Appendix

1
APPENDIX
Section I: Somalia’s Response to Kenya’s New Documents and Arguments on Its
Purported “Acquiescence” to a Maritime Boundary Following a Parallel
of Latitude
1. Kenya’s new legal memorandum seeks to bolster its argument that Somalia
acquiesced in a maritime boundary following a parallel of latitude.
2. All of the arguments Kenya makes are irrelevant.
A. The Positions of the Parties during the Law of the Sea Conference
3. Kenya’s argument based on the Parties’ statements during the travaux
préparatoires of the UNCLOS is set out in paragraphs 85 to 113 of the 22 February document.
It mainly consists in recalling that Kenya and Somalia were among the States advocating
equitable principles for the delimitation of maritime areas.1 Three points can be made in this
respect.
4. First, it is revealing that a report, cited by Kenya,2 states that Tanzania and
Somalia “had the malicious intention of distorting the marine borders” during the negotiations
of UNCLOS.3 This statement is completely inconsistent with the proposition that there were
agreements, tacit or otherwise, on the maritime boundaries between Kenya, on the one hand,
and Somalia and Tanzania, on the other.
5. Second, at no point during the public debates of the Law of the Sea Conference
did either Kenya or Somalia mention their own maritime boundaries. This too renders
irrelevant Kenya’s reliance on statements made during the Law of the Sea Conference in
respect of acquiescence and other matters relevant to these proceedings, including tacit
agreement, irrelevant.
6. Third, and more generally, Kenya’s reference to the fact that Kenya and Somalia
advocated equitable principles for the delimitation of maritime areas during the Law of the Sea
Conference is entirely misconceived. There is clearly no incompatibility between equitable
principles and delimitation according to the three-step method, beginning with a provisional
equidistance line, which is the standard method to reach an equitable delimitation.
1 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 88-89, 95.
2 Ibid., para. 91, fn. 94; Report from the Kenya Permanent Mission to the United Nations on the Work of the
Second Session of the Third United Nations Conference on the Law of the Sea, held in Caracas, Venezuela, from
20th June to 29th August 1974 (273/430/001A/15), received by the Kenyan Ministry of Foreign Affairs on 28
October 1974, Extract. Counter-Memorial of the Republic of Kenya (hereinafter “KCM”), Annex 11.
3 See ibid., para. 91, fn. 94 (referring to KCM, para. 70; Reply of Somalia (hereinafter “SR”), paragraph 2.97).
See also Report from the Kenya Permanent Mission to the United Nations on the Work of the Second Session of
the Third United Nations Conference on the Law of the Sea, held in Caracas, Venezuela from 20th June to 29th
August 1974 (273/430/001A/15) received by the Kenyan Ministry of Foreign Affairs on 28 October 1974, Extract,
p. 64. KCM, Annex 11.
2
B. Kenya’s “Significant Assistance during Somalia’s Civil War”
7. Kenya praises itself4 for having “greatly assisted the Somali people and
Government in the twenty-year period of the Somali civil war, from 1991 to 2012”.5
8. Both the Somali people and Government are indeed appreciative of Kenya’s
support. But these considerations are not relevant for the present purpose: neither Party ever
agreed that ceding Somalia’s sovereign rights on an important part of its maritime domain
would be a quid pro quo for Kenya’s assistance. Such a bargain was not even alluded to, nor
does Kenya formally invoke one. Moreover, if such agreement been given, which it was not, it
could not have any legal validity, given the circumstances.
9. Further, in its legal memorandum, Kenya rightly acknowledges that “[o]f
course, acquiescence does not require benefit, reliance or other estoppel-like considerations”.6
But it immediately contradicts this statement by invoking the Temple of Preah Vihear case
where the Court noted that Thailand had enjoyed benefits from its acceptance of the map it had
accepted.7 That stands in direct contrast with this case, where Somalia has not accepted any
map or document describing the maritime boundary. Moreover, whereas in the Temple case
there was the direct link between the benefits enjoyed by Thailand and its acquiescence, no
such link exists in the present case. The same can be said about the very artificial connection
Kenya makes with the Chagos case.8
10. Forcing the hand of a weak neighbouring State would not, in any case, be a very
dignified or legally admissible way of extorting part of its territory or sovereign rights.
C. Additional Naval Logs
11. Somalia has addressed Kenya’s reliance on its alleged naval activities in the
disputed maritime area in its written9 and oral pleadings,10 and sees no need to repeat the points
there made. Somalia wishes, however, to draw the Court’s attention to three points arising from
Kenya’s newly submitted evidence and its arguments based upon that evidence.
12. First, Kenya’s newly submitted logs and maps purportedly show that Kenyan
naval vessels undertook patrols and interceptions in the territorial sea north of the parallel line
that Kenya claims represents the Parties’ maritime boundary.11 In other words, the evidence
confirms that Kenya’s navy undertook activities in locations which, even on Kenya’s case, are
within Somalia’s sovereign maritime space. This undermines Kenya’s argument that the
4 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 116-132, 319, 348.
5 Ibid., para. 116.
6 Ibid., para. 316.
7 Ibid.; see also ibid., para. 347.
8 Ibid., para. 317.
9 SR, paras. 2.57-2.72.
10 CR/2021/2, pp. 47-49, paras. 41-46 (Sands).
11 See, e.g., Appendix 2 to Kenya’s 22 February 2021 Application, Figure 2 (which is a “revised” version of the
graphic at KCM, Figure 1-13); ibid., Figure 3.
