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

Telephone: 070 350 42 15 EMBASSY OF THE REPUBLIC OF KENYA
Telefax: 070 355 35 94 Nieuwe Parklaan21
E-mail: [email protected] 2597LA The Hague
Website: www.kenyacmbassy.nl The Netherlands

Whenreplyingph:asequote:
KEH/LEG/5ANOL.II (72)

The Embassy of the Republic of Kenya in the Royal Kingdom of the

Netherlands presents its compliments to the Registrar of the International
Court of Justice and has the honour refer to the questions putto Parties

by Judge Crawford at the end of the public sitting on 23 September 2016
in the somali v. Kenya case.

The Embassy wishes to transmit herewith a copy of letter Ref.
1
AG/CONF/19/153/2 VOL.IV dated 26 September 2016 by the Attorney
General and Agent of the Republic of Kenya.

The Embassy wishes to inform that the original letter will be transmitted
once received through the usual diplomatie channels.

The Embassy of the Republic of Kenya in the Royal Kingdom of the

Netherlands avails itself of this opportunity to renew to the Registrar of the
International Court of Justice the assurances of its highest consideration.

The Hague, 27 September 2016

The Registrar of the International Court of Justice
Peace Palace,

Carnegieplein 2, 2517 KJ
The Hague

Encl: REPUBUCOFKENYA

OFFICE OF THE ATTORNEY-GENERAL

.fil.
UEPAIUMENT OF JUSTICE

AG/CONF/19/153/2VOL.IV 26'hSeptember 2016

H.E. Mr Philippe Couvreur

Registrar

International Court of Justice

Dear Registrar.

ln regard to Maritime Delimitation in the lndian Ocean (Son,alia v Kenya). the

Republic of Kenya has the honour herewith to submit its response to the two

questions posed by Juoge Crawford to the Parties upon the conclusion of the second

round of oral pleadings on 23 September 2016 in the hearing on Kenya's Preliminary

Objections.

Preliminary Clarifications

ln respect of the introductory rtatëmeht in Judge Crawford's question that the Parties

"conducted negotiations" over maritime delimitation "without making any express

reservation as to the timeliness of such negotiations in terms of the penultimate

paragraph of the Memorandum of Understanding", it is necessary to make two

preliminary clarifications.

First, as set out in Kenya's written and oral pleadings. the penultimate paragraph of

2
the MOU requires finalization of a negotiated agreement after CLCS review . lt

1 POK, paras. 31, 46, 69, 73, 116 and 146: CR 2016110 (Agent, p. 15, para. 10; Akhavan, pp.

20·21. pam. 18: Low_ep . .64. para. 17).
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ISO 9nDJ::nn8 Cml/ll!tl obviously does not prohibit the Parties from concluding one or more interim

agreements that are subsequently finalized after the recommendation of the CLCSon

the terminus point of the outer continental shelf beyond 200 nautical miles.

Accordingly, negotiations between the Parties prier to the recommendation of the

CLCS,even if it resulted in one or more interim agreements on delimitation covering

sorne or ali maritime areas in dispute, would still be subject to finalization under the

MOU's agreed procedure.

Second, as set out in Kenya'swritten and oral pleadings. the two technical meetings in

2014 were in fact held immediately after and directly because of Somalia's objection

to Kenya's CLCSsubmission and repudiation of the MOU as "nul! and void" in its
3
letter to the UN Secretary-General on 4 February 2014. Prier to that. following the

Somali Parliament's 1 August 2009 vote purporting to reject the MOU, Somalia had
submitted a Note Verbale on 2 March 2010 to the UN Secretary-General, asserting

that the MOU was "non-actionable", but without specifically objecting to Kenya's

ClCS submission. 4 On. 17 August 2011, Norway had submitted a letter to the UN

Secretariat noting that Somalia's Note Verbale of 2 March 2010 was "without legal

effects''but had "created a new political situation casting doubt on the commitment

of [Somalia to the MOU] and creating doubts as to the capability of [SomaliaJ to

enter into legally binding international
5
commitments." On 31 May 2013, following diplomatie efforts, the Parties agreed in

