ICJ dismisses Kenya’s preliminary objections in maritime delimitation dispute with Somalia

ICJ dismisses Kenya’s preliminary objections in maritime delimitation dispute with Somalia

On 2 February 2017, the International Court of Justice (ICJ) dismissed Kenya’s preliminary objections in the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) case and determined that it could proceed to the merits of the dispute.

In its application initiating the case, Somalia requested that the Court “determine the complete course of the maritime boundary between Somalia and Kenya in the Indian Ocean […] on the basis of international law” and that it adjudge and declare that, via its conduct, Kenya had violated international law.

Kenya’s preliminary objections were based on its unilateral declaration recognising the ICJ’s jurisdiction (Optional Clause Declaration), by virtue of which Kenya accepts the ICJ’s jurisdiction unless another form of dispute settlement has been agreed.  Kenya argued that a Memorandum of Understanding (MOU) signed with Somalia so as to “to grant to each other No-Objection in respect of submissions on the Outer Limits of the Continental Shelf […] to the Commission on the Limits of the Continental Shelf” constituted such an alternative form of dispute settlement and thereby barred the ICJ’s jurisdiction.

The ICJ determined, inter alia, that the MOU was a binding international instrument but that it did not establish a distinct dispute settlement mechanism for maritime delimitation.  Consequently, Kenya’s reservation to its Optional Clause Declaration did not apply.  It held that, while the Parties had agreed that the delineation would be determined by the Commission on the Limits of the Continental Shelf, this was “without prejudice” to the issue of delimitation.  The ICJ also noted that the Parties were free to submit their disputes to dispute resolution mechanisms of their choosing, whether by a general, regional or bilateral agreement or otherwise (including “an agreement to the jurisdiction of this Court that is expressed in optional clause declarations”).

For the ICJ press release, click here; for the judgment, click here.