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Kenya: D-Day for Kenya in Border Row With Somalia

The fate of Kenya’s multi billion-shilling maritime economy hangs in a balance as the International Court of Justice (ICJ) rules on a long-standing border dispute with Somalia this afternoon.

Caught between the devil and the deep blue sea, the nation holds its breath as it awaits a crucial judgment over a contested zone of the Indian Ocean that is believed to hold oil and gas deposits.

ICJ President Judge Joan E. Donoghue will read out the court’s decision at 3pm, although Kenya made it clear that it won’t recognise the ruling and vowed to protect its borders whatever the outcome.

The disputed triangular area measuring 62,000-square kilometres extends to parts of Mombasa and Lamu, from where Kenyan fishermen earn their livelihood. The nation’s food and nutrition security, tourism sector and shipping activities are under threat should the ICJ rule against Kenya.

Somalia, which lies northeast of Kenya, wants to extend its maritime frontier along the line of the land border, in a south-easterly direction. Kenya wants the border to head out to sea in a straight line east. Nairobi maintains it has had sovereignty over the stretch since 1979.

Sh10 billion

In the 2021/22 financial year, the government has committed close to Sh10 billion towards the blue economy, led by the Aquaculture Business Development Project.

The Kenya Marine Fisheries & Socio-Economic Development Project, a fish processing plant in Lamu and the coastal fisheries infrastructure development plan will be affected by the judgment.

Read: Kenya faults ICJ process on Somalia maritime border row ahead of verdict

The aquaculture technology development, and the innovation transfers and development of blue economy initiatives will also be in jeopardy.

Six months ago, the European Union (EU) injected Sh3.2 billion to Kenya’s blue economy to benefit the counties of Kilifi, Kwale, Mombasa, Tana River, Lamu and Taita Taveta.

They have a population of over five million people with fishing being their main source of livelihood. Should the judgment be in favour of Somalia, the coastal region may lose its traditional fishing grounds.

In June, President Uhuru Kenyatta unveiled the Sh10 billion Kenya Marine Fisheries Socio-Economic Development Project.

It is an initiative aimed at uplifting the income of fishing communities along the coast and to commercialise marine resources.

Last year, the government also invested Sh15 billion in the Aquaculture Business Development Programme (ABDP). It will run for eight years and seeks to increase the country’s fish production to 450,000 metric tons per year by 2030.

Among the judges who heard the case is a Somali citizen, Judge Abdulqawi Yusuf, who represented his nation at the Third United Nations Conference on the law of the sea. Justice Yusuf has been a member of the ICJ since February 6, 2009, and served as its president between 2018 and 2021.

Read: Alert as Kenya awaits hostile ruling in Somalia border row

The judge had stated that delimitation of the exclusive economic zone (EEZ) and continental shelf should not be effected in accordance with the principle of equidistance but rather by application of equitable principles.

But Foreign Affairs Principal Secretary Macharia Kamau said the court’s decision will be a product of a “flawed” process.

“The delivery of the judgment will be the culmination of a flawed judicial process that Kenya has had reservations with, and withdrawn from, on account not just of its obvious and inherent bias but also of its unsuitability to resolve the dispute at hand,” Mr Kamau said.

He also announced that Kenya had withdrawn the compulsory jurisdiction of the court, a principle in international law that means that each state that has granted the court this type of acceptance has the right to sue other states and that it has agreed to appear before it, if sued.

“As a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent,” he stated.

Commercial interests

Kenya did not participate in the case on grounds that the court was biased and “procedural unfairness”.

When withdrawing from the case, Kenya outlined that while it had no doubt about the merits of its case, procedural unfairness had left doubt on whether substantive justice would be done.

Kenya also informed the court that influential third party commercial interests are fueling the case that threatens to destabilise the peace and security of an already fragile region.

“The speed at which the matter was rushed before the Court and the players involved in this dispute, pointed to a well-orchestrated strategy of pitting the countries against each other in total disregard to the precarious security situation in the region,” said the Ministry of Foreign Affairs.

Influential third parties, Kenya said, are intent on using instability in Somalia to advance predatory commercial interests with little regard to peace and security in the region.

Kenya believes there is an existing maritime boundary that was established in 1979. The boundary has been respected by both countries until 2014 when Somalia attempted to repudiate the agreement by dragging Kenya to the court seeking to appropriate its maritime space.

Kenya is a major contributor of troops to the African Union Mission in Somalia (Amisom), which is fighting the al-Qaeda-linked militants perpetrating violence across the Horn of Africa nation.

The dispute

The court will determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas pertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 nautical miles.

As adjacent coastal states facing the Indian Ocean to the east-south east, the maritime claims of Somalia and Kenya overlap, including in the area beyond 200 nautical miles.

The parties disagree about the location of the boundary in the area where their maritime entitlements overlap, according to court records.

Somalia, which filed the case in 2014, argues the maritime boundary between the parties in the territorial sea, exclusive economic zone (EEZ) and continental shelf should be determined in accordance with the United Nations Convention on the Law of the Sea (Unclos) Articles 15, 74 and 83, respectively.

Kenya’s case is that a boundary along the parallel of latitude has developed through the consent of Somalia since 1979.

Maritime boundary

Since Somalia never protested for that long, Kenya contends that a boundary was established by a tacit agreement between the two states.

Accordingly, Kenya’s position on the maritime boundary is that it should be a straight line emanating from the states’ land boundary terminus, and extending due east along the parallel of latitude on which the land boundary terminus sits, through the full extent of the territorial sea, EEZ and continental shelf, including the continental shelf beyond 200 nautical miles.

Kenya measures the breadth of its territorial sea and EEZ from a series of straight baselines covering the full length of its coast.

These baselines were first declared in the 1972 Territorial Waters Act and have been amended from time to time.

Kenya’s submission to the Commission on the Limits of the Continental Shelf (CLCS) is that the outer limit of its continental shelf lies fully 350m from its coast.

Kenya asserts that all its activities including naval patrols, fishery, marine and scientific research as well as oil and gas exploration are within the maritime boundary established by Kenya and respected by both parties since 1979.

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