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The ICJ’s Judgement in Somalia v. Kenya and Its Implications for the Law of the Sea

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Abstract

By its judgement of 2 February 2017, the International Court of Justice took up jurisdiction to adjudicate the maritime dispute between Somalia and Kenya. Notwithstanding surrounding controversies, the Court set out important rules concerning the law of treaties. The main implication of the judgment is that the Court embraced a more objective definition of treaties and identified the significance of context as well as 'travaux préparatoires' in treaty interpretation. By doing so, the Court further established itself as the default adjudicator in law of the sea disputes unless the reservation to its jurisdiction is sufficiently precise. This case note summarises the facts and analyses the potential ramifications of this judgement on international dispute resolution.
Kai-chieh Chan, ‘The ICJ’s Judgement in
Somalia v. Kenya
and Its
Implications for the Law of the Sea’ (2018) 34(2) Utrecht Journal
of International and European Law pp. 195–204, DOI: https://doi.
org/10.5334/ujiel.450
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
CASE NOTE
The ICJ’s Judgement in
Somalia v. Kenya
and Its
Implications for the Law of the Sea
Kai-chieh Chan*
By its judgement of 2 February 2017, the International Court of Justice took up jurisdiction
to adjudicate the maritime dispute between Somalia and Kenya. Notwithstanding surrounding
controversies, the Court set out important rules concerning the law of treaties. The main impli-
cation of the judgment is that the Court embraced a more objective denition of treaties and
identied the signicance of context as well as
travaux prparatoires
in treaty interpretation.
By doing so, the Court further established itself as the default adjudicator in law of the sea
disputes unless the reservation to its jurisdiction is suciently precise. This case note sum-
marises the facts and analyses the potential ramications of this judgement on international
dispute resolution.
Keywords: Vienna Convention on the Law of Treaties; United Nations Convention on the Law of
the Sea; Memorandum of Understanding;
travaux prparatoires
; delimitation; delineation
I. Background and the Majority Opinion
Somalia initiated the proceedings against Kenya in the International Court of Justice (hereinafter “the
Court”) regarding a disputed Exclusive Economic Zone of around 42,000 square kilometers. Somalia
based its claim on both parties’ acceptance of the Court’s compulsory jurisdiction under Art. 36(2) of the
Court’s Statute, otherwise known as the “optional clause declarations”. In response, Kenya pointed to the
reservation it made under the article, which excludes the Court from dealing with disputes ‘in regard to
which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods
of settlement’.1 Kenya put forward two independent objections to the Court’s jurisdiction and the admis-
sibility of the case: first, it pointed out that a Memorandum of Understanding (MOU) signed between the
disputing parties constituted an agreement to have recourse to some other methods of settlement. Second,
Kenya argued that the United Nations Convention on the Law of the Sea (UNCLOS), to which both States
are parties, contains a dispute resolution mechanism that also amounts to an agreement to have recourse
to some other methods.
In relation to the first objection, the Court found that it had to first ascertain the legal status of the MOU
before analysing its content. The MOU was signed by the Kenyan Minister of Foreign Affairs and the Somali
Minister of National Planning and International Cooperation on 7 April 2009, before subsequently being
registered by the Secretariat of the United Nations on 11 June 2009 at Kenya’s request. Despite initially
recognising the MOU, the Somali authorities later denied the validity of the instrument, publicly labeling it
as “non-actionable” and “void” respectively in October 2009 and February 2014.2 In addition to its constant
protests against the MOU, Somalia further argued that the MOU was not ratified by its Parliament and that
allowing a Minister to sign binding bilateral agreement was ‘not customary for Somalia’.3 These contentions
were, however, rejected by the Court. First, the Court appeared to consider that Somalia’s protests were
* Université Paris 2 Panthéon-Assas, Paris, FR. Contact: kaichieh.chan@sciencespo.fr.
1
United Nations, 531 Treaty Series 114. Emphasis added.
2
Somalia v. Kenya, Judgement on Preliminary Objections (2 February 2017) paras 18–19.
3
ibid. para 38.
The ICJ’s Judgement in
Somalia v. Kenya
and its Implications for the Law of the Sea196
Chan 197
inadmissible due to laches or acquiescence.4 Second, since the MOU itself provides that it ‘shall enter into
force upon its signature’, ratification was unnecessary.5 Lastly, the Court observed that under customary
international law, Somalia may not seek to revoke an international law obligations by virtue of internal law
provisions regarding competence to conclude treaties; there was no reason to suppose that Kenya was aware
that the signature of the Minister may be insufficient.6
Upon characterising the MOU as a treaty that legally bound the parties, the Court moved on to decide
whether it constitutes an agreement to some other methods of dispute settlement. If it does, then accord-
ing to Kenya’s reservation to the Court’s jurisdiction, the Court would not have jurisdiction. The crux lies in
paragraph 6 of the MOU, which reads:
‘The delimitation of maritime boundaries in the areas under dispute … shall be agreed between
the two coastal States on the basis of international law after the Commission [on the Limits of the
Continental Shelf, hereinafter CLCS] … made its recommendations to two coastal States concerning
the establishment of the outer limits of the continental shelf beyond 200 nautical miles’.
