The long-awaited decision of the International Court of Justice (ICJ) on the case of the maritime dispute between Kenya and Somalia was handed down last week, largely proving Somalia right. It has been seven long years and Kenya’s repeated assaults on Somalia sovereignty have not swayed the Somali nation’s resolve not to be easily bullied.
Even with all the foreign-funded political turmoil and security threats, the maritime case at the ICJ has made the hearts of the “Somali Five” beat in synchrony and the anticipated victory gave birth to a common breath of satisfaction on the October 12 verdict. But not everything is perfect in the best of all possible worlds and this judgment has proven just that.
A rightly deserved victory
The decision was watched live by the entire Somali nation across the globe and was generally well received by the public, the government and the opposition. The jubilation was evident on social media and on public and private media. The president, Mohamed Abdullahi Farmajo, who a few hours before the ICJ’s decision had attended a ceremony commemorating the Somali Flag Day, delivered a very remarkable speech in the evening celebrating the judgment on the sea case.
In his speech, the President thanked the parties who made this successful outcome possible. Among the politicians, experts and lawyers who participated in the maritime dispute case, he did not forget to mention his most ardent political opponent and former President Hassan Sheikh Mahamoud to whom he attributed the decision to bring the case before the International Court.
Some may find it opportunistic that a president, who is considering running for a second term, hails this decision as a victory. This is true, however, as Kenya and its international partners viewed President Farmajo as a major obstacle to a negotiated solution, an option Kenyan leaders refused before the Hassan Sheikh administration took the matter to court in 2014.
Since the ICJ ruled in 2017 that it had jurisdiction over the claim, Farmajo, aware of Kenya’s deceptive tactics, has resisted the stay of proceedings and the negotiation of the Somali Sea. As a result, he was subjected to diplomatic, political, economic and military pressure to settle the matter out-of-court. His administration was also the target of a smear campaign and violent elements within the opposition who fought tirelessly to remove him from office.
President Farmajo speech following ICJ decision – Mogadishu, Oct. 12, 2021
The opposition jumps on the bandwagon
For their part, the opposition did not hesitate to seize the opportunity and celebrate this “victory” in their own way. At a party organized for the celebration, the most prominent members of this opposition in Mogadishu, one by one, spoke casually about the maritime issue. The irony was not lost on the public, however, when one thinks back to the fact that some members of this current opposition created the problem in the first place by signing the Memorandum of Understanding (MOU) that sparked the dispute between Kenya and Somalia.
The public has also witnessed a blame game between former President Ahmed Sharif, former Signatory Minister Abdirahman Abdishakur and former Prime Minister Omar Abdirashid Sharmarke who is not in Somalia. Mr. Sharif insisted that he was not aware of the MOU until Mr. Abdishakur notified him before signing the document but told him anyway to go ahead and sign as instructed by the Prime Minister. Mr. Abdishakur, on his part, said he feared for his post if he didn’t comply and chose to engage his country in a “dispute”. So far, Mr. Sharmarke partly denies the facts against him and his central role in the scandal.
Still, many people were involved in this scandal that stained the fragile transitional government. Since ridicule does not kill, the same culprits wash their hands saying that without the MOU, this “fortunate” decision of the Court would not have happened. Of course, no one is fooled and the public is demanding a parliamentary commission of inquiry to get to the bottom of this affair which has undermined Somali politics and soured relations with Kenya since 2009.
The next day’s disillusion
This is not the end of the case, however, as the Court has allocated part of the Somali Sea to Kenya. In the clamor of the celebration and the fact that the exact data of the allocated areas was not yet published in the media and analyzed by experts, most people had not paid too much attention to what Kenya had obtained from the Court.
Two days after the verdict, the public euphoria, self-congratulation and the effects of victory having passed, with the figures and expertise which emerge, the Somalis awoke with the bitter reality that they have lost what was theirs according to international maritime conventions. Many have even gone so far as to claim that they have been swindled from part of their Exclusive Economic Zone (EEZ) due to judges’ bias.
President Farmajo welcomed the Somali delegation at the ICJ – Mogadishu
A controversial judgment
The basis of Somalia’s request was the delimitation of the maritime border with Kenya along the median or equidistance line as endorsed by international maritime conventions. The Kenyan side, for its part, claimed a parallel of latitude as in its agreement with Tanzania, its neighbor to the south, in 2009. The Court in principle supported Somalia’s legalistic argument, which was in line with the UN Convention on the Law of the Sea (UNCLOS) and the Commission on the Limits of the Continental Shelf (CLCS).
However, according to Paul Reichler, one of the lawyers representing Somalia, interviewed by VOA, the Court also took a controversial decision which will set a precedent by diverging from its previous decisions. The French judge, Ronny Abraham, is of the opinion that, in its search for a solution based on equity, the Court shifted northward the equidistance line between Somalia and Kenya by a proportion of approximately one third of the distance that separates this line from the parallel claimed by Kenya, without valid legal basis.
