INTERNATIONAL COURT OF JUSTICE
Maritime Delimitation in the Indian Ocean
(Somalia v Kenya)
PRELIMINARY OBJECTIONS OF THE
REPUBLIC OF KENYA
Pursuant to Article 79 of the Rules of Court
VOLUME I
7 OCTOBER 2015 TABLE OF CONTENTS
INTRODUCTION...............................................................................................................4
A.
Summary of Kenya’s Preliminary Objections ..........................................................4
B.
Structure of Kenya’s Preliminary Objections ...........................................................8
I.
ENTRY INTO FORCE OF THE 2009 MOU ..............................................................8
A.
The context of the MOU’s conclusion ......................................................................9
Kenya–Somalia bilateral relations ..............................................................................9
Negotiation as the method of settlement for the maritime boundary dispute...........10
Time limits for making submissions to the CLCS ...................................................13
B.
Somalia’s proposal of the MOU to Kenya ..............................................................16
C.
Signature and entry into force of the MOU on 7 Apr il 2009..................................21
D.
The object and purpose, and terms of the MOU .....................................................21
The object and purpose of the MOU ........................................................................21
The terms of the MOU .............................................................................................22
No reference in the MOU either to ratification or to withdrawal .............................26
E.
The subsequent conduct of th e Parties....................................................................27
8 April 2009: Somalia’s confirmation of the MOU in its submission of preliminary
information to the CLCS ..........................................................................................27
May 2009: Kenya’s confirmation of the MOU in its submission to the CLCS .......28
June 2009: registration and publica tion of the MOU by the UN .............................29
1 August 2009: Somali Parliament’s rejection of the MOU ....................................29
19 August 2009: Somalia’s confirmation of the MOU in its letter to the UN .........31
October 2009: Kenya’s confirmation of the MOU at the 24 th session of CLCS ......33
March 2010: Somalia’s letter to the UN ...................................................................34
August 2011: Norway’s letter to the UN ..................................................................36
October 2011: Somali Parliament resolution regarding territorial sea of 200 NM ..38
July 2012: statement of the Somali MOU signatory ................................................39
June 2013: statement of the Somali Government on refusal to negotiate with Kenya 40
2 February 2014: Somalia’s material breach of the MOU by objection to Kenya’s
CLCS submission.....................................................................................................41
F.
Events following Somalia’s attempt in 2014 to unilaterally reject the MOU.........44
March 2014: first technical meeting between Kenya and Somalia ..........................44
2 March 2014: CLCS decision to delay consideration of Kenya’s submission ..........46
July 2014: Somalia’s submission to the CLCS ........................................................47
July 2014: second technical meeting between Kenya and Somalia .........................48
August 2014: Somalia’s application to the Court .....................................................49
2 September 2014: Somalia’s letter to the UN .........................................................50
th
3 September 2014: Kenya’s confirmation of the MOU at the 35 session of
the CLCS ..................................................................................................................51
24 October 2014: Kenya’s confirmation of the MOU ..............................................53
May–July 2015: communications by the Parties concerning the obligation of non -
objection under the MOU .........................................................................................55
II.
THE 2009 MOU EXCLUDES THE COURT’S JURISDICTION ..........................58
A.
The MOU is a binding international agreement on the method of settlement of the
maritime boundary dispute between the Parties ...........................................................60
B.
Somalia’s case is outside the jurisdiction of the Court, and is otherwise
inadmissible ..................................................................................................................63
Kenya’s reservation to the Court’s jurisdiction where Parties to a dispute have
agreed on another method of settlement ...................................................................63
The case before the Court is otherwise inadmi ssible because of Somalia’s breach of
its obligations under the MOU .................................................................................66
III.
CONCLUSION ........................................................................................................68
IV.
SUBMISSIONS........................................................................................................69
CERTIFICATION.............................................................................................................70
3INTRODUCTION
1. Pursuant to Article 79(1) of the Rules of Court, the Republic of Kenya
(“Kenya”) submits the following Preliminary Objections to jurisdiction and
admissibility in the case concerning Maritime Delimitation in the Indian
Ocean (Somalia v Kenya), instituted by the Application of the Federal
Republic of Somalia (“Somalia”) dated 28 August 2014.
A. Summary of Kenya’s Preliminary Objections
2. Kenya and Somalia have expressly agreed on a method of settlement other
than the Court for delimitation of their maritime boundary. Kenya’s
acceptance of the Court’s jurisdiction, in its Declaration of 19 April 1965
under Article 36(2) of the Statute of the Court, specifically excludes:
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
Somalia’s case is thus outside the Court’s jurisdiction and
otherwise inadmissible.
3. In the Memorandum of Understanding between the Government of the
Republic of Kenya and the Transitional Federal Government of the Somali
2
Republic signed on 7 April 2009 (“the MOU”) the Parties agreed to grant
to each other “no-objection” in respect of submissions on the outer limits of
1
The Declaration of Kenya is cited in full in Somalia’s Memorial at fn 5. It was deposited on 19
2 April 1965. It is referred to below as “Kenya’s Declaration”.
The MOU is at Annex 6 of Somalia’s Memorial. As noted below, the MOU was registered by
the UN on 11 June 2009 and has remained on the UN registry to date (2599 UNTS 35 (2009)).
See also Annex 1 (Memorandum of Understanding between the Government of the Re public of
Kenya and the Transitional Federal Government of the Somali Republic to Grant Each Other
No-Objection in Respect of Submissions on the Outer Limits of the Continental Shelf beyond
200 Nautical Miles to the Commission on the Limits of the Continen tal Shelf (7 Apr. 2009,
entered into force 7 Apr. 2009)) .
4 the continental shelf beyond 200 nautical miles (“NM”) to the Commission
on the Limits of the Continental Shelf (“CLCS”), and further agreed that the
Parties would delimit the full extent of their maritime boundary, both within
and beyond 200 NM:
a) Only after the CLCS has made its recommendations concerning
establishment of the outer limits of the continental shelf; and
b) By means of a negotiated agreement, not by recourse to the Court.
4. More specifically:
a) The dispute before the Court concerns the delimitation of the
maritime boundary in the area where Kenya and Somalia’s maritime
3
claims overlap;
b) The 2009 MOU was Somalia’s first indication, after Kenya’s
Presidential Proclamation of 1979 (whereby Kenya established a
maritime boundary in its Exclusive Economic Zone (“EEZ”) at the
parallel of latitude), that it considered a maritime boundary dispute to
4
exist with Kenya in this area of overlap;
c) In the MOU, Kenya and Somalia expressly agreed that:
3See Somalia’s Application Instituting Proceedings at paras. 2 and 17. Somalia’s Memorial states
at para 1.1 “As set out in the Application, this case concerns the interpretation and application of
the 1982 United Nations Convention on the Law of the Sea (“UNCLOS” or the “Convention”)
and customary international law with respect to the establishment of “the single maritime
boundary between Somalia and Kenya in the Indian Ocean delimiting the territo rial sea,
exclusive economic zone ... and continental shelf, including the continental shelf beyond 200
nautical miles…”. Para 1.15 identifies Somalia’s first objective as “to obtain the definitive
delimitation of its maritime boundary in the territorial s ea, the EEZ and the continental shelf,
including the continental shelf beyond 200 M”.
4Somalia’s Memorial does not refer to any earlier recognition of a maritime boundary dispute
with Kenya.
5 i. “…each of them will make separate submissions to the
Commission on the Limits of the Continental Shelf … that may
include the area under dispute, asking the Commission to make
recommendations with respect to the outer limits of the continental
shelf beyond 200 nautical miles without regard to the delimitation
of maritime boundaries between them. The two coastal States
hereby give their prior consent [ i.e. under Article 5(a), Annex I, of
the CLCS Rules of Procedure] to the consideration by the
Commission of these submissions in the area under dispute”
(fourth operative paragraph);
ii. “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
[i.e., Kenya and Somalia] 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” (fifth operative paragraph, emphasis added);
and that
iii. “This Memorandum of Understanding shall enter into force upon
its signature” (sixth operative paragraph).
5. Somalia’s Memorial admits that the MOU did in fact enter into force upon
its signature by the Parties on 7 April 2009. It asserts however that it is
5See Somalia’s Memorial at Annex 6 “ Memorandum of Understanding between the Government
of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to
Grant to Each Other No -Objection in Respect of Submissions on the Outer Limits of the
6 “non-actionable” because the Somali Federal Parliament had “decided
6
against its ratification”. There is clearly no requirement of ratification
under the MOU, and Somalia does not explain how such an alleged
requirement suddenly appeared after its entry into force. Both the Head of
State and the Head of Government of Somalia approved the MOU prior to
7
its signature. Furthermore, subsequent to its signature, the Somali Head of
Government twice confirmed its validity, including after its registration and
publication by the UN Secretary-General in accordance with Article 102 of
8
the UN Charter. There can be no doubt that the MOU continues to be
legally binding.
6. Somalia’s initiation of this proceeding before the Court is in plain violation
of its obligations under the MOU to negotiate an agreement following
CLCS review. It is also in plain disregard of the fact that this agreement on
the method of dispute settlement falls squarely within the reservation in
Kenya’s Declaration.
7. Accordingly, contrary to Somalia’s assertion that “[t]he jurisdiction of the
Court, in regard to these matters, is plainly established on the basis of
Declarations made by the Parties under the optional clause contained in
Article 36, paragraph 2”, Kenya’s reservation categorically excludes this
case in its entirety from the jurisdiction of the Court. In addition to Kenya’s
reservation, Somalia’s case is inadmissible because recourse to the Court is
Continental Shelf beyond 200 Nautical Miles to the Comm ission on the Limits of the
Continental Shelf, 2599 U.N.T.S. 35 (7 Apr. 2009), entered into force 7 Apr. 2009” (emphasis
6 added). The MOU is referred to in the Memorial at paras. 3.38 to 3.42, 3.46, 3.52 and 7.20.
7At paras. 3.40–3.41.
8See Part I section B below.
See Part I section E below.
9Memorial at para. 1.16.
7 in plain breach of the agreed method of dispute settlement under the MOU,
which obligation Somalia must perform in good faith.
B. Structure of Kenya’s Preliminary Objections
8. These Preliminary Objections are divided into four parts.
9. First, the circumstances and context leading to the conclusion and entry into
force of the MOU on 7 April 2009, and its subsequent confirmation by
Somalia are set forth (Part I). Second, the continuing legally-binding
nature of the MOU under treaty law is addressed, followed by discussion of
why, because of the Parties’ express agreement to settle the dispute by a
method other than recourse to the Court, the case is outside of the Court’s
jurisdiction and otherwise inadmissible (Part II). Third, the conclusions of
Kenya on the facts and the law relevant for its preliminary objections are
presented (Part III). Finally, Kenya’s submissions are set forth, requesting
the Court to adjudge and declare that it has no jurisdiction over the dispute
and that the case is inadmissible (Part IV).
10. These preliminary objections are accompanied in Volume II by annexes 1
to 47 referred to herein, and a list of those annexes.
I. ENTRY INTO FORCE OF THE 2009 MOU
11. This Part sets forth the context of the MOU’s conclusion (section A),
Somalia’s proposal of the MOU to Kenya (section B), the details of the
signing of the MOU (section C), the object and purpose, and terms of the
MOU (section D), the subsequent conduct of the Parties and Somalia’s
confirmation of the MOU (section E), and the events following Somalia’s
attempt to unilaterally reject the MOU in February 2014 (section F).
8A. The context of the MOU’s conclusion
12. The proposal for the conclusion of the 2009 MOU first emerged in the
context of UN, African Union (“AU”) and Kenyan support for Somalia’s
gradual transition from a period of conflict towards the establishment of a
unified and stable Somali Government. Its timing was prompted by the 13
May 2009 deadline fixed by the CLCS for submissions on the outer limits
of the continental shelf, and the need for an agreed procedure for the full
and final delimitation of the maritime boundary.
Kenya–Somalia bilateral relations
13. The MOU was concluded in the context of Kenya’s strong policy of
friendly relations with Somalia, including humanitarian assistance, support
10
for a more stable government, and establishment of regional security.
14. Since 1992, Kenya has hosted an estimated half million Somalis in “the
world’s biggest refugee camp” in Dadaab that according to the UN, “has
been able to provide refuge for so many years and to so many people …
11
thanks first and foremost to the Government and people of Kenya”.
15. Kenya has also hosted the Transitional Federal Government of Somalia in
Nairobi from its establishment in 2004 until security conditions allowed for
its gradual return to Mogadishu beginning in 2007. 12 That return was made
possible in substantial part through Kenya’s contribution to both the
military and civilian components of the UN-authorised AU Mission in
10Following the overthrow of the Government of President Siad Barre in 1991, the Somali State
collapsed, leading to a period of armed conflict and lawlessness.
11Annex 2 (Article from the website of the United Nations Human Rights Commissioner on
Refugees (UNHCR) “Dadaab – World’s Biggest Refugee Camp 20 Years Old” (21 Feb. 2012),
available at http://www.unhcr.org/4f439dbb9.html)
12The Somali President Abdullahi Yusuf Ahmed took office in 2004, but first set foot in
Mogadishu in January 2007.
9 Somalia (AMISOM), established in 2007 with a mandate to liberate
Somalia from Al-Shabaab militants and to establish stable governmental
institutions.13 The AU and UN have recognized Kenya’s “huge” 14 and
“extraordinary sacrifices” in Somalia.
16. Because of its support for the Somali Government, Kenya has suffered
retaliatory terrorist attacks by Al-Shabaab. This includes the shocking
civilian massacres in Westgate Shopping Mall in November 2013 and at
Garissa University College in April 2015. Given Somalia’s lack of maritime
enforcement capacity, Kenya’s contribution to AMISOM has included a
maritime component, endorsed by the UN Security Council. The regular 16
patrolling of these vulnerable waters, for interdiction of Al-Shabaab
weapon smuggling, and to arrest and prosecute piracy, has incurred
significant costs for Kenya. 17
Negotiation as the method of settlement for the maritime boundary dispute
17. The Parties expressly agreed in the 2009 MOU on a negotiated settlement
of their maritime boundary. This was consistent with Kenya’s legislation
requiring delimitation by agreement with Somalia. It was also consistent
with the provisions of UNCLOS.
18. Kenya first established its maritime boundary along the parallel of latitude
by Presidential Proclamation in 1979, providing that “the Exclusive
13In 2007, with the escalation of terrorism and piracy, the UN Security Council authorized the
establishment of AMISOM with a peacekeeping mandate, aimed at stabilizing Somalia and
14building viable State institutions (see UNSC resolution 1744 (2007)).
See e.g. the statement of the Chairperson of the AU in April 2015 (reported at
http://www.herald.co.zw/au-condemns-kenya-terrorist-attack/ ).
15See e.g. the Communiqué on the Secretary-General’s mini-summit on Somalia dated 26
September 2012 (available at http://www.un.org/press/en//2012/sg2187.doc.htm ).
