Security Council, and holds the presidency of the UN Security Council for October. Will its rejection of a decision made by a body mandated to peacefully resolve international disputes undermine its membership and leadership in these bodies?
As an AU and UN member, Kenya is expressly prohibited from settling disputes in ways that endanger international peace and security and to “use force or threaten to use force”.
The case has been heavily politicised in Somalia, particularly by President Mohamed Abdullahi Farmaajo, who is using the judgment for political gain.
Soiling relations with Kenya is not in Somalia’s best interests. The two countries need to sit down and engage in cordial talks to implement the judgment.
Creating a boundary requires joint action on delimitation, surveying and mapping. A boundary is only complete when a treaty is signed after diplomatic and technical actions. There must be amiability between the two countries, especially when the disputed area contains natural resources that can only be jointly managed and exploited. If relations with Kenya are not cordial, it will be difficult for Somalia to benefit fully from the ruling.
The actions of Somalia, since the verdict was pronounced in its favour, will determine how Kenyans react in the days ahead, particularly how Kenyan Somalis and Somali nationals residing in the country are treated.
Kenya is host to thousands of Somali refugees, and has troops serving in Somalia under Amisom. So far, Kenyans have behaved admirably.
Even if Kenya accepts the judgment, its compliance is a complex process that requires the international commitments to be domesticated. Kenya would need to incorporate the judgment into its national laws. Parliament will have the choice to accept or reject the idea, and the acceptance of the decision by President Kenyatta could be politicised as the country gears towards the August 2022 general election.
The political co-operation between President Kenyatta and opposition leader Raila Odinga, who is a likely contender in the forthcoming presidential election, could be fractured if he takes a different position from the country’s leader.
President Kenyatta’s estranged deputy, William Ruto, could exploit their position by portraying the two as unpatriotic leaders who have betrayed the nation. His supporters could even attempt to impeach President Kenyatta.
Mr Ruto could whip up national emotions, and even turn the matter into a campaign issue, by promising to reclaim the “lost territory”.
Whoever is elected in 2022 will be handed a poisoned chalice. Even though the ICJ lacks the capability to enforce its own judgments, they are enforceable through the UN Security Council that is empowered to ensure compliance. Legally, Kenya is obligated under Article 2 of the UN Charter to respect international laws and obligations.
Being a signatory to the ICJ Statute and UN Charter, Kenya has adopted these legal instruments and domesticated them in its national laws. Article 2 of the Kenyan Constitution certifies “general rules of international law” as “part of the law of Kenya” but also domesticates “any treaty or convention ratified by Kenya”.
The Court’s judgment proves that going to The Hague should be the last resort to address border disputes, as it does not guarantee positive outcomes, nor decisively end border conflicts.
No war has ever broken out after an ICJ decision over a boundary dispute ruling. Although these two countries have deep historical, cultural and economic ties, state relations have strained and recently turned hostile.
Mogadishu has in the past encouraged irredentist tendencies in the pre-dominantly Somali northeastern region of Kenya, and most recently its national security has been threatened by terror groups domiciled in Somalia. As a result Kenya, for the first time in its history, has deployed troops into its neighbour’s territory to protect its national interests.
Kenya’s continued military presence in Somalia may be reconsidered if war cries increase and the troops become targets of resurgence Somali nationalism.
It is a tough call for President Kenyatta to make, as an immediate withdrawal could be interpreted as surrender to Somalia and continued presence could expose those troops to terrorist attacks and spur a Kenya military surge in Somalia.
In case of war
If war were break out, the AU and the UN would be sucked in to maintain peace and security under their respective charters. In this eventuality, the UN Security Council would apply Article 94(2) of the Charter, which requires UN members to respect ICJ decisions. Both sides would have to sit down and agree on the methodology and timelines for implementing the ICJ judgment.
Those watching Kenya’s reaction in the international arena are monitoring if it will also threaten to withdraw its membership from the UN and the AU if they side with the ICJ on this matter.
So, what lies ahead?
The withdrawal of the “compulsory jurisdiction” on September 24 will not have any impact on Kenya’s obligation to comply with the judgment.
Under President Donald Trump, the US withdrew the optional protocol to prevent the ICJ from hearing a case that Iran filed against it. Although Kenya’s reaction to the judgment was expected, it is unlikely it will avoid complying with it.
First, the withdrawal is being made after the case has been heard and decided. Why did Kenya wait this long to arrive at this decision?
Second, Kenya had already made reservations to Article 36(2) of the Statute that gives the ICJ “compulsory jurisdiction”.
In the reservation submitted by the then Foreign Minister Joseph Murumbi, on April 19, 1965, Kenya laid down five conditions under which it could be taken to court under a special agreement. These included 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. This reservation was never amended to exclude the ICJ from hearing disputes under the United Nations Convention on the Law of the Sea.