To fully appreciate the Court’s response to this argument, one needs to first distinguish between deline-
ation and delimitation of the continental shelf beyond 200 nautical miles: although both acts are essen-
tially coastal States drawing lines on their territories, their respective subject matter and the procedure are
distinct. Delineation involves drawing the line between the coastal State and the ‘Area’ (the part the High
Sea defined as the ‘common heritage of mankind’ by Art. 137 of the UNCLOS) and delimitation involves
establishing the line between two coastal States. To prevent coastal States from over-claiming a continental
shelf by delineation, Art. 76 of the UNCLOS requires its signatories to make a submission to the CLCS, which
would make recommendations to the coastal States. On the contrary, delimitation has no such requirement:
communication with the neighbouring state will suffice.7 Although the two acts are indeed distinct, to
ensure that its actions do not prejudice matters relating to delimitation, according to its procedural rules
the CLCS would not consider a submission on delineation if there was an on-going dispute on delimitation
‘without the consent of all States concerned’.8
Kenya sought to establish the ‘logical’ temporal link that delimitation must come after delineation.9 It
argued that since paragraph 6 of the MOU made the unequivocal declaration that issues of delimitation
shall be agreed between the two coastal States’ only after the CLCS made its recommendations on delinea-
tion, the Court’s decision on delimitation can only come after that. The Court rejected this argument on the
basis that according to the wording of both the title and the first five paragraphs of the MOU, the parties
intended to keep the process of delineation and delimitation distinct.10 On this matter, the Court made the
important observation that the purpose of the MOU is not to set an alternative dispute resolution method,
but rather to give the parties’ consent to allow the CLCS to go on with reviewing the submission notwith-
standing the existence of a dispute on delimitation. The Court’s interpretation as to the purpose and the
parties’ intentions of the MOU is essentially three-fold. First, it analysed the wording of the title as well as
the first five paragraphs, before finding that they ‘do not contain any commitments’ or obligations on how
the dispute should be resolved.11 Second, in relation to paragraph 6, which contains the word ‘shall’, the
Court resorted to the method of interpretation under customary international law as codified by Art. 31(3)
(c) of the Vienna Convention on the Law of Treaties (VCLT), which allows it to consider ‘[a]ny relevant rules
of international law applicable in the relations between the parties’. Since both Kenya and Somalia are par-
ties to the UNCLOS, the Court observed that there is a level of similarity between paragraph 6 and Art. 83
of the UNCLOS (the latter reads ‘[t]he delimitation of the continental shelf between States with opposite or
4
ibid. para 42 (‘Somalia did not protest that registration until almost five years thereafter’). See also para 49: ‘[Somalia] must by
reason of its conduct be considered as having acquiesced in the validity of that treaty’.
5
ibid. para 45.
6
ibid. para 49. See Art. 45 of the Vienna Convention on the Law of Treaties (VCLT); similarly Cameroon v. Nigeria, Equatorial Guinea
intervening, Judgement (10 October 2002) para 265 (observing that, under customary international law, any restraint on the capac-
ity to enter into treaty shall be ‘manifest’ and ‘at least properly publicized’).
7
Bjarni Már Magnússon, The Continental Shelf Beyond 200 Nautical Miles (Brill-Nijhoff 2015) 135–136. See the Court’s judgement
in Nicaragua v. Colombia: ‘the role of the CLCS relates only to the delineation of the outer limits of the continental shelf, and not
delimitation’ (Judgement on Preliminary Objections, 17 March 2016 para 110).
8
Somalia v. Kenya (n 2) para 69. Rules of Procedure of the CLCS, Annex I, Art. 5, para a.
9
ibid. paras 53–54.
10 ibid. paras 75–77.
11 ibid. para 72.
The ICJ’s Judgement in
Somalia v. Kenya
and its Implications for the Law of the Sea198
adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38
of the Statute of the ICJ…’). In reading paragraph 6 of the MOU in light of Art. 83 of the UNCLOS, the Court
reasoned that since the latter simply ‘requires that there be negotiations conducted in good faith’ and ‘does
not prescribe the method for the settlement of any dispute’, neither should the former.12 In the Court’s view,
this interpretation is further substantiated by the ‘subsequent practice’ (Art. 31(3)(b) VCLT) of the parties
engaging in negotiations in 2014, even before the CLCS issued any recommendations as to delineation.
Had Kenya truly believed that delimitation could only come after delineation, reasoned the Court, it would
not have commenced those negotiations.13 Lastly, the Court assessed the travaux préparatoires of the MOU:
interestingly, the text of the MOU was drafted by neither party but by the Norwegian Ambassador as part of
Norway’s assistance to African countries’ legal development. The Court’s reasoning is that if paragraph 6 had
the function of dispute resolution claimed by Kenya, this would have been highlighted by the Norwegian
Ambassador.14 But since the Ambassador’s previous talks about the MOU contained nothing about para-
graph 6, the Court came to the conclusion that the MOU was insignificant.
In relation to the second objection, Kenya argued that according to Art. 287 paragraph 3 of UNCLOS, State
Parties that do not specify their choice of dispute resolution mechanisms will be deemed to have ‘accepted
arbitration in accordance with Annex VII’ of UNCLOS. Since neither party has made any choice of dispute
resolution mechanism, Kenya argued that Annex VII Arbitration should constitute the parties’ agreement
to have recourse to some other methods, which would fall under Kenya’s reservation to the Court’s jurisdic-
tion. On the other hand, Somalia relied on Art. 282 of UNCLOS, which provides that if the signatories ‘have
agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request
of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall
apply’ instead of Annex VII Arbitration.15 It claimed that the parties’ acceptance to the jurisdiction of the
Court, even in the case of a reservation like Kenya’s, still constitutes a general agreement to settle disputes
otherwise and would thus preclude the jurisdiction of UNCLOS tribunals. Kenya’s reply to this was that with
its reservation to the Court’s jurisdiction mentioned above, there was no general consent to resolve the dis-
pute in the Court and Art. 282, therefore, did not apply.
