Experts Comment on Somalia-Kenya Boundary Fixed by the World Court

On 12 October 2021, the International Court of Justice (ICJ) in The Hague issued a ruling delimiting the disputed maritime boundary between Somalia and Kenya in the Indian Ocean. Professor Pieter Bekker, CEPMLP Chair in International Law and a former ICJ staff lawyer, observes: “The adjudicated boundary delimits the territorial sea, exclusive economic zone (EEZ) and continental shelf rights of the two States. Of particular note, the EEZ boundary cuts through offshore oil and gas blocks that had been issued to foreign concessionaires by Kenya, but that lie in maritime zones over which Somalia has exclusive sovereign rights following the ICJ ruling.”

The case was brought by Somalia in August 2014 and took 86 months to resolve by the ICJ, which is the principal judicial organ of the United Nations. While Kenya participated in the written phase of the proceedings, it stayed away from the final hearings that took place in March 2021, after protesting the ICJ’s refusal to grant a further extension of the postponement of the hearings. In Kenya’s view, there was an agreed boundary following a parallel of latitude, and the ICJ should never have assumed jurisdiction over the boundary case.

According to Robert van de Poll, a preeminent Canadian geo-scientist employed by Fugro and a CEPMLP Honorary Lecturer, the boundary fixed by the ICJ appears to have serious technical flaws in key aspects. In particular, there appear to be errors concerning the definition of boundary basepoints along the coast and the extent of the territorial sea boundary which, in turn, has implications for the course of the Court’s boundary extending to 200 nautical miles for the EEZ and beyond this limit with respect to areas of “extended” or “outer” continental shelf (ECS).

Messrs. Bekker and van de Poll are co-founders of DOLFIN (Dundee Ocean and Lake Frontiers Initiative and Neutrals), an interdisciplinary know-how portal dedicated to maritime boundary research. They analysed the Somalia-Kenya boundary dispute from the perspective of the oil and gas sector for The Extractives Hub in a Webinar on 15 May 2020 (see video).

Concerning the terminus of the Kenya-Somalia land boundary on the coast, the ICJ confirmed the position of the final boundary pillar and then determined the starting point for the maritime boundary to be a specified point on the low-water line along the coast. The Court then opted to define basepoints on small-scale nautical charting showing the coast to be substantially inland – on average over 100 metres landward of the satellite-derived location of the coast, according to Mr van de Poll.

In the view of Professor Clive Schofield, Head of Research at the Sasakawa Global Ocean Institute at the World Maritime University (WMU) in Malmö (Sweden), “it is remarkable that the ICJ, after invoking predictability as a guiding factor, chose an imprecise and outdated nautical chart as the source of information concerning the location of the low-water line, leading to the bizarre scenario not only of an agreed boundary pillar seaward of the charted coast but a basepoint defined by the Court for Somalia which is actually located over 100 metres on the Kenyan side of the agreed land boundary.”

Perhaps even more concerning, according to the three experts, is the ICJ’s delimitation of a territorial sea boundary line that appears to be longer than the 12 nautical miles prescribed under international law. As Mr van de Poll observes, “it is unclear how the ICJ arrived at the coordinate that purports to represent the endpoint of the territorial sea, but is in fact almost 13 nautical miles when measured from the coordinate that the Court provides for the land terminus point, which denotes the land-sea interface.” This apparent error, he explains, necessarily has “knock on” consequences for Kenya’s maritime entitlements in the EEZ and the ECS as “any discrepancy in the end of the territorial sea delimitation affects the remainder of the single boundary line that stretches for up to 350 nautical miles, as it crosses both the EEZ and the ECS maritime zones.”

Mr van de Poll said that he has calculated the discrepancy resulting from the coordinates selected by the ICJ to amount to approximately 200 square kilometres, or nearly 60 square nautical miles, for Kenya’s 200-nautical-mile EEZ alone, and approximately 240 square kilometres, or nearly 70 square nautical miles, for Kenya’s claimed ECS, the outer limits of which remain to be determined by the Commission on the Limits of the Continental Shelf, a special body seated in New York. As he explains: “While this may not seem much, such a discrepancy could translate into significant amounts in lost revenues from oil and gas exploitation by Kenya, and overshooting a boundary endpoint by a mile is serious by any standard.”

Professor Schofield observes, and all three experts agree, that “the ICJ appears to have gone out of its way to adjust the equidistance line so as to soften the impact of this mathematical method as much as possible for Kenya, leaving Kenya in a more advantageous position than could have been the case had the boundary been fixed through ‘strict’ or unadjusted equidistance, as Somalia had requested.”

As to the implications of the ruling, Professor Bekker points out that “the ICJ decision on the boundary is binding for Somalia and Kenya and is final and without appeal according to the ICJ Statute, to which both countries are parties.” It is therefore uncertain whether Kenya would be successful if it were to raise the technical errors apparent in the ruling and seek their correction. Here it can be observed that even such corrections may not mollify Kenya’s views regarding the decision given that senior officials of Kenya have publicly denounced the ICJ’s judgment both before and after the issuance of the ruling. Professor Bekker comments that “it remains to be seen whether Somalia will refer any violation of the ICJ ruling by Kenya to the UN Security Council, as it is entitled to do under Article 94 of the UN Charter if Kenya would fail to perform the obligations incumbent upon it under the ICJ’s judgment.”