By Roble A.

Kenya has until tomorrow to file its counter-memorial in the maritime delimitation case with Somalia following the International Court of Justice’s verdict February to allow the case to proceed to full trying after it dismissed Kenya’s prayers for out of court settlement.

The Court in February fixed December 18, 2017 as the time-limit for the filing of the Counter-Memorial after it found that it had jurisdiction to adjudicate upon the dispute between the Federal Republic of Somalia and the Republic of Kenya. The Court also established Somalia’s application was admissible.

KENYA’S OBJECTIONS

Kenya had filed two objections against the case in which Somalia sought the Court’s intervention ‘to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles’.

The first objection concerned the jurisdiction of the Court and the second, the admissibility of the application. The Court observed it had the jurisdiction over the case contrary to Kenya’s objection that the Memorandum of Understanding in 2009 between the two countries tied the two parties to settlement out of court. Paragraph six of the MoU does not preclude recourse to dispute settlement procedures in case agreement could not be reached, the Court held.

The global court however dismissed Somalia’s argument that the MoU did not constitute an instrument of international law. “The Court concludes that the MOU is a valid treaty that entered into force upon signature and is binding on the Parties under international law.”

ADMISSIBILITY

Regarding the admissibility of the case, the Court observed the case was duly within the remit of admission throwing out Kenya’s two arguments on the matter. In the first argument, Kenya averred the parties, through the MOU had agreed to negotiate delimitation of the disputed boundary, and to do so only after completion of CLCS review of the Parties’ submissions. Kenya argued Somalia had proceeded to file proceedings against the understanding of the MoU that negotiations would start after UN’s Commission on the Limits of the Continental Shelf (CLCS) completed its review and recommendations on the delimitation of the continental shelf.

“The Court having previously found that the MOU did not contain such an agreement, it must also reject this aspect of Kenya’s second preliminary objection,” the Court ruled.

In her second argument, Kenya said case was not admissible because Somalia had breached the MoU by proceeding to file the case disregarding the CLCS consideration of Kenya’s submission, only to consent again immediately before filing its Memorial.

REJECTED

But the Court observed the fact that an applicant may have breached a treaty at issue in the case does not per se affect the admissibility of its application. It also added 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 this case’.

“In light of the foregoing, the Court finds that the preliminary objection to the admissibility of Somalia’s Application must be rejected,” the Court ruled.

The case now proceeds to full trial.