The Court’s solution to this conundrum lies in its observation on the structure of UNCLOS and its inter-
pretation of the travaux préparatoires of UNCLOS. As to the structure of UNCLOS, the Court reasserted
that according to Art. 286, Art. 287 only matters if ‘no settlement has been reached by recourse to’ articles
including Art. 282. Put otherwise, the Annex VII Arbitration and other mechanisms under Art. 287 only
play a residual role compared to the general mechanism set out in Art. 282.16 This alone, however, does
not solve the question since it was exactly Kenya’s contention that ‘no settlement can been reached’ under
Art. 282 with its reservation: the Court thus found it necessary to look into the travaux préparatoires. Most
interestingly, the Court found only silence: despite the prevalence of reservation to the Court’s jurisdiction
like that of Kenya’s, ‘there is no indication in the travaux préparatoires of an intention to exclude’ the Court’s
jurisdiction.17 Hence, the reasoning here is very much the same as the one employed above on the travaux
préparatoires of the MOU: if there existed such an intent to exclude the Court’s jurisdiction, there would
have been some dispute about it. The Court is also of the opinion that the wording ‘or otherwise’ in Art. 282
was added to make the article as broad as possible in favour of the Court’s jurisdiction, potentially covering
reservations that are not particularly specific (like that of Kenya’s).18
12 ibid. paras 90–91. See also para 95 (‘the fact that the Parties set an objective as to the time for concluding an agreement does not,
given that this paragraph is not prescriptive of a method of settlement to be followed’). The interpretation on UNCLOS is consistent
with the Court’s previous judgement in Cameroon v. Nigeria, Equatorial Guinea intervening (n 6) para 244 (declaring that Art. 83 of
the UNCLOS only requires that there be negotiations conducted in good faith, but not that they should be successful).
13 ibid. paras 92–93. But on this point, both Judge ad hoc Gilbert Guillaume and Judge Mohamed Bennouna argued that the majority
ignored the fact that throughout the negotiations Somalia rejected the validity of the MOU. In their view, Kenya’s endeavour to
bring Somalia back to the table (under the obligation to negotiate of the MOU) cannot be reasonably treated as the evidence that
Kenya has renounced its right under the MOU. See the dissenting opinion of Judge ad hoc Gilbert Guillaume, at para 27 (stating:
‘Cette acceptation de la négociation frontalière peut-elle aujourd’hui être opposée au Kenya? … J’ai les plus grands doutes à cet
égard’); see also the dissenting opinion of Judge Mohamed Bennouna, at 3.
14 ibid. paras 103–104.
15 ibid. paras 110–111. Emphasis added.
16 ibid. para 125. This position is prima facie consistent with the doctrinal opinion e.g. Yoshifumi Tanaka, The International Law of
the Sea (CUP 2015) 420 (describing the dispute resolution system under UNCLOS as ‘two-tier’ and stating that ‘the compulsory
procedures are essentially residual’).
17 ibid. para 129.
18 ibid. paras 128, 130.
Chan 199
The Court, therefore, found itself having jurisdiction since neither the MOU nor Art. 282 of the UNCLOS
constitutes alternative dispute resolution mechanisms that fall under Kenya’s reservation to the Court’s
jurisdiction. As an ending note, the Court added that taking up the jurisdiction has the benefit of avoiding
a negative conflict of jurisdiction.19
II. Analysis
While perhaps not the most discussed judicial decision by the ICJ in recent years, the Judgment on the
Preliminary Objections in Somalia v. Kenya may have some implications for the distribution of jurisdic-
tion in law of the sea disputes that cannot be underestimated. Equally controversial is its method of treaty
interpretation, which effectively contributes to the Court’s jurisprudence on the definition of treaties, the
significance of ‘context’ and applicable relevant rules (Art. 31(3)(c) of the VCLT), and finally, the value of
travaux préparatoires.
The judgment has its most immediate influence on the law of the sea. On the one hand, by rejecting
Kenya’s argument that a State must first delineate the outer continental shelf before delimitation, the Court’s
conclusion on the delimitation of the continental shelf beyond the 200 nautical miles confirms the approach
taken by ITLOS (International Tribunal for the Law of the Sea). In the Bay of Bengal case, for instance, the
Tribunal stated that:
‘There is a clear distinction between the delimitation of the continental shelf under article 83 and
the delineation of its outer limits under Article 76. Under the latter article, the Commission is
assigned the function of making recommendations to coastal States on matters relating to the
establishment of the outer limits of the continental shelf, but it does so without prejudice to delimi-
tation of maritime boundaries’.20
The current state of law, settled by the ICJ and ITLOS, is therefore, that States are free to choose whether they
first follow the CLCS path or instead delimit the continental shelf with their neighboring States.
On the other hand, concerning the jurisdiction of dispute resolution mechanisms, as observed by Prof.
Treves, the vast majority of the parties to UNCLOS have not chosen any forum under Art. 287.21 Signatories of
UNCLOS that have reservations to the Court’s jurisdiction with one that looks like Kenya’s (e.g. Canada and
Australia) may now find themselves bound by the International Court of Justice’s compulsory jurisdiction,22
in case such an objection is raised by one party.23 The Court’s conclusion is arguably consistent with the
majority of scholarly opinion:24 for instance, Prof. Alan Boyle comments that: ‘two states which have made
declarations in similar terms under Article 36 (2) of the ICJ Statute will remain subject to the compulsory
jurisdiction of the ICJ even in the LOS Convention cases’.25 But as confirmed by Prof. Boyle himself in the
proceedings of the present case, this time acting as counsel for Kenya, what he wrote did not cover the situ-
ation of a reservation to an optional clause declaration. According to Judge Patrick Robinson, the most vehe-
ment dissenter in the case, none of the publicists cited by Somalia covered the situation of a reservation.26
19 As some commentators observed, the concern might stem from Kenya’s last minute declaration to exclude maritime delimitation
from the Convention’s compulsory system. Marco Benatar and Erik Franckx, ‘The ICJ’s Preliminary Objections Judgment in Somalia
v. Kenya’ European Journal of International Law Analysis (22 February 2017) <https://www.ejiltalk.org/the-icjs-preliminary-
objections-judgment-in-somalia-v-kenya-causing-ripples-in-law-of-the-sea-dispute-settlement/> accessed 21 September 2017.
