Court Declares it has Jurisdiction over Somalia’s Application against Kenya on Maritime Delimitation in the Indian Ocean and that it’s Admissible.
February 27, 2017
Court Declares it has Jurisdiction over Somalia’s Application against Kenya on Maritime Delimitation in the Indian Ocean and that it’s Admissible.
Somalia v Kenya
The International Court of Justice
President Abraham; Vice-President Yusuf; Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian JJ; Guillaume, J ad hoc
February 2, 2017
Reported by Linda Awuor & Faith Wanjiku
International Law-Jurisdiction-jurisdiction of the International Court of Justice- whether the Court had jurisdiction to hear the application under article 36 of its Statute and article 287 of the Convention-Statute of the International Court of Justice, 1945, article 36; United Nations Convention on the Law of the Sea, 1982, article 287
International Law-Law of Treaty-interpretation of the United Nations Convention on the Law of the Sea -admissibility- whether in accordance to paragraph 6 of the MOU Somalia’s application was admissible before the Court-United Nations Convention on the Law of the Sea, 1982, article 282
International Law-Law of Treaty-interpretation of the MOU-interpretation of the word shall-what was the Court’s interpretation on the word shall as used in the MOU by the parties-MOU between Kenya and Somalia to grant to each other No-Objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles,2009, paragraph 6
International Law- Law of Treaty-interpretation of the MOU-interpretation of the object and purpose of the MOU – what was the Court’s interpretation on the object and purpose of the MOU – MOU between Kenya and Somalia to grant to each other No-Objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles,2009
On April 7, 2009, the Kenyan Minister for Foreign Affairs and the Somali Minister for National Planning and International Cooperation signed a MOU between Kenya and Somalia to grant to each other No-Objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles (MOU) to the Commission on the Limits of the Continental Shelf (CLCS). On April 14, 2009, Somalia submitted to the Secretary-General of the United Nations (UN) preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles, enclosing a copy of the MOU. On May 6, 2009, Kenya deposited with the CLCS its submission with respect to the continental shelf beyond 200 nautical miles and went ahead to make an oral presentation of its submission.
The MOU was registered by the Secretariat of the UN on June11, 2009 at Kenya’s request. On August 19, 2009 the Prime Minister of Somalia referred to the MOU and reiterated Somalia’s consent to the CLCS considering Kenya’s submission. However, Somalia informed the Secretary-General of the UN that the MOU had been rejected by the Transitional Federal Parliament of Somalia, and requested that it be treated as non-actionable.
Somalia objected to the consideration by the CLCS of Kenya’s submission on the ground that there existed a maritime boundary dispute between itself and Kenya and that the MOU was void and of no effect. The CLCS determined that it was not in a position to proceed with the establishment of a sub-commission to consider Kenya’s submission at that time. The Parties subsequently engaged in negotiations on various questions of maritime delimitation.
On July 21, 2014, Somalia deposited with the CLCS its submission with respect to the outer limits of the continental shelf beyond 200 nautical miles. On August 28, 2014, Somalia filed in the Registry of the International Court of Justice (ICJ) an application instituting proceedings against Kenya. Somalia invoked as the basis for the jurisdiction of the Court in the case the declarations which Somalia and Kenya had made under article 36, paragraph 2, of the Statute of the Court.
Somalia requested the Court to determine, on the basis of international law, the complete course of the single maritime boundary that divided all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 nautical miles and the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean. Kenya raised pursuant to article 79 of the Rules of Court two preliminary objections as to the jurisdiction of the Court and the admissibility of the Application.
i. Whether the ICJ had jurisdiction to hear the application on maritime delimitation under article 36 of the Statute of the International Court of Justice and article 287 of the United Nations Convention on the Law of the Sea.
ii. Whether in accordance to paragraph 6 of the MOU on no-objection to the outer limits of the Continental Shelf Somalia’s application on delimitation was admissible before the ICJunder article 287 of the United Nations Convention on the Law of the Sea.
iii. Whether the Parties agreed on a method of settlement of their delimitation dispute other than by way of proceedings before the ICJ, and to wait for the CLCS’s recommendations before any such settlement could be reached.
iv. What was the ICJ’s interpretation on the object and purpose of the MOU on no-objection to the outer limits of the Continental Shelf.
v. What was the ICJ’s interpretation on the word shall as used in the MOU on no-objection to the outer limits of the Continental Shelf by the parties.
