NAIROBI, Kenya, Mar, 22 – Kenya has reiterated her position on its confidence in that there is an existing maritime boundary that was established in 1979 as the maritime border despite with Somalia rages on.
In a statement addressed to the International Court of Justice (ICJ) registrar, Kenya notes that the boundary as established has been respected by both Countries until 2014 when Somalia attempted to repudiate the agreement by dragging Kenya to the International Court of Justice seeking to appropriate Kenya’s maritime space.
By relinquishing its right to present its oral submissions before the court, Kenya believes that it was a statement aimed at affirming its commitment to seeking justice and a fair trial which it felt was being taken away from her.
“The Government and People of Kenya feel betrayed that Somalia had brought the case before the ICJ after repudiating a maritime boundary that it had consented to for over 35 years. Somalia has incited hostility against Kenya, and actively contributed to the climate that encourages attacks against Kenyan civilians and against Kenyan forces in Somalia and even threatening their ability to continue to support AMISOM. Somalia has also undermined the fundamental need for stability and predictability of boundaries among States.”
Diplomacy and security experts believe that this was a case that needed dialogue and should not have reached the international stage as it did.
Dr. Musau Nzomo of the Horn Institute says that the case is not just a legal matter but also a political and regional issue.
“Kenya does not look at its relationship with Somalia, and the rest of the region, just from a maritime case. And it does not want to look at that maritime issue as simply as a legal matter. It is a regional, political, matter with deep ramifications on the socio-economic realities of our people.” said Nzomo.
According to international law and maritime law professor Nabil Orina both countries were set to agree on a delimitation process guided by international law treaties.
” In 2009, what the parties had agreed, the court recognized that this is a valid treaty under international law. They were going to undertake negotiations, and they were going to take into consideration the recommendations of the committee,on the sea bed. It gave both parties a chance to agree to delimit its maritime boundary, by agreement which did not happen. In this case, both parties have accepted that there is a question that is already unresolved, between them,” said Orina.
On March 11 2021, Kenya formally withdrew from presenting oral submissions to the judges, and expressed her dissatisfaction with the court not looking into matters that it had considered key in the case.
The nationality of judge Abdulqawi Ahmed, was a major bone of contention, a matter that some analysts felt wasn’t a strong enough reason.
Ahmed Hashi, a Diplomacy expert, notes that,” he is there to serve the interests of Africa just as Kenya is serving Africa at the United nations security council,”
Others believe that Kenya could be postponing the matter in order to ensure the matters in contention inside Mogadishu have been resolved before they can reconsider getting back to the negotiating table.
“It is possible that those matters of who is in charge, in Somalia could be playing out. But we fell that the region is being interfered with, through various institutions, in a way that will not be good for our people, and the region. Because there are so many stakes at play, the resources that are off the EA coast, are immense, and there is no country that would accept any of its territory,”said Dr. Nzau.
Lawyers say the assumption that if Somalia wins the case, it will affect the rest of the countries down the line does not suffice.
Dr. Nabil, who teaches law at Moi University, argues that , “A straight perpendicular line would disadvantage Kenya, because of the way the boundary between Kenya and Tanzania is. This is one of Kenya’s strongest arguments to say that for us we took into account all the other factors with TZ , so that if you draw a line that is perpendicular in regard to the land boundary then it limits Kenya’s success to these kind of zones,”
University professor, Midamba Noah, has expressed concern over the effects of the maritime judgment over other nations under Kenya, whose maritime borders could be moved in case the wish of Somalia is granted.
He also believes in dialogue and backs Kenya’s decision to not participate in the oral submissions.
“We should not have reached here, though I know Kenya in her mind is willing to do all it takes to remain cordial with Somalia, because we are joined at the hip. that being said, I know Kenya will also not allow to sede even an inch of its territory,” Noah Midamba, VC KCA University.
Both lawyers and Diplomacy experts also agree, that the concerns by Kenyan fishermen over how the case affects their fishing areas might also be a motivation for Kenya to fight even harder to maintain status quo over the disputed area.
The court will consider the case presented before it ahead of the much anticipated ruling.
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