Kenya, which has already awarded exploration blocks in the disputed territory, wants the maritime border to run horizontal to its coast line, while Somalia says it should run diagonal in continuation to the land border, as probably consistent with the UN Convention on the Law of the Seas (UNCLOS).
The Daily Nation reported that Kenya argued in the filings:
“Litigating this complex issue before the court is clearly contrary to the 2009 MoU. Somalia’s case is invalid and Kenya is confident that the court will agree with its submissions. The two governments must find a solution through amicable agreement, under international law. It is their obligation to do so.”
Kenya’s filings refer to an MoU that never was never put into the force of law.
In 2009, the then Somali Transitional Federal Government (TFG) signed an MoU with Kenya stating that Kenya and Somalia would submit their claims to the Commission on the Outer Limits of the Continental Shelf (Commission) and that the maritime border dispute would not move forward until the Commission published its recommendations.
The MoU to which Kenya would like to hold Somalia accountable is invalid, making its legal filings to the ICJ appear weak on this point. For its part, Somalia filed a petition for the court to hear the case in mid-July and previously submitted its claimed maritime borders to the Commission in August 2014 in order to fulfill UNCLOS provisions.
The Citizen Digital also reported Kenya argued Somalia should “honor” the MoU because Kenya was hosting Somali refugees (which it must do under its own international obligations) and was fighting al-Shabaab in Somalia.
“Its soldiers have fought Al Shabaab. Kenyan citizens have been victims of terrorist attacks. Kenya has also been hosting over half a million Somali refugees for almost 25 years. The least Kenya can expect from Somalia is that it will honor its bilateral agreements,” argued Kenya’s Attorney General.
Kenya’s attempt to leverage its military presence in Somalia as legal justification for throwing the maritime case out of the ICJ will fuel suspicions that Kenyan troops are in Somalia more for political and economic interests compared to peacekeeping and stability.
The Kenyan military’s either tacit or direct involvement in the illegal charcoal trade in Kismayo was one of the first indications that Kenya was participating in unsanctioned activity for economic gain.
Most recently, Somali media alleged that Kenyan troops were also trying to tax residents in the Lower Jubba town of Hoosingow, possibly hinting that the pursuit of economic interests had not ceased.
To date, Kenya and Somalia have only submitted filings that will help the ICJ to decide whether the court will take up the case, and it could be several years before a result is determined.
Somalia appears to have a good chance of ensuring a positive outcome in consideration of similar cases (e.g. Peru and Chile) and due to Kenya’s questionable legal justifications so far. The fact that Kenya prefers bilateral negotiations to the ICJ hints that Kenya also believes Somalia has a better chance in an international legal forum.
Lastly, al-Shabaab may use Kenya’s words against it by arguing that Kenyan troops are in Somalia to exploit its coastal resources rather than to stabilize the country. This could serve as another stumbling block to Kenya’s new social media campaign against al-Shabaab.