3
absence of any objection by Somalia to Kenya’s naval activities in the area between the
equidistance line and the parallel line can only be explained on the basis that Somalia did not
consider those activities to encroach its maritime space.12 Rather, Kenya’s own evidence
confirms that even when Kenya undertook activities in maritime space which it recognises as
belonging to Somalia, Somalia was unable to detect and respond to those incursions. Thus, the
absence of any objection by Somalia to Kenyan naval activities is not evidence of
“acquiescence”, but simply a reflection of Somalia’s practical inability to detect – still less
detect, repel and prevent – those activities.
13. Second, this point is reinforced by Kenya’s repeated references in its new legal
memorandum to Somalia’s inability effectively to detect and prevent incursions and illegal
activities within its maritime space. Kenya’s legal memorandum contains extensive references
to what is referred to as Somalia’s “lack of territorial and maritime enforcement capacity”13;
“inability to police its waters”14; “inability to police and prevent crime in its maritime
territory”15; “incapacity to police its coasts”16; and “inability to safeguard its waters from piracy
… and other grave forms of maritime crime”17. Kenya relies on the fact that Somalia is “unable
to police its own waters”;18 “is incapable of controlling the relevant maritime areas and of
preventing widespread illegal, unreported and unregulated fishing…in its waters”;19 and
“cannot control, regulate or enforce its maritime jurisdiction over the now-disputed maritime
area”.20 Kenya also relies on documents which emphasise Somalia’s inability to prevent
incursions into its maritime space, and which explain that Somalia had authorised other States
to enter Somalia’s sovereign maritime space in order to deal with such threats.21 These
statements and documents are inconsistent with Kenya’s argument that Somalia’s failure to
12 See Appendix 2 to Kenya’s 22 February 2021 Application, para. 104 (“Somalia did not protest against any of
these military deployments, even though some of them took place in areas that Somalia now claims as part of its
territorial sea. It is untenable to believe that a sovereign State would not have objected to a military encroachment
into its territorial sea. The appropriate conclusion is that Somalia did not consider there was any such
encroachment”.); ibid., para. 237 (“Military activities in the territorial sea – a zone where the coastal State enjoys
full and exclusive sovereignty and jurisdiction – constitute unequivocal displays of sovereignty. As such, they
would be precisely the form of activities that should have triggered a response from Somalia, if it had any objection
to Kenya’s claimed maritime boundary”.).
13 Appendix 2 to Kenya’s 22 February 2021 Application, para. 507.
14 Ibid., para. 489.
15 Ibid., para. 456.
16 Ibid., para. 427.
17 Ibid., para. 508.
18 Ibid., para. 443.
19 Ibid., para. 354.
20 Ibid., para. 454.
21 See Letter from the Permanent Representative of Somalia to the UN addressed to the President of the Security
Council, S/2008/323 (12 May 2008). Appendix 2 to Somalia’s Application, Annex 13. (“[T]he Transitional
Federal Government does not have the capacity to interdict the pirates or patrol and secure the waters
off the coast of Somalia … The Transitional Federal Government further stresses that the sovereignty and
territorial integrity of Somalia should be fully respected and calls upon States and interested organizations
to provide technical assistance to Somalia. In this regard, the Transitional Federal Government has granted a
number of States authorization to enter Somali territorial seas in order to deal with these threats.”
(emphasis added).
4
object to transient naval patrols or a handful of interceptions north of the equidistance line
somehow show that Somalia regarded that maritime space as belonging to Kenya.
14. Third, it is notable that the map at Figure 2 of Kenya’s legal memorandum
shows that a significant number of the interceptions and patrols were clustered along a southeasterly
line that closely resembles the equidistance line. This is consistent with the conclusion
that Kenya’s naval operations were undertaken on the basis that the maritime boundary lay on
a south-easterly line closely approximating to an equidistance line. Accordingly, even if naval
activities were capable as a matter of law of supporting Kenya’s case on “acquiescence” –
which they are not – they are manifestly incapable of supporting that case on the facts.
D. Kenya’s Notes Verbales to Somalia in 2007 and 2008
15. Kenya’s legal memorandum refers to two notes verbales that were sent to
Somalia in 2007 and 2008,22 which were already on the record as Annexes 9 and 12 to Kenya’s
Rejoinder, respectively.23 Those documents provide no support for Kenya’s case on
acquiescence.
16. First, as Somalia has explained in its written and oral pleadings, it is well
established that unilateral acts such as these are incapable as a matter of law of establishing
maritime boundaries.24
17. Second, and in any event, Kenya’s notes verbales invited Somalia to produce
and send a note verbale expressing Somalia’s agreement to the proposition that the Parties’
maritime boundary followed a parallel of latitude. Somalia did not do so. In circumstances
where a State has declined to take up two successive invitations to “agree” to a particular
proposition regarding its maritime boundary, the reasonable conclusion is that the proposition
in question is not agreed. The fact that Kenya considered it necessary to make the request twice
– and the fact that Somalia twice declined to provide the response sought by Kenya –
undermines, rather than supports, Kenya’s case. This is further confirmed by the fact that a
year later, in 2009, Kenya proceeded on the basis that the maritime boundary had not been
delimited, by agreement or acquiescence or otherwise, as indicated below.
