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Hearings began Monday at the International Court of Justice over a maritime boundary dispute between neighbors Kenya and Somalia. However, Kenya refused to participate in the oral proceedings and the court will only consider the written evidence provided by Nairobi.
“The tribunal regrets Kenya’s decision not to participate in the oral proceedings,” said ICJ Presiding Judge Joan Donoghue in The Hague.
The dispute centers on the maritime borders between the two neighbors of the Horn of Africa, with some 100,000 square kilometers in dispute, roughly the size of Iceland.
Lawyers acting for the Kenyan government blamed the difficult preparation of the case, which Somalia filed with the ICJ in 2014, and expressed concerns over the use of the video link.
The court decided to hold hybrid hearings, allowing four representatives from each party to appear in the courtroom, given the Covid-19 pandemic, and denied requests to further delay the case.
Kenyan authorities have submitted a 175-page “position paper” for consideration ahead of Monday’s hearing and have requested permission to address the court before the proceedings begin. The judges rejected these requests.
Profitable oil and gas rights
Somalia claims a maritime boundary equidistant from or on a median line of the corresponding land boundary, while Kenya claims a parallel line of latitude extending from the land boundary.
Kenya proclaimed this border in a 1979 decree from former President Daniel Arop Moi, claiming fishing rights over natural resources derived from the water, seabed or subsoil.
A ruling on the disagreement could help determine the rights to exploit oil and gas resources in the region, with Kenya having authorized blocks in the disputed maritime area, and the Somali government following suit, licensing those same blocks. .
“Oil companies cannot predict what the end result of the border will be,” said Constantinos Yiallourides, a maritime border expert at the University of Aberdeen.
“The dispute may in fact lead to a change of jurisdiction in which case their exploration and exploitation will not be guaranteed,” Yiallourides added.
Somalia’s lawyers argued that the country was previously unable to oppose the disputed area due to instability and the “near total disintegration” of the state caused by years of war. civil.
Delimitation
Kenya and Somalia are both signatories to the United Nations Convention on the Law of the Sea (UNCLOS) and if they do not reach a negotiated settlement, a third party such as the ICJ can proceed to demarcate the borders. , to decide on the location of the maritime boundary. .
Maritime borders are made up of different elements, which can often make such disputes difficult, especially when it comes to oil and gas concessions.
“This is a very complicated question, we are talking about both the territorial sea and the limits of the continental shelf within 200 nautical miles and beyond,” said Kai-Chieh Chan, researcher at the University of Paris II Panthéon-Assas, who wrote on the matter to the ICJ.
Since a negotiated settlement now seems impossible, it is likely that the ICJ will carry out the delineation exercise. There isn’t a single procedure for this, but past cases have helped establish specific procedures and approaches, according to Yiallourides.
“Courts and tribunals will try to maintain consistency with existing case law,” said Yiallourides, researcher in sea law at the British Institute of International and Comparative Law.
The tribunal will apply a number of steps, including identifying the exact nature of the overlapping claims, determining any pre-existing agreements and achieving a delineation.
Parallel or equidistant?
In the Kenya-Somalia dispute, a decision on the delimitation will eventually fall if a median or equidistant border or a parallel line is more just.
“That’s the million dollar question,” Yiallourides said, explaining that a number of different factors will be taken into consideration by the judges.
All other things being equal, a center line, as claimed by Somalia, is the default tool used for delineation under UNCLOS.
“The article basically says that the delimitation or delimitation is based on a center line or the equidistant line, but that line can be changed if there are special circumstances justifying such a change,” Chan said.
Yiallourides said the court is “free to apply a different method” if it sees fit, and in some cases an equidistant line has been ruled out. Although equidistant delineation has become the standard approach, such an approach “seems possible and recommended”, he added.
The delimitation will nevertheless be adjusted for reasons of equity, taking into account the relevant circumstances, as well as the proportionality, according to which the marine space is allocated in an equitable manner.
“It may be that the middle line, it could be drawn in a way that is unfair to one party, so fairness is a factor,” Chan said.
Special circumstances
All the explicit or implicit agreements made between the two countries, as well as the fishing practices and the boundaries of the colonial era are all aspects that could be taken into consideration.
In addition, the oil and gas concessions offered by both Kenya and Somalia could actually have an impact on the decision, according to Yiallourides.
“Any activity which could result in a permanent modification of the seabed, that is to say the drilling of wells, the installation of installations and the appropriation of petroleum, would be contrary to the provisions of the UNCLOS, and therefore a internationally wrongful act, ”Yiallourides said.
Even the granting of petroleum licenses could be seen as a step endangering a final agreement, violating the principle that states must exercise restraint while a dispute is resolved.
The ICJ hearings were scheduled to continue through Friday with Kenya’s oral argument and a second round of argument on March 22-24. Although Kenya’s lack of participation is likely to change that.
The judgments of the ICJ are final and cannot be appealed, however, in reality, the decisions are difficult to enforce.
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