Legal experts say the aftermath of today’s ruling in the maritime dispute between Kenya can only be resolved through diplomacy and not through court.
Kenyan lawyers working with. have spoken The standard say that it is likely that the International Court of Justice will end the case by finding that the court has no power to resolve the case.
At the same time, they believe that the court will either settle the case on the basis of the boycott of Kenya and withdraw it later, or rule on the matter if that fails.
Musalia Mudavadi, Kalonzo Musyoka and Moses Wetang’ula, the leaders of the Kenya Alliance (OKA), stood behind President Uhuru Kenyatta yesterday and urged him not to compromise on Kenyan territory despite the court’s decision.
“Not an inch of the land should be given away. We will steadfastly guard our territory, and I ask President Uhuru to be on guard against any external aggression on our territory, ”he said.
They spoke as experts voiced their fears that Kenya’s tough stance on the court could bite its buttocks.
The law professor at the University of Nairobi, Ben Sihanya, is of the opinion that Kenya and Somalia, even if the ICJ decides the case, must sit together again and plan the way forward.
He says it is unfortunate that the two neighbors were unable to sit down and negotiate before Somalia decided to go to the Dutch court.
The Kenyan authorities have argued in court that Somalia should have brought in the East African Community first and then switched to the African Union if the dispute escalated instead of taking the case to the International Court of Justice (ICJ) in The Hague, Netherlands.
Kenya’s position was that Somalia had not exhausted all dispute settlement mechanisms before going to a court in The Hague accusing Kenya of bias and links with the war-torn country.
“Is the ICJ the ideal place to settle the maritime dispute between Somalia and Kenya? Was it procedurally correct for Somalia to go before the ICJ and at the same time put issues of the maritime dispute up for auction? ”Explains Kenya’s argument.
“Why has Somalia not applied to the African Union for an appeal under the African Union Convention on Cross-Border Cooperation? Wasn’t the Intergovernmental Development Agency (Igad) for Somalia an option to take its case? What about the East African Community? ”Read some of the documents.
In the document, Kenya accuses Somalia of ignoring African dispute settlement methods.
“Somalia played the racing card by adopting a Eurocentric legal system as opposed to mediation and arbitration as practiced in traditional African methods of dispute resolution. What would the consequences be if the ICJ favored Somalia over Kenya in the maritime dispute? ”The authors say
Prof. Sihanya says the verdict cannot fit into the shoes of a political or diplomatically negotiated solution.
“I think the court will make its judgment based on its legal understanding and still hope that we can pursue the diplomatic options and whatever option is, we are neighbors. Whatever the option, in terms of enforcement, the two states as well as the UN Security Council and the African Union will be required. ”
“I think there is leeway to pursue political and diplomatic options. Sometimes legal options cannot take the place of politico-diplomatic options. Whatever the outcome, Somalia and Kenya are not moving and we will remain neighbors. Above all, we have to find a way of living together in Somalia, which is politically and technically unstable and, unfortunately, was not persecuted in good time, ”says Sihanya.
Kenya’s marine area is approximately 255,000 km, which was determined in 1979 by latitudes. Somalia recognized Kenya’s claim to the EEZ for 35 years.
However, in 2014, the Horn of Africa country filed a lawsuit with the International Court of Justice. The dispute was filed by Somalia’s Minister for Foreign Affairs and Investment Promotion, Abdirahman Dualeh, on August 28, 2014 on behalf of his government.
The point of contention between Kenya and Somalia is the nature of the line of the sea border.
Somalia claims a center line from the Kenya / Somalia land border, but Kenya insists on a straight line. Somalia’s central line forms a triangle of the marine area currently occupied by Kenya, in which there are four oil blocks.
In 2019, Somalia floated next to the four controversial oil blocks for the auction of minerals in Kenya’s territorial waters.
A document called ‘Offshore Somalia 2019 ‘ and leaked from Somalia’s Ministry of Petroleum and Natural Resources showed that five oil blocs in Lamu are part of those that Somalia has given to investors.
It turned out that Somalia had also reached out to companies that had severed ties with it to resume exploration activities. Some expressed their willingness.
The document showed that prior to the collapse of Somalia in 1991, giant international oil companies (IOCs) had taken over large areas of their onshore territory, with exploration commencing and 40 oil wells being drilled.
Interestingly, when Somalia officials launched tenders for hydrocarbon exploration in London in February 2019, they were quick to inform bidders that previously collected seismic data was incorrect due to the use of incorrect geological models.
Though Somalia and Kenya had a mutual settlement across the border for decades, the former’s authorities filed the dispute with the ICJ just one year after the signing of the agreement by Soma Oil Limited, chaired by former British Conservative Leader Michael Howard, at the ICJ One Nation on Aug. 13, 2013 .