Scribd Logo
Upload

Welcome to Scribd!

  • 95 views

    02 - Somalia V Kenya - Erni

    Uploaded by

    Stephanie Ann Lopez
    The document summarizes a case before the International Court of Justice between Somalia and Kenya regarding their maritime boundary in the Indian Ocean. It outlines that both countries are signatories to the UN Convention on the Law of the Sea and had submitted claims to extend their continental shelf beyond 200 nautical miles. Somalia argued the ICJ had jurisdiction, while Kenya's main objection was that a 2009 Memorandum of Understanding between the countries resolving boundary issues was a binding treaty, depriving the ICJ of jurisdiction. The ICJ had to determine whether the MOU was an enforceable agreement and whether it impacted the court's jurisdiction over the maritime boundary dispute.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    02 - Somalia V Kenya - Erni

    Uploaded by

    Stephanie Ann Lopez
    95 views3 pages
    The document summarizes a case before the International Court of Justice between Somalia and Kenya regarding their maritime boundary in the Indian Ocean. It outlines that both countries are signatories to the UN Convention on the Law of the Sea and had submitted claims to extend their continental shelf beyond 200 nautical miles. Somalia argued the ICJ had jurisdiction, while Kenya's main objection was that a 2009 Memorandum of Understanding between the countries resolving boundary issues was a binding treaty, depriving the ICJ of jurisdiction. The ICJ had to determine whether the MOU was an enforceable agreement and whether it impacted the court's jurisdiction over the maritime boundary dispute.

    Original Title

    02_Somalia v Kenya_Erni

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The document summarizes a case before the International Court of Justice between Somalia and Kenya regarding their maritime boundary in the Indian Ocean. It outlines that both countries are signatories to the UN Convention on the Law of the Sea and had submitted claims to extend their continental shelf beyond 200 nautical miles. Somalia argued the ICJ had jurisdiction, while Kenya's main objection was that a 2009 Memorandum of Understanding between the countries resolving boundary issues was a binding treaty, depriving the ICJ of jurisdiction. The ICJ had to determine whether the MOU was an enforceable agreement and whether it impacted the court's jurisdiction over the maritime boundary dispute.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    95 views3 pages

    02 - Somalia V Kenya - Erni

    Uploaded by

    Stephanie Ann Lopez
    The document summarizes a case before the International Court of Justice between Somalia and Kenya regarding their maritime boundary in the Indian Ocean. It outlines that both countries are signatories to the UN Convention on the Law of the Sea and had submitted claims to extend their continental shelf beyond 200 nautical miles. Somalia argued the ICJ had jurisdiction, while Kenya's main objection was that a 2009 Memorandum of Understanding between the countries resolving boundary issues was a binding treaty, depriving the ICJ of jurisdiction. The ICJ had to determine whether the MOU was an enforceable agreement and whether it impacted the court's jurisdiction over the maritime boundary dispute.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    You are on page 1of 3

    Maritime Delimitation in the Indian Ocean (Federal Republic of Somalia v Republic of Kenya)

