JAMIIUURIYADDA FEDERAALKA SOOMAALI\ 'A
Wasaaradda Arrimaba Dibadda
&Dbiirigelinta Maalgashiga
Ministry o&lnvestment Promotion
29 September2016
Mr. PhilippeCouvreur
InternationalCourt
PencePalace
Netherlandsgue
Dear:
Kenya), 1havethe honourtorefertothequestionsputto thePartiesbyJudgeCrawfordatthea v,
endofthe Court'spublicsittingon 23 September2016andtothe responsestheretosubmittedby
Kenya,dated26September2016.
observationon Kenya'sresponsestoJudgeCrawford's questions.to submitherewithSomalia's
Pleaseaccept, Sir, theassurancesof myhighestconsideration.
:z · '
M ~o ~J i.,~
SomaliaAgent of the Federal Republic of
Attachment INTERNATIONALCOURTOFJUSTICE
SOMALIAv. KENYA
HEARINGON KENYA'SPRELIMINARYOBJECTIONS
Observation.<of the FederalRepublic ofSomalia to the Responsetif
the Republic of Kenyato the questio11s posed byJ11tlgeCrawfordon
Friday23 September 2016
29September2016
1. THE INTERPRETATION OF THE MOU
1. ln its answers to Judge Crawford's questions, Kenya makes a further
important concession; namely, that the MOU does not prevent the Parties from
delimitingtheir maritimeboundarybefore theCLCShas madeits recommendationon
delineation of the outer continental shelf. Specifically, Kenya states that the MOU
"obviously does not prohibit the Parties from concluding one or more interim
agreements"on delimitation,which the Parties may subsequent!y "eitherreaffirm ...
or decideto modify"afterthe CLCShas madeits recommendation. 1
2. This is directlycontraryto its previousposition. On its latest position, Kenya
now states that the MOU allows the Parties to conclude "interim agreements on
3
delimitationcovering... al/ maritimeareas indispute".
3. This latest stance completely undennines its PreliminaryObjections, to the
effect that the MOU established an "agreed two·step procedure" whereby an
agreement on delimitationof any part of the boundary may be reached "on/y after
4
CLCS review".
4. Moreover,havingpreviouslyargued thal the bilateraldiscussionsin 2014 did
not even qualify as proper negotiations,Kenya furtherconcedes thal the discussions
1
Le/terfromH.E.MrGithuMuigai,Agentof lhe Republicof Kenya, to H.E.Mr PhilippeCouvreur,
Registrar(26Sept.2016),pp.2,S.
1
See CR 2016/12, p. 24, para. 27 (forte.au) ("l'accord à conclure doit intervenir après les
recommandationsde lnCommissiondeslimites".)
lLei/erfromH.E.MrGithuMuigai,Agentof the Republicof Kenya,to H.E. Mr PhilippeCouvreur,
Registrnr(26Sept.2016),p.2(emphasisndded).
~KI'O,para. 146(emphasisadded).
• 1• were negotiations and suggests that they could have resulted in a permanent
agreementin respectof oneor moreof the disputedmaritimeareaspriorto reviewby
the CLCS. Accordingto Kenya's latest submissions,"it was entirely possiblethat
agreements, whether conceived as temporary or permanent components of the
boundary regime between Kenya and Somalia, may have initiallycovered one or
5
moremaritimeareas... beforetheconclusionofa comprehensive,finalagreement".
S. Accordingly,despite itsearlierargumentthatthe MOUpreventsdelimitation
of any part of the maritimeboundarypriorto delineationby the CLCS,Kenyanow
effectivelyconcedesthat this both legally and practicallypossible. ln a Jast ditch
effortto prevent the Court from hearing Somalia'sApplication,however, Kenya
maintainsthalwhitethe Partiescouldconcludean "interim"agreementregardingthe
entire maritimeboundary,the textof the MOUpreventsthe..finalization"of suchan
agreementuntilafterdelineationby the CLCS. Thatdistinctionis then immediately
collapsed,however,whenit statesthat "even if the partiesagreedby mutualconsent
toconcludea finalagreementpriorto CLCSrecommendation,thatwouldconstitutea
subsequent agreementreplacingtheagreedprocedureundertheMOU". 6
6. Kenya'scaseis oneof constantchangeandcontradiction.lts currentposition
appears to be:
(a) The MOU does not preventthe Parties from reachingan "interim"
agreementon delimitation,which may be temporaryor permanent,
andmayrelatetoanyor aliofthedisputedmaritimeareas.
(b) Although the Parties may conclude an "interim" permanent
agreementon delimitationof the entire maritimeboundary,the MOU
prevents them from reaching a "final" permanent agreement on
delimitationof any part of the boundary until after the CLCS has
madeitsrecommendation .
5Lei/er fromH.E.MrGithuMuiga,i Agentof theRepublicof Kenya,to H.E. Mr PhilippeCouvreur,
Regislror(26 Sepl.2016)S(empha ad~eis.
6
Ibid.,p6.