Relevant Provisions of the Law
Statute of the International Court of Justice, 1945
Article 36, paragraph 2
The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation
United Nations Convention on the Law of the Sea, 1982
PART XV-SETTLEMENT OF DISPUTES
Article 282-Obligations under general, regional or bilateral agreements
If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.
SECTION 2-COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS
Article 287-Choice of procedure
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.
Sixth paragraph of the MOU
The delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law after the Commission has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations to two coastal States concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles.
Held by Majority
- Under the customary international law of treaties, which was applicable in the case since neither Somalia nor Kenya was a party to the Vienna Convention on the Law of Treaties; an international agreement concluded between States in written form and governed by international law constituted a treaty. The MOU was a written document, in which Somalia and Kenya recorded their agreement on certain points governed by international law. The inclusion of a provision addressing the entry into force of the MOU was indicative of the instrument’s binding character. Kenya considered the MOU to be a treaty, having requested its registration in accordance with article 102 of the Charter of the United Nations, and Somalia did not protest that registration until almost five years thereafter.
- Somalia no longer appeared to contest that the Minister who signed the MOU was authorized to do so as a matter of international law. Under article 7 of the Vienna Convention, by virtue of their functions and without having to produce full powers, heads of State, heads of Government and ministers for foreign affairs were considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty. They could also have duly authorized other officials to adopt, on behalf of a State, the text of a treaty or to have expressed the consent of the State to be bound by a treaty.
- The MOU explicitly stated that the two Ministers who signed it were duly authorized by their respective Governments to do so. The ICJ was thus satisfied that, as a matter of international law, the Minister properly represented Somalia in signing the MOU on its behalfand was thus a valid treaty that entered into force upon signature and was binding on the Parties under international law.
- The ICJ observed that there were various references to maritime delimitation throughout the text of the MOU, in addition to those found in the sixth paragraph. However, none of those functional references to maritime delimitation elsewhere in the text of the MOU supported Kenya’s contention that the MOU served the purpose of providing a method for settling the dispute that related to the delimitation of the Parties’ maritime boundary.
- The first function of the references to delimitation was to define the delimitation dispute between the Parties in order to have established that the Parties could have included the area under dispute in their respective submissions to the CLCS and to have allowed the Commission, irrespective of that dispute, to have issued its recommendations. The second paragraph of the MOU referred to the unresolved delimitation issue between the Parties and defined it as a maritime dispute, before having gone on to have defined the area under dispute, which was then referred to in the fourth and fifth paragraphs. Those references to maritime delimitation did nothing more than further the objective of securing no-objection by either Party to the consideration of the submission of the other Party by the CLCS notwithstanding the delimitation dispute between them.
- The second function was to have made clear that the CLCS process leading to the delineation of the outer limits of the continental shelf was without prejudice to the Parties’ dispute regarding maritime delimitation and its resolution. The third paragraph of the MOU provided that the establishment of outer limits was without prejudice to the question of delimitation of the continental shelf and that the Parties’ interest in such delineation was without prejudice to the future delimitation of the continental shelf. The question of delimitation was therefore to be kept separate from the process leading to the delineation of the outer limits of the continental shelf that suggested that if the MOU addressed delineation it did not, at least in the first five paragraphs, address delimitation or treat delineation as a step in the process of delimitation.
- The subject-matter of the sixth paragraph of the MOU related to the delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles. The use of the word including implied that the Parties intended something more to be encompassed by delimitation in the areas under dispute than delimitation in respect of the continental shelf beyond 200 nautical miles.
- The ICJ thus saw no reason to have concluded that a different meaning had to be given to the term areas under dispute in the sixth paragraph than to the term area under dispute contained in the definition in the second paragraph, namely the areas in which the claims of the two Parties to the continental shelf overlapped. The sixth paragraph therefore did not relate to delimitation of the territorial sea, or to delimitation of the exclusive economic zone. Though Kenya suggested that that paragraph set out a method of settlement of the Parties’ maritime boundary dispute, it would only have applied to their continental shelf boundary, and not to the boundaries of other maritime zones.