20 ITLOS, Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal, Judgment of 14 March 2012,
para 376.
21 Tullio Treves, ‘Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice’ (1999)
31(4) Journal of International Law and Politics 818.
22 See State Parties’ Declaration Under Article 36(2) of the Statute of the Court <https://treaties.un.org/doc/Publication/MTDSG/Vol-
ume%20I/Chapter%20I/I-4.en.pdf> accessed 21 September 2017.
23 Thus the procedure was able to continue in the Southern Bluen Tuna cases (New Zealand v. Japan, Australia v. Japan), XXIII RIAA
1, by a tribunal constituted under Annex VII of UNCLOS, despite the fact that all parties have accepted compulsory jurisdiction of
the ICJ.
24 The one exception that the author is aware of is Bernard H. Oxman, ‘Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals’,
in Rothwell, Elferink, Scott, and Stephens eds., The Oxford Handbook of the Law of the Sea (OUP 2015) 401–402 (suggesting that
UNCLOS arbitral tribunals or ITLOS, once considering a case like that in Somalia v. Kenya, may want to construe Article 282 strictly
so as to afford the aggrieved party a choice of forum ‘because the ICJ is not wanting for cases.’) Prof. Oxman’s opinion was not
considered in the proceedings.
25 Alan E. Boyle, ‘Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks’ (1999) 14
International Journal of Marine and Coastal Law 7. Holding the same position are Tanaka (n 16) at 423–424 and Treves (n 20) at 64.
26 Dissenting opinion of Judge Patrick Robinson para 31.
The ICJ’s Judgement in
Somalia v. Kenya
and its Implications for the Law of the Sea200
If a party wishes to raise an objection of jurisdiction by operation of Art. 282, it will need to demonstrate
that there exists an alternative dispute resolution mechanism that is ‘otherwise agreed’ by the parties. The
case law of ITLOS provides several clarifications. First, Art. 282 requires that the alternative mechanism
entails a binding decision’. This is why the Tribunal denied Japan’s argument in the Southern Bluen Tuna
cases, confirming that a simple commitment to settle the dispute by peaceful and diplomatic means would
not amount to such an alternative.27 Second, the alternative dispute resolution mechanism must be shown
to be sufficiently general to cover the issues of the law of the sea. In the MOX Plant case (Ireland v. United
Kingdom), the United Kingdom raised the objection that the main elements of the dispute were governed by
the compulsory dispute settlement procedures of, inter alia, the European Community treaties. The Tribunal
rejected the argument by noting that, even if other treaties do contain ‘rights or obligations similar to or
identical with the tights or obligations set out in UNCLOS, the rights and obligations under those agree-
ments have a separate existence from those under UNCLOS’.28 In other words, in the Tribunal’s perspective,
the jurisdiction of the European Court of Justice is not sufficiently general to cover law of the sea disputes as
regulated by UNCLOS.29 In this sense, the ICJ’s ruling in Somalia v. Kenya can be seen as the Court’s declara-
tion that its mandate is sufficiently general to cover law of the sea disputes.
The practical ramifications of Somalia v. Kenya on the law of the sea are, therefore, two-fold. First, arbitral
tribunals established under UNCLOS or ITLOS facing similar situations may be more willing to give jurisdic-
tion to the ICJ for reason of judicial comity. Second, States are also advised to form their reservations to the
Court’s jurisdiction carefully if they do not want the Court to adjudicate their maritime dispute. As the Court
itself puts it in the present case, a better form of reservation to exclude the Court’s jurisdiction here would
be to exclude disputes relating to maritime delimitation outright.30
The more general implication of the present case, however, is for the law of treaties. The core issues
with using MOUs are the insufficiencies in uniform practice and the lack of terms to distinguish legally
binding MOUs from those that are not. For instance, while the United States regards MOUs as valid vehicles
for a treaty, the United Kingdom considers otherwise and seeks to avoid words like ‘shall’ or ‘agree’ when
negotiating MOUs.31 In Somalia v. Kenya, it can be argued that it is the parties’ intention to make the MOU
binding: after all, not only does it contain the word ‘shall’, it is also registered at the UN according to Art. 102
of the UN Charter. On this, although commentators tend to agree that registration at the UN naturally raises
a presumption that the instrument is a treaty, many of them argue that an MOU alone does not constitute a
treaty.32 There is no consensus, however, on the exact criteria that an MOU needs to be regarded as a treaty.
While some consider that every agreement concluded between states is of a normative nature and is not
made subject to domestic law is a treaty,33 others fervently argue that more emphasis should be put on the
intention of the parties.34 It is possible to relate this academic dispute to the similar schism between subjec-
tive and objective theories of interpretation in domestic contract laws,35 or the opposing views on the ‘Lotus
rule’ (what is not prohibited is allowed) in the theory of international law.36
In practice, however, there is no settled view amongst arbitral tribunals. Before Somalia v. Kenya, despite
the general reluctance of arbitral tribunals to treat MOUs as formal treaties, they are nevertheless gener-
ous in granting them residual effect. In the Iron Rhine Railway arbitration, the arbitral tribunal made it
clear that an MOU is not binding ‘as a matter of international law’ but is ‘not regarded as being without
27 ITLOS, Southern Bluen Tuna cases (n 23) paras 53–55.
28 ITLOS, MOX Plant case, Request for Provisional Measures Order of 3 December 2001, para. 50.
29 Tanaka (n 16) 423.
30 Somalia v. Kenya (n 2) para 128.
31 John H. McNeill, ‘International Agreements’ (1994) 88 American Journal of International Law 821.
32 Anthony Aust, Modern Treaty Law and Practice (CUP 2007) 50–53 (stating: ‘it would seem that an MOU has effect only in the realm
of politics or morals’); Richard Gardiner, Treaty Interpretation (OUP 2015) 90; Sir Robert Jennings and Arthur Watts, Oppenheim’s
International Law (CUP 2008) 1202–1203 (stating: ‘Thus [State parties] may conclude a memorandum of understanding … thereby
implying that they do not have the intention of entering upon legal rights or obligations’).
