Written reply of Somalia to the questions put by Judge Crawford at the public sitting held on the morning of 23 September 2016

.1;\l\IHUllRIYAI>DAFEDERAALKASOOl\IAALIYA
Wasuuratlda ArrimaDibadtla
& Dhiirigclinta M1talgashiga

FEDERAL REPUBLIC OF SOMALIA
Ministry of Foreign Affairs & lnvcstmcnt I,romotion

27 September2016

Mr.PhilippeCouvreur
Registrar
InternationalCourtofJustice
2517KJThe Hague
Netherlands

DearSir:

Withreferenceto thecaseconcemingMaritime Delimitation inthe Indian Ocean (Somalia v.
Kenya), 1havethe honourto referto thequestionsputto thePartiesbyJudgeCrawfordat the
endofthe Court'spublicsittingon23 September2016.

Pursuantto the instructionsof the President,1havethe honourto submitherewiththe written
replyofSomalia to JudgeCrawford'squestions.

Giventheshorttime betweenthesubmissionof theParties'answerstoJudgeCrawford's
questionsand thedate fixedfortheirobservationson eachother'sanswers,1requestthatyou
transmitKenya'sanswersby, inadditionto the usualmethod,emailat yourearliestconvenience
to me(mona.alsharmani@gmailand to PaulReichler([email protected].)Thank
you verymuch foraccommodatingthis request.
Pleaseaccept,Sir,theassurancesof my highestconsideration.

A ;r, ~
MonaAI-Shannas:
Deputy Agent of the Federal Republic of
Somalia

Attachment rNTERNATIONAL COURT OF JUSTICE
SOMALIA v. KENYA

HEARING ON KENYA'S PRELIMINARY OBJECTIONS

Response 011 belta/f of tireFetleral Republic of Somalia to tite
questions posetl by Judge Crawford on Friday 23 September 2016

27 September 2016

Question 1: Which maritime zones (territorial sea, EEZ, continental shelfwithin

or beyond 200 miles) did those negotiations cover?

1. The bilateral negotiations in 2014 explicitly covered the territorial sea, the

exclusive economie zone (EEZ) and the continental shelf both within and beyond 200

M. The negotiations therefore covered al/ of the Parties' disputed maritime zones.

2. During the course of the negotiations, both Parties made detailed presentations

explaining their respective positions concerning the boundary in each of those

maritime zones. ln March 2014, Kenya presented a detailed PowerPoint submission

that specifically addressed the delimitation of the territorial sea, the EEZ and the
1
continental shelf by reference to Articles 15, 74 and 83 of UNCLOS respectively,

and included a map illustrating the "combined Kenya-Somalia EEZ area to be
2
equitably shared". The Somali internai report on the second round of negotiations

contained a map-as depicted below-which Somalia displayed during the

negotiations, illustrating Somalia's position that the entire maritime boundary should

follow an equidistance tine throughout ali of the disputed maritime zones from the

start of the territorial sea at the land boundary terminus to the limit of the outer
3
continental shelf.

1 Somnlinand Kenya,Joint Reporton MaritimeBoundaryMeeting,26-27 Mar. 2014, Annex3, Slide
3.MS,Vol. IllAnnex 31.
2
Ibid.,Slid7.
JM. Al-Shnrnumiand M. Omar, Representativesof the Ministryof ForeignAffairsof the Federal
Republic of Somnlin,Reportto tite Fileof the MeetingbetweentiteFederalRepublicof Somaliaand

the Republic of KenyaOn Maritime BoundaryDispute.Nairobi, Kenya, 28-29 July 2014 (5Aug.
2014), p.4. WSS,Vol.Il, Annex4.

