In anticipation of a less-than-favourable ruling on its territorial dispute with Somalia by the International Court of Justice (ICJ), Kenya recently announced its decision to withdraw from the jurisdiction of the universal arbiter. Nairobi said its decision would have no impact on whatever the ICJ decided in the case but it still communicated the same message: that Kenya was not happy with the anticipated decision by the court.
The ICJ avoided a winner-take-all scenario, choosing to draw a new maritime border in which Somalia and Kenya got something. But that “compromise” is unlikely to make any of the parties happy.
One could argue that the ICJ’s failure was in not creating absolute winners and losers. In that, the court risks leaving all parties to the transboundary dispute angry. Be that as it may, both Kenya and Somalia need to look at the bigger picture. It is safe to assume that when they took the dispute for arbitration in the first place, their desire was for peace and peaceful co-existence.
Peaceful co-existence in the modern world means subservience to multitudes of international laws that sub-judicate national sovereignty to international rules. That is unless you belong to the club of the powerful nuclear powers, who between them pretty much determine how the affairs of the world are run.
In the Kenya-Somalia case, both countries were operating under linear assumptions that fitted their ambitions. The other reality is that enforcing their claims would mean diverting a significant portion of their budgets to enforcing a maritime boundary whose intrinsic value is at best speculative. The only winners in such a scenario would be transnational criminal groups who would tempt both parties into unholy alliances that can only perpetrate conflict.
Fortunately, history is full of examples in which former adversaries have put their differences aside to forge lasting alliances. The 1784 Jay’s Treaty between the United Kingdom and the United States could offer valuable insights. After the US’s war of independence, many issues remained unresolved between the new state and the former colonial master. Many of these resolved around trade, where the UK asserted itself, accessing the US market but not granting the US reciprocity. Using its naval power, the UK even imposed spheres of influence such as in the West Indies, where the US could not freely access markets.
Jay’s Treaty did not meet the expectation of the American public and remained unpopular. But it somehow survived legislative endorsement. One thing it did achieve, though, and whose legacy stands to date, is maintaining peace between the two former adversaries.
Assuming that the preservation of peace was the primary motivator for them to seek ICJ arbitration, Kenya and Somalia now need to look beyond the recent judgment and focus on the possibilities that peaceful coexistence can bring for their citizens.
Both countries should look at their obligations under international charters, to which they are signatories, to pull back from the brink. A conflagration between them will cost the blood and life and men but will ultimately end up under some form of international settlement mechanism. It would be selfish on the part of leaders on either side to put men in harm’s way for something that can be resolved by less costly means.