a Joint Statement to "work on a framework of modalities for embarking on maritime

demarcation" consistent with implementation of the MOU, indicating Somalia's

willingness to respect its commitments.e On 6 June 2013, however. Somalia reversed

its position and dedared that it "does not consider it appropriate to open new

1
POK,Annex 1: Memorandumof UnderstandingKenya- Somalia, 2599 UNTS 35 (2009), p.
38: 'The delimitation of the maritime boundaries in the areas lll1derdispute, including the
delimitationof the continentalshelf beyond 200 naulical miles, shall be agreed betweenthe
two coastal States on the basis of internationallaw after the Commissionhas concluded its
examinationof the separatesubmissionsmade by cach of the two coastal States and made its

recommendationsta twocoastal Statesconcerningtheestablishmentof theouter limitsof the
continentalshelfbevond 200nautîcalmiles.'
3 POK, para. 98- 102 and 109; CR 2016/10 (Muchiri. pp. 46-7, paras. 2, 7). See also letter
dated 12 February 2014 from the Head of the Legal and Host Colll1tryAffairsDirectorate of

the Kenyan Ministry for Foreign Affairs to the Cabinet Secretary, Kenya's Judges' Folder
FirstRolU1dT , ab11.
4 POK, para. 77;retèrred to at paras. 3.40- 3.41 of MS.
5 POK, para81 and Annex 4.
6
POK. para.88 and Annex31. discussions on maritime demarcatioor limitations on the continenshelf with any
7
parties".lt was in this context that the agenda of the first meeting. initiated by
Kenya. included discussion of the MOU as the first agenda atSoma lia, however.

immediately objected to any discussion of the MOU and demanded that it be

removed from the agenda because in its view the MOU was "void and of no effect''.9

Owing to Somalia's categorical rejection of the MOU. therefore. it cannat be said that

the two meetings in 2014 were held in arder to implement the agreed procedures

under the MOU. The absence of an express reservation asto the timeliness in terms of

the penultimateparagraph of the MOU was thus irrelevant and cannat be construed

as subsequent conduct in interpretinthe terms of the MOU. ln fact, Kenya was

focused on a confidence-building process to persuade Somalia to withdraw its

objectionto Kenya's CLCS submission and to gradually agree on a structure and
10
guiding principles forlnegotiatioconsistent with the MOU's agreed procedure.

Even if there had been a deviation from that procedure because of Somalia's

unwillingness to implement its commitments, it would have been subject to the

consent of Kenya, and would not have nullified or modified existing obligations

und er the MOU.

ln any event, on 4 August 2014, Kenya made clear that it was expecting 5omalia to

eventually reverse its position on the MOU: Kenya underlined that. even though

"Soma lia did not discuss the MOU during the first meeting", Kenya had "witnessed

friendlier attitude towards the MOU during ths~co neeting" held in July 2014.

ln October 2014, Kenya alm stressed that "it would be in the best interests of both

States as weil as good interna tional arder that the Commission proceeds to consider

Kenya's submission at the earliest opportunitpreciselto al/ow the two States to

carry on with their delimitation of the continental shelf beyond 200 NM in the

7POK, paras.89-90.
8
POK para.99:MS, Annex 31,p. 1.
9POK para. 100; MS,Annex 24.
1°CR 20 }6/0 (Muchirip.47, para. 8); 2016/12 (Lowe.p. 33, pa20).
11POK, Annex 41. Dr. Karanja KibichConfidentiaNote ta theDirector Generaof the

National Intelligence Service Rega"Proposaifor the Cabinet Secretary MFA Ot~1er
Senior Govemment Official to Visit Mogadishu to Discu~r . . iBoundary Includmg
Liftingof Objectionby Somalia on MOU Granting No Objection to Consideration of
Kenya's Submission", MFA.INT.8/15A (Aug. 2014). manner original/y envisioned in the 7 April 2009 MOU and the 19 August 2009
communication·· .t~

Questions of Judge Crawford

Bearing thi5 context in mind. Kenya provides the following response to the two

questions in regard to the two preliminary technical meetings:

(1) The discussions covered al! maritime zones. including the territorial sea, the