33 Jan Klabbers, The Concept of Treaty in International Law (Springer 1996). Klabbers’ theory has its foundation in Qatar v. Bahrain
Judgement on Jurisdiction and Admissibility (1 July 1994) (finding exchanges of letters and minutes of discussions as constituting
treaties.).
34 Aust (n 32) 49, 52 (depicting judgment in Qatar v. Bahrain as ‘special’.).
35 See e.g. Marcel Fontaine and Filip De Ly, Drafting International Contracts (Transnational Publishers 2006) 107, 138 (opposing the
English and French approach which purportedly favours the subjective theory of contract interpretation to the German and Dutch
approach of objective interpretation).
36 Robert Kolb, Théorie du droit international (Bruylant 2013) 315 et seq (describing the rule’s origin in the famous Lotus case).
Chan 201
legal relevance’.37 Tribunals also tended to favour the subjective theory: as the arbitrators in Salini v. Jordan
put it, ‘agreements are only binding upon the parties if they intended to create legal relations between
themselves’.38 Similarly, in the US-UK Heathrow Airport User Charges arbitration, the tribunal ruled that a
1983 US-UK MOU was not a treaty and, therefore, rejected it as an independent source of rights and duties,
as the parties to the MOU did not intend ‘to create independent legally enforceable obligations’.39 The tribu-
nal remarked, however, that the MOU is still a ‘potentially important aid to interpretation’ for it ‘constitutes
consensual subsequent practice of the Parties’.40 In comparison, the Court’s reasoning in Somalia v. Kenya
may be regarded as a deviation from the subjective approach. It is noteworthy that even though Somalia
explicitly asked the Court not to rule on the status of MOU under international law,41 the Court did so
anyway by putting forward the brief criteria as follows: ‘under the customary international law of treaties …
an international agreement concluded between States in written form and governed by international law
constitutes a treaty’.42 In the subsequent paragraphs, the Court focused on the capacity to enter into treaties
and left the subjective criteria of intention unexamined.
Two other noteworthy developments pertaining to the general rule of interpretation (i.e. Art. 31 VCLT)
are the significance of ‘context’ and the revival of ‘applicable relevant rules’ (Art. 31(3)(c) VCLT). In Somalia v.
Kenya, the majority put forward the rule that under Art. 31(1) VCLT, ‘ordinary meaning, context and object
and purpose to be considered as a whole’.43 This seemingly harmless principle in fact led the majority to
consider paragraph 6 of the MOU (which states unequivocally that delimitation ‘shall’ only ‘be agreed’ by
the two countries ‘after’ the CLCS has made its recommendations) as merely entailing a non-binding rec-
ommendation to negotiate. This interpretation, as will be discussed later, is achieved through the Court’s
operation of context of paragraphs 1–5 of the MOU and Art. 31(3)(c) VCLT. Priority was given to the context
of the MOU but not without some sacrifice to the plain meaning of the word ‘shall’. The first and a more
philosophical problem with this principle thus concerns the hierarchy of Art. 31(1): should one consider
context before considering the plain meaning, for example that of the word ‘shall’? Or should the context
only be used to provide assistance in clarifying the ordinary meaning?44 While the majority in Somalia v.
Kenya appears to embrace the former approach, the dissenting judges clearly favour the latter approach. As
per Judge Bennouna, the majority’s exaggeration of the context ‘is highly unusual’ and ‘ultimately amounts
to inverting the order set out in Article 31’.45 Indeed, the Court stated as early as 1950 that:
‘…the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty,
is to endeavour to give effect to them in their natural and ordinary meaning… [if] the words in their
natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only,
must the Court, by resort to other methods of interpretation, seek to ascertain what the parties
really did mean when they used these words’.46
One can observe that the Court in Somalia v. Kenya provided no indication as to why the word ‘shall’ in
paragraph 6 of the MOU is so ambiguous and unreasonable that its effet utile was to be deduced by other
methods of interpretation.47
More interestingly, the plain meaning of the word ‘shall’ was also at the centre of the dispute in the recent
investment arbitration case Churchill Mining and Planet Mining v. Indonesia. In Churchill Mining, the tribunal
had to interpret Art. 7 of the UK-Indonesia BIT, which states that Indonesia ‘shall assent’ to all requests for
37 Belgium v. Netherlands, Award of 24 May 2005, XXVII RIAA 98 para 156.
38 Salini S.p.A. v. Jordan, ICSID Case No. ARB/02/13, Award (31 Jan 2006, Tribunal: Bernardo Cremades, Ian Sinclair, and Gilbert
Guillaume) para 78 (emphasis added).
39 U.S. v. U.K., Award of 30 November 1992, XXIV RIAA 131 para 6.8.
40 ibid. para 6.7.
41 Somalia v. Kenya (n 2) para 34; see also para 41: ‘Somalia has invited the Court to reject Kenya’s preliminary objection without
considering the status of the MOU under international law’.
42 ibid. para 42.
43 ibid. para 64.
44 Gardiner (n 32) 210 seems to support the latter view.
45 Dissenting opinion of Judge Bennouna, at 2.
46 Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion (3 March 1950) 8 (emphasis
added). This rule was confirmed by the Court in Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgement (12 November
1991) para 69 as reflecting customary international law.