- 1- Somalia's Proposcd Single Equidistance Line (July 2014)

3. The inclusion of ali maritime zones in the Parties' negotiations is further

confirmed by their consistent reference to a single maritime boundary in the

contemporaneous documentation, including joint and internai reports, 4as weil as their

diplomatie correspondence. Both Parties proposed a single, straight line running

from the land boundary tenninus continuously beyond 200 M. In Kenya's case, the

4
See SomaliaandKenya,Joint Reporton MaritimeBoundaryMeeting.26-27Mar.2014.MS,Vol.Ill,
Annex31; Governmentof Somaliaand Governmentof Kenya,Joint Report 011tite Kenya-Somalia
MaritimeBoundaryMeeting.28-29July20J.I(July2014);FederalRepublicofSomnlia,Report 011tite
Meetingbetween TheFederalRepublicofSomalia and TheRepublicof KenyaOn MaritimeBoundary
Dispute, Nairobi, Kenya, 26-27 Marc/1lOU (1 Apr. 2014); M. AI-Sharmaniand M. Omar,

Representativesof the Ministryof ForeignAITairsof the FederalRepublicof Somalia,Reportto the
Fileof the Meetingbetweenthe FederalRepublicofSomalia and the Republicof KenyaOn Maritime
Boundary Dispute, Nairobi, Kenya, 28-29 July 20J.I (5 Aug. 2014),p. 4. WSS, Vol. II, Annex4;
Memorandum from S. Mokaya-Orina,Head/Legal & Host CountryAITairsDirectornte,to Cabinet
Secretary,Ministryof ForeignAITairs & InternationalTrade, Republicof Kenya(8 Aug. 2014);
MemorandumfromAg. Director,Homof AfricaDirector,to CabinetSecretary,Ministryof Foreign

AITairs& InternationalTrade,Republicof Kenya(15Aug.2014).
s See Letter from H.E. Dr. AbdirahmanBeileh, Minister of Foreign AITairsand International

Cooperationof the FederalRepublicof Somalia,to H.E.Ms. AminaMohamed,Ministerof Foreign
AITairs& InternationalTradeof the Republicof Kenya,No.MOFA/SER/M0//2014(13Mar. 2014).
MS,Vol.Ill, Annex43;Note VerbalefromtheMinistryof ForeignAITairsandInternationalTradeof
the Republicof Kenyato the Ministryof ForeignAIT airs& lnvestmentCooperationof the Federal
Republicof Somalia,No. MFNREUI3/21A (24July 2014). WSS, Vol. II, Annex24; Note Verbale
fromthe PennanentMissionof the Republicof Kenyato the UnitedNationsto H.E.Ban Ki-moon,

Secrctary-Generaolf theUnitedNations,No.586/14(24 Oct. 2014);Note VerbalefromthePennnnent
Missionof the Republicof Kenyato the UnitedNationsto H.E. BanKi-Moon,Secretary-Generno lf
theUnitedNations,No. 141115 (4May2015).
6
See M. AI-Shnnnaniand M.Omar,Representatives of theMinistryof ForeignAITnirof theFederal
Republicof Somalia, Reportto the Fileof the Meetingbetweenthe FederalRepublicof Somalia and

-2- line followed a parallel of latitude; Somalia proposed an equidistance line. Neither

Party drew any distinction between the continental shelf within or beyond 200

nautical miles. lt is weil established and accepted by the Parties that there is a single

continental shelf. As observed by the Arbitral Tribunal in Barbados v. Trinidad &

Tobago, a case addressed during the second round of negotiations, the "continental

shelr' includes bath the area within and beyond 200 M. 8

4. As Somalia has explained, despite the Parties' lengthy and detailed exchanges

regarding the legal and factual merits of their respective positions-which included

extensive reference to the case law of this Court and other international tribunats and

State practice-they were unable to even agree on the proper methodology for
9
delimiting the disputed boundary. This isnot challenged by Kenya. Kenya has also

not contested that the lack of progress in respect of any of the Parties' disputed

maritime zones led the Somali Foreign Minister to ask in frustration "how long would

both countries continue to have their delegations entangled in these heated discussions

without any possible solution", or the response of the Kenyan Foreign Minister,

agreeing that the Parties were "far apart" and requesting that they schedule one more

meeting to "attempt one final time to find an amicable solution". 10 lt is also

the Republic of Kenya On Maritime Boundary Dispute, Nairobi, Kenya, 28-29 July 2014 (S Aug.
2014), pp. 4-5. WSS, Vol. Il, Annex 4; Republicof Kenya, Submission on tite Continemal Sltelf