16UNSC Res 1846 S/RES/1846 (2008) (December 2008).
17See e.g. the Statement of Kenya at the twenty -fifth meeting of State Parties to UNCLOS, dated
11 June 2015.
10 Economic Zone of Kenya shall … in respect of its northern territorial
waters boundary with Somali Republic be on eastern latitude South of Diua
Damasciaca Island being latitude 1° 38' South”. A subsequent Presidential
Proclamation in 2005 slightly adjusted this boundary for greater accuracy. 19
This boundary, established shortly before the Third UN Conference on the
Law of the Sea adopted UNCLOS in 1982, was consistent with regional
practice, as reflected in the 1976 and 2009 Kenya–Tanzania maritime
boundary agreements, 20and the 1988 Tanzania–Mozambique maritime
21
boundary agreement. In the years that followed Kenya’s 1979
Proclamation, the Somali Democratic Republic (as it then was) did not
dispute Kenya’s maritime boundary claim and exercise of jurisdiction at the
parallel of latitude. It did not even protest at the time that it ratified
UNCLOS in 1989. It was only in 2009 that Somalia first disputed Kenya’s
1979 EEZ maritime boundary. Indeed, Somalia’s Memorial does not point
22
to any earlier recognition of a dispute.
19. Following Kenya’s ratification of UNCLOS in 1989 (the same year as
Somalia’s ratification), its Parliament adopted the Maritime Zones Act of
23
1989. Section 4(4) of the Act provided that the maritime boundary “shall
be delimited … pursuant to an agreement between Kenya and Somalia on
the basis of international law”. This reflected UNCLOS Articles 74(1) and
83(1), providing that in the first place, maritime boundary delimitation
“shall be effected by agreement”. The agreement between Kenya and
18Somalia’s Memorial, Annex 19.
19Somalia’s Memorial, Annex 21 .
20
21Somalia’s Memorial, Annex 5 and Annex 7.
Agreement between the Government of the United Republic of Tanzania and the Government
of the People’s Republic of Mozambique regarding the Tanzania/Mozambique Boundary (28 Dec.
1988) (Annex 3).
22See Somalia’s Memorial at paras. 3.36 and 3.38.
23Somalia’s Memorial, Annex 20 (Republic of Kenya, Chapter 371, Maritime Zones Act (25
Aug. 1989)).
11 Somalia in the 2009 MOU that delimitation shall be by negotiated
settlement was therefore consistent with both UNCLOS and
Kenya’s legislation.
20. Somalia’s Memorial notes that its 1988 Maritime Law (implementing
24
UNCLOS that it ratified in 1989), provided in Article 4(3) that the width
25
of the Somali territorial sea is 12 NM. However, Law No. 37 of
10 September 1972 on the Somali Territorial Sea and Ports provided in
Article 1(1) that “[t]he Somali Territorial Sea includes the portion of the
26
Sea to the extent of 200 nautical miles,” and this law was reportedly
27
reaffirmed on 8 October 2011 by the Somali Federal Parliament and on 6
28
June 2013 by the Somali Council of Ministers.
21. From 1979, when Kenya first established its EEZ, it has pursued a policy of
neighbourly relations in regard to its maritime boundary with Somalia.
This question did not affect bilateral relations until 2009. Throughout this
period, Kenya has been committed (and is now obligated under the MOU)
to negotiate a delimitation agreement with Somalia based on international
law.
24Memorial, para. 3.3. The Somali Maritime Law of 1988 provides that the width oSomalia’s
territorial sea is 12 NM (Article 4(3)) and it also provides for a 200 NM EEZ (Article 7):
Somalia’s Memorial, Annex 10.
25Somalia’s Memorial, Annex 10.
26
27Somalia’s Memorial, Annex 9.
28See para. 86 below.
See para. 90 below.
12Time limits for making submissions to the CLCS
22. The conclusion of the 2009 MOU was most immediately precipitated by the
13 May 2009 time limit imposed on both Parties for making their respective
29
submissions to the CLCS.
23. Kenya and Somalia had ratified UNCLOS on 2 March and 24 July 1989
30
respectively, and the Convention had entered into force for the Parties on
November 1994. In accordance with Article 76(8) and Article 4 of Annex
II, Kenya and Somalia were under an obligation to make submissions on the
outer limits of the continental shelf to the CLCS “as soon as possible but in
any case within 10 years of the [Convention’s] entry into force”.
24. In May 2001, however, bearing in mind the difficulties encountered by
some developing States in complying with their obligations under Article 4
of Annex II to the Convention, the Eleventh Meeting of States Parties to the
Convention decided that with regard to those States Parties for which
UNCLOS had entered into force before 13 May 1999, the ten-year period
referred to in Article 4 of Annex II would be deemed to have commenced
31
on 13 May 1999. Consequently, the ten-year limit for both Kenya and
Somalia to make their respective submissions to the CLCS expired on
13 May 2009.
29See Somalia’s Memorial at para. 3.38, which states “Bilateral discussion about these issues
were held in 2009, in the context of the Parties’ soon -to-be forthcoming Submissions to the
CLCS. In April 2009, they entered into a Memorandum of Understanding (t he “2009 MOU”)
30concerning those Submissions”.
This is referred to in Somalia’s Memorial at paras. 3.2 and 3.7. See also Somalia’s Memorial,
Annex 72 (United Nations, Office of Legal Affairs, Division for Ocean Affairs and the Law of
the Sea, Table recapitulating the status of the Convention and of the related Agreements (10
Oct. 2014), available at http://www.un.org/depts/los/reference_files/status2010.pdf).
31Somalia’s Memorial, Annex 55 at para. (a) (U.N. Convention on the Law of the Sea, Meeting of
States Parties, Eleventh Meeting, Decision regarding the date of commencement of the ten -year
period for making submissions to the Commission on the Limits of the Continental Shelf set out
in article 4 of Annex II to the United Nations Convention on the Law o f the Sea, U.N. Doc.
SPLOS/72 (29 May 2001)). See also U.N. Doc. SPLOS 73 (14 June 2011) at para 101.
1325. In June 2008, the Eighteenth Meeting of UNCLOS States Parties further
discussed the “difficulties faced by a number of developing States in
connection with the 10-year time period for making a submission to the
Commission, which for many of these States ends in May 2009, and on
identifying a solution of a practical nature”. 32 It was decided that the ten-
year time limit could be satisfied by each State submitting to the Secretary-
General preliminary information indicative of the outer limits of the
continental shelf beyond 200 NM, and a description of the status of
preparation and intended date for making a full submission. 33
26. In October 2008, given the lack of resources and instability in Somalia, the
Special Representative of the Secretary-General for Somalia (“SRSG”),
34
Mr. Ahmedou Ould Abdallah, initiated assistance to Somalia for
submission of its preliminary information to the CLCS, in compliance with
35
the CLCS time limits.
27. Somalia was among the developing States that faced particular challenges
in fulfilling the requirements of UNCLOS Article 4 of Annex II because of
its lack of the necessary expertise and resources. This was compounded by
32UN. Doc. SPLOS/184, at para. 89. See also at paras. 90 –99.
33In accordance with the requirements of article 76 of the Convention and with the Rules of
Procedure and the Scientific and Technical Guidelines of the Commission on the Limits of the
Continental Shelf. See Somalia’s Memorial, Annex 58 at para. 1(a) (U.N. Convention on the
Law of the Sea, Meeting of States Parties, Eighteenth Meeting, Decision regarding the
workload of the Commission on the Limits of the Continental Shelf and the ability of States,
particularly developing States, to fulfil the requirements of article 4 of annex II to the United
Nations Convention on the Law of the Sea, as well as the decision contained in SPLOS/72,
paragraph (a), U.N. Doc. SPLOS/183 (20 June 2008)). See also UN. Doc. SPLOS/184 at
para. 99.
34
From September 2007 until July 2010, Mr. Ould Abdallah served as Special Representative for
the UN Secretary-General for Somalia. Prior to this, from 2003 to 2007, Mr. Ould Abdallah was
jointly Special Representative of the Secretary -General for West Africa and Chairman of the
Cameroon-Nigeria Mixed Commission.
35As noted in Somalia’s Preliminary Information Submission dated A pril 2009 (Somalia’s
Memorial, Annex 66) and Somalia’s submission dated 21 July 2014 (Somalia’s Memorial,
Annex 70).
14 other constraints arising from the volatile political and security situation in
the country. 36
28. It was in this context that Norway came to the assistance of Somalia in
preparing its submission to the CLCS. The key figure in this process was
a senior Norwegian diplomat and jurist, Mr. Hans Wilhelm Longva,
Ambassadeur en Mission Spéciale of the Norwegian Ministry of Foreign
Affairs. He worked in close contact with the Somali Prime Minister (Hon.
Omar Abdirashid Ali Sharmarke), and the Somali Deputy-Prime Minister
and Minister of Fisheries and Marine Resources (Hon. Professor
Abdirahman Haji Adan Ibbi).
29. Norway provided both technical and scientific expertise to Somalia, as well
38
as its good offices to facilitate an agreement with Kenya. This included
“the assistance of international law experts in the Norwegian Ministry of
Foreign Affairs, experts in the geosciences in the Norwegian Petroleum
Directorate and experts from the UNEP Shelf Programme, represented by
36As stated in Somalia’s Preliminary Information Submission dated April 2009 (Somalia’s
Memorial, Annex 66) at page 3 “Somalia is among th e developing States that faces particular
challenges in fulfilling the requirements of article 4 of Annex II to the Convention due to lack
of financial and technical resources and relevant capacity and expertise. Moreover, Somalia
continues to experience a number of other constraints relating to the political and security
situation in the country, substantially hindering the fulfilment of these requirements.”
37Note Verbale from the Permanent Mission of Norway to the United Nations to the Secretariat of
the United Nations (17 Aug. 2011) (Annex 4). See also Somalia’s Preliminary Information
Submission dated April 2009 (Somalia’s Memorial, Annex 66) and the July 2014 Submissio n
(Somalia’s Memorial, Annex 70) which noted that “ On this basis, in October 2008, the Special
Representative of the Secretary -General of the United Nations for Somalia (SRSG), Mr.
Ahmedou Ould Abdallah, initiated the preparation of preliminary information … In order to
prepare this material, the SRSG accepted an offer of assistance from the Government of
Norway”.
38As stated in Somalia’s Preliminary Information Submission dated April 2009 (Somalia’s
Memorial, Annex 66).
15 GRID-Arendal”. 39 All of the considerable expenses relating to the
preparation of the submission were covered by Norway. 40
30. Norway’s assistance was prompted by its “commitment to a comprehensive
and lasting settlement of the situation in Somalia and as an expression of
Norway's support to the SRSG in carrying out his mandate.” Norway 41
provided similar assistance to the member States of the Economic
Community of West African States (“ECOWAS”) that made a joint
submission to the CLCS. 42
B. Somalia’s proposal of the MOU to Kenya
31. The proposal to conclude the MOU originated from Somalia, not from
Kenya. As set out in further detail in section C below, Norway and Somalia
wanted to ensure Kenya’s non-objection to Somalia’s submission. In
particular, Annex 1, Article 5(a) of the CLCS Rules of Procedure requires
the prior consent of affected States before the CLCS can issue
recommendations concerning disputed maritime areas. 43 The preparation of
submissions involved considerable costs. Furthermore, CLCS
recommendations were necessary to establish the outer limits of the
continental shelf in order to allow for agreement on a full and final
delimitation of the maritime boundary. Therefore, the MOU was drafted
39Press Release of the Norwegian Mini stry of Foreign Affairs, “Somalia submits preliminary
information indicative of the outer limits of its continental shelf with Norwegian assistance” (17
Apr. 2009), available at https://www.regjeringen.no/en/aktuelt/shelf_assistance/id555771/
40(Annex 5).
As stated in Somalia’s Preliminary Information Submission dated April 2009 (Somalia’s
Memorial, Annex 66).
41As stated in Somalia’s Preliminary Information Submission dated A pril 2009 (Somalia’s
Memorial, Annex 66) at page 4. See also SC Resolution 1801 (2008) of 20 February 2008 and
GA Resolution A/RES/63/111 of 5 October 2008.
42See the Joint Submission of West African States to the CLCS dated 25 September 2014.
43CLCS Rules of Procedure, Annex 1, Article 5(a): UN Doc. CLCS/40/Rev. 1 (Somalia’s
Memorial Annex 57 and available at http://daccess-ods.un.org/TMP/1568814.81409073.html ).
16 by Norway on Somalia’s behalf, to facilitate the preparation of
Somalia’s CLCS submission and a subsequent agreement with Kenya
44
on delimitation.
32. On 10 March 2009, a meeting was held in Nairobi between the Somali
Deputy Prime Minister, the Deputy Special representative of the UN
Secretary-General for Somalia (Mr. Charles Petrie), and Norwegian
Ambassador Longva. At that meeting Somalia was informed about the
initiative of the SRSG and the Norwegian offer of assistance with the
CLCS submission. 46
33. It was at this meeting that Ambassador Longva first presented the draft
47
MOU to the Somali Deputy Prime Minister.
34. The draft MOU was accepted, first by Somalia, and then by Kenya, with
48
only minor revisions of a purely technical and formalistic nature.
35. In March 2009, the Somali Council of Ministers approved the draft MOU
and the preliminary submission to the CLCS. 49 The Somali Council
44E-mail from Mr. Hans Wilh elm Longva to Ms. Juster Nkoroi (Mar. 2009) ( Annex 6) and E-
mail exchange between Ms. Rina Kristmoen, Prof. Abdirahman Ibbi, Mr. Hans Wilhelm
Longva, and Ms. Juster Nkoroi (10 –22 Mar. 2009) (Annex 7).
45
The new Transitional Federal Government of the Somal i Republic was sworn in on 22 February
462009.
See the final paragraph on page 4 of Somalia’s Preliminary Information Submission dated April
2009 (Somalia’s Memorial, Annex 66).
47E-mail from Mr. Hans Wilhelm Longva to Ms. Juster Nkoroi (Mar. 2009) ( Annex 6).
48E-mail exchange between Mr. Hans Wilhelm Longva, Prof. Abdirahman Ibbi and Ms. Juster
Nkoroi (27 Mar. 2009) ( Annex 8), e-mail exchange between Ms. Edith K. Ngungu and Mr.
Hans Wilhelm Longva (30 Mar. 2009) ( Annex 9) and e-mail exchange between Ms. Edith K.
Ngungu and Mr. Hans Wilhelm Longva (30 –31 Mar. 2009) (Annex 10).
49See the first paragraph at page 5 of Somalia’s Preliminary Information Submission dated April
2009 (Somalia’s Memorial, Annex 66) and e-mail exchange between Ms. Rina Kristmoen,
Prof. Abdirahman Ibbi, Mr. Hans Wilhelm Longva, and Ms. Juster Nkoroi (10 –22 Mar. 2009)
(Annex 7).