- It could have been the case that, as the Parties agreed the endpoint of their maritime boundary in the area beyond 200 nautical miles could not have been definitively determined until after the CLCS’s recommendations had been received and the outer limits of the continental shelf beyond 200 nautical miles established on the basis of those recommendations. That was consistent with article 76, paragraph 8, of United Nations Convention on Law of the Sea (UNCLOS). A lack of certainty regarding the outer limits of the continental shelf, and thus the precise location of the endpoint of a given boundary in the area beyond 200 nautical miles, did not, however, necessarily prevent either the States concerned or the Court from undertaking the delimitation of the boundary in appropriate circumstances before the CLCS had made its recommendations.
- Both Somalia and Kenya were parties to UNCLOS, which contained in Part XV comprehensive provisions for dispute resolution, and both States had optional clause declarations in force. The ICJ did not consider that, in the absence of express language to that effect, that the Parties could have been taken to have excluded recourse to such procedures until after receipt of the CLCS’s recommendations.
- The ICJ observed in respect of the interpretation of the MOU that its object and purpose was to have constituted a no-objection agreement, enabling the CLCS to have made recommendations notwithstanding the existence of a dispute between the Parties regarding the delimitation of the continental shelf. Secondly, the sixth paragraph related solely to the continental shelf, and not to the whole maritime boundary between the Parties, which suggested that it did not create a dispute settlement procedure for the determination of that boundary. Thirdly, the MOU repeatedly made clear that the process leading to the delineation of the outer limits of the continental shelf beyond 200 nautical miles was to be without prejudice to the delimitation of the maritime boundary between the Parties, implying consistently with the jurisprudence of the Court that delimitation could be undertaken independently of a recommendation of the CLCS. Fourthly, the text of the sixth paragraph of the MOU reflected that article 83, paragraph 1, of UNCLOS suggested that the Parties intended to acknowledge the usual course that delimitation would take under that article, namely engaging in negotiations with a view to reaching agreement, and not to prescribe a method of dispute settlement. Fifthly, the Parties accepted that the sixth paragraph did not prevent them from undertaking such negotiations, or reaching certain agreements, prior to obtaining the recommendations of the CLCS.
- The sixth paragraph of the MOU, read in its context and in light of its object and purpose, set out the expectation of the Parties that an agreement could be reached on the delimitation of their continental shelf after receipt of the CLCS’s recommendations. It did not, however, prescribe a method of dispute settlement. The MOU did not, therefore, constitute an agreement to have recourse to some other method or methods of settlement within the meaning of Kenya’s reservation to article 36, paragraph 2, declaration, and consequently the case did not, by virtue of the MOU, fall outside the scope of Kenya’s consent to the Court’s jurisdiction.
- Article 282 of the UNCLOS was to be interpreted so that an agreement to the Court’s jurisdiction through optional clause declarations fell within the scope of that article and applied in lieu of procedures provided for in Section 2 of Part XV, even when such declarations contained a reservation to the same effect as that of Kenya. The contrary interpretation would mean that, by ratifying a treaty which gave priority to agreed procedures resulting from optional clause declarations, States would have achieved precisely the opposite outcome, giving priority instead to the procedures contained in Section 2 of Part XV. Consequently, under article 282, the optional clause declarations of the Parties constituted an agreement, reached otherwise, to settle in the ICJ disputes that concerned interpretation or application of UNCLOS, and the procedure before the ICJ would thus apply in lieu of procedures provided for in Section 2 of Part XV.
- A finding that the Court had jurisdiction gave effect to the intent reflected in Kenya’s declaration, by ensuring that the dispute was subject to a method of dispute settlement. The ICJ was mindful, in that regard, of the observation of the Permanent Court of International Justice (PCIJ) that the Court, when it had to define its jurisdiction in relation to that of another tribunal, could not allow its own competency to have given way unless confronted with a clause which it considered sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice.
- Kenya claimed that the Application was inadmissible because the Parties had agreed in the MOU to negotiate delimitation of the disputed boundary, and to do so only after completion of CLCS review of the Parties’ submissions. The Court had rejected Kenya’s contention that the MOU contained an agreement to settle the Parties’ maritime boundary dispute by negotiation and only after the completion of CLCS review of the Parties’ submissions. Having rejected the premise on which the ground of inadmissibility was based, the ICJ had to also reject the aspect of Kenya’s second preliminary objection. The Court observed that the fact that an applicant could have breached a treaty at issue in the case did not per se affect the admissibility of its application. Moreover, the Court noted that Somalia was neither relying on the MOU as an instrument conferring jurisdiction on the Court nor as a source of substantive law governing the merits of the case. Thus, Somalia’s objection to CLCS consideration of Kenya’s submission did not render the Application inadmissible.
