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Somalia v Kenya
Constitutional Law 1
University of San Carlos
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Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
Facts:
This case concerns a maritime dispute between Kenya and Somalia over the outer limits of the continental shelf beyond 200 nautical miles between the two countries and to other parts of their maritime territories.
Somalia and Kenya signed a Memorandum of Understanding (MOU) which confirmed that both parties will make submissions to the UN agency charged with settling maritime border disputes, Commission on the Limits of the Continental Shelf (CLCS). The CLCS will analyze the submissions and make recommendations without prejudice. CLCS received the submissions from both parties and also received subsequent objections from both parties as a consequence. In August 2014, Somalia initiated proceedings to take Kenya to the International Court of Justice over the maritime dispute.
Kenya raised two objections to this: (a) concerning the jurisdiction of the Court, and (b) concerning the admissibility of the application.
Kenya has said the Court lacks jurisdiction to entertain the dispute as the MOU is the method of settlement in the dispute. Kenya said that, according to paragraph 6 of the MOU, both parties agree to ask the CLCS for recommendations with respect to the outer limits of the continental shelf. Kenya argues that no final agreement can be reached until after the recommendation of the CLCS. As the recommendation of the CLCS has not been complete, this therefore gives no jurisdiction of the Court.
Issues:
WON the MOU is a treaty; WON the ICJ has jurisdiction; WON the case is admissible.
Held:
WON the MOU is a treaty
Under the customary international law of treaties, which is applicable in this case since neither Somalia nor Kenya is a party to the 1969 Vienna Convention on the Law of Treaties, an international agreement concluded between States in written form and governed by international law constitutes a treaty.
The MOU is a written document in which the Parties record their agreement on certain points governed by international law. The inclusion of a provision addressing the entry into force of the MOU indicates its binding character. Kenya considered the MOU to be a treaty, having requested its registration in accordance with Article
102 of the Charter of the United Nations, and Somalia did not protest that registration until almost five years thereafter.
Furthermore, it is clear from the actual terms of the MOU, which make express provision for it to enter into force upon signature, and the terms of the authorization given to the Somali Minister, that this signature expressed Somalia’s consent to be bound by the MOU under international law. The Court concludes that the MOU is a valid treaty that entered into force upon signature and is binding on the Parties under international law.
WON the ICJ has jurisdiction
Kenya said that, according to paragraph 6 of the MOU, both parties agree to ask the CLCS for recommendations with respect to the outer limits of the continental shelf. Kenya argue that no final agreement can be reached until after the recommendation of the CLCS. As the recommendation of the CLCS has not been complete, this therefore gives no jurisdiction of the Court. The Court explained its ruling based on five main points.
The exact text of paragraph 6 reads:
[6] The delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law after the Commission has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations to two coastal States concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles.
First, its object and purpose were to constitute a no-objection agreement, enabling the CLCS to make recommendations notwithstanding the existence of a dispute between the Parties regarding the delimitation of the continental shelf.
Secondly, the sixth paragraph relates solely to the continental shelf, and not to the whole maritime boundary between the Parties, which suggests that it did not create a dispute settlement procedure for the determination of that boundary.
Thirdly, the MOU repeatedly makes clear that the process leading to the delineation of the outer limits of the continental shelf beyond 200 nautical miles is to be without prejudice to the delimitation of the maritime boundary between the Parties, implying that delimitation could be undertaken independently of a recommendation of the CLCS.
Fourthly, the text of the sixth paragraph of the MOU reflects that of Article 83, paragraph 1, of UNCLOS, suggesting that the Parties intended to acknowledge the
Somalia v Kenya
Course: Constitutional Law 1
University: University of San Carlos
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