47 Dissenting opinion of Judge ad hoc Gilbert Guillaume, para 9 (stating that ‘l’utilisation du mot "shall" marque qu’il s’agit là d’une
obligation’).
The ICJ’s Judgement in
Somalia v. Kenya
and its Implications for the Law of the Sea202
arbitration. On the one hand, the tribunal recognised that the word ‘shall’ may denote an obligation, in that
there is no discretion on the part of the host State but to accept a request for arbitration. But on the other
hand, as Indonesia contended, ‘shall’ can also be understood as implying a future action, meaning that while
a subsequent reply by the host State is required, that reply may not necessarily be a positive one.48 It was
the exact same contrast between obligation and future action in the meaning of the word ‘shall’ that was at
stake in Somalia v. Kenya. While the Court resorted to context to solve the conundrum in Somalia v. Kenya,
the tribunal in Churchill Mining went further to abandon Art. 31 VCLT and embrace the supplementary
means in Art. 32 VCLT, only to conclude that ‘shall assent’ functionally equals to ‘hereby consents’.49 This
interpretation is regarded by some commentators as unusual or done in bad faith.50 Without estimating any
future impact that Somalia v. Kenya may have on the definition of the word, the word ‘shall’ itself no longer
guarantees the legal certainty one may imagine.
Equally significant to the Court’s mention of context is its use of Art. 31(3)(c) VCLT, which allows inter-
pretation of treaties in light of ‘relevant rules of international law applicable in the relations between the
parties’. The rule allows a court or a tribunal in charge of interpreting a treaty to refer to general interna-
tional law or other treaties, either for the purpose of gap-filling or for the future development of interna-
tional law.51 The Court has previously used Art. 31(3)(c) VCLT in the Military and Paramilitary Activities in
and against Nicaragua case of 1986, the Oil Platform case of 2003, and the Djibouti v. France case of 2008.
In Oil Platform, the Court famously interpreted the US- Iran Treaty of Amity of 1955 using the general
international law on self-defense.52 This approach attracted considerable criticism: for Judge Higgins and
Judge Kooijmans, instead of evaluating the legality of U.S. actions under general international law, the real
problem should have been whether the US had violated the treaty at hand.53 In all three cases, the Court was
asked whether declarative provisions in other treaties (such as the agreement to deal on the basis of ‘equal-
ity, mutual respect and peace’) could have any impact on interpretation. On this point, the Court’s view is
consistent, that although these general provisions do not themselves constitute legal obligations that could
be independently violated, they do have ‘a certain bearing on the interpretation and application’ of the
treaty at hand.54 The Court’s approach to Art. 31(3)(c) VCLT in Somalia v. Kenya, however, was significantly
different: it ruled that paragraph 6 is not an agreement on dispute settlement due to its similarity with Art.
83(1) of UNCLOS, the latter of which does not prescribe a method of dispute settlement.55 In the eyes of dis-
senting judges, this method is unprecedented and highly unsatisfactory: the wording of the two texts is not
exactly the same and their objects, as well as their contexts, are arguably different. The Court is also accused
of intentionally neglecting Art. 83(2) of UNCLOS, which comes immediately after Art. 83(1) and requires
the parties to resort to Annex II arbitration instead of the ICJ.56 Interpretation of treaties based on similar
terms, or provisions in other treaties applicable between the parties, is not unheard of: in the WTO US-Shrimp
case, the Appellate Body has famously read that the term ‘exhaustible natural resources’ in light of similar
provisions within UNCLOS.57 While assuming that similar terms imply similar intentions across different
treaties, however, one is well advised to take into consideration the differences in context, object, purposes,
subsequent practices, and even travaux among them.
Last but not least, one can readily discern the extensive reliance on travaux préparatoires to interpret the
intention of the drafters in Somalia v. Kenya. Two major observations can be made. First, in the present case
the Court considered the relevant travaux préparatoires not for what it revealed, but instead for its silence
48 Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40 (Tribunal: Albert Jan
van den Berg, Michael Hwang, Gabrielle Kaufmann-Kohler), Decision on Jurisdiction (24 February 2014) paras 157, 162, 166.
49 ibid. para 230.
50 Andrea Bjorklund, Georgios Petrochilos, Stephan Schill and Diane Desierto, ‘Investment Law at the Crossroads of Public and Private
International Law’ (2014) 5 Select Proceedings of the European Society of International Law, 173–174.
51 Gardiner (n 32) 333; Belgium v. Netherlands (n 37) paras 58–59 (treating relevant treaties in environmental law and the laws of
development as a whole.).
52 Islamic Republic of Iran v. United States of America, Judgment (6 November 2003) 182 para 41.
53 Separate Opinion of Judge Kooijmans para 42; Separate Opinion of Judge Higgins para 49.
54 Djibouti v. France, Judgment (4 June 2008) 38 para 114; Islamic Republic of Iran v. United States of America, Judgment on Prelimi-
nary Objection (12 December 1996) 813; Military and Paramilitary Activities in and against Nicaragua, Judgment (27 June 1986)
136–137.
55 Somalia v. Kenya (n 2) paras 90–91; para 97 (stating ‘the text of the sixth paragraph of the MOU reflects that of Article 83, paragraph
1, of UNCLOS’).
56 Dissenting Opinion of Judge Bennouna 3–4; dissenting opinion of Judge ad hoc Gilbert Guillaume para 12: ‘[o]n notera cependant
que ces textes ont des objets fondamentalement différents’.