17 expressed its gratitude to the SRSG and to Norway for its assistance. 50
Ambassador Longva informed the Kenyan representative that the
Somali Council of Ministers had approved both the MOU and the
preliminary submission. 51
36. In the following days, the Somali Deputy Prime Minister, Ambassador
Longva, and the representative of the Kenyan Government, made
preparations for the signing of the MOU. The Prime Minister of Somalia
confirmed to Ambassador Longva that he would arrive in Nairobi on 2
April 2009 to sign the agreement. 53Because of scheduling difficulties
however, Ambassador Longva subsequently contacted the Somali Deputy
Prime Minister, indicating that:
Should the Prime Minister not be able to travel to Nairobi as
planned, I would suggest that the Minister of National
Planning and International Cooperation, Hon Abdirahman
Adishakur Warsame, who is currently in Nairobi, receive the
necessary authorization to sign the Memorandum of
Understanding in order to be able to procede [sic] with the
signing on 3 April 2009. 54
37. On 5 April 2009, at the invitation of the Somali Prime Minister and Deputy
55
Prime Minister, Ambassador Longva visited Mogadishu. He was also
received by the Somali President (Hon. Sharif Sheikh Ahmed) and given
50See the first paragraph at page 5 of Somalia’s Preliminary Information Submission dated April
2009 (Somalia’s Memorial, Annex 66).
51
E-mail exchange between Ms. Rina Kristmoen, Prof. Abdirahman Ibbi, Mr. Hans Wilhelm
52Longva, and Ms. Juster Nkoroi (10 –22 Mar. 2009) (Annex 7).
E-mail exchange between Mr. Hans Wilhelm Longva, Prof. Abdirahman Ibbi and Ms. Juster
Nkoroi (27 Mar. 2009) ( Annex 8).
53E-mail from Mr. Hans Wilhelm Longva to Mr James Kihwaga (Annex 11) and e-mail from Mr.
Hans Wilhelm Longva to Prof. Abdirahman Ibbi (2 Apr. 2009) ( Annex 12).
54E-mail from Mr. Hans Wilhelm Longva to Prof. Abdirahman Ibbi (2 Apr. 2009) ( Annex 12).
55As set out at page 5 of Somalia’s Preliminary Information Submission dated April 2009
(Somalia’s Memorial, Annex 66).
18 the opportunity to meet the Council of Ministers for further explanation of
the continental shelf issues. 56
38. The following day, on 6 April 2009, the Somali Council of Ministers
reconfirmed its approval of the MOU and its signature. This decision was
endorsed by the Somali President, and the Minister of National Planning
and International Cooperation was authorized by the Somali Prime Minister
58
to sign the MOU on behalf of the Government.
39. The Kenyan representative was informed by Ambassador Longva that the
Somali President had approved the conclusion of the MOU and that “[f]rom
the Somali side the MoU will be signed by the Minister of National
Planning and International Cooperation Hon Abdirahman Abdishakur
59
Warsame”.
40. A Norwegian report confirmed that:
The Transitional Federal Government of the Somali Republic
and the President gave their final approval [of the MOU] on 6
April 2009 following meetings in Mogadishu attended by
Ambassador Hans Wilhelm Longva of the Norwegian Ministry
of Foreign Affairs. 60
56
As set out at page 5 of Somalia’s Preliminary Information Submission dated April 2009
57(Somalia’s Memorial, Annex 66).
Press release issued by former So mali Minister of National Planning and International
Cooperation, Dr. Abdirahman Abdishakur, reported by Network Al Shahid (7 July 2012),
available at: http://english.alshahid.net/archives/30036 (Annex 13).
58Ibid.
59
60E-mail from Mr. Hans Wilhelm Longva to Mr. James Kihwaga ( Annex 14).
Press Release of the Norwegian Ministry of Foreign Affairs, “Somalia submits preliminary
information indicative of the outer limits of its continental shelf with No rwegian assistance” (17
Apr. 2009), available at https://www.regjeringen.no/en/aktuelt/shelf_assistance/id555771/
(Annex 5).
1941. Similarly, the Somali Minister of National Planning and International
Cooperation confirmed that: 61
On 6th April 2009, the then TFG [i.e. the Transitional Federal
Government of Somalia] cabinet discussed the issue of
continental shelves of Somalia at the request of Minister for
fisheries and marine resources Prof. Abdirahman Ibbi. The
cabinet listened reports [sic] by experts from the United Nation
[sic] and Norwegian government and afterwards decided to
sign the MoU, then passed the issue to the President who met
with the experts and endorsed the cabinet’s decision. It is
worth noting that all cabinet ministers were alive at that time
and it was before the Shamo blast [ ] and the assassination of
Minister Omar Hashi. I am not sure whether all the 39 cabinet
ministers attended the session, because I myself was in
Nairobi, back from a conference I attended in Botswana.
42. The Minister explained that:
After the decision by the TFG cabinet and president, I was
called by the then Prime Minister Omar Abdirashid who told
me to sign the MoU with Kenya adding that there was a
deadline to beat (07.04.2009) which if Somalia misses, it can
lose the continental shelf… I requested the Premier to make a
formally written document on the job he wants me to do on
behalf of the TFG, in which he agreed. I also called the
President and he confirmed to me that he met with the experts
from the UN and Norway and is ok with MoU.
43. The Minister further noted that:
61
Press release issued by former Somali Minister of National Planning and International
Cooperation, Dr. Abdirahman Abdishakur, reported by Network Al Shahid (7 July 2012),
62available at: http://english.alshahid.net/archives/30036 (Annex 13).
In December 2009, an Al-Shabaab suicide bomber attacked the Shamo Hotel in Mogadishu,
killing 25 people, including four government ministers.
20 The Premier explained for me how they [sic] decision was
made and when I asked him whether they consulted any legal
experts on the issue, he mentioned to me Abdikawi Yussuf
[sic] – a Somali judge at the International Court in Hague [sic],
whom he said was consulted and recommended the signing of
the MoU.
44. Accordingly:
a) The MOU was proposed by Somalia to Kenya;
b) It was drafted and reviewed by Norwegian and Somali experts;
c) It was approved by the Somali Prime Minister, the Somali Council of
Ministers, and the Somali President; and
d) The Minister of National Planning and International Cooperation was
authorised by the Prime Minister to sign it on behalf of the Somali
Government.
C. Signature and entry into force of the MOU on 7 April 2009
45. On 7 April 2009, the Kenyan Minister of Foreign Affairs and the Somali
Minister of National Planning and International Cooperation, duly
authorised by their respective Governments, signed the MOU at a formal
ceremony in Nairobi. The MOU provided that it “shall enter into force
upon its signature”.
D. The object and purpose, and terms of the MOU
The object and purpose of the MOU
46. The object and purpose of the 2009 MOU was to agree on a method for the
final settlement of the maritime boundary between Kenya and Somalia,
21 both within and beyond 200 NM. It recognized the need for the Parties’
prior consent to each other’s submissions so that the CLCS could issue its
recommendations, and confirmed that this would be without prejudice to a
subsequent agreement on the maritime boundary. It was apparent that an
objection by either Party would waste the considerable costs of gathering
and analysing data for the submissions and create a situation of perpetual
limbo. The Parties also agreed that following CLCS review, after which the
outer limits of the continental shelf could be definitively established, the
method of settlement for delimitation of the full extent of the maritime
boundary would be a negotiated agreement rather than recourse to any
compulsory procedures.
47. This two-step sequencing procedure is consistent with the jurisprudence of
the Court requiring review by the CLCS prior to delimitation of the outer
continental shelf. 63 Notwithstanding the 1979 EEZ boundary, this is an
important consideration because the concavity of the African coastline on
the Indian Ocean produces a magnified cut-off effect for Kenya beyond the
200 NM limit. It is, therefore, necessary to determine precisely the entire
maritime area to be delimited in order to arrive at an ‘equitable solution’ in
accordance with international law.
The terms of the MOU
48. The MOU’s terms are plain and unambiguous. Its legally binding nature is
equally straightforward.
63In Territorial and Maritime Dispute ( Nicaragua v, Colombia), Judgm ent, I.C.J. Reports 2012, p
624 at para. 126, the Court confirmed its finding in Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) , Judgment, I.C.J.
Reports 2007, p. 759 that “any claim of continental shelf rights beyond 200 miles [by a State
party to UNCLOS] must be in accordance with Article 76 of UNCLOS and reviewed by the
Commission on the Limits of the Continental Shelf established thereunder” ( at para. 319).
2249. The MOU’s first operative paragraph provides as follows:
The delimitation of the continental shelf between the Republic
of Kenya and the Somali Republic (hereinafter collectively
referred to as “the two coastal States”) has not yet been settled.
This unresolved delimitation issue between the two coastal
States is to be considered as a “maritime dispute”. The claims
of the two coastal States cover an overlapping area of the
continental shelf which constitutes the “area under dispute”.
50. The second operative paragraph emphasizes that the MOU is without
prejudice to the final delimitation of the maritime boundary, and that it
reflects the Parties’ “common interest” in establishing the outer limits of
their respective continental shelf:
The two coastal States are conscious that the establishment of
the outer limits of the continental shelf beyond 200 nautical
miles is without prejudice to the question of delimitation of the
continental shelf between states with opposite or adjacent
coasts. While the two coastal States have differing interests
regarding the delimitation of the continental shelf in the area
under dispute, they have a strong common interest with respect
to the establishment of the outer limits of the continental shelf
beyond 200 nautical miles, without prejudice to the future
delimitation of the continental shelf between them. On this
basis the two coastal States are determined to work together to
safeguard and promote their common interest with respect to
the establishment of the outer limits of the continental shelf
beyond 200 nautical miles.
51. The third operative paragraph explains that because Somalia was not ready
to make a full submission, it would only submit preliminary information to
the CLCS by the impending deadline of 13 May 2009, and that Kenya
would not object thereto:
23 Before 13 May 2009, the Transitional Federal Government of
the Somali Republic intends to submit to the Secretary-General
of the United Nations preliminary information indicative of the
outer limits of the continental shelf beyond 200 nautical miles.
This submission may include the area under dispute. It will
solely aim at complying with the time period referred to in
article (4) of Annex II to the United Nations Convention on the
Law of the Sea (UNCLOS). It shall not prejudice the positions
of the two coastal States with respect to the maritime dispute
between them and shall be without prejudice to the future
delimitation of maritime boundaries in the area under dispute,
including the delimitation of the continental shelf beyond 200
nautical miles. On this understanding the Republic of Kenya
has no objection to the inclusion of the areas under dispute in
the submission by the Somali Republic of preliminary
information indicative of the outer limits of the continental
shelf beyond 200 nautical miles.
52. The fourth operative paragraph stipulates that Kenya would make its full
submission by the 13 May 2009 deadline, that Somalia would make its full
submission at a later date, and that neither of the Parties will object to the
submission of the other:
The two coastal States agree that at an appropriate time, in the
case of the Republic of Kenya before 13 May 2009, each of
them will make separate submissions to the Commission on the
Limits of the Continental Shelf (herein referred to as “ the
Commission”), that may include the area under dispute, asking
the Commission to make recommendations with respect to the
outer limits of the continental shelf beyond 200 nautical miles
without regard to the delimitation of maritime boundaries
between them. The two coastal States hereby give their prior
consent to the consideration by the Commission of these
submissions in the area under dispute. The submissions made
before the Commission and the recommendations approved by
the Commission thereon shall not prejudice the positions of the
two coastal States with respect to the maritime dispute between
24 them and shall be without prejudice to the future delimitation
of the maritime boundaries in the area under dispute, including
the delimitation of the continental shelf beyond 200
nautical miles.
53. The fifth operative paragraph of the MOU then sets forth the method of
dispute settlement that would follow CLCS review, and specifies that it
shall apply to the entire maritime boundary, both within and beyond
200 NM:
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. 64
54. Finally, the MOU stated in unequivocal terms that it “shall enter into force
upon its signature”. 65 The signatures of the Kenyan and Somali Ministers
appear on the final page, preceded by the statement that they are “duly
authorized by their respective Governments” to sign the MOU. 66
64
The MOU did not preclude on -going negotiations pending completion of the CLCS review, but
provided that the final agreement would only be reached after the CLCS had made its
recommendations.
65As already noted, this paragraph is not referred to in Somalia’s Memorial.
66As set out below, that authorization was subsequently confirmed on at least two occasions by
the Somali Prime Minister.
25No reference in the MOU either to ratification or to withdrawal
55. Somalia’s Memorial does not dispute that the MOU in fact entered into
force upon its signature on 7 April 2009. 67 It merely states that the Somali
Federal Parliament rejected “ratification” of the MOU. Notwithstanding
that ratification was not required and is thus irrelevant, Somalia has not
even produced a record of either the Parliamentary vote or debates, or any
other document, demonstrating that formal ratification was in fact required
and the asserted grounds for the MOU’s rejection. There is only a passing
reference to a letter of 10 October 2009 claiming that the Federal
Parliament’s rejection of the MOU rendered it “non-actionable”. 69
56. Somalia’s assertion is, in any event, wholly inapposite. Nothing in the
terms of the MOU refers to any requirement of subsequent ratification. To
the contrary, as noted above, the MOU provides in categorical terms that it
“shall enter into force upon its signature”. There is also nothing in the
exchanges leading to adoption of the MOU suggesting that the Parties ever
considered a requirement of ratification.
67See Somalia’s Memorial at Annex 6 “ Memorandum of Understanding between the Government
of the Republic of Kenya and the Transitional Federal Government of the Somali Republic 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 the Limits of the
Continental Shelf, 2599 U.N.T.S. 35 (7 Apr. 2009), entered into force 7 Apr. 2009” (emphasis
added).
68Somalia’s Memorial at para. 3.40.
69At fn 117. The meaning of the term “non -actionable” is not explained. As set out below, in the
same month, at a meeting of the Somali diaspora held in London, the signatory of the MOU, the
Minister of National Planning and International Cooperation (Hon. Abdirahman Abdishakur
Warsame), in the presence of the Prime Minister of Somalia ( H.E. Omar Abdirashid Ali
Sharmarke), confirmed that the MOU had been approved by the Somali Prime Minister:
Transcript of a Meeting of the Somali Diaspora in London with Somali Prime Minister Omar
Abdirashid Ali Sharmarke and Dr Abdirahman Adishakur Warsame (Annex 15) . Video
available at Annex 47.
2657. The MOU, furthermore, did not contain any provisions on, nor was there
any discussion of, the possibility of unilateral denunciation or withdrawal
by the Parties. Such a possibility would have been manifestly inconsistent
with the very object and purpose of the MOU to establish a method for the
full and final settlement of the maritime boundary dispute.