E. The 2009 Memorandum of Understanding
18. Kenya contends that the 2009 Memorandum of Understanding (“MOU”)
“contemplated and incorporated Somalia’s acquiescence” because the MOU stated that the
maritime boundary dispute would be resolved “on the basis of international law”, and (in
Kenya’s words) “[a]cquiescence is a well-established form of agreement under international
law.”25 Thus, Kenya argues that a treaty which contains no fewer than 11 references to the
maritime “dispute” or “disputed areas”, and which referred repeatedly to the “future
22 Ibid., paras. 140-141, 258-259.
23 Note Verbale from the Ministry of Foreign Affairs of Kenya to the Ministry of Foreign Affairs of the
Transitional Federal Government of Somalia, MFA.273/430/001 (26 September 2007). KR, Vol. II, Annex 9;
Note Verbal from the Ministry of Foreign Affairs of Kenya to the Ministry of Foreign Affairs of the Transitional
Federal Government of Somalia, MFA 273/430/001 (4 July 2008). KR, Vol. II, Annex 12
24 SR, paras. 2.3-2.12; CR 2021/2, pp. 18-36, paras. 2-51 (Pellet).
25 Appendix 2 to Kenya’s 22 February 2021 Application, para. 146.
5
delimitation” of the Parties’ maritime boundary, nevertheless somehow recognised and
enshrined a pre-existing (but unwritten) delimitation of that boundary. This argument is
incoherent, inconsistent with Kenya’s repeated statements before this Court at the Preliminary
Objections phase,26 and self-evidently wrong.
F. International Agreements between Kenya and Somalia
19. The fact that between 2005 and 2009 Somalia “negotiated and adopted
international agreements with Kenya”27 also undermines Kenya’s case on acquiescence. The
evidence that the Parties concluded various international agreements concerning a variety of
subject matters, but failed to enter into an agreement on the delimitation of any aspect of their
maritime boundary, is fully consistent with Somalia’s case that it has never agreed to, or
acquiesced in, the parallel boundary claim of Kenya. The international agreements cited by
Kenya demonstrate that where Kenya and Somalia intended to establish mutually binding
rights and obligations between each other, they did so by negotiating and concluding written
treaties, not by means of an unwritten and asymmetric process of unilateral assertion and
passive acceptance.
G. Management of Somalia’s Airspace
20. Kenya’s attempt to support its acquiescence argument by reference to the
“management of Somalia’s airspace”28 is also entirely without merit.
21. First, Kenya’s argument is based entirely on documents showing the extent of
the Mogadishu flight information region (“FIR”). A FIR is “[a]n airspace of defined
dimensions within which flight information service[s] and alerting service[s] are provided”.29
In other words, it is a tool used for the safe management of international air traffic. It has
nothing whatever to do with the management – still less the delimitation – of maritime areas.
This point is demonstrated and reinforced by the fact that the documents published by the
International Civil Aviation Organisation (“ICAO”) on which Kenya relies make it clear that
the maps, charts and statements contained within those documents are not intended to reflect
any view regarding the boundaries of any State.30
22. Second, while FIRs often (but not always) follow a State’s land and territorial
sea boundaries, the same is not true in respect of the waters beyond the territorial sea. In this
regard, it is notable that of the four examples that Kenya cites of African States adopting a
26 See the statements summarised at SR, paras. 2.15-2.21; CR/2021/2l, pp. 40-41, paras. 12-16 (Sands).
27 Appendix 2 to Kenya’s 22 February 2021 Application, para. 153.
28 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 46, 156.
29 Annex 2 to the Convention on International Civil Aviation, Rules of the Air, p. 1-2. A “flight information
service” is “[a] service provided for the purpose of giving advice and information useful for the safe and efficient
conduct of flights”, while an “alerting service” is “[a] service provided to notify appropriate organizations
regarding aircraft in need of search and rescue aid, and assist such organizations as required”.
30 See, e.g., the disclaimer at the beginning of the “Air Navigation Plan, Africa – Indian Ocean Region”, Vol. I,
2nd edition, ICAO, 2010. Appendix 2 to Kenya’s 22 February 2021 Application, Annex 29. (“The designations
employed and the presentation of the material in this publication do not imply the expression of any opinion
whatsoever on the part of ICAO concerning the legal status of any country, territory, city or area or of its
authorities, or concerning the delimitation of its frontiers or boundaries”).
6
parallel of latitude maritime boundary,31 none has a FIR limit that follows that parallel line.
Two of the four examples relied on by Kenya (Mauritania-Morocco and Mozambique-
Tanzania) have a FIR limit which does not even remotely correspond to a parallel of latitude.
Another (Angola-Namibia) has a FIR limit which follows a south-westerly line for the first
approximately 250 M, while the fourth example (Gambia-Senegal) has a joint FIR which is
shared with several other countries, the limit of which at no point follows a parallel of latitude.32
The same is true in respect of the maps and charts showing search and rescue regions off the
coast of Africa.33
23. Third, it is notable that the southern limit of Somalia’s FIR follows a southeasterly
line for the first 30 or so miles above the waters off the Somali coast.34 Accordingly,
all of the airspace above the territorial sea and above the first portion of the EEZ is managed
by reference to a FIR which follows a south-easterly line, not a parallel of latitude. After
approximately 30 miles, the FIR boundary follows a horizontal line; however, this is many
miles south of the parallel of latitude which Kenya claims the Parties have agreed to. As a
result, even if (quod non) the parameters of the Mogadishu FIR were somehow relevant to the
Court’s determination of the location of the Parties’ maritime boundary, it would provide no
support for the position Kenya advances before the Court.
H. Soma Oil & Gas
24. Kenya devotes many pages of its legal memorandum to allegations and
conjecture regarding Soma Oil & Gas, a company incorporated in 2013 which Kenya insinuates
is the true driving force behind Somalia’s Application to the Court. Kenya offers a lengthy
submission full of unsubstantiated claims and assertions regarding “shadowy beneficial
owners”, a “lopsided” agreement “shrouded in mystery”, and negotiations said to have been
conducted “under suspicious circumstances”.35 By these means, Kenya seeks to divert attention
from its manifestly inadequate case on acquiescence by invoking the spectre of alleged
corruption and discreditable dealings to impugn Somalia’s purpose and motive for bringing
this case.