57 WTIDS58/AB/R (12 October 1998) paras 127 et seq.
Chan 203
on a particular matter. The Court assumed a similar stance in the Oil Platform case, in which it invoked
the silence in the U.S. domestic ratification process to dismiss part of Iran’s interpretation of the Treaty of
Friendship between the U.S. and Iran.58 But this method is not without some controversy: as Judge Bennouna
put it, ‘[h]ow can one interpret the silence of a text in such a way?’59 In Cruz Varas v. Sweden, the European
Court of Human Rights had to decide whether it was authorised by the Convention to order interim meas-
ures; upon recognising the silence of travaux of the Convention on the issue, the Court readily confirmed
the the travaux as irrelevant.60 Judge Robinson, himself a former Ambassador involved in the negotiation of
UNCLOS, disagreed with the majority’s conclusion that the silence in the travaux préparatoires of UNCLOS
implies the parties’ intention to allow the ICJ’s jurisdiction even in the case of a reservation. He argued that
if the majority’s interpretation was true, it would suggest that State Parties of UNCLOS ‘treated reservations
as having no legal significance. It is improbable that this could have been their approach’.61 A more accurate
description of the intention of the drafters of UNCLOS, according to Judge Robinson, was that they simply
had not ‘given any thought whatsoever to those reservations’ since ‘there was no need to elaborate because
it was obvious…that Article 282 would not apply to an optional clause declaration with the Kenyan-type
reservation’.62 At the end of his dissent, Judge Robinson was even able to identify segments of travaux which
showed that proposals to make the ICJ at the head of the list of fora in Art. 287 were rejected. International
lawyers should be particularly prudent when interpreting silence, not only due to the often fragmentary
nature of preparatory works, but also because of the established doctrine that reliance on preparatory works
can only be supplementary.63
A second observation can be made on the opposability of travaux préparatoires to parties that are not
present in the negotiations. As pointed out by Judge Bennouna, in relation to the MOU, ‘there are simply
no such travaux in the relations between the two States parties to the MOU. At most, there are elements
concerning the assistance extended by the Norwegian Ambassador Longva to the Parties to conclude this
agreement’.64 Since neither Kenya nor Somalia was involved in the drafting of the MOU, can the travaux of
the MOU be invoked to illustrate the parties’ intentions? In the Territorial Jurisdiction of the International
Commission of the River Oder case, the Permanent Court of International Justice refused to admit the part of
preparatory works in which three of the parties to the dispute had not participated;65 some commentators
share the same opinion.66 According to the International Law Commission (ILC), nevertheless, the River Oder
case does not constitute jurisprudence constante, since ‘a State acceding to a treaty in the drafting of which it
did not participate is perfectly entitled to request to see the travaux préparatoires’.67 A possible compromise
seems to be that the travaux can be invoked only if they have been publicly available.68 In Somalia v. Kenya,
the Court mentioned the two available ‘travaux’ of the MOU: one is a presentation given by the Norwegian
Ambassador at a conference and the other comments on the protection of Somali natural resources written
by the Permanent Mission of Norway. Although this information is indeed publicly available, in light of the
dissents of Judge Bennouna one may question the ILC’s decision to abstain from any definition of travaux.
Commentators like Charles de Visscher have notably refused to accept documents not emanating from con-
tracting States to be classified as travaux.69
58 Islamic Republic of Iran v. United States of America, Judgment on Preliminary Objection (12 December 1996) 815 para 29.
59 Dissenting Opinion of Judge Bennouna 4. See also the dissenting opinion of Judge ad hoc Gilbert Guillaume para 31: ‘les travaux
préparatoires sont quasiment muets en ce qui concerne ce paragraphe. Quant aux circonstances dans lesquelles le mémorandum
a été conclu, elles ne nous éclairent pas davantage’.
60 Cruz Varas and Others v. Sweden, Judgement (20 March 1991) para 95.
61 Dissenting opinion of Judge Robinson para 27.
62 ibid. paras 30–31.
63 P-M. Dupuy and Yann Kerbrat, Droit international public (13th edn, Dalloz 2016) 357 para 315; Aust (n 32) 247 (stating ‘travaux must
therefore always be approached with care. Their investigation is time-consuming, their usefulness often being marginal and very
seldom decisive’).
64 Dissenting Opinion of Judge Bennouna 4.
65 Mustafa Kamil Yasseen, ‘L’interprétation des traités d’après la convention de Vienne sur le droit des traités’ (1976) 151 Collected
Courses of the Hague Academy of International Law 89–90.
66 Jean Combacau and Serge Sur, Droit international public (L.G.D.J. 2016) 181: ‘ils ne sont pas opposables aux sujets qui n’ont pas
participé à la négociation’; Yasseen, ibid.
67 Yearbook of the ILC, 1966–II 222.
68 See Judge Schwebel’s dissenting opinion in Qatar v. Bahrain (n 33), Judgement of 15 February 1995, 38–39 (rejecting Qatar’s objec-
tion that part of the draft text prepared by Saudi Arabia as inadmissible as ‘it was never sent the draft in question’. While the Court
did not find it necessary to decide on the issue, Judge Schwebel stated that ‘[n]one of the preparatory work at issue was or is secret,
or known to one but not another Party’).
69 Yearbook of the ILC, 1966–II, 223 paras 20–22; Yasseen (n 65) 84–86.
The ICJ’s Judgement in
Somalia v. Kenya
and its Implications for the Law of the Sea204
III. Concluding Remarks
The core lesson of the Court’s judgment on the preliminary objection in Somalia v. Kenya is to be prudent.
If a party wishes to insist on the point that no negotiation should commence before a certain date, it should
take care not to carry out any negotiations at all, whatever the excuse may be. Prudence is also required
in the process of reservations to the Court’s jurisdiction, which must be unequivocal as to which kinds
of dispute are to be excluded. The corollary of this requirement is that States are not encouraged to draft
ambiguous reservations in the hope of escaping from the commitment to the compulsory jurisdiction of
the World Court. The Court has made it clear that, in the case of an optional clause declaration that contains
the words that the country accepts its jurisdiction on ‘all disputes’, it will only deny jurisdiction if the parties
have explicitly agreed on resorting to another method of settling the dispute.70 In the same vein, States are
not encouraged to alleviate their international obligations simply by calling the legal instrument a name
other than a treaty (such as a MOU). Prudence is further advised to the drafters, who should clarify whether
they intend it to denote an obligation or a future action by using the word ‘shall’. Practice has shown that
without some guidance from the text, courts or tribunals will need to venture into the realm of contextual
or supplementary means of interpretation, which may not give the word its intended meaning.