E. The subsequent conduct of the Parties
8 April 2009: Somalia’s confirmation of the MOU in its submission of
preliminary information to the CLCS
58. On 8 April 2009 (the day following the conclusion of the MOU) the Prime
Minister of Somalia submitted the Preliminary information indicative of the
70
outer limits of the continental shelf to the UN Secretary-General.
59. Somalia was aware that pursuant to the third operative paragraph of the
MOU, Kenya would not object to its submission of preliminary
information. Indeed, Somalia reproduced the MOU in full within its
submission to the CLCS, and also enclosed a copy of the original
71
signed instrument.
60. The Somali submission to the CLCS also expressly confirmed that the
MOU had been validly concluded, as follows:
On 7 April 2009, following consultations between the two
sides, the Minister of Planning and International Cooperation
of the Transitional Federal Government of the Somali
Republic, and the Minister of Foreign Affairs of the Republic
70
71Somalia’s Memorial, Annex 66.
Ibid., pp. 8–9. As noted above, Somalia’s Memorial does not refer to this. It simply states at
para. 3.28 that “On 14 April 2009, within the time limits adopted by the State Parties to the
Convention, Somalia submitted preliminary information indicative othe outer limits of its
continental shelf beyond 200 M”.
27 of Kenya, both being duely [sic] authorized by their respective
Governments, signed in Nairobi a Memorandum of
Understanding… (emphasis added). 72
May 2009: Kenya’s confirmation of the MOU in its submission to the CLCS
61. In compliance with the time limits fixed under UNCLOS Article 76(8) and
Article 4 of Annex II, Kenya made its full submission to the CLCS on
73
6 May 2009. The UN confirmed receipt of Kenya’s submission on 11
May 2009, and the CLCS Chairman stated that it would be placed on the
th 74
provisional agenda of the 24 session of the CLCS.
62. Kenya had spent considerable resources on the preparation of its CLCS
submission, with the participation of relevant technical and scientific
75
experts. As stated by Kenya at the nineteenth meeting of States Parties of
76
UNCLOS held in June 2009:
This delegation wishes to remember the enormous resources
that have been employed to complete the delineation of the
outer limits of the continental shelf beyond 200 M, particularly
by the developing and small Island states. Such resources have
been utilized, among other things, in training of manpower,
72Ibid., p. 8.
73Somalia’s Memorial, Annex 59 (Republic of Kenya, Submission on the Continental Shelf
Submission beyond 200 nautical miles to the Commission on the Limits of the Continental
74 Shelf: Executive Summary (Apr. 2009)).
Somalia’s Memorial, Annex 60 (United Nations, Division for Ocean Affairs and the Law of the
Sea, Receipt of the submission made by the Republic of Kenya to the Commission on the
Limits of the Continental Shelf , U.N. Doc. CLCS.35.2009.LOS (11 May 2009)) and Annex 61
(United Nations, Commission on the Limits of the Continental Shelf, Statement by the
Chairman of the Commission on the Limits of the Continental Shelf on the progress of work of
75 the Commission, U.N. Doc. CLCS/64 (1 Oct. 2009)).
The process of preparing the submission to CLCS entailed collection of bathymetric and
geophysical data (seismics, magnetics and gravity) and its analysis. The exercise required
highly specialized technical expertise and substantial fundin g, particularly in sourcing and
hiring of survey ships.
76 Kenya Statement in the Nineteenth Meeting of States Parties to the United Nations
[Convention] on the Law of the Sea (22–26 June 2009) (Annex 16).
28 data acquisition and analysis, as well as in putting forth the just
submitted reports.
63. Kenya expected that pursuant to the fourth operative paragraph of the MOU
Somalia would not object to its submission. It therefore noted that:
[T]he two countries have signed a Memorandum of
Understanding (MOU) dated 7 April 2009 granting each other
no objection in respect of submissions on the outer limits of the
continental shelf to the Commission on Limits of the
77
Continental Shelf.
June 2009: registration and publication of the MOU by the UN
64. On 11 June 2009, in accordance with Article 102 of the UN Charter, the
78
MOU was formally registered with the UN Secretariat. A Certificate of
Registration was issued by the UN Secretariat on 14 August 2009. 79 The
MOU was subsequently published in the UN Treaty Series Volume 2599
(2009) and the Law of the Sea Bulletin No 70 (2009). 81
1 August 2009: Somali Parliament’s rejection of the MOU
65. Sometime after its signature, the MOU unexpectedly became the subject of
acute controversy within Somali media and political circles. Rumours
circulated that the MOU was part of a conspiracy (between Somalia, Kenya,
Norway, and the UN) aimed at “selling the sea” to Kenya. 82 It was reported
77
78Somalia’s Memorial Annex 59 at para. 7 -3.
Message from Jacqueline K. Moseti to the Legal Division, Ministry of Foreign Affairs
regarding “Registration of Memorandum of Understanding between GOK and the Transitional
Federal Government of the Somali Republic” (20 Aug. 2009) attaching Note Verbale from t he
UN Secretariat (14 Aug. 2009) and Certificate of Registration (stating registration of
Memorandum of Understanding on 11 June 2009) (Annex 17).
79
80Ibid.
81Somalia’s Memorial, Annex 6.
United Nations Law of the Sea Bulletin No 70 (2010) ( Annex 18).
82Article from The Somaliland Times, “Somalia–Kenya Sign MoU for Maritime ‘Area under
Dispute’: Exclusive”, Issue 376 (11 Apr. 2009) available at
29 that these inflammatory accusations had been initiated by Al-Shabaab to
incite popular anger against the Somali Government. As reported by the
Somaliland Times on 11 April 2009:
Rebels opposed to the TFG in the Somali capital Mogadishu
have spread information and accused the Somali government
of “selling the sea” to the neighbouring Republic of Kenya.
This information, rightly or wrongly, has largely been accepted
at face-value by a Somali public reeling from nearly 20 years
of civil war, gross abuse of public trust and a legacy inherited
from the colonial years. 83
66. Norway, which had invested considerable resources in assisting Somalia,
was portrayed as an enemy of the Somali people. Threatening messages
sent to the Norwegian Embassy in Nairobi claimed that Norway had
supported “a Kenyan bid to claim waters of the coast of neighbouring
Somalia for oil exploration” and that Kenya was “the enemy of Islam ... and
must (be) ready (for) Alqaeda attacks and revenge any time”. 84 The fear of
terrorist acts was so serious that it resulted in the closure of the Norwegian
embassy in Nairobi for several days in May 2009. 85
67. As this campaign of misinformation spread, it resulted in heated debates on
the MOU in the Somali Parliament. This controversy culminated in the
Parliamentary vote of 1 August 2009, rejecting the MOU. As already
mentioned, Somalia’s Memorial now asserts that the MOU is “non-
http://www.somalilandtimes.net/sl/2009/376/14.shtml (Annex 19). See also Mr. Aburahman
Hosh Jibril, WardheerNews.Com, “The MOU between Somalia and Kenya: A Big Fat Fact
Check” (10 Sept. 2009) (Annex 20).
83Article from The Somaliland Times, “Somalia–Kenya Sign MoU for Maritime ‘Area under
Dispute’: Exclusive”, Issue 376 (11 Apr. 2009), available at
http://www.somalilandtimes.net/sl/2009/376/14.shtml (Annex 19).
84Article from Reuters,“Norway embassy in Kenya threatened with attack” (27 May 2009),
85available at http://www.reuters.com/article/2009/05/27/idUSLR986749 (Annex 21).
Mr. Rolleiv Solholm, The Norway Post, “Norway’s Nairobi Embassy re-Opened” (29 May
2009) (Annex 22).
30 actionable” because the Somali Parliament had “decided against its
ratification”.86 It has been noted above that Somalia’s Memorial does not
produce the record of the Parliamentary vote or debates, or any other
document, demonstrating that formal ratification was either the grounds for
the MOU’s rejection or that it was in fact required. 87 As Somalia’s
Memorial recognises, the MOU had already entered into force, upon
signature.88
19 August 2009: Somalia’s confirmation of the MOU in its letter to the UN
68. Despite this heated controversy, Somalia did not question the validity of the
MOU. To the contrary, just a few days after the 1 August 2009
Parliamentary vote, the Prime Minister of Somalia confirmed to the UN
89
Secretary-General that the MOU is in force. In a letter dated 19 August
2009 (in a paragraph that is wholly disregarded in Somalia’s Memorial) the
Somali Prime Minister stated as follows:
On 7 April 2009 the Minister of Foreign Affairs of the
Republic of Kenya and the Minister of National Planning and
International Cooperation of the Somali Republic, both being
duly authorised by their respective governments, signed in
86At paras. 3.40–3.41.
87See at para. 3.40. As noted above, Somalia cites only the letter from H.E. Omar Abdirashid Ali
Sharmarke, Prime Minister of the Transitional Federal Government of the Somali Republic, to
H.E. Ban Ki-Moon, Secretary-General of the United Nations, No. OPM/IC/00./016/11/09 (10
Oct. 2009). MS, Vol. III, Annex 3. Reports of the vote in the Somali media – including film
recording of what appears to be the parliamentary debate – indicate that the decision was to
“reject” the MOUs, but without any explanation of the legal basis for such a vote or a purported
requirement of “ratification”: Report and Transcript on Vote on a Motion in connection with the
2009 Memorandum of Understanding in Parliamentary Session of Transitional Federal
Parliament of Somalia (Aug. 2009) (Annex 23). Video available at Annex 46.
88See Somalia’s Memorial, Annex 6.
89Somalia’s Memorial, Annex 37 ( Letter from H.E. Omar Abdirashid Ali Sharmarke, Prime
Minister of the Transitional Federal Government of the Somali Republic, to H.E. Ban Ki -
Moon, Secretary-General of the United Nations, (19 Aug. 2009)).
31 Nairobi a [MOU]. A copy of the [MOU] is enclosed to the
preliminary information. 90
69. Furthermore, with specific reference to the “maritime dispute” between
Kenya and Somalia, the Somali Prime Minister confirmed in the same letter
to the UN Secretary-General the two-step method of dispute settlement
agreed to by the Parties, replicating the fifth operative paragraph of the
MOU in full in the text of his letter, as follows:
In accordance with the Memorandum of Understanding, 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.
70. The Prime Minister’s communication to the UN Secretary-General also
confirmed once again Somalia’s consent to the CLCS’s examination of
91
Kenya’s submission.
90
The letter is referred to at para. 7.15 of Somalia’s Memorial. The reference to the MOU is
not cited.
91See communication from Kenya of 24 October 2014 stating “In a letter to the United Nations
Secretary General referenced XRW/00506/08/09 dated August 19 2009, the Transitional
Federal Government of the Somali Republic confirmed the rationale, intent and legitimacy of
the MOU and further reiterated her consent in accordance with R 5 (c) of the Rules of
Procedure of the Commission, to the examination of Kenya's submission by the Commission
and further reiterated that the delimitation of the 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 examinations of the separate submissio ns made by each of the two coastal states.”
(Note Verbale from the Permanent Mission of Kenya to the United Nations to the UN
Secretary-General (24 Oct. 2014) ( Annex 24).
3271. Furthermore, in August 2009, at the request of the Somali Government,
Norway proceeded to assist Somalia in the preparation of a full submission
to the CLCS, , to be delivered in July 2014. 92
October 2009: Kenya’s confirmation of the MOU at the 24 session of CLCS
72. Kenya made the presentation of its full submission at the 24 session of the
93
CLCS in New York. In a Statement dated 1 October 2009, the Chairman
of the CLCS noted the statement of the Kenyan representative as follows:
…pending negotiations with the Transitional Federal
Government of the Republic of Somalia, provisional
arrangements of a practical nature had been entered into, in
accordance with article 83, paragraph 3, of the Convention.
These arrangements are contained in a memorandum of
understanding signed on 7 April 2009, whereby the parties
undertake not to object to the examination of their respective
submissions. In this connection, Ms. Nkoroi pointed out that
one of the notes verbales from Somalia dated 19 August 2009
was consistent with the memorandum of understanding and
confirmed that, at an appropriate time, a mechanism will be
established to finalize the maritime boundary negotiations
with Somalia. 94
73. Kenya therefore confirmed the two-step method of settlement in the fifth
operative paragraph of the MOU by which the Parties agree to negotiate a
full and final agreement on maritime boundary delimitation after CLCS
review of their respective submissions.
92Somalia’s submission of July 2014 at page 2 (Executive Summary) (Somalia’s Memorial
Annex 70).
93United Nations, Commission on the Limits of the Continental Shelf, Statement by the Chairman
of the Commission on the Limits of the Continental Shelf on the progress of work of the
Commission, U.N. Doc. CLCS/64 (1 Oct. 2009) (Somalia’s Memorial, Annex 61).
94Ibid, para. 95.
3374. Given that the MOU expresses Somalia’s consent under Article 5(a), Annex
I, of the CLCS Rules of Procedure, the CLCS decided to establish a sub-
95
commission for consideration of Kenya’s submission which was the next
th 96
submission in line at its 35 session.
75. The procedure for delimitation of the maritime boundary agreed upon by
the Parties was thus unfolding as anticipated. Kenya had made its
submission in May 2009, and Somalia would make its full submission in
July 2014, at the same session that Kenya’s submission would be
considered. The CLCS would thereafter issue recommendations on the
outer limits of the continental shelf, following which the Parties would
conclude a final agreement on their maritime boundary.
76. The following month, in November 2009, at a Pan-African Conference on
Maritime Boundary Delimitation and the Continental Shelf, Ambassador
Longva hailed the MOU as one of the:
Important breakthroughs in handling of unresolved issues of
maritime delimitation between neighbouring States in the
context of the establishment of the outer limits of the
continental shelf beyond 200 nautical miles. 97
March 2010: Somalia’s letter to the UN
77. On 2 March 2010, almost one year after the MOU’s entry into force, and its
registration in the UN Treaty Series and UN Law of the Sea Bulletin, the
Permanent Mission of the Somali Republic to the UN forwarded to the UN
95
96Ibid, para. 97.
Scheduled for 2 July to 5 September 5 2014. See United Nations, Commission on the Limits of
the Continental Shelf, Progress of work in the Commission on the Limits of the Continental
Shelf: Statement by the Chair, U.N. Doc. CLCS/83 (31 Mar. 2014) at para. 18 (Somalia’s
Memorial, Annex 65).
97Prepared Remarks by Mr. Hans Wilhelm Longva at Pan African Conference on Maritime
Boundary Delimitation and the Continental Shelf, Accra (9 –10 Nov. 2009) (Annex 25, at p. 5).
34 Secretary-General a letter from the Somali Prime Minister dated 10 October
2009 (referred to at paragraph 55 above). That letter informed the UN
Secretary-General that the MOU “was considered by the Transitional
Federal Parliament of Somalia and that the members voted to reject the
st
ratification of that MOU on August 1 2009”. The letter requested “the
relevant offices of the UN to take note of the situation and treat the MOU as
98
non-actionable”. No explanation was given of what was meant by “non-
actionable”.