25. Somalia has been clear and consistent in explaining its reasons for seeking a
judicial determination of this maritime dispute in accordance with international law.36 Somalia
seeks to vindicate its sovereignty and sovereign rights, for the benefit of the Somali people and
31 See Appendix 2 to Kenya’s 22 February 2021 Application, para. 96.
32 See, e.g., Chart ATS 1 (Flight Information Service); Chart ATS 2A (Area Control Service – Lower Airspace);
Chart ATS 3 (Area Control Service – Upper Airspace); Chart ATS 3B (Area Control Service – Upper Airspace);
Chart SAR 1 in “Air Navigation Plan, Africa – Indian Ocean Region”, Vol. I, 2nd edition, ICAO, 2010. Appendix
2 to Kenya’s 22 February 2021 Application, Annex 29.
33 This point is also reflected by maps showing the search and rescue regions. See, e.g., “Air Navigation Plan,
Africa – Indian Ocean Region”, Vol. I, 2nd edition, ICAO, 2010, Chart SAR 1. Appendix 2 to Kenya’s 22 February
2021 Application, Annex 29.
34 See, e.g., “Report of the African Region (AFI) – Asia/Pacific Region (APAC) – Middle East Region (MID) Air
Traffic Management (ATM) Special Coordination Meeting (AAMA/SCM)”, ICAO, 19-20 January 2017,
Appendix C, Appendix E. Appendix 2 to Kenya’s 22 February 2021 Application, Annex 30.
35 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 185, 202, 217, 219.
36 See, e.g., Memorial of Somalia (hereinafter “MS”), paras. 1.6-1.15; CR 2016/11, pp. 12-15, paras. 12-26 (Al-
Sharmani); CR 2016/13, pp. 40-43, paras. 5-21 (Al-Sharmani); CR 2021/2, pp. 13-15, paras. 2-9 (Gulaid).
7
for the future security and development of the country. Such an approach is entirely proper.
Kenya’s suggestion that Somalia’s recourse to the principal judicial organ of the United
Nations is part of a scheme to advance allegedly corrupt private interests is unsubstantiated and
without any foundation whatsoever. Unfortunately for Kenya, the factual premise on which
this conspiracy theory is founded – namely that until February 2014 Somalia had consistently
acquiesced in Kenya’s claim to a parallel maritime boundary, and that it was only following
the discovery of oil reserves in 2012 that Somalia expressed any interest in the area south of
the parallel of latitude – is also without merit. As Somalia has explained in its written37 and
oral pleadings,38 that premise is contradicted by the evidence on record, not least Kenya’s own
unequivocal statements – including to this Court39 – which recognised the existence of the
maritime boundary dispute years before Soma Oil & Gas existed.
26. The many pages of allegations, speculation and arguments concerning Soma Oil
& Gas in Kenya’s legal memorandum are a smokescreen, a written submission devoid of
substance. It is entirely irrelevant for a case on maritime delimitation before the International
Court of Justice, and contradicted by the material on record.
Section II: Somalia’s Responses to Kenya’s New Documents and Arguments on
Delimitation of the Maritime Boundary
27. Kenya’s legal memorandum attempts to enhance Kenya’s argument that the
Court should discard the three-step method of delimiting the maritime boundary in favour of
the so-called “latitudinal delimitation method”. It also argues, in the alternative, that the
application of the three-step method results in a line that follows a parallel of latitude, as it
desires. Kenya’s new arguments lack any basis in law or in fact.
A. Kenya’s Legal Memorandum Provides No Basis To Justify Discarding the
Three-Step Method in Favour of the So-Called “Latitudinal Delimitation
Method”
28. Chapter 3 of Kenya’s legal memorandum contains a renewed attempt to justify
its argument that the so-called “latitudinal delimitation method is the most appropriate way to
reach an equitable solution in this case”40 and should be applied in lieu of the three-step
methodology. In particular, Kenya places great emphasis on the relevance of its maritime
boundary agreement with Tanzania. The claim itself is not new, as it stood at the basis of
Kenya’s case in favour of the parallel in its regular written pleadings. Kenya makes two
additional arguments in support of this claim, distorting the principles of interpretation it
invokes. It argues that the (i) principles of intertemporal law,41 and (ii) transparency and
37 See SR, paras. 2.15-2.106.
38 See CR 2021/2, pp. 38-54, paras. 6-63 (Sands).
39 See SR, paras. 2.15-2.21; CR 2021/2, pp. 40-41, paras. 12-16 (Sands).
40 Appendix 2 to Kenya’s 22 February 2021 Application, para. 322.
41 Ibid., paras. 338-339.
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predictability of the delimitation process42 require that its agreements with Tanzania should be
taken into account in choosing a method of delimitation.
29. Kenya invokes the principle of intertemporal law in a spurious manner. First, it
cannot displace a principle as fundamental as res inter alios acta. Second, the Court is not
called here to interpret the Kenya-Tanzania maritime boundary agreements, but to make an
objective delimitation of the maritime boundary between Somalia and Kenya. Third, as already
noted during Somalia’s oral pleadings,43 Kenya’s agreements with Tanzania are far from
reflecting general international law existing at the time of their adoption. The 2009 Kenya-
Tanzania agreement on the exclusive economic zone and continental shelf, in particular, was
concluded at a time when the Court’s three-stage process, beginning with an equidistance line,
was already consolidated and Somalia's claim to an equidistance boundary was known to
Kenya.