On interpretation, we are prone to forget Vattel’s first general maxim: in claris non t interpretatio (do not
interpret when there is no need for interpretation). Context, from the other articles in the same treaty to
similarly articulated paragraphs in other treaties, may be just as important or even more important than the
plain meaning of the text. Preparatory works, regardless of their origin or the level of their expressiveness,
may be considered to support an interpretation reached otherwise.
By virtue of the judgement in Somalia v. Kenya, the Court has established itself as the default adjudicator
in the law of the sea disputes unless the reservation to its jurisdiction is sufficiently precise. On the one
hand, arbitral tribunals established under UNCLOS facing similar situations may be more willing to give
jurisdiction to the ICJ for judicial comity in the future. On the other hand, the concern of a negative con-
flict of jurisdiction was clearly one of the reasons that motivated the Court’s ruling. Although the issue was
not dealt with in detail by the Court, its significance cannot be underestimated: as the Permanent Court of
International Justice once stated in the Chorzów Factory case, the Court:
‘…cannot allow its own competency to give way unless confronted with a clause which it considers
sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger
of a denial of justice’.71
One can read this along with the Court’s deliberate choice not to interpret the acceptance of its compulsory
jurisdiction and the relevant reservations restrictively.72 With some level of flexibility preserved, the Court
saves itself from the perplexing issues of jurisdiction and thereby focuses, instead, on achieving substantive
justice for the parties.
Competing Interests
The author has no competing interests to declare.
70 Somalia v. Kenya (n 2) para 119.
71 PCIJ, Factory at Chorzów, Judgment on Jurisdiction, 26 July 1927, Series A, No. 9, at 30.
72 CIJ, Fisheries Jurisdiction Case (Spain v. Canada), Judgment of 4 December 1998 para 44. (‘Conditions or reservations thus do not by
their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State’s acceptance
of the compulsory jurisdiction of the Court. There is thus no reason to interpret them restrictively’).
How to cite this article: Kai-chieh Chan, ‘The ICJ’s Judgement in
Somalia v. Kenya
and Its Implications for the Law
of the Sea’ (2018) 34(2) Utrecht Journal of International and European Law pp. 195–204, DOI: https://doi.org/10.5334/
ujiel.450
Submitted: 18 December 2017 Accepted: 01 November 2018 Published: 22 November 2018
Copyright: © 2018 The Author(s). This is an open-access article distributed under the terms of the Creative
Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and
reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/
licenses/by/4.0/.
OPEN ACCESS
Utrecht Journal of International and European Law
is a peer-reviewed open access
journal published by Ubiquity Press.
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  • S P A V Salini
  • Jordan
  • Case
Salini S.p.A. v. Jordan, ICSID Case No. ARB/02/13, Award (31 Jan 2006, Tribunal: Bernardo Cremades, Ian Sinclair, and Gilbert Guillaume) para 78 (emphasis added).
Kenya (n 2) para 34; see also para 41: 'Somalia has invited the Court to reject Kenya's preliminary objection without considering the status of the MOU under international law
  • Somalia V
Somalia v. Kenya (n 2) para 34; see also para 41: 'Somalia has invited the Court to reject Kenya's preliminary objection without considering the status of the MOU under international law'.
Competence of the General Assembly for the Admission of a State to the United Nations
Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion (3 March 1950) 8 (emphasis added). This rule was confirmed by the Court in Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgement (12 November 1991) para 69 as reflecting customary international law.
Investment Law at the Crossroads of Public and Private International Law' (2014) 5 Select Proceedings of the European Society of International Law
  • Andrea Bjorklund
  • Georgios Petrochilos
  • Stephan Schill
  • Diane Desierto
Andrea Bjorklund, Georgios Petrochilos, Stephan Schill and Diane Desierto, 'Investment Law at the Crossroads of Public and Private International Law' (2014) 5 Select Proceedings of the European Society of International Law, 173-174.
38 para 114; Islamic Republic of Iran v. United States of America, Judgment on Preliminary Objection (12 December 1996) 813; Military and Paramilitary Activities in and against Nicaragua
  • Djibouti V France
Djibouti v. France, Judgment (4 June 2008) 38 para 114; Islamic Republic of Iran v. United States of America, Judgment on Preliminary Objection (12 December 1996) 813; Military and Paramilitary Activities in and against Nicaragua, Judgment (27 June 1986) 136-137.
32) 247 (stating 'travaux must therefore always be approached with care. Their investigation is time-consuming, their usefulness often being marginal and very seldom decisive')
  • Aust
Aust (n 32) 247 (stating 'travaux must therefore always be approached with care. Their investigation is time-consuming, their usefulness often being marginal and very seldom decisive').
L'interprétation des traités d'après la convention de Vienne sur le droit des traités' (1976) 151 Collected Courses of the Hague Academy of International Law
  • Yasseen Mustafa Kamil
Mustafa Kamil Yasseen, 'L'interprétation des traités d'après la convention de Vienne sur le droit des traités' (1976) 151 Collected Courses of the Hague Academy of International Law 89-90.
181: 'ils ne sont pas opposables aux sujets qui n'ont pas participé à la négociation
  • Jean Combacau
  • Serge Sur
Jean Combacau and Serge Sur, Droit international public (L.G.D.J. 2016) 181: 'ils ne sont pas opposables aux sujets qui n'ont pas participé à la négociation';