The ICJ's Judgement in Somalia v. Kenya and Its Implications for the Law of the Sea

• Author: Kai-chieh Chan
• Position: Université Paris 2 Panthéon-Assas, Paris, FR
• Pages: 195-204

Kai-chieh Chan, ‘The ICJ’s Judgement in

Somalia v. Kenya

and Its

Implications for the Law of the Sea’ (2018) 34(2) Utrecht Journal

of International and European Law pp. 195–204, DOI: https://doi.

org/10.5334/ujiel.450

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

CASE NOTE

The ICJ’s Judgement in

Somalia v. Kenya

and Its

Implications for the Law of the Sea

Kai-chieh Chan*

By its judgement of 2 February 2017, the International Court of Justice took up jurisdiction

to adjudicate the maritime dispute between Somalia and Kenya. Notwithstanding surrounding

controversies, the Court set out important rules concerning the law of treaties. The main impli-

cation of the judgment is that the Court embraced a more objective denition of treaties and

identied the signicance of context as well as

travaux prparatoires

in treaty interpretation.

By doing so, the Court further established itself as the default adjudicator in law of the sea

disputes unless the reservation to its jurisdiction is suciently precise. This case note sum-

marises the facts and analyses the potential ramications of this judgement on international

dispute resolution.

Keywords: Vienna Convention on the Law of Treaties; United Nations Convention on the Law of

the Sea; Memorandum of Understanding;

travaux prparatoires

; delimitation; delineation

I. Background and the Majority Opinion

Somalia initiated the proceedings against Kenya in the International Court of Justice (hereinafter “the

Court”) regarding a disputed Exclusive Economic Zone of around 42,000 square kilometers. Somalia

based its claim on both parties’ acceptance of the Court’s compulsory jurisdiction under Art. 36(2) of the

Court’s Statute, otherwise known as the “optional clause declarations”. In response, Kenya pointed to the

reservation it made under the article, which excludes the Court from dealing with disputes ‘in regard to

which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods

of settlement’.1 Kenya put forward two independent objections to the Court’s jurisdiction and the admis-

sibility of the case: first, it pointed out that a Memorandum of Understanding (MOU) signed between the

disputing parties constituted an agreement to have recourse to some other methods of settlement. Second,

Kenya argued that the United Nations Convention on the Law of the Sea (UNCLOS), to which both States

are parties, contains a dispute resolution mechanism that also amounts to an agreement to have recourse

to some other methods.

In relation to the first objection, the Court found that it had to first ascertain the legal status of the MOU

before analysing its content. The MOU was signed by the Kenyan Minister of Foreign Affairs and the Somali

Minister of National Planning and International Cooperation on 7 April 2009, before subsequently being

registered by the Secretariat of the United Nations on 11 June 2009 at Kenya’s request. Despite initially

recognising the MOU, the Somali authorities later denied the validity of the instrument, publicly labeling it

as “non-actionable” and “void” respectively in October 2009 and February 2014.2 In addition to its constant

protests against the MOU, Somalia further argued that the MOU was not ratified by its Parliament and that

allowing a Minister to sign binding bilateral agreement was ‘not customary for Somalia’.3 These contentions

were, however, rejected by the Court. First, the Court appeared to consider that Somalia’s protests were

* Université Paris 2 Panthéon-Assas, Paris, FR. Contact: kaichieh.chan@sciencespo.fr.

1

United Nations, 531 Treaty Series 114. Emphasis added.

2

Somalia v. Kenya, Judgement on Preliminary Objections (2 February 2017) paras 18–19.

3

ibid. para 38.