78. Somalia’s Memorial asserts that the letter was first sent on 10 October
99
2009. The UN Division of Ocean Affairs and Law of the Sea
(“DOALOS”) website however, refers only to a Note Verbale of 2 March
100
2010, indicating that as the date the communication was first received.
79. It seems that at some point after the Somali Prime Minister’s letter of
19 August 2009 confirming the MOU, intensifying political pressures had
persuaded the Government to attempt to unilaterally withdraw from the
MOU. Somalia’s Note Verbale of 2 March 2010, however, does not
explain whether or how the Somali Parliament vote to “reject” the MOU
98
99This letter is referred to at paras. 3.40 –3.41 of the Somali Memorial.
The Memorial states at para. 3.40: “On 10 October 2009, Somalia informed the Secretary -
General of United Nations that, on 1 August 2009, the Somali Parliament had voted o n the
2009 MOU and had decided against its ratification”. As noted above, it was in October 2009,
at a meeting of the Somali diaspora held in London, that the signatory of the MOU, the
Minister of National Planning and International Cooperation (Hon Abdira hman Adishakur
Warsame), in the presence of the Prime Minister of Somalia ( H.E. Omar Abdirashid Ali
Sharmarke), confirmed that the MOU had been approved by the Somali Prime Minister
(Annex 15). The video is available at Annex 47.
100Webpage on Somalia on the website of the UN Division of Ocean Affairs and the Law of the
Sea (DOALOS) (updated 16 Dec. 2014), available at
http://www.un.org/depts/los/LEG ISLATIONANDTREATIES/STATEFILES/SOM.htm
(updated 16 Dec. 2014) (Annex 26). The relevant footnote reads “By a note verbale dated 2
March 2010, the Permanent Mission of the Somali Republic to the United Nations informed
the Secretariat that the MOU had been rejected by the Parliament of the Transitional Federal
Government of Somalia, and ‘is to be hence treated as non -actionable.’”. See also the CLCS
website containing the Note Verbale of 2 March 2010 attaching the 10 October 2009 letter.
35 was pursuant to an alleged requirement of formal “ratification”, the
meaning or effect of the term “non-actionable” under treaty law, or what
action (if any) Somalia wished the UN to take as a consequence. Most
notably, Somalia did not object to consideration of Kenya’s CLCS
submission.
80. Somalia’s Memorial states that “Kenya registered no objection” to the Note
Verbale. 101 It fails to acknowledge that it was addressed only to the UN
(and not Kenya) despite the fact that it concerned a bilateral agreement.
Furthermore, Somalia’s conduct at that point in time was still consistent
with the terms of the MOU. Absent an objection to Kenya’s CLCS
submission, there was no breach of the MOU that would have required a
response from Kenya. It was only in February 2014 that Somalia first
registered such an objection.
August 2011: Norway’s letter to the UN
81. Following Somalia’s Note Verbale of 2 March 2010, Norway submitted a
102
letter dated 17 August 2011 to the UN Secretariat. It may be recalled that
the MOU was concluded under the good offices of Norway and it had
assumed the substantial costs for the on-going preparation of Somalia’s full
CLCS submission, scheduled for 2014. The letter, which is not mentioned
in Somalia’s Memorial, stated that the MOU continues to be valid and that
Norway’s continued assistance to Somalia is conditioned on respect for the
terms of the MOU.
82. In particular, Norway emphasised the legally binding nature of the MOU:
101At para. 3.41.
102Note Verbale from the Permanent Mission of Norway to the United Nations to the Secretariat
of the United Nations (17 Aug. 2011) ( Annex 4).
36 Article 46 of the Vienna Convention on the Law of Treaties
reads: “A State may not invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was
manifest and concerned a rule of its internal law of
fundamental importance”. Irrespective of whether and if so to
what extent this provision is expressive of customary
international law, Norway considers both Somalia and Kenya
to remain bound by the provisions of the MoU.
83. Furthermore, Norway also clarified that further assistance to Somalia was
linked to compliance with the MOU:
It is on this basis that Norway has decided to continue its
assistance to Somalia both in preparing a submission by
Somalia to the CLCS regarding the establishment of the outer
limits of the continental shelf beyond 200 nautical miles and in
preparing the establishment by Somalia by an exclusive
economic zone in the maritime areas off Somalia.
Somalia was presumably aware that by accepting continued assistance from
Norway it was accepting the continued validity of the MOU. Somalia did
indeed continue to receive assistance from, and to express its appreciation
to, Norway for the preparation of its CLCS submission.
84. Norway stated further in its 17 August 2011 letter that Somalia’s attempted
unilateral withdrawal from the MOU cast doubt on the Somali
Government’s capability to enter into legally binding commitments.
Norway emphasized the importance of finding an opportunity to reaffirm
the MOU’s legally binding nature:
While the above mentioned letter from the Prime Minister of
Somalia [i.e. the Note Verbale of 2 March 2010] appears to be
without legal effects, it has created a new political situation
casting doubt on the commitment of the TFG to the MoU
37 between Somalia and Kenya, and creating doubts as to the
capability of the TFG to enter into legally binding international
commitments. Notwithstanding the political sensitivity of the
issue, it is therefore to be hoped that at an appropriate time it
will be possible to find a way to reaffirm the legally binding
nature of the MoU.
85. In October 2011, not long after Norway sent this letter to the UN, terrorist
threats were made once again against the Norwegian Embassy in Nairobi. 103
Ambassador Longva reportedly stated that “[t]hose who are behind this are
looking to undermine the Somali government and we have been drawn into
this conspiracy theory”.
October 2011: Somali Parliament resolution regarding territorial sea of
200 NM
86. With continuing public outrage in Somalia over the MOU, the campaign of
misinformation spread and further politicised the maritime boundary
dispute. For example, it is reported that on 8 October 2011, the Somali
Parliament warned that the declaration of an EEZ would amount to the
104 105
relinquishment of a 200 NM territorial sea and constitute “treason”. A
few days earlier, the SRSG had observed before the International Contact
106
Group on Somalia that “there is still work to be done to win the hearts
103
Ms. Elisabeth Rodum, Mr. Anders Nordstoga, and Mr. John Harbo, Aftenposten, “Norway
Drawn into a Somali Conspiracy” (16 Oct. 2011), available at
http://www.aftenposten.no/nyheter/uriks/ --Norge-er-trukket-inn-i-ensomalisk-
konspirasjonsteori-5577035.html (Annex 27).
104See supra. para. 21.
105
Mr. Mohamud M. Uluso, Hiiraan Online, “Somali Parliament warned K-TFG leaders against
106committing treason” (22 Oct. 2011) (Annex 28).
The International Contact Group (ICG) on Somalia is a group of UN Ambassadors and
intergovernmental organizations, initiated by the United States at the UN headquarters in June
2006, following the Transitional Federal Government’s loss of control of Mogadishu to the
Supreme Islamic Courts Unio n. Its mandate is to assist in peace, reconciliation and developing
law enforcement capacity in Somalia.
38 and minds of many Somali’s [sic] (particularly MPs) who believe that
107
declaring the EEZ will in some way give away Somali sovereignty.”
July 2012: statement of the Somali MOU signatory
87. In light of the continuing political controversy, in July 2012, the Somali
Minister who had signed the MOU was compelled to defend his actions in a
108
public statement as follows:
I read the MoU several times before I put the pen to it, because
I am a lawyer even though I didn’t specialize in maritime law.
I am sure I didn’t sign a MoU on sea border or one that I saw
as to be committing mistake by the TFG leadership. Ladies
and Gentlemen, respected fellow Somalis I assured you that I
never for a second intended to be part of something that will
harm my Country and People and history is on my side. I tried
my best to be sure of what I was signing, consulted with
several people… The rightness or wrongness of the MoU is
something we have to leave to the experts and legal
practitioners in maritime laws… But that issue shouldn’t be
used as slandering, defaming and false accusation… I have
forgiven all those who talked bad about me due to their
misinformation about the matter.
107
“SRSG Statement on Piracy to ICG”, Copenhagen (29 Sept. 2011), available at
http://eunavfor.eu/wp-content/uploads/2011/10/SRSG-STATEMENT-ON-PIRACY-…-
Copenhagen-ICG.pdf (Annex 29).
108Statement by Mr. Warsame, Mareeg.com, “Ex somalia minister Clarify [sic] on the
Memorandum of Understanding between Somalia and Kenya”, available at
http://www.mareeg.com/fidsan.php?sid=24893&tirsan=3 (Annex 30). He stated “I want to
clearly share with you an incident that has repeatedly emerged recently and which is
misleadingly reported by some media houses. In this press release, I want to clarify myself
instead of others doing so on my behalf. It is about a Memorandum of Understanding on
Continental Shelves between Somalia and Kenya that I signed on behalf of Transitional
Federal Government (TFG) as the Minister of Planning and International Cooperation”.
39June 2013: statement of the Somali Government on refusal to negotiate with
Kenya
88. On 31 May 2013, the Kenyan Cabinet Secretary for Foreign Affairs (Hon.
Amina Mohamed) and the Somali Minister for Foreign Affairs (Hon.
Fauzia Yusuf Adam) issued a Joint Statement in which “the two ministers
underlined the need to work on a framework of modalities for embarking on
109
maritime demarcation.” The Statement further noted that “[t]he
ministers reviewed previous agreements and Memorandum of
Understandings (MoU) signed between Kenya and Somalia, and their level
of implementation”.
89. The Somali media quickly seized on the Joint Statement’s reference to
maritime delimitation, reportedly forcing the Somali Foreign Minister to
deny that Somalia had signed any agreement on the maritime boundary,
emphasising that Kenya “requested if talks can be reopened on this issue
but I declined”. 110 Furthermore, despite the Joint Statement’s apparent
reference to the MOU, she also claimed to have informed Kenya that “the
issue will remain as rejected by Somalia parliament in 2009”.
90. It was also reported on 6 June 2013 that the Somali Council of Ministers
had issued a similar statement, rejecting any negotiations with Kenya
as follows:
109
Joint Press Release by Kenyan Cabinet Secretary for Foreign Affairs (Hon. Amina Mohamed)
and Somali Deputy Prime Minister, Minister of Foreign Affairs & International Cooperation
(Hon. Fawzia Yusuf H. Adam) (31 May 2013) (Annex 31) and Article from Hiiraan,
“Somalia Cabinet rejects appeal for talks on border dispute with Kenya” (10 June 2013),
available at
http://www.hiiraan.com/news4/2013/Jun/29774/somalia_cabinet_rejects_app…
_border_dispute_with_kenya.aspx (Annex 32).
110Article from Hiiraan, “Somalia Cabinet rejects appeal for talks on border dispute with Kenya”
(10 June 2013), available at
http://www.hiiraan.com/news4/2013/Jun/29774/somalia_cabinet_rejects_app…
border_dispute_with_kenya.aspx (Annex 32).
40 The Federal Government of Somalia does not consider it
appropriate to open new discussions on maritime demarcation
111
or limitations on the continental shelf with any parties.
2 February 2014: Somalia’s material breach of the MOU by objection to
Kenya’s CLCS submission
91. The CLCS had decided at its September 2009 meeting to establish a sub-
commission to consider Kenya’s submission, which was next in line
according to the order in which it had been received. 112 By the 34 session
of the CLCS, held from 27 January to 14 March 2014, Kenya’s submission
had come to the head of the queue and at that stage was expected to be
th 113
considered at the 35 session, scheduled for September 2014.
92. Despite the political controversy surrounding maritime issues, the Somali
Government had never given any indication that it might object to Kenya’s
submission. The MOU had clearly indicated, consistent with Article 5,
Annex I, of the CLCS Rules of Procedure, that recommendations on the
limits of the outer shelf are “without prejudice” to maritime boundary
111
Kenya has not been able to locate the original of this document, which is presumably in the
possession of Somalia. See Press Release of Somali Council of Ministers, posted on
Horseedmedia, “Somalia: Somali Federal Government clarifies its position on ter ritorial
waters” (6 June 2013), available at http://horseedmedia.net/2013/06/06/somalia -somali-federal-
government-clarifies-its-position-on-territorial-waters/ (Annex 33); Article on Radio Kulmiye,
“Somali Federal Government clarifies its position on territorial waters” (6 June 2013) (Annex
34); Mr. Malkhadir Muhumed, Wardheer News, “Somalia Cabinet Rejects Appeal for Talks on
Border Dispute with Kenya” (9 June 2013), available at
http://www.wardheernews.com/somalia -cabinet-rejects-appeal-for-talks-on-border-dispute-
with-kenya/ (Annex 35); Statement from Somali Prime Minister’s Media Office, posted on
Somalitalk, “Somali Federal Government clarifies its position on territorial waters” (6 June
2013), available at http://somalitalk.com/2011/badda/difaac96.html (Annex 36).
112
Somalia’s Memorial, Annex 61 at para. 97: “ the Commission decided that, as provided for in
article 5 of annex II to the Convention and in rule 42 of the rules of procedure, the submission
would be addressed by way of a sub -commission to be established in accordance with rule 51,
paragraph 4 ter, of the rules of procedure, at a future session. The Commission decided to
revert to the consideration of the submission at the plenary level at the time when the
113submission is next in line for consideration as queued in the order in which it was received”.
Somalia’s Memorial, Annex 65 at para. 18.
41 delimitation. Under these circumstances, it was to Kenya’s surprise that on
4 February 2014 (some five years after the MOU entered into force), the
Minister of Foreign Affairs and International Cooperation of Somalia sent a
114
letter to the UN Secretary-General, withdrawing its earlier consent by
objecting for the first time to the CLCS’s consideration of
Kenya’s submission. 115
93. This letter is presented in Somalia’s Memorial as being “prompted” by
Kenya’s submission to the CLCS. 116However, the letter is dated 4 February
2014, whereas Kenya’s submission had been made in May 2009.
94. In the 4 February 2014 letter, Somalia also objected to the UN registration,
five years earlier, of what it now called the “purported MOU”. The Somali
letter attached a Note Verbale, 117stating the basis on which the “purported
MOU was deemed void and of no effect”. The letter also demanded that
the UN Secretary-General “immediately” remove the agreement from the
UN Register of treaties – a demand with which the UN did not comply.
95. The Note Verbale once again invoked the Somali Parliamentary vote of 1
August 2009. However, it made the remarkable claim, for the very first
time, that “at the time of signature” the Somali Minister for National
Planning and International Cooperation had “informed the representatives
of the Government of Kenya that in accordance with the Transitional
114Letter from Dr. Abdirahman Beileh, Minister of Foreign Affairs and International Cooperation
of the Somali Federal Republic, to H.E. Ban Ki -Moon, Secretary-General of the United
Nations, No. MOFA/SFR/ MO/259/2014 (4 Feb. 2014) (Somalia’s Memorial, Annex 41);
Letter from Dr. Abdirahman Beileh, Minister of Foreign Affairs and International Cooperation
of the Somali Federal Republic, to H.E. Ban Ki -Moon, Secretary-General of the United
Nations, No. MOFA/SFR/MO/258/2014 (4 Feb. 2014) (Somalia’s Memorial, Annex 42). See
also Somalia’s Memorial, Annex 41 which is the Note Verbale attached to that letter.