For the Somali judge, Abdulqawi Yusuf, the equidistance line, the default tool used for delimitation under UNCLOS, can only be adjusted for fairness if there are relevant circumstances like “unusual maritime features” (i.e. concavity) which are not present in this case. in his legal opinion, the judge, apparently annoyed by his colleagues deviation from the orthodox thinking, also questioned the selection of base points for the construction of an equidistance line.
According to the French judge, Somalia is “deprived of part of its maritime rights for a cause which should normally only be relevant in the context of the delimitation of the maritime border between two other states”, namely Kenya and Tanzania. Also, similar discomfort and incomprehension with the permissiveness of the majority to rewrite international rules and in complete disagreement with their previous court rulings were felt by the minority judges.
For Somalia, Justice lost
When Somalia asked the ICJ to intervene, it was expected that the institution would deliver an unequivocal judgment in accordance with existing international conventions, particularly Article 15, 74 & 83 of UNCLOS, which the majority of judges failed to uphold.
It is all the more shocking that most of the offshore blocks with verified oil content have curiously been awarded to Kenya. Is it possible that an effort by the Court was made to transfer these resources to Kenya’s side? If so, and more details will be available soon, Somalia would be legally stripped of its rights to its resources.
Other serious developments are that, until 2017, Kenya argued unsuccessfully that the court had no jurisdiction over the maritime dispute. Their lawyers then postponed the hearings three times for unconvincing reasons. And finally, on March 2021, when the Kenyan side was at the end of its argument, it decided to withdraw, saying that it did not believe in the impartiality of the court. From the outset, Kenya knew that its claim to the Somali Sea had no legal basis but was taking advantage of Somalia’s weak situation to impose its demands.
Even with that, the court “rewarded” Kenya. It doesn’t make sense to go out of court and win something anyway. Has Kenya instead chosen to deploy its diplomacy with the countries where the judges come from or rather to let the oil companies jostling in this region to lobby?
Sea border delimitation beyond 200 nm – Source: ICJ
Kenya won more territory
A win-win outcome for Kenya remains a loss to Somalia. It is understood, however, that as a good negotiator, the Kenyan government, which has won more than its due, would feign to be unhappy and would publicly declare its rejection of the Court’s decision. The Somali government, meanwhile, said it was satisfied with the ICJ’s decision as it has left its fate in the hands of the judges for lack of options against a more powerful Kenya. Somalia hopes to turn a page, lower the antagonism over the Kenyan claim and work towards a good neighborly relationship, as President Farmajo pointed out in his speech.
One can notice a clear bias in favor of Kenya which is not based on strict rights but on rather questionable considerations, an oddity in these kinds of deliberations. Did national interests play a role in the ICJ’s decision? There is a strong likelihood towards this assertion. For example, China expects that its multibillion-dollar investments in Kenya (i.e. the Lamu and Mombasa ports) will not be affected by a closure of Kenya’s access to the sea. Thus, the Chinese judge’s fixation on the “cut-off effect”.
Other countries, whose judges have adopted radical approaches in their judgment, also have strong interests in the region. We’ll take a look at these countries in a future article. National bias and its scale have undoubtedly overshadowed this ICJ decision which will be debated for years to come.
For Abdulqawi Yusuf, this “arbitrary refashioning of geography to achieve preconceived results does not only distort the concept of relevant circumstances in the usual methodology of the Court for maritime delimitation in the EEZ and continental shelf, but it clearly contradicts its jurisprudence.”
As this decision cannot be appealed, Somalia should eventually seek other means to recover the part of the sea that was offered to Kenya as a “consolation” Kenya as a “consolation” and the “grey area” created at the confluence of the “adjusted” arbitrary lines. It should be understood, in light of the area given to Kenya, that the oil deposits are indeed there.
Somali delegation sent to The Hague to hear the ICJ verdict is greeted as heroes in Mogadishu
As a conclusion
In 2014, Somalia didn’t have the means to stand up to a much more stable Kenya, with more friends in the region and counting among its partners giants such as China, the United States and the United Kingdom, who had interests to protect in the region. For that reason, it had no choice but to rely on the International Court of Justice, a body where these friends of Kenya are also well represented.
Now, the Somali government expects Kenya to wind down its political meddling now it’s finish. However, Kenya has signified it won’t abide by the ICJ decision and will continue its usual cross-border sorties. Since a full scale war is not on Kenya’s agenda, they will continue with their sneaky behavior of undermining Somalia’s sovereignty and fueling unrest.
In short, now that this chapter of the maritime conflict before the Court seems closed, and many Somalis feeling aggrieved, a nationalist wind is blowing. Some remember the bitterness felt after the Arusha Accord which recognized the Somali territory of the Northern Frontier District (NFD) as part of Kenya in 1967. The accord, felt as a surrender, unsettled the founding fathers of an independent and united Somalia.
Similarly, this ICJ decision is perceived as a setback by younger generations who until now didn’t have irredentist thoughts and any additional claims by Kenyan adventurists risk creating a snowball effect with unforeseen consequences for the region.