Submission beyond 200 nautical miles to tite Commission on tite Limits of tite Co/llinental Slte/f:
ExecutiveSummary (Apr.2009),pp.9, 1S. MS,Vol.Ill, Annex59.
7
Memorandum fromS. Mokaya-Orinn,Head/Legal & Host CountryAffairs Directorate,to Cabinet
Secretnry,Ministryof ForeignAtfair& InternationalTrade,Republicof Kenya(8Aug.2014), p. 1.
1 Barbados v. Trinidad & Tobago, UNCLOSAnnex VII Tribunal,Awnrd(Il Apr. 2006), XXVII

UNRIAA147, pnrn.213(rejectingBnrbados'objectiontothe inclusionoftheoutercontinentalshelfin
thescopeof thedisputebecause,inpnrt,"thereisinlawonlynsingle'continentalshelr ...".).
9See WSS, pnrns.2.41-2.72, 4.4-4.5; CR 2016111,pp. 43-44,46-47, paras.31-33,38-46(Reichler);

CR 2016/11,pp. 58-60, pnrns. 21-24(Snnds);CR 2016113,pp. 23-28, pnrns10-18 (Reichler);CR
2016/13,pp. 31-32,paras. 9-11(Snnds).See Somnlinand Kenya, Joint Report on Maritime Boundary
Meeting. 26-27 Mar. 2014. MS, Vol. Ill, Annex 31; Govemmentof Somalia nnd Govemmentof
Kenya, Joint Report on the Kenya-Somalia Maritime Boundary Meeting. 28-29 July 2(July2014);
FederalRepublicofSomnlin, Report 011the Meeting between The Federal Republic ofSomalia and The
Repub/ic of Kenya011Maritime Bormdary Dispute, Nairobi. Kenya, 26-27 Marclr2014 (Apr.2014);

M. AI-Shannaniand M. Omnr, Representativesof the Ministryof ForeignAITnirsof the Federal
Republicof Somnlin, Report10 the File of the Meeting between tite Federal Republic ofSomali a and
the Republic of Kenya On Maritime Boundary Dispute, Nairobi, Kenya. 28-29 July 2014 (S Aug.
2014),p. 4. WSS, Vol.II, Annex4;Memorandum fromS. Moknyn-OrinaH , ead/Legal& HostCountry
AtfnirsDirectornte,to CabinetSecrelnry,Ministryof ForeignAITnirs& lntemotionnlTrade,Republic
of Kenya (8 Aug. 2014); Memorandum from Ag. Director, Hom of Africn Director, to Cabinet
Secretnry,Ministryof ForeignAtfairs& InternationalTrade, Republicof Kenya(15Aug.2014).

10M. AI-Shnnnnniand M. Omar, Representative s of the Ministryof ForeignAffairs of the Federal
Republicof Somalin, Reporlto the File of the Meeting between tite Federal Republic ofSomalia and

- 3- undisputed that no such meeting took place, even though a date and location were

fixed, because, without prior notice or subsequent explanation, the Kenyan delegation

failed to show up for the meeting, and failed to respond to the Somali Foreign
11
Minister's request for an explanation.

Question 2: In such circumstances, could sucb delimitation negotiations,

conducted in good faith, be understood as waiving any rights either party may

have had to a prior recommendation of the Commission?

5. For the reasons explained in its written and oral pleadings, Somalia's position

is that paragraph 6 of the MOU did not constitute an agreement that the Parties'

maritime boundary would be settled through negotiations after the CLCS issued its

recommendations on the outer limits of the continental shelf.

6. Kenya's position has shifted. lt first argued that the MOU established

negotiations as the only permissible means of resolution of the Parties' maritime

boundary dispute, and that the MOU prevented them from negotiating an agreed
12
seulement until after the CLCS had made its recommendations many years Jater. At

the oral hearings, however, Kenya changed position. ln the first round it argued that

the MOU permitted the Parties to negotiate the delimitation of maritime boundary

prior to the completion (or even initiation) of the CLCS's processes, provided they
13
did not reach an agreement. In the second round, Kenya amended its position once

again, arguing for a third view, namely that the Parties were free at any time to settle

the boundary dispute by mutual consent, including before the CLCS issued its
14
recommendations.