115Somalia’s Memorial does not refer to any earlier objection.
116At para. 7.20.
117Somalia’s Memorial, Annex 41.
42 Federal Charter of the Somali Government of February 2004, the MOU
would require ratification by the Transitional Federal Parliament of the
Somali Republic”. There is no record of any such statement having ever
been made, and Kenya does not accept that any such statement was in fact
ever made. Furthermore, the alleged statement plainly contradicts the
express provision in the MOU that “it shall enter into force upon sig
nature”.
96. The Note Verbale also made the astonishing claim, again for the very first
time,118 that the Minister who had been “duly authorised” to sign the MOU
on behalf of Somalia, was in fact not “duly authorised” at all. The new
Somali theory was that, notwithstanding both his prior authorisation and
subsequent confirmation by the Head of Government, he did not possess
“full powers” within the meaning of Article 7 of the Vienna Convention on
the Law of Treaties because he “did not produce appropriate documents
demonstrating his powers to represent the Somali Republic for the purpose
119
of agreeing to the text of the MOU on behalf of the Somali Republic”.
97. In any event, the letter and the Note Verbale were never addressed to
Kenya. Indeed, as discussed below, to this day, Kenya has not received any
proper notice from Somalia of a purported withdrawal from the MOU.
118In its April 2009 submission, Somalia expressly stated that the MOU had been signed by the
duly authorized representatives of their respective Governments (Somalia’s Memorial, Annex
66 at p.8). See also the letter dated 19 August 2009 from the Somali Prime Minister which
again confirmed that the “duly authorized” representatives of Kenya and Somalia signed the
119MOU (Somalia’s Memorial, Annex 37).
Article 7(1) provides “ A person is considered as representing a State for the purpose of
adopting or authenticating the text of a treaty or for the purpose of expressing the consent of
the State to be bound by a treaty if: (a) he produces appropriate fu ll powers; or (b) it appears
from the practice of the States concerned or from other circumstances that their intention was
to consider that person as representing the State for such purposes and to dispense with
full powers”.
43F. Events following Somalia’s attempt in 2014 to unilaterally reject
the MOU
March 2014: first technical meeting between Kenya and Somalia
98. Following the 4 February 2014 objection, Kenya resorted to diplomacy to
persuade Somalia to comply with its obligations under the MOU. The
respective Foreign Ministers held a meeting on 21 March 2014. A joint
report recorded that the Ministers agreed that a “technical level” meeting be
120
held among relevant officials. Accordingly, the Parties agreed to hold
their first bilateral meeting, at the technical level, at the Ministry of Foreign
121
Affairs of Kenya in Nairobi on 26 and 27 March 2014.
99. Given Somalia’s objection to Kenya’s submission, it was Kenya that had
122
requested this first technical meeting. Accordingly, consistent with the
agreed two-step procedure, “Kenya submitted a proposed agenda for the
meeting which included the following substantive issues: a) The
123
Memorandum of Understanding; and b) The maritime boundary.” For
Kenya, the primary purpose of the March 2014 meeting was to secure
Somalia’s consent to CLCS review, in order to resume and eventually
conclude the method of settlement agreed under the MOU.
120Somalia’s Memorial, Annex 3 1, at para. 1.
121Somalia’s Memorial, Annex 24 states that the Somali delegation consisted of Ms. Mona Al -
Sharmani (Senior Adviser and head of the delegation) and Mr. Omar Mohamed (Senior
Adviser). Annex 24 states that the Kenyan delegation was led by Ms. J uster Nkori in addition
to 15 members from different branches of the Kenyan Government. The Kenyan Ambassador
to Somalia, His Excellency Josephat Maikara and Mr. Daniel Tanui, the deputy director/horn
122of Africa participated in the opening and closing of th e meetings.
See Government of Somalia and Government of Kenya, Joint Report on the Kenya–Somali
Maritime Boundary Meeting, 26 –27 Mar. 2014 (1 Apr. 2014) (Somalia’s Memorial, Annex
31); Federal Republic of Somalia, Report on the Meeting between The Feder al Republic of
Somalia and The Republic of Kenya On Maritime Boundary Dispute, Nairobi, Kenya, 26 –27
Mar. 2014 (1 Apr. 2014) which records that the meeting was convened “At the request of the
Kenyan Government” (Somalia’s Memorial, Annex 24).
123
Somalia’s Memorial, Annex 31 at page 1.
44100. Somalia’s own report of the meeting indicates that from the very outset it
objected to any discussion of the MOU and demanded that it be removed
124
from the agenda. The Somali delegation argued again that because its
Parliament had rejected the MOU in 2009, it was “void and of no effect”.
101. However, Somalia added yet another new theory to justify its purported
withdrawal from the MOU. In an apparent attempt to retroactively justify
the lack of any proper notice, Somalia made the remarkable claim, for the
very first time, that it had previously notified Kenya “orally”. Again, this
alleged “oral” notification is in direct contradiction with the express terms
of the MOU. There is no record whatsoever, and no Kenyan official has
any recollection, of any such notification.
102. The Kenyan delegation was surprised by the refusal of the Somali
delegation to discuss the MOU. However, in a spirit of compromise, and in
order for the preliminary technical discussions to proceed, the Kenyan
delegation agreed to remove the MOU from the agenda on the
125
understanding that it would be discussed at a subsequent meeting.
126
Somalia’s Memorial notes that “Kenya agreed and amended the agenda”.
However, the only thing that Kenya agreed to was to postpone the
discussion of, and not to accept, Somalia’s rejection of the MOU.
124
125Somalia’s Memorial, Annex 24. See also Annex 31 which is the Joint Report of the meeting.
Somalia’s Memorial, Annex 24 records that the Somali delegation confirmed discussions
would include “the Somali Government’s refusal to consent to the consideration by the
Commission on the Limitation of Continental Shelf (the “Commission”) of the Kenyan
submission for an extended continental shelf” and that “The Somali delegation stated that they
are willing to discuss all issues rela ting to maritime delimitation, including the failure to
consent to the Commission’s review of Kenya’s submission, as a comprehensive package with
the aim of resolving the existing dispute in a speedy manner.” It notes: “The Kenyan delegation
126agreed to proceed on that basis.”
Somalia’s Memorial, para. 3.46.
45March 2014: CLCS decision to delay consideration of Kenya’s submission
103. In light of Somalia’s refusal to withdraw its objection at the first technical
meeting, the CLCS determined on 31 March 2014, that notwithstanding its
earlier decision to consider Kenya’s submission at its 35th session, 127it
“was not in a position to proceed with the establishment of a sub-
128
commission at that time.”
104. At the twenty-fourth meeting of UNCLOS States Parties, held on 9–13 June
2014, Kenya noted with concern Somalia’s refusal to withdraw its
objection. Kenya’s representative emphasised that “[t]he timely
consideration of submissions by CLSC [sic] continues to be of great interest
to my country”, and that “any slight delay in considering a country’s
submission results in huge human and material costs used to ensure that the
country maintains her ability to defend the submission”. Kenya
stressed that:
our concern arises in instances where the principle of good
faith does not seem to guide the actions of a member State.
This may arise in situations where a State may simply refuse to
grant consent for no apparent reason. The situation is further
compounded where State Parties grant each other consent for
the Commission to consider a submission and the consent is
withdrawn shortly before or during the course of consideration
of the submission. 129
127The 35th session ran from 21 July to 5 September 2014.
128Somalia’s Memorial, Annex 65 at para. 18 (United Nations, Commission on the Limits of the
Continental Shelf, Progress of work in the Commission on the Limits of the Continental Shelf:
Statement by the Chair, U.N. Doc. CLCS/83 (31 Mar. 2014)).
129Statement by Kenya during the 24th Meeting of States Parties to the United Nations
Convention on the Law of the Sea, New York (9 –13 June 2014) (Annex 37).
46July 2014: Somalia’s submission to the CLCS
105. While blocking Kenya’s submission in breach of the MOU, Somalia made
its own submission to the CLCS on 21 July 2014, at the very session when
130
Kenya’s submission was to be considered. Somalia’s submission
acknowledged that:
The Government of Norway has provided assistance and
advice to the Federal Government of Somalia (FGS) in the
preparation of the present submission, and the Royal
Norwegian Ministry of Foreign Affairs, the Norwegian
Petroleum Directorate and the Norwegian Mapping Authority
131
have been involved in this work.
106. Somalia noted that its submission “includes the areas under dispute between
132
the two coastal States”.
107. It then stated that Somalia is:
ready to enter into consultations with the Republic of Kenya
with a view to reaching an agreement or understanding which
will allow the Commission to consider and make
recommendations on submissions by each of the two coastal
States in the areas under dispute without prejudice to the final
delimitation of the continental shelf to be concluded
subsequently in the areas under dispute by the two
coastal States.
Somalia’s willingness to “reach an agreement or understanding” on prior
consent with Kenya was curious. It had already concluded exactly such an
agreement some five years earlier, namely the 2009 MOU. In any event,
130
Somalia’s Memorial Annexes 69 and 70. The previous month, 30 June 2014, Somalia had
issued a proclamation of its co-ordinates on the EEZ (Somalia’s Memorial Annex 14 and
131Annex 15).
132Somalia’s Memorial, Annex 70 at p. 4.
Somalia’s Memorial, Annex 70 at p. 9.
47 Somalia’s statement clearly admitted that any delimitation has to be
concluded “subsequently”, i.e. after CLSC review.
108. Despite Somalia’s breach of the MOU, Kenya did not object to the
consideration of Somalia’s submission at the 37 session of the CLCS on
133
20 April 2015. Kenya continued to pursue diplomacy to persuade
Somalia to withdraw its objection, consistent with its obligations under
the MOU.
July 2014: second technical meeting between Kenya and Somalia
109. On 28–29 July 2014, exactly one month before Somalia’s initiation of this
proceeding before the Court, a second technical meeting was held in
134
Nairobi. Kenya expected finally to discuss the MOU. However, Somalia,
once again refused to discuss the withdrawal of its objection. Instead,
Somalia used the meeting to advance a detailed argument on equidistance
135
as the only possible solution to the maritime boundary dispute. Kenya
responded by presenting its preliminary views in order to establish a
framework for further discussions. The Parties agreed to reconvene on 25–
26 August 2014 for a third technical meeting.
133
“Progress of Work in the Commission on the Limits of the Continental Shelf. Statement by the
Chair”, Commission on the Limits of the Continental Shelf (CLCS), thirty -seventh session,
CLCS/88 (20 Apr. 2015), available at http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N15/112/55/PDF/N1511255.pdf?OpenElement (Annex 38). Para.
6 states that the Commission considered the provisional agenda (CLCS/L.38) and a dopted it, as
amended (CLCS/87). That agenda listed Somalia at item 15 “Provisional Agenda”, CLCS,
thirty-seventh session, CLCS/L.38 (26 Nov. 2014), available at
134http://www.un.org/ga/search/view_doc.asp?symbol=CLCS/L.38 (Annex 39).
Government of Somalia and Government of Kenya, Joint Report on the Kenya-Somalia
Maritime Boundary Meeting, 28 –29 July 2014 (July 2014) (Somalia’s Memorial, Annex 32).
135Somalia’s Memorial, Annex 32 at pa ra. 3.
48August 2014: Somalia’s application to the Court
110. The third technical meeting did not take place. Somalia’s Memorial states
that Kenya simply did not “send its delegation to Mogadishu”. 136 It
completely disregards the perilous security situation in Somalia and the fact
that the Kenyan delegation could not travel without proper security
arrangements. In fact, on 4 August 2014, immediately after the second
technical meeting was concluded on 29 July, the Kenyan Ministry of
Foreign Affairs had requested the advice of the Kenyan National
Intelligence Service. It was informed that “due to the volatile security
situation prevailing in Mogadishu, it is not advisable for such high powered
137
delegation to visit the country in such circumstances.”
111. Somalia was well aware of this situation. Kenya had already expressed its
concern about an earlier proposal to hold the July 2014 second technical
meeting in Mogadishu. The incidents of terrorist bombings, assassinations
and hostage-taking were an obvious problem in Somalia. This included the
notorious 2009 Al-Shabaab suicide bombing incident at the Shamo Hotel in
Mogadishu, which claimed the lives of four Somali Ministers. 138
112. Kenya was clearly eager to hold a third technical meeting.
Contemporaneous internal documents expressed its intention “to discuss
maritime boundary including lifting of objection by Somalia on MOU
136Memorial at para . 3.54.
137Dr. Karanja Kibicho, Confidential Note to Ms. Juster Nkoroi regarding “Proposal for the
Cabinet Secretary MFA and Other Senior Government Official to Visit Mogadishu to Discuss
Maritime Boundary Including Lifting of Objec tion by Somalia on MOU Granting No
Objection to Consideration of Kenya’s Submission”, MFA.INT.8/15A (23 Aug. 2014) ( Annex
40).
138See e.g. http://news.bbc.co.uk/1/hi/8392468.
49 139
granting no objection to consideration of Kenya’s submission”. At the
first two technical meetings, Kenya had failed to persuade Somalia even to
discuss withdrawing its objection. Without CLCS review, further progress
on delimitation was not possible.
113. To Kenya’s astonishment, on 28 August 2014, (in the same week that the
Parties had scheduled the third technical meeting), Somalia initiated this
proceeding against Kenya before the Court. It had given no prior indication
that it was contemplating such a step. Kenya had reasonably assumed that
Somalia’s objection to CLCS review had to be resolved before formal
negotiations could even start. Furthermore, the Somali Application, which
had presumably been prepared earlier in 2014 during on-going preliminary
technical meetings, was in breach of the MOU’s agreed method for
settlement of the maritime boundary dispute. In these circumstances,
Somalia’s assertion that it came before the Court because it was
“[d]isappointed by Kenya’s non-responsiveness, frustrated by the lack of
progress made during the two earlier rounds of negotiations”, and that
140
“further negotiations would be pointless” is disingenuous.
2 September 2014: Somalia’s letter to the UN
114. The matter of the MOU did not end with Somalia’s filing of its Application
before the Court. The CLCS was apparently confused by Somalia’s letter
139Dr. Karanja Kibicho, Confidential Note to Ms. Juster Nkoroi regarding “Proposal for the
Cabinet Secretary MFA and Other Senior Government Official to Visit Mogadishu to Discuss
Maritime Boundary Including Lifting of Objection by Somalia on MOU Granting No
Objection to Consideration of Kenya’s Submission”, MFA.INT. 8/15A (23 Aug. 2014) (Annex
40) and Dr. Karanja Kibicho, Confidential Note to the Director General of the National
Intelligence Service Regarding “Proposal for the Cabinet Secretary MFA and Other Senior
Government Official to Visit Mogadishu to Discuss Ma ritime Boundary Including Lifting of
Objection by Somalia on MOU Granting No Objection to Consideration of Kenya’s
Submission”, MFA.INT.8/15A (4 Aug. 2014) ( Annex 41).