Joint declaration of Judges Gaja and Crawford
- Paragraph 6 of the MOU could have affected the Court’s jurisdiction only if it was caught by Kenya’s optional clause reservation. It would have been so caught only if it had provided for a method that would have resolved the dispute over the maritime boundary. It could have done that by requiring the Parties to agree on delimitation or by providing that negotiation was the only method of settlement. It was common ground between the Parties that paragraph 6 did not require them to reach an agreement.
- Negotiations could have led to agreement and thereby settle a dispute. But even when there was an obligation to negotiate, negotiations did not constitute, as such, a method of dispute settlement because they could or could not have led to a settlement, depending wholly or partly on the position of one of the States concerned. If States agreed to negotiate but leave all their options open as to the outcome of those negotiations, they had not necessarily agreed to a method of settlement. In the context of a declaration concerned with the compulsory jurisdiction of the Court and with alternatives to it, a reservation as to another method of settlement could have been construed as referring to a method that would have actually settled the dispute when it was resorted to, not to one that was equally consistent with the dispute remaining unsettled in perpetuity.
- The conclusion was not affected by the requirement imposed by international law that the negotiations had to be conducted in good faith. Two parties, both acting in good faith, or not demonstrably in bad faith, could have failed to reach agreement. An obligation to negotiate in good faith did not ensure the settlement of the dispute being negotiated. It was clear that, though they agreed that negotiations would be held, the Parties did not exclude resort to other methods of settlement if those negotiations failed.
- Paragraph 6 of the MOU precluded the admissibility of an application to the Court made before the Parties had received the recommendations of the CLCS on the delineation of their outer continental shelf and had sought to reach an agreement on delimitation. The plain language of the paragraph pointed to the existence of an obligation to agree on the maritime boundaries after the Commission had concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations to two coastal States concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles. The use of the word shall connoted an obligation to respect that time-limit. The Parties effectively agreed that the dispute would not be ripe for resolution of any kind until after that date.
Dissenting opinion of Judge Bennouna
- Faced with the dispute over the interpretation of the MOU as an international treaty, the Court should have had recourse to the general rule of interpretation in article 31 of the Vienna Convention which had customary status that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
- It was not sufficient to assert, as the Court did, that Kenya did not consider itself bound to wait for those CLCS’s recommendations before engaging in negotiations on maritime delimitation, or even reaching agreements thereto. Indeed, if the two rounds of negotiations between the Parties held in 2014, at a time when Somalia was denying the validity of the MOU, had succeeded, the question of the submission to the Court would no longer have arisen, nor would it have required the Court’s assessment of the scope of Kenya’s reservation.
- The Court could not have avoided interpreting paragraph 6 of the MOU in relation to Kenya’s reservation. That paragraph clearly and unambiguously stated that the Parties had agreed to find common ground once the CLCS had made its recommendations. The reading of what was a clear text was neither absurd nor unreasonable given the purpose of the MOU, which had given priority to the work of the CLCS, the Parties setting aside any objections they might have had.
- Once the ordinary meaning of the treaty provision in question had been established, the Court could then have set it against other elements, such as the context, object and purpose of that instrument. Moving away from the ordinary meaning was possible only if it could have been established that it was incompatible with those elements. The Court, however, had failed to demonstrate such an incompatibility. Instead it made a series of assumptions about what the Parties might have agreed in the MOU whereas, in matters of interpretation, the Court should have relied on the content of the text, its intrinsic aspects, and not on what it could or should have provided.
- The Court did not require referring to the travaux préparatoires of the MOU. Recourse to the travaux was a supplementary means of interpretation used either to confirm the meaning resulting from the application of article 31 of the Vienna Convention or to have determined the meaning when it remained ambiguous or obscure, or where the result was manifestly absurd or unreasonable. In the case there were simply no such travaux in the relations between the two States parties to the MOU. At most, there were elements concerning the assistance extended by the Norwegian Ambassador Longva to the Parties to conclude the agreement. It was surprising that the Court had relied on his note referring to the MOU, to the extent that it made no mention of the sixth paragraph. The Court did not have jurisdiction over Somalia’s request.