EEZ, and the continental shelf within and beyond 200 nautical miles. as

Somalia acknowledged in its Applintion. 13 This is apparent from the

discussion of Kenya's 1972 Territorial \'</aters Act. the 1989 Maritime Zones

Act, the 1979 and 2005 Presidential Proclamations on the EEZ, and the

range of the slides in the PowerPoint presentation covering ali maritime

areas in dispute.14 lt is apparent from those slides that the discussions were

carried out at a high leve! of generality and Kenya observed that it required

further time for a proper presentation of its views.15ln this regard, it should

also be noted that, at the first meeting. the Parties considered "severa[

options and methods for equitable delimitation, including bisector,

perpendicular, median and parallel of latitude" as potential maritime

boundaries, and that these methods were considered in regard to ali
16
maritime areasin dispute.

12 MS. Annex 50, p. 3 (emphasis added). Note 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.
13See Application, para.30; seealso MS, Annex 41, paras 2-3.
1
" MS Annex 31, Joint report of the Government of the Republic of Kenya and the Federal
Republic of Somali on the Kenya-Somali maritime boundary meeting held on the 26th-27th
March, 2014 at the Ministry of Foreign A.ffairsand International Trade Nairobi, Kenya;

WSS, para 2.49; Sornalia'sJudges' Polder First Round.
15 Kenya's .Tudges' Folder First Rotmd, Tab 12, Brief on a Meeting between the
Governments of the Republic of Kenya and the Federal Republic of Somalia on the

Maritime Boundary held on the 28th-29th July, 2014, Nairobi, Kenya, dated 8 August
2014, page 2, fust paragraph (provided to the Court on 14June 2016).
16MS, Annex 31, p. 6. The Parties made progress at the first meeting and agreed on the "starting
17
point'' for maritime delimitation. and at the second meeting agreed to
reconvene with a view to agreement on a structure and guiding principles

for further discussions. There was no commitment or expectation that

negotiations would result in an agreed boundary for ali maritime areas at

once. Given the complex circumstances prevailîng between the Parties. it

was entirely possible that agreements. whether conceived as temporary or

permanent components of the boundary regime between Kenya and

Somalia. may have initially covered one or more maritime areas (such as

the territorial sea. or waters within. s50. nautical miles off the coast) and

with one or more purposes (suchas law enforcement. anti-piracy patrols.

enforcement of fisheries regulations.scope of hydro-carbon exploration

licenses.joint development zones. etc.) before the conclusion of a

comprehensive 1final agreement. There was. and is. no pressing need to

settle the entire maritime boundary immediately. whereas there was, and is.

a pressing need to agree upon practical arrangements of a provisional

nature for maritime enforcement in the waters close to the land boundary
19
between Kenya and 5omalia. Negotiations and agreements allow for such
flexibility and pragmatism.

Had the two technical meeti in 2014 been held pursuant to the MOU's

agreed proced1,.1re, such partialdelimitation or practical arrangements

would have been entirely consistent with the penultimate paragraph of the

MOU. After the recommendation of the CLCS made a final agreement

possible. the Parties could either reaffirm the earlier partial agreementor

decide to modify them in faveur of a new agreement. depending on the

circumstances prevailing at that time. ln contrast. a final and binding

judidal decision would pre-empt an agreed delimitation: it would tie the

hands of the Parties and not allow for any measure of flexibility in arriving

liMS, para 3.50 and MS, Annex 31, pp. 3-4.
18Kenya's Judges' Folder First ROlmd,Tab 12, Brief on a Meeting between the Governrnents
of the Republic of Kenya and the Federal Republic of Somalia on the Maritime

Boundarv held on the 28th-29lh July, 2014, Nairobi, Kenya, dated 8 August 2014, page
2, first p~agr (propided to the Court on 14 June 2016).
19CR 1016/10 (Muigai, p. 15, para. 8; Akhavan, p. 23, para 25; Lowe, p. 63, para. 16); CR
2016/12 (Akhavan, p. 14, para 10; Muigai, p. 38, para. 3)..

at a mutually acceptable solution that takes into consideration a complex

and multidimensional situation. This was how Kenya envisaged the
implementation of the penultimate paragraph of the MOU and helps to

explain why Kenya regards litigation as an inappropriate and unhelpful

means of deciding on the maritime boundary in this case.