140Memorial at para. 3.56.
50 of 4 February 2014, rejecting the MOU and objecting to Kenya’s
submission. On the one hand, the CLCS had determined in its March 2014
report that it could no longer establish a sub-commission to consider
141
Kenya’s submission. On the other hand, the presentation of Kenya’s
142
submission was included in the provisional agenda for the 35th session.
115. This prompted Somalia, on 2 September 2014, to submit a second Note
Verbale to the CLCS. 143 In a letter to the UN Secretary-General of the
same date, Somalia emphasised that it “has not given its consent (and does
not hereby give its consent) to the consideration by the Commission of the
submissions made (or to be made) or presented (or to be presented) by the
144
Government of Kenya”. The letter also notified the UN Secretary-
General that: “The maritime dispute between Somalia and Kenya is
presently before the International Court of Justice, following Somalia’s
145
Application to the Court filed on 28 August 2014”.
3 September 2014: Kenya’s confirmation of the MOU at the 35 session of th
the CLCS
116. On 3 September 2014, Kenya presented its submission to the CLCS. 146 The
Head of the delegation, the Attorney-General for Kenya (Hon. Githu
141Somalia’s Memorial, Annex 65 at para. 18 (United Nations, Commission on the Limits of the
Continental Shelf, Progress of work in the Commission on the Limits of the Continental Shelf:
142Statement by the Chair, U.N. Doc. CLCS/83 (31 Mar. 2014)).
“Agenda”, CLCS, thirty-fifth session, CLCS/84 (4 Aug. 2014), available at http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N14/494/70/PDF/N1449470.pdf?OpenElement (Annex 42 at
item 17).
143“Progress of Work in the Commission on the L imits of the Continental Shelf. Statement by the
Chair”, CLCS, thirty-fifth session, CLCS/85 (24 Sept. 2014), available at http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N14/547/71/PDF/N1454771.pdf?OpenElement (Annex 43). See
para. 65.
144Somalia’s Memorial, Annex 48.
145Somalia’s Memorial, Annex 48.
146
“Progress of Work in the Commission on the Limits of the Continental Shelf. Statement by the
Chair”, CLCS, thirty-fifth session, CLCS/85 (24 Sept. 2014), available at http://daccess-dds-
51 Muigai), reaffirmed the Parties’ obligations under the MOU not to object to
each other’s submissions, and to finalise an agreement only after a
CLCS review:
Kenya had yet to conclude a maritime boundary agreement
with Somalia, although negotiations were ongoing. He noted
that provisional arrangements of a practical nature had been
entered into, in accordance with article 83, paragraph 3, of the
Convention, as contained in a memorandum of understanding
signed on 7 April 2009, whereby the parties had undertaken
not to object to the examination of their respective
submissions. Mr. Muigai noted that the note verbale from
Somalia dated 19 August 2009 affirmed the position mutually
agreed upon by the two States in the memorandum
of understanding.
117. In light of the MOU, Kenya urged the CLCS to establish a sub-commission
to consider its submission. However, given Somalia’s objection under
Article 5, Annex 1 of the CLCS Rules of Procedure, the CLCS “reiterated
its decision to defer further consideration of the submission and the
147
communications from Kenya and Somalia”.
118. The CLCS took note of Somalia’s second Note Verbale but determined that
148
no change in its earlier decision was required.
ny.un.org/doc/UNDOC/GEN/N14/547/71/PDF/N1454771 .pdf?OpenElement (Annex 43). Para
57 records that the presentation was made by the Head of the delegation, Githu Muigai,
Attorney General, and by Michael Gikuhi , Geophysicist and member of the task force on
delineation of Kenya’s outer continental shelf. The delegation of Kenya also included the
Permanent Representative of Kenya to the United Nations, Macharia Kamau, and the Deputy
Permanent Representative of Ken ya to the United Nations, Koki Muli Grignon, as well as a
147number of scientific, legal and technical advisers.
“Progress of Work in the Commission on the Limits of the Continental Shelf. Statement by the
Chair”, CLCS, thirty-fifth session, CLCS/85 (24 Sept. 2014), available at http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N14/547/71/PDF/N1454771.pdf?OpenElement (Annex 43) at
para. 64.
148Ibid., at para. 65.
5224 October 2014: Kenya’s confirmation of the MOU
119. On 24 October 2014, Kenya submitted a Note Verbale to the UN Secretary-
General expressing its “surprise” at Somalia’s continuing objection to its
CLCS submission and its attempt to withdraw the MOU from the UN
Registry.149 Once again Kenya confirmed the agreed method of settlement
under the MOU:
Kenya confirms that prior to the filing of her Submission to the
Commission on 6 April 2009, which submission was
acknowledge [sic] and published by the United Nations vide
Continental Shelf Notification, reference, CLCS.35.2009.LOS
dated 11th May 2009, and the subsequent presentation to the
Commission on 3rd September 2009, Kenya had, in the spirit
of understanding and cooperation, negotiated arrangements of
a practical nature with the Transitional Federal Government of
the Republic of Somalia in accordance with Article 83,
paragraph 3, of the Convention. These arrangements were
contained in a Memorandum of Understanding (hereinafter
MOU) signed on 7th April 2009, whereby both parties,
undertook not to object to the examination of their respective
submission [sic]. At the time, Kenya indicated to the
Commission that pending further negotiations, a mechanism
will be established to finalise the maritime boundary
negotiations with Somalia.
120. In particular, Kenya referred to the Somali letter of 19 August 2009
pursuant to which:
The Transitional Federal Government of the Somali Republic
confirmed the rationale, intent and legitimacy of the MOU and
further reiterated her consent in accordance with R 5 (c) of the
149Note Verbale from the Permanent Mission of the Republic of Kenya to the United Nations to
H.E. Ban Ki-Moon, Secretary-General of the United Nations, No. 586/14 (24 Oct. 2014)
(Somalia’s Memorial Annex 50 at p. 1).
53 Rules of Procedure of the Commission, to the examination of
Kenya's submission by the Commission and further reiterated
that the delimitation of the 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 examinations of the separate
150
submissions made by each of the two coastal states.
121. Kenya emphasised that:
The attempt, by the Somali Federal Republic, to reverse this
common understanding and agreement was undertaken
unilaterally and without consultation or the consent of the co-
signatory to the MOU. The Somali Federal Republic further
aggravates this change of mind in a communication reference,
MOFA/SFR/MO/1258/14 dated February 4, 2014 by
purporting to have nullified the previous MOU and replacing
the same with an objection to consideration of Kenya's
submission owing to the existence of a maritime boundary 151
dispute between the Somali Federal Republic and Kenya.
122. Kenya urged the CLCS to consider its submission consistent with the
method of settlement under the “bilateral agreement with the Somali
Federal Republic”:
From the foregoing, Kenya wishes to object to the actions by
the Somali Federal Republic and affirms that these
aforementioned actions are not only regrettable and
unfortunate but are also not in the best interests of either State.
Kenya is of the opinion that it would be in the best interests of
both States as well as good international order that the
Commission proceeds to consider Kenya's submission at the
earliest opportunity; precisely to allow the two States to carry
150At p. 2.
151At p. 2.
54 on with their delimitation of the continental shelf beyond 200
NM in the manner originally envisioned in the 7 April 2009
152
MOU and the 19 August 2009 communication.
May–July 2015: communications by the Parties concerning the obligation of
non-objection under the MOU
123. On 4 May 2015, Somalia’s intransigence and continuing material breach of
the MOU finally prompted Kenya to object to Somalia’s CLCS
153
submission. Having failed through diplomatic means, this temporary and
partial suspension of the MOU was intended to persuade Somalia to comply
with its obligations. Shortly afterwards, in a Note Verbale dated 30 June
2015, Kenya ended its suspension of the MOU. In a spirit of compromise, it
invited the CLCS to proceed to consider Somalia’s submission, but on the
condition that Somalia would fully comply with the agreed dispute
settlement procedure under the MOU. 154
124. Kenya’s Note Verbale explained the basis for this temporary suspension as
follows:
Somalia’s objection was a material breach of the Memorandum
of Understanding (MOU) between Kenya and Somalia dated 7
April 2009, registered with the United Nations Secretariat on
June 11, 2009, in accordance with Article 102 of the United
Nations Charter. Under the terms of the MOU, the Parties are
under an obligation not to object to each other’s submissions to
the Commission, and then to conclude an agreement on the
delimitation of the maritime boundary after the Commission
152At p. 3.
153Note Verbale from the Permanent Mission of the Republic of Kenya to the United Nations to
H.E. Ban Ki-Moon, Secretary-General of the United Nations, No. 141/15 (4 May 2015)
(Somalia’s Memorial, Annex 51).
154Note Verbale from Permanent Mission of Kenya to the United Nations to the UN Secretary -
General, Note No 210/15 (30 June 2015) ( Annex 44).
55 has concluded the examination of each submission and made
its recommendations concerning the establishment of the outer
limits of the continental shelf beyond 200 nautical miles.
Kenya was entitled to respond to Somalia’s material breach of
its obligation not to object to Kenya’s submission by
temporarily suspending the operation of the MOU in whole or
in part. In its Note 141/15, Kenya indicated that it was
suspending the operation of the MOU in part, by objecting to
the consideration of Somalia’s submission to the Commission.
125. The Note Verbale further clarified that Kenya’s withdrawal of its objection
to Somalia’s CLCS submission was conditioned on Somalia’s compliance
with the agreed dispute settlement procedure under the MOU:
In light of this position, Kenya has given careful consideration
to the possibility of enabling the Commission to proceed with
its work expeditiously, without prejudice to the rights and
interests of either Kenya or Somalia in relation to their
maritime boundary dispute. Kenya considers that, as longs
[sic] as the Commission is aware of the area, of overlapping
claims, and that in respect of that area it gives all due
consideration to the submissions made by both States, the
Commission may proceed to make recommendations
concerning the outer limits of the continental shelf off the
coasts of Kenya and Somalia, in accordance with the procedure
agreed upon in the MOU. Accordingly, and on that basis,
Kenya no longer objects to the consideration by the
Commission of Somalia’s submission.
126. On 7 July 2015, within a week of Kenya’s Note Verbale to the CLCS,
Somalia suddenly changed course. Less than a week before submission of
its Memorial to the Court, and after a year and a half of obstruction and
intransigence, Somalia sent a letter to the UN Secretary-General stating that
56 it “hereby extends its consent to the Commission’s consideration of the
Kenyan submission”. 155
127. This was followed, on 16 July 2015, just three days after the submission of
its Memorial, by submission of an Amended Executive Summary to the
CLCS. This was intended to replace the earlier Summary submitted by
Somalia on 21 July 2014. 156The new Summary states that: “Somalia
decided that there is no longer any impediment for the Commission to
examine and make recommendations on Kenya’s and its
own submissions”. 157
128. Somalia’s explanation for this sudden change in course was that an
objection was not necessary because its dispute with Kenya was now before
the Court. 158 The case, however, had already been initiated for almost a
year. It may be that Somalia now appreciates the consequences of breaching
its obligations under the MOU, including the perpetual limbo that would
result if the Parties objected to each other’s CLCS submissions.
Presumably, it also became apparent to Somalia that it could not continue to
block Kenya’s submission whilst at the same time asking the Court to
delimit the maritime boundary beyond 200 NM in the outer continental
shelf, given the requirement of prior CLCS review. In any event, the
155Letter from H.E. Abdulsalam H. Omer, Minister of Foreign Affairs and Investment Promotion
of the Federal Republic of Somalia, to H.E. Ban Ki -Moon, Secretary-General of the United
156Nations (7 July 2015) (Somalia’s Memorial, Annex 52).
“Continental Shelf Submission of the Federal Rep ublic of Somalia. Executive Summary.
Amended”, 2015-07-16_SOM-DOC-001 (16 July 2015), available at
http://www.un.org/Depts/los/clcs_new/submissions_f iles/som74_14/2015-07-16_SOM-DOC-
001.pdf (Annex 45). It states that “This Amended Executive Summary is intended to replace
the Executive Summary submitted to the United Nations Division for Ocean Affairs and the
Law of the Sea (hereinafter referred to as “DOALOS”) on 21 July 2014” (at p. 2).
157Ibid. p. 6.
158
See Somalia’s Memorial at para. 7.27.
57 Parties’ agreement under the MOU was that following CLCS review, they
would conclude a negotiated settlement.
129. Somalia’s last-minute reversal of its position concerning its consent under
Article 5, Annex I, of the CLCS Rules of Procedure is welcome; but its
obligations under the MOU do not end there. Having consented to CLCS
consideration of Kenya’s submission, Somalia is no longer in material
breach of its obligation of non-objection under the MOU. However, the
initiation of this proceeding before the Court itself constitutes a two-fold
material breach of Somalia’s obligations with respect to the agreed method
of dispute settlement between the Parties; namely, that the Parties must first
await CLCS recommendations on the outer limits of the continental shelf,
and then conclude an agreement on the maritime boundary by negotiation,
rather than by recourse to the Court.
II. THE 2009 MOU EXCLUDES THE COURT’S JURISDICTION
130. Despite the centrality of the MOU to the Court’s jurisdiction, it is given
only a desultory, passing reference in Somalia’s Memorial. 159 There is a
rather curious attempt to evade its direct relevance by asserting that “[t]he
MOU, whatever its status, did not purport to resolve the Parties’ maritime
160
boundary dispute”. This argument is wholly inapposite. It is obvious that
the MOU did not settle the maritime boundary dispute. It is equally
obvious, however, that it constitutes a legally binding agreement on the
method of settlement for that same unsettled dispute.
159As already noted, the MOU is only referred to briefly at paras. 3.38 to 3.42, 3.46, 3.52
and 7.20.
160Para. 3.42.
58131. Whilst attempting to cast doubt on the MOU’s status, Somalia’s Memorial
161
admits that the MOU did in fact enter into force and does not take the
express position that it is not legally binding. It relies solely upon the vague
assertion that the MOU is “non-actionable” because the Somali Federal
162
Parliament had “decided against its ratification”. It is remarkable that
Somalia’s Memorial reproduces all the operative paragraphs of the MOU
with the sole exception of the final provision, which stipulates that the
agreement “shall enter into force upon its signature”. Furthermore, it does
not provide any explanation or supporting document indicating the alleged
legal basis or relevance of the Somali parliamentary vote, and why
ratification suddenly became a purported precondition for the MOU’s entry
into force, after it had already entered into force. It is in light of these
conspicuous omissions that Somalia can refer noncommittally to the MOU
“whatever its status”. In fact, there is nothing whatsoever in the Memorial
that refutes the legal validity of the MOU.