the Republic of Kenya 011 Maritime Boundary Dispute, Nairobi. Kenya. 28-29 July 20J.(5 Aug.
2014),p.2. WSS, Vol.Il, Annex4(emphosisadded).
11
CR 2016/11,p. 47, parn.45 (Reichler); CR 2016!13,p. 25, para IO(vii)(ReichlSee Leuer from
H.E. Dr. AbdimhmnnBeileh, Minister of ForeignAlfairs nnd lnvestmentPromotionof the Fedeml
Republicof Somali11t,o Ms. AminnMohamed,Ministerof ForeignAlfnirsof the Republicof Keny11,
No. 2231(26 Aug.2014).MS, Vol. Ill,Annex47.
12
KPO,parn. 73 (nrguingthal the mcthodof settlementofthe boundorydisputeunderthe MOUwns
"to negotiatea fulland finalagreementon maritimeboundnrydelimitatioafierCLCSreviewof their
respectivesubmissions") (emphasisndded);CR 2016/10,p. 63,pam. 12(Lowe)("theagreed procedure
is thnt the actual negotiation of the agreed boundary must comeajier the CLCS has made its
recommendationsinrespectoftheclnimsmadeby KenyaandbySomalia.")(emphosisadded).

11CR2016/10,p. 20, parn.18(Akhavnn.)
14
CR2016/12, p. 13,pam.7(Akhavnn.)

-4- 7. Somalia considers that neither the text, nor the relevant context, nor the

subsequent conduct of the Parties can support any of the three contradictory
interpretations of the MOU that Kenya has sought to advance. However, as Somalia

argued in rebuttal, even if, quod non, the text of the MOU did establish an obligation

to negotiate an agreed settlement only after the CLCS had made its final

recommendations, the conduct of the Parties in engaging in detailed, high level,

substantive and good faith, albeit failed, negotiations on delimitation in 2014 met any
5
standard to negotiate that might have been imposed. Accordingly, following those

negotiations the MOU could no longer serve as a bar to other means of settlement of

the boundary dispute, including recourse to the Court.

8. Judge Crawford's second question is premised on an assumption that the

MOU may grant the Parties "rights" to "a prior recommendation of the Commission,"
before settling the boundary dispute, a proposition that Somalia contests. However,

accepting that premise for the sole sake of discussion, Somalia submits thal any such

"rights" were waived by the Parties' conduct-specifically, by their voluntary and

good faith engagement in detailed, substantive and high-Jevel negotiations that were

intended to reach an amicable settlement of their maritime boundary dispute before

the CLCS had even considered their respective submissions, let alone issued

recommendations in respect of them.

9. lt is axiomatic that parties to a bilateral agreement may amend their

obligations by mutual agreement. An intention to amend treaty obligations can be

manifested expressly or by implication from the Parties' conduct. As Brown/ie 's

Princip/es of Public International Law explains, Article 39 of the Vienna Convention
on the Law of Treaties makes it clear that "a treaty may be amended by agreement

without requiring any formality for the expression of the agreement". 16 Aust's

Modern Treaty Law and Practice likewise explains that Article 39 VCLT,

"recognises that itis perfectly possible to amend a treaty by an agreement that does

not itself constitute a treaty", and that "A treaty can also be effectively amended by a

subsequent agreement between the parties regarding the interpretation or application

lSSee CR2016/11,pp.57-60,paros. 16-26(Snnds);CR2016113 , pp.29-32,paras.2-11(Sands).
16
J.Crawford, ed., Brownlie'sPrincip/esofPublicllllernaliona/Law(8thed.,2012),p.386.

- 5- of the treaty". ln this regard, "it is not necessary for an amendment to be in writing";

17
it may be expressed through the Parties'conduct instead.

