ICJ rescinds Kenya’s request to delay Somalia maritime case

Kenya’s appeal to delay a case in which Somalia has sued over a common maritime border has been rejected by the International Court of Justice.

In a note sent to the parties on Saturday, the ICJ confirmed that, as planned, the case would continue from 15 March onwards, with oral proceedings continuing until 19 March.

“Having duly considered the arguments presented by the parties, the court has decided to maintain the hearings as scheduled, in a hybrid format,” said the note from the ICJ Registrar Philippe Gautier.

The court asserted that despite Covid-19 protocols on physical gatherings, “there is a possibility of a limited number of representatives of the parties to appear in person in the Great Hall of Justice, with the other representatives participating by video link.”

Kenya’s Attorney General, Mr Kihara Kariuki, wrote to the ICJ on 28 January requesting an indefinite pause in the case, citing the Covid-19 pandemic, which he said had hindered logistical preparations. Mr Kariuki said that if the scheduled hearing continued by video connection, Kenya would not be able to defend itself “fairly, fully and transparently.”

Nairobi says that due to travel restrictions imposed by authorities around the world to prevent the spread of Covid-19, its new legal team, hired in January last year, was unable to plan.

American Sean Murphy, Italian Tulia Treves, Makane Mbengue of Senegal, Laurence Boisson Chazournes of France, Christian Tams of Germany and Eran Sthoeger of Israel are part of the team. During confirmation hearings, they replaced a team that handled the case.

Somalia sued Kenya at the ICJ, the highest court of the UN, seeking to redraw its maritime boundary from the present eastern straight line from the land border to a south-eastern straight line. It is also said that the region in question has unexploited yet lucrative hydrocarbons, around 100,000 km2.

Kenya applied three times for the case to be postponed after the court acknowledged jurisdiction over the case. The extension was granted from September to November 2019, and this was later pushed to June 2020 and then again to March 2021.

Kenya has also argued that the authorities say there is a missing map that is crucial to its case.

“While the adverse effect of the pandemic has occasioned Kenya’s inability to access this document and other additional material evidence it had hoped to secure for presentation to the court in advance of the hearing, Kenya has, nevertheless, gathered significant evidence, which it wishes to present to the court,” Mr Kariuki wrote.

It is said that the missing map shows the actual flow of the maritime border with Kenya and was cited in the maritime law submitted by Somalia.

Kenya and Somalia depended on a borderline colonial flow, and former presidents Jomo Kenyatta and Siad Barre later reached a status quo agreement with a gentleman.

Both countries had negotiated and agreed to have the UN Commission on the Law of the Sea support them in dealing with the matter before Somalia sued at the ICJ. The bilateral agreement was opposed by Somalia’s then Transitional Federal Parliament in 2009.

As reported by Nation Africa, the ICJ ruled that, despite the parliamentary rejection, the bilateral agreement remained a legitimate treaty between the two countries, arguing that Kenya and Somalia had appointed valid officials to sign the document (then Foreign Minister Moses Wetangula and then Minister of Planning of Somalia Abdishakur Abdirahman).

But this did not stop the court from hearing the appeal, the judges said. Following the oral hearings next month, the judges are scheduled to issue a verdict.

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