Wednesday October 13, 2021
Mogadishu (HOL) - Diplomatic relations between Kenya and Somalia do not appear to be easing up after the ICJ rendered a verdict that many have viewed as a victory for Mogadishu.
The maritime area under dispute covered 62,000 sq miles (160,000 sq km) in the Indian Ocean, which speculators believe is rich in oil and gas reserves.
The presiding judge, Joan Donoghue, the revised maritime border "achieves an equitable solution."
The court dismissed many of Kenya's claims regarding its maritime boundary with Kenya, specifically that Kenya already reached a tacit agreement with Somalia that its boundary ran along a parallel of latitude. It also dismissed Kenya's suggestions to adjust the border due to pressing security, fishing and oil-related needs.
The ICJ did, however, consider Kenya's claim that an equidistance line, as suggested by Somalia, would cut off its coastal projections. Dr. Massimo Lando, a maritime boundary expert and Assistant Professor of Law at the City University of Hong Kong, said that he found it interesting that the ICJ accepted that an equidistance line cut off Kenya's coastal projections by considering the coast of Tanzania.
Lando noted that the international court has rarely considered the coastal boundaries of non-parties in its rulings and that the decision was at odds with existing international case law. He said the only exception was in the 1985 case between Guinea v. Guinea-Bissau.
"This decision is wholly inconsistent with earlier decisions, where international tribunals limited their analyses to the parties' coasts."
Somalia has handed international recognition of a lions-share of the disputed territory, and the decision was well-received by Somalia's leaders and the general public. Officials were so confident that they organized a viewing party for the Prime Minister, cabinet members and prominent Somalis.
The court rejected Somalia's request for reparations, finding that Kenya did not violate its sovereignty in its maritime activities.
Tribute messages were released by former President Hassan Sheikh Mohamud, who initiated court proceedings against Kenya, and Somalia's President, Mohamed Farmajo, addressed the nation in a televised speech where he blasted Kenya for years of meddling and interference.
"Ever since I was elected as your president, we have faced multiple political, security, financial and diplomatic challenges. These were attempts by the Kenyan leadership to divert the Somali people and their government from their decision to deliberate this case only at the International Court of Justice (ICJ)."
President Farmajo called on Kenyatta to accept the verdict and abide by its ruling.
As expected, the ruling - which is final - was immediately rejected by Kenya. Speaking from Washington ahead of meeting with US President Joe Biden, Kenyan President Uhuru Kenyatta aid that the international court's verdict was an affront to Kenya's sovereignty.
"At the outset, Kenya wishes to indicate that it rejects in totality and does not recognize the findings in the decision. The decision perpetuates the ICJ's jurisdictional overreach and raises a fundamental question on the respect of sovereignty and consent of international judicial processes. International tribunals have jurisdiction only to the extent of consent by a state," a statement ascribed to President Uhuru Kenyatta said hours after the ruling.
Kenyatta vowed to ignore the ruling and said warned it would not help relations with Somalia. Kenya has been unreserved in their preference for an out-out-court settlement, likely recognizing the futility of their case.
"This decision is, in the circumstances, a zero-sum game which will strain the relations between the two countries. It will also reverse the social, political, and economic gains."
Analysts wonder how the US will receive the message, which sees Kenya as a crucial ally in their anti-terror campaigns but has also preached for a 'rules-based order' as the backbone of their foreign policy doctrine to confront Russia and China.
The US and China have both openly flouted the ICJ's decisions in the past.
For several years the case made its way through the Peace Palace in the Hague, relations between Somalia and Kenya steadily deteriorated. Somali authorities have pointed to Kenyan provocations - such as threatening to shut down refugee camps, interfering in air travel, and cozying up to Somaliland - as maneuvers meant to either punish or dissuade Somalia from taking the case to the ICJ.
Somalia has retaliated by banning the importation of khat, a leafy stimulant, from Kenya into Somalia. Kenyan traders have protested to their government that the ban resulted in losses that run into millions of dollars. Ethiopian traders are still importing khat and have monopolized the market.
Kenya says that many of Somalia's claims are fabricated and pointed to a Djibouti-led IGAD report that found no substantial evidence of internal meddling. The report was dismissed by Somalia, which said that Kenya used its influence in the trade bloc to sway the report. Somalia later threatened to quit IGAD unless the findings were reversed.
At least one member of Somalia's legal team said Kenya's disproportionate influence in regional bodies made it impossible to seek legal recourse outside of the international court.
In May, Somalia and Kenya announced a thawing of relations after the Emir of Qatar, Tamim Al-Thani, mediated the reconciliation. Sources said that Qatar pressured Somalia to accept a revenue-sharing agreement to end the legal hostilities. In August, Somali PM Mohamed Roble travelled to Mombassa and met with Uhuru Kenyatta. During the meeting, the two leaders agreed to 'reset' their relation.
Both Somalia and Kenya are preparing to hold national elections, and politicians on both sides have capitalized on the political fodder.
Two weeks ahead of the contentious ICJ ruling, Kenyatta commissioned the Kenyan navy to upgrade its base close to the disputed waters. He said that it was necessary for counterterrorism operations and to protect the Lamu port.
Kenya invaded Somalia in 2011 under Operation Linda Nchi but later joined the African Union's peacekeeping mission. It currently has 3,500 active troops in Somalia.
In the wake of the verdict and subsequent Kenyan reaction, several Somali politicians - many already suspicious of having neighbouring countries as peacekeepers - are now openly questioning the feasibility of having Kenyan troops serve on Somali soil.
Somalia recently rejected an African Union proposal to fold its mission into a hybrid AU-UN force, saying that it completely ignored Somalia's wishes.
"The FGS (federal government of Somalia) expresses grave concern at the AUPSC continued disregard of Somalia's sovereignty, territorial integrity and political independence by repeatedly pursuing an agenda that undermines the agenda of the AUPSC and violates the basic rights of a member state" the ministry said on Tuesday.
Officials in Somalia say that the African Union is trying to rehat its mission because funding has begun to dry up after nearly 15 years of battling Al-Shabaab with little to show in recent years.
The UN Security Council is expected to address the situation later this month.