Kenya, in a rare geopolitical warfare strategy, withdrew from the Maritime case with Somalia at the International Court of Justice (ICJ), citing several salient legal and political points. The case officially kicked off on 15th of March 2021via a video link. Somalia’s legal team and its political stewards made oral presentations and opening remarks wherein, throughout the particular session used disparaging words against the Republic of Kenya, perhaps to intrigue their excited citizenry. Interestingly, the oral presentations were made in the absence of Kenya, thus the diatribe and underwhelming legal arguments by Somalia. The Court’s exercise of jurisdiction over Kenya in this case is against Kenya’s consent; whereas international law warns the ICJ not to prejudice matters relating to the delimitation of boundaries between the States with opposite or adjacent coasts. However, the ICJ went ahead in dealing with submissions that may prejudice matters relating to the delimitation of boundaries between Somalia and Kenya. These legal and political point’s subsequently nullifies the legitimacy of the ICJ adjudication of the case and makes any ruling null and void.
Risk of Regional Geopolitical & Maritime Conflicts Along the East African Coast.
Throughout its history, Kenya has parlayed its borders and jagged terrain into a deterrent capability and advantage. Maritime security is intrinsically geopolitical. Maritime zones are represented as vital for one’s security, which justifies power projection activities. Geographically, economically and strategically the contested maritime area is ripe for seaborne trade at the new Lamu Port. A Regional conflict will be stoked by the case. Neighboring countries whose maritime boundaries resemble the Kenya-Somalia one are already wary of the ramifications of any alteration of the borderline; thus Kenya’s claim that Somalia is an ungrateful neighbor, motivated by an expansionist agenda. S.I view is that the dispute over this potentially resource‐rich maritime area may also destabilize regional relationships, especially now that major strategic interests are at stake. The disputes also cause significant harm to the political harmony in international relation.
These regional conflicts are rooted in both geopolitics and history. Somalia’s current administration is not only ungrateful and diplomatically inept, but motivated by an expansionist agenda inspired by foreign actors. The countries’ standoff over a continental shelf illustrates Somalia’s ‘proxies’ desire to expand its maritime territorial claims. At the very least, the Kenya has managed to ensure that Somalia cannot legally control the disputed triangle by tactically nullifying the ICJ process and all the rulings made thereafter. Secondly, Kenya has played its hand tactfully. Kenya knows Somalia’s political and military position is weak and will remain so for a long time. Kenya’s military is vastly more powerful and has a fully-fledged Naval Base at Mada Bay in Lamu where the disputed maritime boundary is nearby.
Kenya’s first objective is to prevent the emergence of any rivalry, either at the NEP, the Indian Ocean, or elsewhere that poses a threat on the Republic of Kenya sovereignty and national security as well as regional peace and stability. This is a dominant consideration underlying the new regional security situation and the persistent threat of terrorism. It requires that Nairobi endeavor to prevent any hostile nation, proxy, or neighbor from dominating a region whose resources would, under consolidated control, be sufficient to generate dominance power. Somalia’s claim was likely motivated by the announcement by oil and gas companies that they had discovered some quantities of oil and gas in an offshore bloc which is in waters that Kenya historically claims as its own.
Legal Facts and Somalia’s Bellicose Diplomacy
Legally, Kenya is the rightful owner of the contested area for reasons of historical title. To bring the maritime boundary disputes to the courts or arbitration’s is the last resort that the state parties concerned do in case the disputes could not be settled by agreement. This did not happen since the administration in Mogadishu opted bellicose diplomacy to ensure diplomatic doors remained shut. Today, Kenya and Somalia don’t have diplomatic ties after Somalia cut them based on frivolous claims which in diplomatic lexicon ‘indicate presence of a juvenile executive’ at the helm.
Delimitation of the territorial sea.
Regarding the delimitation of the territorial sea, article 12 of the Geneva Convention states that ” where the coast of the two states are opposite or adjacent to each other, neither of the two states is entitled, failing agreement between them to contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest point on the baselines from which the breadth of territorial sea of each of the two states is measured. The provision of this paragraph shall not apply, however, where it is necessary by reasons of historic title or other special circumstances to delimit the territorial sea of the two states in any way which is in variance with the provision”. The theory of equidistant favors Kenya since the border point is equidistant to both points of the contested area and historically and under special circumstance (*that the area is part of Kenya’s exclusive economic zone), the area belongs to the Republic of Kenya.
Delimitation of the Continental Shelf.
Delimitation of the Continental Shelf, the article 83 of the United Nation Convention establishes that;
(1). The delimitation of the continental shelf between states with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in article 38 of the statute of the International Court of Justice, in order to achieve an equitable solution.
(2). If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provides for in Part XV.
(3). Pending agreement as provided for in paragraph 1, the states concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provision arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangement shall be without prejudice the final delimitation.
(4) Where there is an agreement in force between the states concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.
Somalia and Kenya have not formally achieved an equitable solution. The hostile regime in Mogadishu has hampered efforts to agree within a reason period of time. Severed diplomatic relations have made the possibility obscure until a new regime is in place. Previous agreements considered a neighborly solution to the delimitation of the continental shelf.
Maritime Delimitation by Agreement
The agreement of the delimitation of the maritime boundary is the first step that states concerned are encouraged to make before their cases are brought to the international courts or arbitration’s. Under the contemporary international law, the coastal states are given a suitable period of time to the negotiation of the maritime boundary delimitation.
Summarily, the highlighted; legal, political, diplomatic, military, and geopolitical factors create a picturesque of an impending regional conflict, perhaps in precipitation stage. The Somali claim and the ICJ blind rush to adjudicate over a case that lacks merit is a recipe for a broad regional conflict along the East and South African Coast and in the landlocked East Africa. Land locked countries that depend on the Kenyan and Tanzanian Coasts as gateways are cautiously studying these events and will not hesitate to provide unlimited unconventional support to defeat the tilting of geopolitical scales in the region. These are weighty matters that require the United Nations Security Council (UNSC) critical review. Indeed, such a delicate matter requires speedy diplomatic arbitration to stymie the impeding geopolitical and possible armed maritime conflict. Kenya has the strongest and ably equipped naval capability in the East African Coast, thus will not hesitate to deploy this capability to destroy any Somali or its proxy presence in the contested waters. Kenya has also been very steadfast about its position on the specific maritime and continental shelf area, ‘Nairobi will not cede even an inch” of it. This means, any ruling or claim by any neighbor or court is null and void and that Kenya is ready for war with whoever attempts to raise a flag of occupation in its territorial waters.