132. It is also to be noted that Somalia avoids mentioning the argument to which
it had referred (albeit without any detail) in its 2 February 2014 Note
Verbale to the UN, that the Minister who signed the MOU somehow did not
possess “full powers” and was not “duly authorized” to act on behalf of the
161See Somalia’s Memorial at Annex 6 “ Memorandum of Understanding between the
Government of the Republic of Kenya and the Transitional Federal Government of the Somali
Republic 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 the Limits of the
Continental Shelf, 2599 U.N.T.S. 35 (7 Apr. 2009), entered into force 7 Apr. 2009” (emphasis
added).
162
See para. 3.40 (“On 10 October 2009, Somalia informed the Secretary -General of United
Nations that, on 1 August 2009, the Somali Parliament had voted on the 2009 MOU and had
decided against its ratification”) and para. 3.41 (“On 2 March 2010 Somalia again wrote to t he
United Nations requesting it to “take note” of the Somali Parliament’s rejection of the MOU
and to treat it as “non-actionable””). See also para. 7.20 referring to “the rejection by its
Parliament of the MOU”.
59 Somali Government. 163 That wholly untenable argument was
rightly abandoned.
133. There can be no doubt as to the legally binding nature of the 2009 MOU. It
is an international agreement, plain and simple. As discussed below, the
application of the law of treaties to the facts of this case clearly establishes
the following:
a) The MOU is a binding international agreement on the method of
settlement of the maritime boundary dispute between the Parties;
b) The agreed method of dispute settlement is a negotiated agreement
subsequent to CLCS review and not recourse to the Court; and
c) Settlement of the maritime boundary dispute is thus outside of the
Court’s jurisdiction and otherwise inadmissible because of the MOU.
A. The MOU is a binding international agreement on the method of
settlement of the maritime boundary dispute between the Parties
134. Neither Kenya nor Somalia has ratified the Vienna Convention on the Law
of Treaties; but the customary law status of the elementary principles that
are relevant to this case is not controversial. The MOU is an international
agreement concluded between States in written form and governed by
international law. It was submitted to the UN for registration as a treaty and
was duly published in both the United Nations Treaty Series and the Law of
the Sea Bulletin. The UN Treaty Handbook explains that “the title and form
163The letter of 4 February 2014 is cited an d annexed to the Memorial (para 3.41, Annexes 41 and
42), but no reference is made to the argument advanced in that letter that the Minister who had
signed the MOU did not possess “full powers” under Article 7 of the Vienna Convention on the
Law of Treaties.
60 of a document submitted to the Secretariat for registration are less imp
ortant
than its content in determining whether it is a treaty or international
agreement”. 164What is key is that there was clearly an intention to be
bound 165 by the MOU; namely, that “[t]he two Ministers signed a text
166
recording commitments accepted by their Governments”.
135. It is obvious that the intention of Somalia and Kenya was to be bound by
the MOU. The clearest indication is the express language of the MOU
itself, which stipulates that “This Memorandum shall enter into force upon
its signature.” Entry into force means that an agreement is legally binding.
That stipulation could only have been included in the text of the MOU
because it was intended to be legally binding. The Parties even clarified
exactly when it became legally binding; namely, immediately,
upon signature.
164 United Nations Treaty Section, Treaty Handbook, available at
https://treaties.un.org/doc/source/publications/THB/English.pd, at para 5.3.2. See also the
Vienna Convention Art 2(1)(a) which provides that an international agreement may be a treaty
“whatever its particular designation”. See Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Qatar v Bahrain), Jurisdiction and Admissibility, ICJ Rep 1994,
para 23 “international agreements may take a number of forms and be given a diversity of
names”. See also the Austro-German Customs Regime opinion of 1931: “From the standpoint
of the obligatory character of international engagements, it is well known t hat such
engagements may be taken in the form of treaties, conventions, declarations, agreements,
protocols, or exchanges of notes” (PCIJ, ser. A / B, no. 41, p. 47). In the “Hoshinmaru” case,
ITLOS recognized the possibility that agreed minutes may consti tute an agreement: “[t]he
Protocol or minutes of a joint commission such as the Russian –Japanese Commission on
Fisheries may well be the source of rights and obligations between Parties” (“ Hoshinmaru”
(Japan v. Russian Federation), Prompt Release, Judgment, ITLOS Reports 2007, para 86). See
Schmalenbach, “Article 2”, in D örr and Schmalenbach (eds), Vienna Convention on the Law
of Treaties: A Commentary (2012) p. 29 –30 (“Dörr and Schmalenbach”): “Memorandum of
165understanding” is a common term for international treaties .
See for example J Crawford, Brownlie’s Principles of Public International Law (8th edn,
Oxford University Press, 2012) p. 371.
166Qatar v Bahrain (Jurisdiction) , para. 27.
61136. Furthermore, soon after its entry into force, the MOU was registered by the
UN Secretary-General in accordance with Article 102 of the UN Charter. A
Certificate of Registration was produced on 14 August 2009. 167 If there was
any doubt as to the intention of the Parties to be bound, the UN Secretariat
could have refrained from registering the MOU as a treaty. 168 There is also
no record of any protest against that registration by Somalia until five years
later, on 2 February 2014, when it first asked the UN to withdraw the
MOU; a request that the UN did not comply with. There is also the approval
of the MOU by the Somali Prime Minister, Council of Ministers and
President, 169 and the formality of the signing ceremony itself. 170
137. There is also the subsequent practice after the MOU’s entry into force. On
at least two occasions, the Somali Head of Government confirmed its legal
validity, categorically and unequivocally. 171 Furthermore, Somalia did not
hesitate to accept Norwegian assistance for its CLCS submission in 2014,
although that assistance was explicitly conditioned on full compliance with
the MOU.
138. The obligations assumed by the Parties under the MOU were obviously not
vague or discretionary promises of cooperation. That agreement was an
exchange of precise commitments as to how the two States shall resolve
their maritime boundary dispute. 172 Somalia cannot now unilaterally
dispense with those obligations.
167Annex 17.
168United Nations Treaty Section, Treaty Handbook, para 5.3.1.
169See Part I Section B above.
170See Part I Section C above.
171On 8 April 2009 and 19 August 2009 respectively. See Part I Section E above.
172
See Part I Section D above.
62139. The MOU is plainly a legally binding agreement on a specific method for
dispute settlement. Article 33(1) of the UN Charter provides that the parties
to any dispute shall “seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice”. Similarly,
Article 280 of UNCLOS provides that nothing in Part XV impairs the right
of States parties to agree to “any peaceful means of their own choice.” As
between Kenya and Somalia, a solution by negotiation, after CLCS review,
is the method of settlement constituting the “peaceful means of their own
choice”; the MOU leaves no doubt in this regard.
B. Somalia’s case is outside the jurisdiction of the Court, and is otherwise
inadmissible
Kenya’s reservation to the Court’s jurisdiction where Parties to a dispute have
agreed on another method of settlement
140. The agreed method of dispute settlement under the MOU falls squarely
within the reservation to Kenya’s Declaration, excluding from the Court’s
compulsory jurisdiction:
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. 173
Consequently, Somalia’s case clearly relates to a dispute over which Kenya
has not accepted the Court’s jurisdiction.
173As noted above, Kenya’s Declaration is cited in full in Somalia’s Memorial at fn 5.
63141. Kenya’s Declaration was deposited on 19 April 1965, just two years after
its independence. It was based on similar reservations in the declarations of
the United Kingdom and several other Commonwealth States.
142. This reservation was first made by The Netherlands in 1921, at the time of
the Permanent Court of International Justice. Since then, it has become
“[t]he most frequent reservation” to acceptance of the Court’s compulsory
jurisdiction. 174 In addition to Kenya, this includes the declarations of:
175 176 177 178 179
Australia, Barbados, Belgium, Botswana, Cambodia,
180 181 182 183 184
Canada, Djibouti, Estonia, the Gambia, Germany, the Republic
of Guinea, 185 Honduras, 186Hungary, 187India, 188 Ivory Coast, 189Lesotho, 190
Liberia, 191 Luxembourg, 192 Madagascar, 193 Malawi, 194 Malta, 195
196 197 198 199
Mauritius, The Netherlands, New Zealand, Nigeria, the
174
R Kolb, The International Court of Justice (Hart Publishing, 2013) 464.
175Declaration of 22 March 2002.
176Declaration of 1 August 1980.
177
Declaration of 17 June 1958.
178Declaration of 16 March 1970.
179Declaration of 19 September 1957.
180
181Declaration of 10 May 1994.
Declaration of 2 September 2005.
182Declaration of 21 October 1991.
183Declaration of 22 June 1966.
184
Declaration of 1 May 2008.
185Declaration of 4 December 1998.
186Declaration of 6 June 1986.
187
188Declaration of 22 October 1992.
Declaration of 18 September 1974.
189Declaration of 29 August 2001.
190Declaration of 6 September 2000.
191
192Declaration of 20 March 1952.
Declaration of 15 September 1930.
193Declaration of 2 July 1992.
194
195Declaration of 12 December 1966.
Declaration of 2 September 1983.
196Declaration of 23 September 1968.
197Declaration of 1 August 1956.
198
199Declaration of 22 September 1977.
Declaration of 30 April 1998.
64 200 201 202 203 204 205
Philippines, Poland, Portugal, Senegal, Slovakia, Spain,
Sudan, 206 Suriname, 207 and the United Kingdom. 208
209
143. As one distinguished publicist has observed, this “is a reservation of
potentially great importance, dealing as it does with the relationship
between parallel commitments to dispute settlement and giving priority to
the specific … over the general”. 210
144. The Court has long recognized that Article 36(2) Declarations are
“facultative, unilateral engagements” which States are “absolutely free” to
211
qualify with “conditions or reservations”. There is “no reason to interpret
them restrictively”. 212The Court must therefore give full effect to Kenya’s
reservation concerning “[d]isputes 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”.
200Declaration of 18 January 1972.
201
202Declaration of 25 March 1996.
203Declaration of 25 February 2005.
Declaration of 2 December 1985
204Declaration of 28 May 2004.
205Declaration of 29 October 1990.
206
207Declaration of 2 January 1958.
Declaration of 31 August 1987.
208Declaration of 31 Decemb er 2014.
209The UK reservation is worded in the following way: ‘any dispute which the United Kingdom
has agreed with the other Party or Parties thereto to settle by some other method of peaceful
settlement’.
210M Wood, “The United Kingdom’s Acceptance of the Compulsory Jurisdiction of the
International Court” in OK Fauchald, H Jakhelln, and A Syse (eds), Festschrift Carl August
211Fleischer (Scandinavian University Press, 2006) 621, 637 (emphasis added).
Military and Paramilitary Activities in and against Nica ragua (Nicaragua v United States),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392, para. 59.
212Fisheries Jurisdiction (Spain v Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, p. 432, para. 44.
65145. In the Case Concerning Certain Phosphate Lands in Nauru (Nauru v
Australia) (1992), 213the Court confirmed that where a State has made such
a reservation, and there is in fact “an agreed procedure other than recourse
to the Court”, 214it clearly does not have jurisdiction.
146. That is exactly the situation before the Court in this case. Kenya has made
such a reservation, and Kenya and Somalia have “an agreed procedure other
than recourse to the Court” under the MOU. Somalia’s recourse to the
Court is in direct breach of that agreed two-step procedure for dispute
settlement, namely that the Parties (a) “shall agree” on delimitation, and (b)
only after CLCS review. Accordingly, the Court has no jurisdiction.
147. It is further noted that Somalia’s Memorial has dropped all reference to the
assertion in its Application that “[t]he jurisdiction of the Court under Article
36, paragraph 2, is underscored by Article 282 of UNCLOS” (para. 5). In
fact, quite apart from the 2009 MOU, the UNCLOS Part XV methods of
settlement would also trigger Kenya’s reservation and exclude the Court’s
jurisdiction.
The case before the Court is otherwise inadmissible because of Somalia’s
breach of its obligations under the MOU
148. Somalia’s case is also inadmissible because it is in direct breach of its
obligations under the MOU. It is elementary that “Every treaty in force is
binding upon the parties to it and must be performed by them in good
213
Certain Phosphate Lands in Nauru (Nauru v Australia) Preliminary Objections, Judgment, ICJ
214Reports 1992, p 240.
At para. 11 (emphasis added).
66 215
faith”. Somalia has done the exact opposite. In coming before the Court,
it has knowingly and deliberately flouted the pacta sunt servanda principle.
149. First, it has consented, then objected, then consented again (immediately
before filing its Memorial), to Kenya’s CLCS submission, causing
significant costs and delay. Second, it has disregarded the requirement of
CLCS review prior to delimitation that was specifically stipulated in the
MOU. Third, it has attempted to circumvent its obligation to negotiate an
agreement on delimitation after CLCS review, by opting unilaterally to
bring the dispute before the Court.
150. Somalia has repeatedly violated its obligations under the MOU, acting in
216
bad faith. A party seeking relief before the Court must come with clean
217
hands, not least where it has expressly agreed to a method of dispute
settlement other than recourse to the Court. To admit this case would be to
validate Somalia’s wrongful conduct instead of its obligations under treaty
law.
151. Accordingly, Somalia’s case is inadmissible.
215
216Vienna Convention on the Law of Treaties, Art.26.
See e.g. Border and Transborder Armed Actions (Nicaragua v. Honduras), Juris diction and
Admissibility, Judgment, I.C.J. Reports 1988 , p. 69 at para. 94; Land and Maritime Boundary
between Cameroon and Nigeria, Preliminary Objections, Judgment, I. C. J. Reports 1998 , p.
275 at para 38.
217Diversion of Water from the Meuse Case (Netherlands v. Belgium) [1937], PCIJ (Ser. A/B) No.
70; Gabčíkovo-Nagymaros Case (Hungary/Slovakia) ICJ Reports 1997, para. 133. See also J
Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University
Press, 2012), p.701. See also G Fitzmaurice, “General Principles of International Law”, 92
Collected Courses, Academy of International Law, The Hague (1957 -II), p. 119.
67III. CONCLUSION
152. The MOU entered into force on 7 April 2009 and remains legally binding
between Kenya and Somalia. Pursuant to the agreed method of settlement
thereunder, Somalia is under an obligation to delimit the full extent of its
maritime boundary with Kenya, both within and beyond 200 NM:
a) Only after the CLCS has made its recommendations concerning
establishment of the outer limits of the continental shelf; and
b) By means of a negotiated agreement, not by recourse to the Court.
153. Accordingly, Somalia’s case is beyond the jurisdiction of the Court and
otherwise inadmissible because:
a) Kenya’s Declaration under Article 36(2) of the Statute excludes
“[d]isputes 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”; and
b) Somalia is acting in breach of the agreed method of dispute settlement
under the MOU, which obligation it must perform in good faith.
68
Preliminary objections of Kenya