30. The second principle which Kenya invokes is the one of transparency and
predictability of the delimitation process. According to Kenya, “[d]isregarding delimitations
established lawfully and reasonably in the past as if they simply never existed would be
inconsistent with the principles of transparency and predictability”.44 Kenya’s reliance on this
principle, and on the underlying jurisprudence, in particular the Bangladesh v. India award,45
is entirely misplaced. In that case, as already underlined in Somalia’s oral pleadings,46 this
principle was put forward by arbitral tribunals and by ITLOS to justify their reliance on the
three-stage process developed by the Court. Paragraph 339 of that award, which Kenya quotes
in a truncated manner, reads in full:
“Since articles 74 and 83 of the Convention do not provide for a
particular method of delimitation, the appropriate delimitation
method—if the States concerned cannot agree—is left to be
determined through the mechanisms for the peaceful settlement
of disputes. In addressing this question, international courts and
tribunals are guided by a paramount objective, namely, that the
method chosen be designed so as to lead to an equitable result
and that, at the end of the process, an equitable result be
achieved. In this connection, the Tribunal recalls the principles
stated by the International Tribunal for the Law of the Sea in its
judgment in Bangladesh/Myanmar (Judgment of 14 March
2012, paragraph 235). This Tribunal wishes to add that
transparency and the predictability of the delimitation process as
a whole are additional objectives to be achieved in the process.
The ensuing—and still developing—international case law
constitutes, in the view of the Tribunal, an acquis judiciaire, a
source of international law under article 38(1)(d) of the Statute
42 Ibid,, para. 337, 340.
43 CR 2021/2, pp. 64-65, para. 33 (Miron).
44 Appendix 2 to Kenya’s 22 February 2021 Application, para. 340. See also ibid., paras. 337-338, 409.
45 Ibid., fn. 620.
46 CR 2021/2, p. 58, paras. 10-11 (Miron).
9
of the International Court of Justice, and should be read into
articles 74 and 83 of the Convention”.47
31. Once again, the very principles invoked by Kenya lead invariably to the
application of the standard, three-stage process.
B. The Application of the Three-Stage Method Results in An Equidistance Line
32. Kenya devotes a lengthy chapter of its legal memorandum – Chapter IV –
comprising 100 pages, to the delimitation of the maritime boundary. Most of it is a rehash of
arguments already made, in the Counter-Memorial and Rejoinder, and refuted by Somalia in
the Reply and the oral pleadings.
33. What is new in this chapter is Kenya’s engagement, for the first time, with the
Court’s three-stage method of maritime delimitation. Kenya did not address the three-stage
process, much less show how it should be performed in the circumstances of this case, during
the formal, written phase of the proceedings, in either its Counter-Memorial or its Rejoinder.
In those pleadings, it did not identify base points along the Parties’ relevant coasts; it did not
construct a provisional equidistance line; and it did not propose any adjustment to the line
owing to the existence of any special or relevant circumstances. Nor did it test the resulting
line for disproportionality. Kenya, likewise, failed to challenge any of the base points
identified, or the provisional equidistance line constructed, by Somalia in its Memorial.
34. It was not until the submission of Kenya’s legal memorandum on 5 March 2021
– long after the written proceedings were closed, and shortly before the oral hearing was
scheduled to open – that it addressed these matters. As shown in Somalia’s oral pleadings, as
supplemented below, the result of Kenya’s new-found attention to these issues confirms the
correctness of Somalia’s approach to delimitation of the maritime boundary, and underscores
the equitableness of the solution Somalia has proposed: an equidistance line from the land
boundary terminus on the Indian Ocean coast to the outer limit of national jurisdiction in the
extended continental shelf.48
Stage One
35. In performing Stage One of the three-stage process and constructing a
provisional equidistance line, Kenya now relies on British Admiralty Chart 3362, which it
claims to be more accurate than US NGA chart 61220, used by Somalia.49 According to Kenya,
the BA chart supplies “the best available charted data”50. It suggests that the US chart is based
47 The Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award, 7 July 2014, PCA Case No.
2010-16, para. 339 (emphasis added). See also Dispute Concerning Delimitation of the Maritime Boundary
between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire), Judgment of 23 September 2017,
ITLOS Reports 2017 (hereinafter Ghana v. Côte d’Ivoire), para. 281.
48 CR 2021/04, para. 6 (Ibrahim) (reading Final Submissions of the Federal Republic of Somalia).
49 Appendix 2 to Kenya’s 22 February 2021 Application, para. 365.
50 Ibid., para. 369.
10
on the British chart, but exhibits minor differences, which means that, for Kenya, the US chart
is in error.51
36. Kenya then employs standard CARIS software (as Somalia did) to identify the
base points for construction of the provisional equidistance line, based on the BA chart.52
Because of the minor discrepancies between the two charts, there are also minor differences in
the coordinates of the base points used by each Party to construct the provisional equidistance
line. This results in two very slightly different equidistance lines.
37. Notably, the difference between them is so small as to be irrelevant. This is
reflected in Kenya’s own Figure 12, which follows paragraph 367 of its legal memorandum,
and is reproduced below. This is Kenya’s depiction of the two provisional equidistance lines:
its line in red, which relies on BA 3362, and Somalia’s in blue, which relies on US NGA 61220.
Significantly, there is hardly any difference between them.
38. In Kenya’s own words:
“Kenya’s proposed provisional equidistance line shows only
slight differences from that proposed by Somalia. As constructed
above, beyond the third turning point, the line follows a virtually
constant bearing of 125 degrees all the way to the 350 M limit”.53
51 Ibid., para. 366.
52 Ibid., para. 368.
53 Ibid., para. 369.
11
Kenya’s legal memorandum Figure 12: Construction of the Provisional Equidistance
Lines in the EEZ and Continental Shelf
39. Five conclusions can be drawn from Kenya’s performance of Stage One of the
three-stage process. First, the construction of a provisional equidistance line is feasible. There
are no obstacles or difficulties, geographical or otherwise, that render the construction of such
a line problematical; certainly, Kenya did not identify any. Second, reliable charts exist that
show the locations of the Parties’ relevant coasts, and that permit the identification of precise
coastal base points through application of CARIS software. Third, an accurate provisional
equidistance line can be drawn from those base points. Fourth, there is no significant difference
in the direction (“a south-easterly direction” according to both Kenya54 and Somalia55) of the
lines drawn by Somalia and Kenya, respectively. And fifth, these facts are not in dispute and
confirm the propriety of beginning the three-stage process with the construction of a
provisional equidistance line, in conformity with the Court’s well-established jurisprudence.