1O. Similar principles govem the doctrine of waiver. Anzilotti described waiver as
18
a voluntary abandonment of a right (l'abandon volon/aire de droi/). Brownlie 's

Princip/es of Public International Law states that an abandonment of rights may

occur "by unilateral acts of waiver or acquiescence implied from conduct, or by
19
agreement." 1nCertain Phosphate Lands in Nauru, the Court observed that aState

impliedly waives its rights if it fails to take steps to assert them white engaging in
20
activities inconsistent with their prosecution. That standard for waiver-assuming it

to be applicable in the present proceedings-has been amply met.:!l

11. By engaging in detailed, substantive negotiations with Somalia at the highest

level, in an effort to reach an expeditious settlement of the boundary dispute in 2014,

long before the CLCS had even taken up consideration of the Parties' submissions,

Kenya waived, by its conduct, its "rights" to settlement of that dispute only by

agreement after the CLCS has completed its processes. Whether this is viewed as a

waiver by agreement of the Parties, or a unilateral waiver by Kenya, the result is the

same. Kenya's conduct was entirely inconsistent with its assertion of"rights" to settle

the boundary dispute only as set forth in the penultimate paragraph of the MOU (as

interpreted by Kenya), and as such constituted a waiver ofthose purported "rights".

12. Finally, it is to be noted that in initiating and engaging in the negotiations with

Somalia, Kenya never sought to reserve any "rights it may have had to a prior

recommendation of the CLCS" under the penultimate paragraph of the MOU. ln fact,

11A.Aust.Modem TreatyLawandPractice(3ded., 2013),pp.233-234.

11O. Anzilotti,Coursde droitinternational, traductionfrançaiseparG. Gidep(1929),pp.349-350.
19
J.Crawford,ed., Brown/ie'sPrincip/esof PublicInternationalLaw(8thed.,2012),p.700.
20See CertainPhosphateLandsin Nauru(Naun1v. Australia),Pre/iminaryObjections,I.C.J.Reports

/992, p. 240, paros. 12-21.See also Armed Activilies Ollthe Territoryof tire Cotlgo(Democratie
Republicof theCongov. Uganda),Judgment,/.C.J.Reports2005,p. 168,paras.276-296.
11It is noteworthythal the waivcrstandardwnsdeemedmet by a distinguishedarbitraltribunalin a

cnscwherea party,by itsconduct,wnsfoundto haverenouncedilsrighitosettleadisputeby atreaty­
agreed method.ln EURAMv. Slovak Republic. the tribunalheld thal the investor,by continuingto
pursuethesameclnimsina nationalcourtthatwerenssertedinthearbitration, hadactedinconsistently
with itsarbitrntionrightsunderthe Austrin/SiovnkiaBilaterallnvestmentTreaty, and so hndwaived
them. EuropeallAnrericanlnvestmetllBankAG(Austria)v.S/ovakRepublic,PCACase No.2010-17,
SecondAwardonJurisdiction(4June2014),paros.254-264.

- 6- Kenya cannot point to any statement, prior to the commencement of these

proceedings by Somalia, to the effect that it considered the MOU as providing an

exclusive method of dispute senlement only after the CLCS issues its
22
recommendations, let alone "clear and repeated" statements to that effect. This

contrasts with the position ofNauru, in the case referred to above, which repeatedly

made statements during the conduct at issue that had the effect of preserving the
23
rights that it was claimed to have waived.

13. ln these circumstances, even if Kenya's construction of the MOU were

correct-which it is not-by its subsequent conduct Kenya has waived, either by

agreement with Somalia or unilaterally, its "rights" to invoke the MOU in order to

postpone dispute settlement until after the CLCS has issued its recommendations or

otherwise to deprive the Court of jurisdiction over the claims Somalia bas asserted in

its Application.

14. Moreover, the very fact that delimitation negotiations were held, and their
24
substance, fully confinn Somalia's interpretation of the MOU.

22
SeeCR2016/11,pp.44-45,para.36(Reichler).
23See Certain PhosphateLandsinNauru(Nauruv.Australia),PreliminaryObjections,I.C.J. Reports

1992,p. 240, paras. 14, 18-20.SeealsoArmedAclivitieson tite Territoryofthe Congo(Democratie
Repub/icoftheCongov.Uganda) ,Judgmem,/.C.J. Reports2005,p. 168,para290.
2•See WSS,paras.2.31-2.73,3.34-3.47;CR2016/11,pp.41-50,pnrns.26-53(Reichler);CR2016/13,
pp.23-29,paras. 10-24(Reichler).

-7-