Kenya loses out to Somalia in maritime border arbitration

In a ruling that favoured Somalia’s claim of a border line equidistant to its land border, the court disputed Kenya’s claim that Somalia had historically acquiesced to its border claim.

The court found “…there is no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya that follows the parallel of latitude”, thereby disputing Nairobi’s claim.

Instead, the court, in a ruling read by the court’s president, Judge Joan E. Donoghue (USA), split the disputed maritime region by shifting the equidistance border Somalia claims slightly northwards, splitting the triangle in half.

It argued that the equidistance line would have a cut-off effect on Kenya’s maritime territory. It also declined Somalia’s submissions that Kenya had violated its territorial integrity and international laws in the disputed region.

‘Obvious and inherent bias’

The decision to split the border should have settled the issue, but Kenya had withdrawn from the proceedings in March 2021. It affirmed the decision to withdraw in a letter to the Hague-based court in September, and at a press conference in Nairobi just days before the ruling. It accused the court of “obvious and inherent bias” and said it was unsuitable to resolve the dispute.

At a press conference on 8 October, a top official in Kenya’s Ministry of Foreign Affairs said the 12 October judgement “will have profound security, political, social and economic ramifications in the region and beyond.” One of the major issues Nairobi previously pointed out was that one of the court’s judges, Judge Abdulqawi Ahmed Yusuf, is a Somali. Yusuf served as the ICJ’s vice president from 2015 to 2018, when he was elected its president. His term ended in February 2021, and he voted in the minority in two of the five decisions issued in the ruling.

The court rejected Kenya’s unilateral withdrawal from the case, but it has no way of enforcing its decision. As one of the principal organs of the UN, it instead relies on the United Nations Security Council to do so in case the parties in the dispute don’t do so on their own.

Several permanent members of the UNSC, including the United States and China, have previously ignored the court’s decision. The decision also coincides with Kenya’s tenure as the critical international body’s chair, which might make it harder to implement.

Impact of ruling?

The ruling is unlikely to settle the issue, which was initially worsened by the prospect of oil and other mineral wealth in the disputed region.

In recent years, it has been the most prominent diplomatic issue between the two countries, with both Nairobi and Mogadishu recalling their ambassadors at least twice. It has also affected transport and trade and raised tensions between the two neighbours, informing many of their opposing moves in both regional and international geopolitics.

Although the decision did not give Somalia everything it wanted, it largely agreed with Mogadishu’s claims and has given it a favourable starting point in any escalation, or mediation, over the dispute.

The dispute, and ruling, have geopolitical ramifications, especially given the presence of Kenya’s military in Somalia under AMISOM, and Somalia’s growing relationships with the Gulf States.

Both countries are also currently engaged in pre-election preparations, albeit in different contexts. Territorial disputes tend to make for divisive political platforms, and how the 12 October decision shapes the presidential elections in Somalia and Kenya over the coming year will be interesting to watch.

A step further?

In his 8 October press conference, Kenya’s Permanent Secretary for Foreign Affairs Macharia Kamau referred to the Shifta War, a territorial dispute in the 1960s that played out as a war fought between Kenya’s armed forces and militia groups funded and armed by Mogadishu.

The implication might be that Kenya is willing to go to war with Mogadishu for the rest of the disputed maritime region, or at least use its navy to hold the territory.