40. Somalia stands by its use of US NGA chart 61220, and its depiction of the
provisional equidistance line. It understands, however, that the Court will determine for itself
which chart is most reliable, and it will then construct a provisional equidistance line using the
most appropriate chart. Somalia trusts the Court to perform this technical exercise. If the Court
determines that it should be based on BA 3362, Somalia would have no objection. Whichever
chart is used, the construction of a provisional equidistance line is both feasible and
appropriate, and it is mandated by the rules and procedures of maritime delimitation followed
consistently by the Court since the Black Sea case.56
Stage Two
41. Kenya also engages with Stage Two of the three-stage process for the first time
in its new legal memorandum. This contrasts with its earlier written pleadings, namely its
Counter-Memorial and Rejoinder, where Kenya does not address the subject of special or
relevant circumstances at all, presumably because it was then pursuing a strategy of not
engaging with the three-stage process.
42. Kenya did, however, identify in its prior written submissions three specific
factors that it invoked for abandoning the three-stage process altogether, in favour of a “parallel
of latitude delimitation methodology”. These were (i) the so-called “regional practice” by
which a single State, Tanzania, negotiated boundaries with its two neighbouring States along a
parallel of latitude;57 (ii) the purported “practice of the Parties” by which Somalia is alleged to
have tacitly agreed to a boundary with Kenya following a parallel of latitude;58 and (iii) the
impacts of Kenya’s 1976 and 2009 maritime boundary agreements with Tanzania on
delimitation with Somalia.59 Somalia demonstrated in its written pleadings,60 and again at the
54 Ibid..
55 CR 2021/03, para. 21 (Reichler).
56 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 97.
57 KCM paras. 302-325, 323; KR, paras. 143-146, 161, 188.
58 KCM, Chapter III, Section D; KR, Chapter I.
59 KCM, paras. 110, 326-331; KR, paras. 135-143.
60 SR, Chapter 3, Section II.B.
12
oral hearings,61 that none of these circumstances is sufficient to support an abandonment of the
three-stage process, or adjustment of a provisional equidistance line.
43. In its legal memorandum, in which Kenya finally acknowledges the proper use
of the three-stage process, it identifies five so-called “relevant circumstances” that, in its
submission, warrant adjustment of the provisional equidistance line in Stage Two of the
process. Three of these are the same factors it raised in its written pleadings, this time
recharacterized as “relevant circumstances” for consideration in Stage Two: regional practice,
the practice of the Parties, and Kenya’s boundary agreements with Tanzania. For the reasons
given by Somalia in its written and oral pleadings, none of these constitutes a “relevant
circumstance” sufficient to warrant adjustment of the provisional equidistance line in the
second stage.62
44. Kenya’s legal memorandum goes on to propose two additional “relevant
circumstances”, not previously mentioned by Kenya. These are (i) the interests of its fisherfolk;
and (ii) protection of its security interests.63 These inevitably suffer the same fate as its other
circumstances, as Somalia demonstrated in its oral pleadings. In particular, as Somalia pointed
out, Kenya failed to offer any evidence that its fisherfolk used or otherwise frequented any of
the fishing grounds located in the disputed area, which lies north of the equidistance line
claimed by Somalia and south of the parallel of latitude claimed by Kenya.64 In fact, Kenya’s
evidence proved exactly the opposite; its maps of the “prominent fishing grounds frequented
by artisanal fishers” show that they do not frequent the disputed area.65 The figure below, was
displayed by Somalia during the oral hearings and was included in Somalia’s Judges’ Folder
as Tab 60. Cartographic experts georeferenced the information on Kenya’s maps, and
superimposed it on this sketch map. It shows, based on Kenya’s own evidence, that its
fisherfolk do not frequent the area north of the equidistance line. In any case, even if, quod non,
its fisherfolk could be shown to have suffered some injury, that would not constitute sufficient
grounds for adjusting the equidistance line. Kenya has come nowhere close to meeting the high
bar of “catastrophic repercussions for the livelihood and economic well-being of the
population”,66 which Kenya itself recognises as the threshold for such an adjustment.67
61 CR 2021/03, paras. 22-33 (Reichler).
62 CR 2021/03 (16 March. 2016), paras. 22-33 (Reichler); see SR, Chapter 3, Section II.B.
63 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 411-461, 475-499.
64 CR 2021/03, para. 35 (Reichler).
65 Appendix 2 to Kenya’s 22 February 2021 Application, Annex 4, p. 13.
66 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America),
Judgment of 12 October 1984, I.C.J. Reports 1984, p. 246, para. 327; Territorial and Maritime Dispute
(Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 624 (hereinafter Nicaragua v. Colombia), para. 223.
67 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 478-479.
13
45. Kenya devotes many pages of its legal memorandum to an account of the
security problems faced by Somalia, and consequent problems faced by neighbouring States,
including Kenya, due to Somalia’s inability to effectively police its waters.68 But only in very
narrow circumstances – entirely inapposite here – has the Court ever considered adjustment of
an equidistance line in Stage Two of the three-stage process in order to protect a State’s security
interests.