Dissenting opinion of Judge Robinson
- The scope of the phrase or otherwise was confined to optional clause declarations that reflected the substance of the text of article 36, paragraph 2, of the Court’s Statute. Therefore, if two States had optional clause declarations that were, in substance, confined to the provisions of paragraph 2, those optional clause declarations constituted an agreement that fell within the scope of article 282 and it was entirely reasonable to have understood the travaux préparatoires to have referred to such optional clause declarations. But it was wrong to understand the references in the travaux préparatoires to cover optional clause declarations with reservations when there was not a scintilla of evidence to indicate that the drafters of UNCLOS had given any thought whatsoever to those reservations.
- The Court had to be careful that it did not employ reasoning that defeated one of the main goals of the UNCLOS States parties in constructing the dispute settlement system in Part XV. The States parties did not wish to give any particular prominence to the International Court of Justice in the dispute settlement system. In fact a proposal by Switzerland and the Netherlands to place the ICJ at the head of the list of fora in article 287 did not find sufficient support and was withdrawn. The UNCLOS States parties did not wish the ICJ to be the only dispute settlement mechanism nor did they wish it to be the default mechanism. Hence, article 287 of UNCLOS set out a menu of options, including the ICJ, and the default mechanism was arbitration under an Annex VII Tribunal set up pursuant to Part XV of UNCLOS.
- It was of course correct as a statement of law that an agreed procedure within the scope of article 282 prevailed over the procedures of Part XV of UNCLOS. But that did not necessarily mean that, should the Court have declined jurisdiction, an Annex VII Tribunal would not have found that it had jurisdiction. The Tribunal’s decision would have depended on whether it found that in the circumstances of the case there was an agreed procedure that fell within the scope of article 282. It would only have declined jurisdiction if it found that there was such a procedure. It was most probable that, by reason of the unambiguous wording of Kenya’s reservation and the existence of alternative fora in article 287 of UNCLOS, an Annex VII Tribunal would find that it had jurisdiction. In any event, the Court should not have indulged in speculation. The Court’s function was to determine whether on the basis of the law and facts the Annex VII Tribunal or the Court itself had jurisdiction. Speculation that the Tribunal would not have accepted jurisdiction was not a sufficient reason for the Court to have concluded that it had jurisdiction; neither was it a sufficient reason for the Court to have determined that the Annex VII Tribunal did not have jurisdiction.
- It could have been viewed by some as merely a self-serving finding by the Court favouring its jurisdiction. The Court’s judgment had, in effect, turned article 287, paragraph 3, of UNCLOS on its head by treating the ICJ as the default mechanism, when that provision assigned that role to the Annex VII Tribunal.
- In the circumstances of the case the dictum of the PCIJ was inapplicable since the provisions of Part XV, in particular article 287, were sufficiently clear to have prevented the possibility of a negative conflict of jurisdiction that involved the danger of a denial of justice. Kenya and Somalia would by virtue of article 287, paragraph 3, have had access to arbitration under Annex VII. Thus, there was no possibility of a denial of justice on the basis that, should the Court have found that it had no jurisdiction; the two States would have been left without a dispute settlement mechanism.
- The analysis in the opinion showed that, by reason of Kenya’s reservation, the optional clause declarations of the Parties did not constitute an agreed procedure under article 282 of UNCLOS; Kenya’s purposeful reservation became applicable with the result that, there was no coincidence between the optional clause declarations of Kenya and Somalia in conferring jurisdiction on the Court; article 282 did not provide a basis for the Court’s jurisdiction; in terms of Kenya’s reservation, the procedures set out in article 287 constituted methods of settlement other than the Court; since neither Kenya nor Somalia had selected a procedure under article 287, paragraph 1, by virtue of article 287, paragraph 3, they were deemed to accept Annex VII arbitration as a method of settlement. Kenya’s submission on the reservation it made to its optional clause declaration under article 36, paragraph 2, of the Court’s Statute excluded the Court’s jurisdiction in the case.
a) First preliminary objection raised by the Republic of Kenya in so far as it was based on the Memorandum of Understanding of April 7, 2009 was rejected.
b) First preliminary objection raised by the Republic of Kenya in so far as it was based on Part XV of the United Nations Convention on the Law of the Seawas rejected.
c) Second preliminary objection raised by the Republic of Kenya was rejected as the Court found that it had jurisdiction to entertain the Application filed by the Federal Republic of Somalia on August 28, 2014 and that the Application was admissible.