    Judgment of Feb. 2, 2017

    Facts:
     Somalia and Keya are adjacent states on the coast of East Africa. Somalia borders Kenya to the south-
    west, with the Indian Ocean to the east. On the other hand, Kenya borders Somalia to the north-east,
    and its coastline faces the Indian Ocean
     Both states are signatory to the United Nations Convention on the Law of the Seas (“UNCLOS” or
    “Convention”). They also both ratified it, Kenya on March 2, 1989, and Somalia on July 24, 1989
    o Under par. 8, Art. 76, UNCLOS, a state party to the Convention intending to establish the
    outer limits of its continental shelf beyond 200 nautical miles shall submit information on
    such limits to the Commission on the Limits of the Continental Shelf (“CLCS” or
    “Commission”)
     During the 18th Meeting of the States Parties to the UNCLOS, it was decided that
    submission of the information the UN SecGen could also be done, i.e. instead of to
    the Commission
     Under Annex 1, CLCS Rules of Procedure, as regards disputed maritime areas, the Commission
    requires the prior consent of all states concerned before it will consider submissions regarding such
    areas
     On April 7, 2009, the Kenyan Minister of Foreign Affairs and the Somali Minister for National
    Planning and International Cooperation signed a Memorandum of Understanding (“MOU) to grant to
    each other no-objection in respect of submissions on the outer limits of the continental shelf beyond
    200 nautical miles to the Commission
     On April 14, 2009, Somalia submitted to the UN SecGen preliminary information indicative of the
    outer limits of the continental shelf beyond 200 nautical miles. With it was a copy of the MOU.
     On May 6, Kenya deposited with the CLCS its submission with respect to the continental shelf
    beyond 200 nautical miles
     On June 11, the MOU was registered by the UN Secretariat, at Kenya’s request
     On Aug. 19, in a letter to the UN SecGenm the Prime Minister of Somalia referred to the MOU and
    reiterated Somalia’s consent to the CLCS considering Kenya’s submission
    o However, later, by a letter dated March 2, 2010, the Permanent Representative of Somalia to
    the UN forwarded a letter from the Somali Prime Minister dated Oct. 10, 2009 informing the
    UN SecGen that the MOU had been rejected by the Transitional Federal Parliament of
    Somalia, and requesting that it be treated as non-actionable
     On Sept 3, at the 24th session of the CLCS, Kenya made an oral presentation of its submission
     On Feb. 4, 2014, the Minister of Foreign Affairs and International Cooperation of Somalia sent 2
    letters to the UN SecGen
    o The first objecting to the registration of the MOU
    o The second objecting to the consideration by the CLCS of Kenya’s submission on the ground
    that there existed a maritime dispute between itself and Kenya and the MOU was void
     As such, the CLCS determined that it cannot proceed with the establishment of a subcommission to
    consider Kenya’s submission at the time
     Subsequently, the states engaged in negotiations on various questions of maritime delimitation
    o 1st meeting: agreement that a technical meeting be held among relevant officials
    o 2 bilateral meetings
    o A 3rd bilateral meeting was agreed upon, but it never took place
     In view of the partial change in the membership of the CLCS meeting, Kenya requested that the
    CLCS allow it to make another oral presentation
    o The CLCS, however, reiterated its former decision to defer
     On July 14, Somalia deposited with the CLCS its submission with respect to the outer limits of the
    continental shelf beyond 200 nautical miles
     On Aug. 28, Somalia filed in the Registry of the Court an Application instituting proceedings against
    Kenya re: dispute on the establishment of single of the single maritime boundary between the two
    states in the Indian Ocean delimiting the territorial sea, EEZ, and continental shelf, including the
    continental shelf beyond 200 nautical miles
    o It seeks the jurisdiction of the Court pursuant to par. 2, Art. 36, Statute of the Court [Statute],
    by Somalia on April 11, 1963 and by Kenya on April 19, 1965
     Through a Note Verbale addressed to the UN SecGen dated Oct. 24 and with reference to the
    communications of Somalia of Feb. 4, Kenya protested against Somalia’s action aimed at blocking
    the CLCS’s consideration of Kenya’s submission
     Through another Note Verbale dated May 5, 2015, Kenya, in turn, objected to Somalia’s submission
    o However, in another Note Verbale dated June 30, Kenya withdrew such objection
     On July 7, Somalia sent the UN SecGen a letter withdrawing its objection to the CLCS’s
    consideration of Kenya’s submission
     On Oct. 7, 2015, Kenya raised preliminary objections to the Court’s jurisdiction and the admissibility
    of the Application
    o Thus, the Court, on Oct. 9, suspended the proceedings on the merits and gave Somalia until
    Feb. 5, 2016 to submit a written statement of its observations and submissions on the
    preliminary objections. Somalia complied and thus, the case became ready for hearing on
    such objections
     Meanwhile, at the 39th session of the CLCS, a CLCS subcommission met to begin consideration of
    Kenya’s submission
     On July 22, 2016, Somalia made a presentation of its submission. The CLCS deferred further
    consideration of its until it was next in line to be considered in the order in which submissions have
    been received
     Public hearings on the preliminary objections were held from Sept. 19-23
     After hearing, a Member of the Court asked the parties questions to which replies were given in
    writing within the time-limit fixed.

    Main Objection: ICJ’s Jurisdiction over Somalia’s Application


    Sub-issue: WoN the MOU constitutes a treaty in force between the parties – YES
     Under the customary international law of treaties , which is applicable in this case since neither
    Somalia nor Kenya is a party to the Vienna Convention, an international agreement concluded
    between States in written form and governed by international law constitutes a treaty
    o The MOU is a written document in which Somalia and Kenya record their agreement on
    certain points governed by international law.
    o The inclusion of a provision addressing the entry into force of the MOU is indicative of the
    instrument’s binding character.
     Under international law, as codified in Art. 7, 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 are considered as representing their State for the purpose of performing all acts
    relating to the conclusion of a treaty. They, under international law, may also duly authorize other
    officials to adopt, on behalf of a State, the text of a treaty or to express the consent of the State to be
    bound by a treaty
    o the Prime Minister of the Transitional Federal Government of Somalia signed full powers by
    which he “authorized and empowered” the Somali Minister for National Planning and
    International Cooperation to sign the MOU
    o The MOU explicitly states that the two Ministers who signed it were “duly authorized by
    their respective Governments” to do so
    o Thus, as a matter of international law, the Somali Minister properly represented Somalia in
    signing the MOU on its behalf
     Under the law of treaties, both signature and ratification are recognized means by which a State may
    consent to be bound by a treaty
    o While in international practice a two-step procedure consisting of signature and ratification is
    frequently provided for in provisions regarding entry into force of a treaty, there are also
    cases where a treaty enters into force immediately upon signature. Both customary
    international law and the Vienna Convention on the Law of Treaties leave it completely up to
    States which procedure they want to follow
    o the MOU provides, in its final paragraph, that “[t]his Memorandum of Understanding shall
    enter into force upon its signature” and that it does not contain a ratification requirement.
     Under customary international law, as codified in par. (a), Art. 12, Vienna
    Convention, a State’s consent to be bound is expressed by signature where the treaty
    so provides.
    o THUS, the signature of the Minister expressed Somalia’s consent to be bound by the MOU
    under international law
     Re: Somalia’s argument that Somali law required ratification of the MOU
    o Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
    Equatorial Guinea intervening): The rules concerning the authority to sign treaties for a State
    are constitutional rules of fundamental importance. However, a limitation of a Head of State’s
    capacity in this respect is not manifest in the sense of par. 2, Art. 46, unless at least properly
    publicized. This is particularly so because Heads of State belong to the group of persons who,
    in accordance with par. 2, Art. 7, in virtue of their functions and without having to produce
    full powers are considered as representing their State.
    o In this case, there is no reason to suppose that Kenya was aware that the signature of the
    Minister may not have been sufficient under Somali law to express, on behalf of Somalia,
    consent to a binding international agreement.

    You might also like