46. Kenya itself acknowledges this. At paragraph 415 of Appendix 2, it points to
Colombia’s invocation of its security interest “in relation to drug trafficking and related crimes
in the disputed area” as a relevant circumstance justifying adjustment of the delimitation line
in its favour. What Kenya fails to disclose is the Court’s rejection of that argument in
Nicaragua v. Colombia, and its refusal to adjust the line on this basis. The Court explained (as
quoted in Kenya’s legal memorandum):
“legitimate security concerns might be a relevant consideration
if a maritime delimitation was effected particularly near the
coast of a State and the Court will bear this consideration in mind
in determining what adjustment to make to the provisional
median line or in what way that line should be shifted”.69
47. The same alleged “relevant circumstance” was considered, and rejected, by the
arbitral tribunal in Guinea v. Guinea Bissau. In that case, also quoted by Kenya in its legal
memorandum, the tribunal indicated that it would take such concerns into account only if the
68 Ibid., paras. 411-461.
69 Nicaragua v. Colombia, para. 222.
14
provisional delimitation line would “compromise [a State’s] security in front of its coasts and
in their immediate vicinity”.70
48. Kenya’s reliance on these cases, which have no relation to its particular
situation, which is entirely distinguishable from these earlier cases, underscore the weakness
of its argument. The provisional equidistance line, whether drawn by Somalia or Kenya, plainly
does not pass “particularly near the coast of” Kenya, much less “in front of its coasts and in its
immediate vicinity”. To the contrary, it extends directly away from the coast in a south-easterly
direction along an azimuth of approximately 125 degrees for up to 350 M. The circumstance
that concerned the Court, and arbitral tribunals in the cases cited above (and in other cases cited
in Kenya’s legal memorandum) involved delimitation between States with closely situated
opposite coasts – including the presence of small islands of one State in close proximity to the
other’s coast. Even in those cases, the delimitation lines were not adjusted in response to the
stated security concerns.71 In any event, Kenya, despite the many pages devoted to this section
of its legal memorandum, fails to allege, let alone offer evidence, that the provisional
equidistance line threatens its security by “passing particularly near [its] coast”. That is because
it indisputably does not.
Stage Three
49. Kenya’s failure properly to perform Stage Three of the three-stage process, and
the fallacies of its approach, were described in detail in Somalia’s oral pleading, and no
repetition is needed here.72 It is interesting to note, and somewhat ironical, that the application
of Kenya’s disproportionality test to the provisional equidistance line proposed by Somalia as
the equitable solution to this dispute demonstrates, beyond any doubt, that the provisional
equidistance line is not disproportional.
50. To be sure, as Somalia showed during the oral hearings, Kenya’s
disproportionality test is deeply flawed, because it misidentifies the relevant area to be taken
into account.73As explained on 16 March, and demonstrated graphically before the Court,
Kenya deliberately inflates the relevant area – by padding it with maritime space within and
beyond 200 M where there are no overlapping entitlements, but only one of the Parties,
Somalia, has entitlements – in order to give the impression that its proposed parallel of latitude
distributes abundant space to Somalia. Somalia showed, from the Court’s jurisprudence and
even the authorities cited by Kenya, that this is an erroneous means of calculating the relevant
area, because only maritime areas where both parties have overlapping entitlements can
comprise it.74
51. Nevertheless, even on Kenya’s flawed case, the distribution of what Kenya
considers the relevant area resulting from the provisional equidistance line is manifestly not
70 Delimitation of the maritime boundary between Guinea and Guinea-Bissau, Award, 14 February 1985, RIAA,
Vol. XIX, p. 149, para. 124 (unofficial translation).
71 Continental Shelf (Libyan Arab Jamahiriya/ Malta), Judgment, I.C.J. Reports 1985, p. 42 (hereinafter Libya v.
Malta), para. 51; Delimitation of Continental Shelf between the United Kingdom of Great Britain and Northern
Ireland, and the French Republic (UK, France), Award, 30 June 1977, RIAA, Vol. XVIII, p. 3, para. 188
72 CR 2021/03, paras. 39-46 (Reichler).
73 Ibid., paras. 42-45 (Reichler).
74 Ibid., paras. 51-55 (Reichler).
15
disproportional. According to Kenya’s own calculations, the area ratio is 1:2.99 in Somalia’s
favour, as compared to a coastal length ratio (on which the Parties agree) of 1:1.43 in Somalia’s
favour.75 This is not a gross or significant disproportionality. In Nicaragua v. Colombia, the
coastal length ratio was 8.2:1 in favour of Nicaragua, and the delimitation adopted by the Court
resulted in an area ratio of 3.4:1 in Nicaragua’s favour.76 The coastal ratio was thus more than
two times the area ratio – just as Kenya, based on its phony calculations, contends here. Yet,
the Court found that this result was equitable. In the Jan Mayen case, the Court considered that
a coastal length ratio of 1:9 in Denmark’s favour, with a delimitation line that resulted in an
area ratio of 1:2.7, did not produce a significant disproportionality.77 Indeed, there is no case
in which the Court, or any arbitral tribunal, has found a significant disproportionality where
the coastal ratio was not at least less than eight times greater than the area ratio.78
52. In any event, as Somalia showed at the oral hearings, when the relevant area is
defined properly – as the area where both Parties have overlapping entitlements – the
equidistance line distributes that area in a ratio of 1.44:1 in favour of Somalia, as compared to
1.43:1, which is the coastal length ratio agreed by the Parties.79 The equidistance line thus
passes the disproportionality test with flying colours. It is plainly the equitable solution
demanded by international law, and the well-established procedures consistently followed by
the Court in the delimitation of maritime boundaries.
Section III: Somalia’s Response to Kenya’s New Documents and Arguments
Regarding Its Responsibility for Unlawful Acts in the Disputed Maritime
Area
53. The majority of Chapter V of Kenya’s legal memorandum simply repeats and
recycles arguments which Kenya has already made in its Counter-Memorial and Rejoinder to
avoid a finding that it is responsible for unlawful acts in the disputed maritime area. Somalia
has already addressed those arguments in its written80 and oral81 pleadings, and sees no need
to repeat them once more here. Instead, Somalia will limit itself to two points arising from the
few new arguments developed in that Chapter.