(2) As set out in Kenya's written and oral pleadings, it cannat be said that

Somalia negotiated in good faith during the two technical meetings in 2014

or that there were "meaningful negotiations" on delimitation of the
20
maritime boundary consistent with the jurisprudence of the Court.

Furthermore. as noted above. Somalia had clearly rejected its commitments

under the MOU such that the two technical meetings in 20l4 cannot be
construed as subsequent conduct or any form of waiver among the Parties

in regard to their rights and obligations under the penultimate paragraph of

the MOU. Nor would any intèrim agreement on the maritime boundary
..,
subject to finalization after the recommendation of the CLCSbe inconsistent

with the agreed procedure under the MOU as explained above. lt is

further noted that even if the parties agreed by mutual consent to conclude

a final agreement prior to CLC5recommendation, that would constitute a
21
subsequent agreement replacîng the agreed procedure under the MOU.

To date there has been no such agreement and thus the MOU procedures
remain in force.

ln regard to a poHible waiver of rights under the MOU. Kenya has

consistently held the view, whether before or after Somali Parliament's

rejection of the MOU in 2009. n or during the 2014 technical meetings

despite Somalia's unwillingness even to discuss the MOU, 23as weil as prior

20
North Sea Continemal Shelf (Germany v. Denmark/Netherlands).Judgment, I.C.J. Reports
1969, p. 47, para. 85 (a); CR 2016/10 (Akhavan,p. 20, para. 17;Muchiri, pp. 46-51); POK,
Earas 98-102, 109.
1
CR 2016112(Akhavan, p.13,para.7).
:!ZPOK para. 72: MS, Anne x:61.para. 95.
23 POK paras. 99-100 and 109. to and immediately after Somalia's initiation of proceedings before the
Court, 24that:

(a) The MOU remains legally binding upon the Parties: and

(b) The MOU requires a negotiated agreement, to be finalized after

CLCSrecommendations. 2s

Kenya therefore categorically rejects any suggestion that by initiating and

participating in the two technical meetings in 2014, it was-waiving its rights

under the MOU to a recommendation of the Commission prior to a final

agreement with Somalia on maritime deiimitation.

Finally, Kenya underscores that irrespective of any purported waiver of a

right to a prior recommendation of the CLCS,there has manifestly been no

waiver of a right to a negotiated agreement as the method of settlement

under the MOU. ln view of Kenya's reservation relating to agreed

procedures other than recourse to the Court under its Optional Clause

Declaration. the penultimate paragraph of the MOU by requiring a

negotiated agreement excludes the Court's jurisdiction irrespective of the
additional requirement of CLCSreview.

As set out in its written and oral pleadings. Kenya's position in regard to

Part XV procedures is that CLCS recommendations prior to a final

agreement on maritime boundary delimitation constitutes a "time limit"

within the meaning of Article 281 of UNCL05. 26 Nonetheless, that is not a

matter that is properly before the Court given that it has no bearing

whatsoever on whether either the MOU or the Part XV procedures.

separately or in combination, constitute an agreed method of settlement in

regard to the maritime boundary dispute within the meaning of Kenya's

reservation. Furthermore, Kenya maintains its position that the MOU

opera tes to exelude the Court' sjurisdiction. such that it is not necessary to

24
POK, para. 104 and Annex 37; POK, para. 116 and Annex 43; paras. 119<!2 and MS,
Annex 50; POK. paras. 124-5 and Annex 44.
25See, eg, CR 2016/10 (Akhavan, pp. 20-1, para. 18; Lowe, p. 63, para. 13).
26CR 2016/10 (Akhavan, p. 24, para. 31; Boyle, pp. 57-8, para. 20). make a decision of wider application on the legal effect of Part XV

procedures in regard to States wfth similar reservations in regard to other

methods of settlement.

Please accept, Excellency, the assurances of my highest consideration.

Yours sincerely,

_,/
Githu)AûÎgai,EGH,SC
Attorney-General and the Agent of the Republic of Kenya

.//