Kenya says Somalia jumped the gun when it filed a case before International Court of Justice, in spite of signing an agreement to resolve the matter through diplomatic channels.
In the ongoing initial submissions presented to the Court on Monday, Kenya’s Attorney-General Githu Muigai said there exists a valid agreement with Somalia on how to resolve a maritime boundary dispute between the two countries specifically through negotiations.
But Kenya’s lawyer Karim Khan accused Mogadishu of “changing” the substance of the case after they realised the 2009 agreement between the two is valid despite Somalia’s insistence that it didn’t ratify it.
“A treaty cannot be declared null and void just because one of the signatories has violated its own internal laws,” Mr Khan argued.
He was referring to a previous similar case between Senegal and Guinea Bissau when judges agreed that validity of a signed agreement between states cannot be negated if one fails to follow internal procedures relating to adopting it.
In Kenya’s preliminary objections, Nairobi told the court that Somalia rushed to block a chosen path to resolve the dispute through the UN Commission on the Limits of Continental Shelf (CLCS), despite both sides agreeing to wait for its recommendations.
In 2009, Kenya and Somalia reached the deal, which was then deposited to the UN in 2011.
The agreement had stated that the border would run east along the line of latitude although further negotiations were to be held through the UN CLCS.
This agreement also stated that maritime boundary adjustments would only occur after the commission had established the outer limits of shelf and that both sides would avoid courts as much as possible over the matter.
But Somalia, first rejected the MoU claiming its parliament had rejected it, then wrote to the UN to object to Kenya’s submissions about how the boundary should run a week before filing the case in July 2014.
Somalia went ahead to claim that in fact, the agreement signed between then Kenya’s Foreign Affairs Minister Moses Wetang’ula and then Somalia Planning Minister Abdirahman Warsame was drafted entirely by Kenyan officials.
Mr Khan accused Somalia of filing an inaccurate report to the court, charging that negotiations leading to the MoU had involved a renowned Norwegian diplomat hired by Mogadishu as a legal adviser on the matter, as well as a Somali legal official.
In fact, the Kenyan legal team accused Somalia of introducing the excuse of parliament yet there had been no notice of the same during and immediately after the MoU was signed.
“There is no record of any such thing…it is remarkable that Somalia’s memorial reproduced every paragraph…except that provision. Somalia did not communicate that there was a legal requirement for ratification by parliament,” Mr Khan argued.
The Kenyan lawyers said the MoU with Somalia listed the specific area of the boundary to be resolved and that it was clear that parties had agreed not to use litigation.
“This means that the parties have agreed to resolve the matter through negotiations and not through recourse to the courts,” French lawyer Prof Mathias Forteau argued.
The area in contest is about 100,000 square kilometres, forming a triangle east of the Kenya coast.
In Kenya’s situation, it means Somalia wants the boundary to extend diagonally to the south at Kiunga into the sea, and not eastwards as it is today. But that may also affect Kenya’s sea border with Tanzania.
Somalia is basing its arguments on Articles 15, 74 and 83 of the 1982 United Nations Convention on the Law of the Sea, which both countries ratified in 1989.
The cited articles state that where two states share coasts adjacent or opposite each other, neither state should extend territorial boundaries beyond the median line “every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured” except where there is an agreement to do so.
Kenya is fronting prominent international lawyers who include Britons Vaughan Lowe QC and Prof Alan Boyle, Ms Amy Sanders and Mr Karim A. Khan QC as well as Prof Mathias Forteau from France.