A. Kenya’s Violations of Articles 74(3) and 83(3) of UNCLOS
54. Kenya mischaracterises Somalia’s case regarding Articles 74(3) and 83(3) of
UNCLOS as an “absolutist position” which, if accepted, would be “highly onerous” and which
75 Appendix 2 to Kenya’s 22 February 2021 Application, para. 537.
76 Nicaragua v. Colombia, paras. 243-247.
77 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, p. 38
(hereinafter Denmark v. Norway) para. 61; see Nicaragua v. Colombia, para. 246.
78 Libya v. Malta, paras. 58, 74-75; Denmark v. Norway, para. 61.
79 CR 2021/03, para. 45 (Reichler).
80 SR, paras. 4.11-4.25.
81 CR 2021/3, pp. 34-35, paras. 14-19 (Craven).
16
would indefinitely “frustrate” peaceful transitory activities “in vast swathes of the world’s
oceans”.82 This in terrorem submission is without merit.
55. Somalia’s case is premised on a straightforward application of the text of
Articles 74(3) and 83(3), as interpreted and applied by the ITLOS Special Chamber in Ghana
v. Côte d’Ivoire.83 Whether particular activities in a particular disputed maritime area
“jeopardize or hamper” the reaching of a final agreement between States with competing claims
to that area is a fact-sensitive and context-specific question. Contrary to Kenya’s argument,
where one State undertakes exploratory and exploitative activities in a disputed maritime area,
the perception by the other State of the former’s conduct and motives is relevant to the question
of whether those activities are likely to “jeopardize or hamper” the reaching of a final
agreement between the two States.
56. In the context of the present case, Kenya’s unilateral activities within the
disputed maritime area have fallen far short of its obligation to “make every effort” to avoid
jeopardizing or hampering the reaching of a final agreement with Somalia. In particular – and
as Kenya would have been aware at all relevant times – following Somalia’s long civil war and
the plunder of its marine resources, any agreement with Kenya regarding the Parties’ maritime
boundary would require the Somali people to have complete trust and confidence in Kenya’s
motives, intentions and good faith. Yet Kenya’s actions in the disputed area were opportunistic
and cynical – a powerful neighbour seeking to enrich itself by exploiting a poorer neighbour’s
inability84 to defend its sovereignty and sovereign rights. Against the backdrop of Somalia’s
precarious security and economic vulnerability, those actions were self-evidently likely to
impede the prospects for an agreement on the maritime boundary. It cannot be said on the basis
of the evidence before the Court that Kenya made “every effort” to avoid creating such a risk.
B. Kenya’s violations of Somalia’s sovereignty and sovereign rights
57. Kenya suggests that Somalia is inviting the Court to reject the ruling of the
ITLOS Special Chamber in Ghana v. Côte d’Ivoire. In particular, Kenya cites paragraphs 591
and 592 of the Special Chamber’s Judgment in that case and argues that, “since the delimitation
of a continental shelf is constitutive, not declaratory, good faith activities in a disputed area
cannot become wrongful on a retroactive basis”.85 Kenya then argues that since its actions in
the disputed area were all founded on “good faith” claims to the maritime space up to the
parallel of latitude, those actions were incapable of infringing Somalia’s sovereignty or
sovereign rights or of violating Kenya’s obligations under Articles 74(3) and 83(3) of
UNCLOS.86
58. Kenya’s claim is without foundation. First, Kenya’s activities in the disputed
area were not conducted in “good faith”. Kenya was well aware that its activities were
undertaken in an area which Somalia had long regarded as part of its maritime space. Kenya
was equally well aware that there was (and is) no legal basis for its claim that the maritime
82 Appendix 2 to Kenya’s 22 February 2021 Application, paras. 548-549.
83 Ghana v. Côte d’Ivoire, paras. 627, 629, 630.
84 See supra para. 13.
85 Appendix 2 to Kenya’s 22 February 2021 Application, para. 565.
86 Ibid., paras. 560-566.
17
boundary follows a parallel of latitude. That claim had no support around the world. The fact
that Kenya’s activities were not premised on a good faith claim to the disputed area is further
evidenced by the contradictory positions it has taken before this Court and by the conflict
between its claim and the terms of its own maritime legislation.87
59. Second, the passage of the Ghana v. Côte d’Ivoire Judgment on which Kenya
relies is concerned exclusively with the question of violations of sovereignty and sovereign
rights; it does not concern the application of Articles 74(3) and 83(3) of UNCLOS. There is
nothing in either the text of those Articles or in the Special Chamber’s Judgment to support the
contention that actions in a disputed maritime area will not violate Articles 74(3) and 83(3) if
they are based upon a “good faith” claim to the disputed area. The obligation to make “every
effort” to avoid jeopardizing or hampering the reaching of a final agreement applies to all cases
where the delimitation of the EEZ and continental shelf is unresolved. Accordingly, even if
(quod non) Kenya’s claim to a parallel maritime boundary was made in good faith, this would
not absolve it of the obligations which apply under Articles 74(3) and 83(3).
60. For these reasons, and the reasons Somalia has set out in writing and orally,
Kenya’s conduct in the disputed maritime area trespassed upon Somalia’s sovereignty and
sovereign rights, and constituted a violation of Kenya’s obligations under Articles 74(3) and
83(3) of UNCLOS.
61. Somalia expresses its gratitude to the Court for according it this opportunity to
respond in writing to the new documents and arguments that Kenya submitted on 5 March
2021.
87 See SR, paras. 2.15-2.21, 2.34-2.44.