Somalia’s Maritime case against Kenya will go Ahead

ICJ Decision: The ICJ will begin its deliberations concerning the delimitation of the maritime boundary between Somalia and Kenya

Though Kenya had hoped that the International Court of Justice (ICJ) would throw out Somalia’s application in it’s first hearing, the court concluded to hold deliberations.

That is the first step in a hopefully speedy process to settle this long pending international dispute.

Though Kenya itself is a signatory to UNCLOS, the United Nations Common Law of the Sea, and thereby bound by the rules and regulations set by this international legislation, Kenya had for many years ignored that part of the law, which clearly determines the delineation of an international boundary between two coastal states on the sea. UNCLOS unmistakably determines it as running 90 degrees to the coastal tangent at the border and not – as Kenya tries to insist – along a latitude.

While ignoring the international law, Kenya had for many years tried not only to change the boundary with Memoranda of Understanding (MOUs), drawn up in back-rooms – in part with international help (i.a. Norway) – and signed by unauthorized officials from both sides, but already had cashed in on the maritime resources of that vast triangle of the Indian Ocean by selling concessions for oil-explorations to the known set of “explorers”, who run their businesses like Ponzi-schemes, juggling and earning from risk-investment capital (RIC). Thereby RIC is usually nothing else than what the West only calls money laundering when it comes to investments by investors, who are not in line with the western governmental-economic establishments.

Somalia, one of the few true nation-states in Africa is persistently held down by the international players, who since colonial times pitch the Somali clans against each other, and is still considered as one of the poorest economies worldwide. This despite the fact that Somalia has the longest coastline of any African state (3,300km) and thereby is potentially very rich, since it has 200nm Territorial Waters (TW), an overlapping 200nm Exclusive Economic Zone (EEZ) and a 350nm continental shelf zone (CSZ), which – in theory – protect its natural resources, shipping lanes and other rights of the Somalis on the Indian Ocean and the Gulf of Aden for the benefit of the Somali people.

But decades of illegal fishing by foreign interests, oil-, nuclear- and other hazardous-waste dumping, years of masterminded “piracy”-events and persistent illegal shipping transgressions only saw the global players – including neighbouring Kenya – getting richer from the exploitations and their loot – but not the Somali people.

In addition USAmerican military interests persistently want to curb the territorial waters of Somalia to only 12nm, like they try with all other coastal states, in order to be able to continue their “cannon-boat”-policy worldwide – as last seen in Libya, Venezuela and the China seas – without that other nations could accuse them of wrongdoing. It was therefore suggested since long that Somalia enshrines its 200nm territorial waters – like Peru did it – in its constitution, in order to stop once and for all the persistent attempts by foreign “diplomats” to convince the Somali office bearers at a time and up to each newly incoming president to drop the Somali Law of the Seas, which determined the territorial waters since 1973 and was respected by the international community until the masterminded fall of Siad Barre in 1991.

In addition the maritime space of Somalia is every day violated with impunity under the eyes of US and EU naval forces, like the air-space was “controlled” by the UN out of Nairobi for decades with hundreds of millions of dollars for overflight fees withheld from the Somalis.

Still another Mafia-game persists: While healthy tuna fish is illegally caught in the Indian Ocean including the Somali waters by mega tuna-seiners (many from Spain but not running under a Spanish flag) and transshipped via the Seychelles to the auctions of Japan with multi-million-dollar proceeds, contaminated tuna from the East Asian seas and elsewhere is canned in Thailand, then shipped to East Africa and sold by the supermarkets in countries, which do not have such stringent controls for food-safety like Japan has. Tuna contaminated with mercury and other heavy metals as well as fish from offshore Japan, which makes every Geiger-counter buzzing, is consumed then by innocent Africans including the Somalis themselves. A report by the National Academy of Sciences which states unequivocally that Pacific Bluefin tuna have “transported Fukushima-derived radionuclides across the entire North Pacific Ocean, speaks for itself. IUU fishing, which stands for illegal, unreported, and unregulated fishing – in short pirate fishing – ensnares seafood companies, supermarkets, and consumers alike in a highly criminal trade that is arguably as problematic as trafficking in elephant tusks, rhino horns, and tiger bones, which will be tackled in the coming two weeks by the delegates at the CITES conference in Johannesburg. There ECOTERRA spokesman Hans-Juergen Duwe stated: “Enjoy your radiating Caesar’s tuna-salad America and Europe, but leave the Somali waters and the Somali fishermen in peace!”

It is high time that the international community wakes up and the states implicated get their own house in order, which in turn would allow the Somalis to finally prosper from their seas.

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The Court to begin its deliberation
Conclusion of public hearings on the preliminary objections raised by the Republic of Kenya

23 September 2016 – ICJ – No. 2016/26 – Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

The public hearings on the preliminary objections raised by Kenya in the case of Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) were concluded today. The Court will now begin its deliberation.

During the hearings, which opened on Monday 19 September 2016 at the Peace Palace, seat of the Court, the delegation of Kenya was led by Professor Githu Muigai, Attorney-General of the Republic of Kenya, as Agent. The delegation of Somalia was led by H.E. Mr. Ali Said Faqi, Ambassador of the Federal Republic of Somalia to the Kingdom of Belgium, as Co-Agent.

The Court’s Judgement on the preliminary objections will be delivered at a public sitting, the date of which will be announced in due course.

Submissions of the Parties

At the end of the hearings, the Agents of the Parties presented the following submissions to the Court:

For Kenya:
“The Republic of Kenya respectfully requests the Court to adjudge and declare that:
The case brought by Somalia against Kenya is not within the jurisdiction of the Court and is inadmissible, and is accordingly dismissed.”

For Somalia:
“On the basis of its Written Statement of 5 February 2016, and its oral pleadings, Somalia respectfully requests the Court:
1. To reject the Preliminary Objections raised by the Republic of Kenya; and
2. To find that it has jurisdiction to entertain the Application filed by the Federal Republic of Somalia.”

Internal judicial practice of the Court with respect to deliberations

Deliberations take place in private in accordance with the following procedure. The Court first holds a preliminary deliberation, during which the President outlines the issues which, in his opinion, require discussion and decision by the Court. A full deliberation is subsequently held, at the end of which a drafting committee is chosen by secret ballot, taking account of the views expressed. That committee consists in principle of two judges holding the majority view of the Court, together with the President, unless it appears that his views are in the minority. The committee prepares a preliminary draft text, which is the subject of written amendments. Two further drafts are then produced in turn, each of which is subject to a detailed reading. In the meantime, judges who wish to do so may prepare a declaration, a separate opinion or a dissenting opinion, which are communicated to the other judges. The final vote is taken after adoption of the final text of the judgement at the second reading.

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N.B.:
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgements have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. Independent of the United Nations Secretariat, it is assisted by a Registry, its own international secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official languages of the Court are French and English. Also known as the “World Court”, it is the only court of a universal character with general jurisdiction.

The ICJ, a court open only to States for contentious proceedings, and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other – mostly criminal – judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court, established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an international judicial body with an independent legal personality, established by the United Nations Security Council upon the request of the Lebanese Government and composed of Lebanese and international judges), or the Permanent Court of Arbitration (PCA, an independent institution which assists in the establishment of arbitral tribunals and facilitates their work, in accordance with the Hague Convention of 1899).

History of the proceedings
The history of the proceedings can be found in Press Release No. 2016/15 of 26 May 2016, available on the Court’s website

The complete verbatim records of the hearings held from 19 to 21 and on 23 September 2016 are published on the website of the Court (www.icj-cij.org).

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