In rejecting Kenya’s petition to deny it jurisdiction in hearing the case, the Court pointed out that the country had failed to apply “other methods” to settle the dispute. Kenya did not present any minutes of meetings, venues, dates, and list of members of negotiating delegations.
When Kenya started engaging Somalia on this matter in 2009, it should have invoked this clause by stipulating “methods” other than the ICJ to settle this matter. Is it possible that diplomats and other members of the Kenyan team that “negotiated” the MoU and its implementation lacked this knowledge? When the Court overruled Kenya on this matter, why did it continue with the case by filing its defence (counter-memorial) instead of putting in place measures to justify settling the dispute outside the ICJ?
The Court also pointed out how Kenya messed up by undertaking simultaneous processes. The 2009 MoU allowed Kenya and Somalia to complete delineating their continental shelves despite having a boundary dispute. It stipulated that settling the dispute could wait for completion of the former.
When Somalia insisted on determining the maritime boundary, Kenya could have done several things.
First, it could have deferred to the relevant MoU clause.
Second, it could have agreed with Somalia to sign a commitment to only engage in talks over the boundary after diplomatic negotiations have failed, and to only take the matter to international arbitration as a last resort, as per its 1965 reservation.
But Somalia took advantage of the disarray and presence of its national on the ICJ bench to lay the foundation for the matter to end up in The Hague. Somalia calculated that pursuing the case through diplomatic means could drag on for years, past the tenure of its national on the Court.
But did Judge Abdulqawi Yusuf give Somalia an advantage over Kenya? Mr Yusuf is a highly respected international jurist and legal scholar who joined the bench in February 2009 for a nine-year term that was renewed in 2018. Kenya argued that Justice Yusuf should have recused himself, “given his past exposure, on behalf of Somalia, to the issues in this case”.
However, Kenya did not present convincing evidence to prove that Mr Yusuf had violated Articles 16 and 17 of the ICJ Statute. Additionally, Kenya could not prove that he had previously acted as Somalia’s “agent, counsel, or advocate” in the case or served previously “as agent, counsel, or advocate” for Somalia in an international judicial proceeding.
When the case commenced in 2016, Kenya exercised its right under Article 31 of the ICJ Statute to choose a judge ad hoc to counterbalance Mr Yusuf who was allowed under the same Article to hear the case despite his nationality. Accordingly, Kenya chose Gilbert Guillaume, a French jurist with a sterling record of serving as judge of the ICJ between 1987 and 2005, as its president from 2000 to 2003, and a judge ad hoc in 10 cases.
A review of the voting pattern of the judges in the case reveal that Mr Yusuf dissented on all the rulings that favoured Kenya while Mr Guillaume voted with the majority. Despite voting in a pattern that favoured Somalia, the overall judgment allays fears that Mr Yusuf influenced it in its favour. It also proves that influencing the bench is highly unlikely given the moral and judicial stature of its judges.
Final and binding
The Court’s verdict is final. According to Article 59 of the ICJ Statute, the decision of the Court is binding “between the parties and in respect of that particular case”. Article 60 states further that the Court’s “judgment is final and without appeal”.
However, the parties can seek the Court’s interpretation of the judgment and a party can apply for a “revision of a judgment” if it discovers “some facts of such a nature as to be a decisive factor” which was “unknown to the Court” when the “judgment was given”, and so long as “the party claiming revision” proves that “such ignorance was not due to negligence.”
Kenya has up to October 12, 2031 to pursue this route and to make the application “within six months of the discovery of new facts”. Kenya is expected to use this window to present evidence pointing to the Court’s partiality and how it was compromised.
This matter is now moving into its most difficult stage: the implementation phase. If Kenya does not use force to claim the disputed area, changes its mind and complies, the two countries will have to set up a mechanism for delimiting their maritime boundary and signing a treaty.
In negotiating the treaty, the two sides must address how fishermen’s rights will be guaranteed, how the maritime space will be secured and protected, and how resources straddling the boundary will be jointly managed and utilised for the mutual benefit of the two countries.
Since making this boundary is a joint effort, it can only take place if there is enormous goodwill, enabling political environments in both countries and supportive leadership in both capitals.
Lessons for African countries
This case provides several useful lessons for other African countries to use in addressing similar disputes.
First, the continent needs African-designed mechanisms that guarantee win-win outcomes.
Second, African countries should only use international tribunals as a last resort for settling such disputes. Third, African countries should build their capacities to negotiate such disputes and draft treaties that protect their interests.
Fourth, African countries should respect treaties they enter into and desist from walking away from multilateral organisations that make decisions they disagree with. Fifth, war or force should never be contemplated, leave alone used, to settle a border dispute.
And lastly, as American poet Robert Frost once averred, good fences make good neighbours. By establishing this maritime boundary, Kenya-Somalia relations will be greatly enhanced.
Prof Wafula Okumu is the Executive Director of The Borders Institute and Brian Mukhwana is the legal researcher at the same institute.