Kenya faces another Hague court

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Wednesday, September 3, 2014 - 15:17

By Justice Hub

Last week, the highest UN court, the International Court of Justice, announced that Somalia has started proceedings against Kenya to sort out their sea boundaries. With a handy guide to what’s going on, here’s our international justice coordinator Janet Anderson.

How come there’s another Hague court targeting Kenya?

This court – the ICJ – is all about resolving disputes between states, by applying international law, such as treaties that countries sign up to.  If Kenya doesn’t want this court to interfere, it can argue about it. The court always checks whether a country has agreed to its jurisdiction. The other court – the ICC – is where individuals – not countries – are put on trial for crimes like genocide or crimes against humanity. That’s where Deputy President William Ruto and possibly President Uhuru Kenyatta face trial. But you’re right; both are in The Hague – not surprising, as it’s known as the international legal capital of the world.

So what’s this dispute all about?

Earlier this year, Mogadishu declared an exclusive economic zone beyond a 200-mile limit, based on the continental shelf that extends from the land. The issue is where the line between Kenya and Somalia should be in the water and on the sea floor. Kenya wants it to be straight. Somalia wants it to wiggle. And says Kenya’s straight lines don’t confirm with the Law of the Sea that they both signed up to in 1989. International law experts like Olivier Ribbelink at the TMC Asser Institute says a clue to what it’s really all about lies in the reference to the continental shelf in Somalia’s application. That’s where “all the potential goodies” can be found like oil and gas.

How can Somalia take Kenya to this court?

All countries are automatically members of this court if they are members of the UN. Way back in the 1960s, both countries individually and explicitly agreed to accept the ICJ’s jurisdiction. If Nairobi doesn’t want to take part, it will have to convince the ICJ that is doesn’t have jurisdiction in this case.

Why would Somalia go to this court and not any other?

Somalia mentions that both Kenya and Somalia had signed up to the Law of the Sea and that this court is one of the mechanisms to solve any disputes that arise. They could have gone for arbitration, where the two sides have influence on who should be the arbiters and which laws should be applicable. The ICJ, however, must decide on the basis of all applicable international law, says Ribbelink.

How can Somalia afford it?

If you mean money to pay the very best lawyers, the UN has a special fund that can help. The court itself comes for free. But if you mean how can Somalia afford to annoy a neighbour that’s fighting an enemy on its territory – that’s for Mogadishu to answer.

How long will it take?

Cases can drag out. They go at the pace the countries themselves set. And if Kenya gets x months to submit its arguments, then Somalia gets the same. First of all, there are written arguments and then oral arguments. But in between there can be applications and measures requested by either side which can put a brake on everything.  After the oral arguments, it takes the judges two to six months to make a decision. But it is also possible that both states will agree on a settlement outside court before that.

Who’s going to win?

Somalia already has a judge sitting at the court, but he’s not supposed to represent Somalia. Nevertheless Kenya can also choose an ad-hoc judge of its own to join the 15-strong bench for this case. There’s a recent precedent case between Peru and Chile on their maritime border, so that may provide clues on what the court is likely to decide. But each case is different. For Ribbelink though, Somalia is unlikely to have brought the case to the ICJ “unless they’re convinced they have a good chance to win”.

(Photo: The Peace Palace in The Hague, Credit: TEDxHagueAcademy)

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Anonymous
Ali hirsu

Kenya is taking advantage of SOMALI'S weak and transitional government. The MoU signed between the two governments were immediately rejected by the SOMALI parliament and a letter the Somali government wrote to the United Nations informed that MoU is null and void. Therefore, the court has the jurisdiction to look into case. I believe eventually Somali will win and gets back its water territory .

Thursday, September 22, 2016 - 07:59
Anonymous