- 2 - 7
(c) While the MOU imposes a "legally binding" restriction on the
Parties' ability to reach a final agreement on delimitation, the Parties
may by agreement remove that restriction on their ability to agree.
7. Kenya's constantly shifting and inconsistent interpretation of the MOU
reflects the incoherent nature of its objection to the Court's jurisdiction. As the legal
and evidential defects in its case have been exposed, Kenya has been forcedto adopt
increasingly contorted constructionsof the MOU, and ever more strained accounts of
the bilateral negotiations that took place in 2014.
II. TUE NATURE AND SCOPE OF TJIE NEGOTIATIONS TIIAT TOOK PLACE IN 2014
8. Kenya accepts that the negotiations in 2014 "covered al/ maritime zones,
including the territorial sea, the EEZ, and the continental shelfwithin and beyond
nautical miles". The Parties therefore agree that the negotiations covered ali of the
disputed maritime zones between the land boundary tenninus and the outer limit of
the continental shelf. There is therefore no dispute between the Parties as to the
answer to Judge Crawford's first question.
9. ln an effort to downplay the significance of those negotiations, however,
Kenya asserts that the negotiationsere carried out at a high leve! of genemlity" and
that Kenya "required further time for a proper presentation of its views". lt also
suggests that Somalia did not engage in those negotiations in good faith, aJthough it
does not explain the basis for that claim. Ail of these are mere assertions, entirely
without support, and contradicted by the documentary evidence that is before the
Court.
10. As noted in Somalia's earlier submissions, the contemporaneous accounts of
the detailed substantive negotiations that took place in 2014 contradict Kenya's
7LetterfromH.E. MrGilhuMuigai,Agentof the Republicof Kenya,to H.E.Mr PhilippeCouvreur,
Registra(26Sep!.2016)p.7.
~Ib, pd4(emph ad.ed)is
9
lbid.
IOIbid.,p6.
-3- characterization of those meetings. The Joint Report of the first round of bilateral
negotiations held on 26-27 March 2014 makes clear that the "Maritime Boundary
Meeting" was attended by no fewer than 16 representatives of the Kenyan
Govemment, including the Kenyan Ambassador to Somalia, the Deputy Solicitor·
General, the Legal Adviser to the President of Kenya and a number of senior officiais
from the Ministry of Foreign Affairs, the Task Force on Delineation of the
Continental Shelfand the Survey ofKenya. 12
11. Moreover, the negotiations were expressly intended to enable the Parties to
"reach a consensus on the potential maritime boundary line acceptable to both
13
countries". To this end, "[t]he negotiations commenced focusing on: (a) Kenya's
departure from the equidistance methodology adopted by [Kenyan legislation]; (b)
starting point for the determination of the maritime boundary; (c) the appropriate
14
baselines and base points; and (d) potential maritime boundary line". The two
delegations engaged in "a thorough discussion of principles of international law,
including the principles of equidistance, equity and good faith" and "continued to
1
negotiate for two consecutive days ~".
12. During the course of those negotiations, Kenya produced a detailed
multimedia presentation entitled "Elaboration to Somalia on how and why Kenya
arrived at a latitudinal boundary". 16 Kenya's presentation included detailed
submissions conceming (a) the application of Articles 15, 74 and 83 of UNCLOS to
the Parties' maritime boundary 17; (b) the reasons why the concavity of the East
African coast constituted "special circumstances" thal warranted a departure from an
11See WSS,paras.2.31-2.73,3.34-3.47;CR2016111,pp.41-50, paras. 26-53(Reichler); CR 2016/13,
pp.23-29,paras.IQ-24(Reichler).
IlGovemmentof Somnliaand Govemmentof Kenyn,Joint Reporton the Kenya-SomaliaMaritime
BoundaryMeeting, 26-27Mar.2014(l Apr.2014),Annex1.MS,Vol.Ill, Annex31.
13
Ibid.,p6.
1
~FederalRepublicof Somalin,Reporton theMeetingbetween711eFederalRepuh/icof Somaliaand
The Republicof KenyaOn MaritimeBormdaryDispllle,Nairobi,Kenya.26-27 March 20/4 (1 Apr.
2014),p.4. MS, Vol.Ill, Annex24.
ISIbid.
1'Govemmentof Somaliaand Governmentof Kenyn,Joint Reporton the Kenya-SomaliaMaritime
BoundaryMeeting, 26-27Mar. 20J.I1Apr. 2014),Annex3,Slide1.MS, Vol.Ill, Annex31.
17Ibid.,Slide3. 18
equidistanceline ;(c) the methodologyand factualbasisfor computingthe lengthof
19
the relevantcoasts ; (d) a detailed"Calculationof equitablyshared Areas" which
20
included specifie figures for the length of the relevant coasts ; the ratio of the
relevantcoasts 21;the "area to be shared" 22;a suggested"[p]roportionatesharing"of
thatarea andthe ratioof the respectiveallocationsof maritimespacethat would be
produced by that suggested sharing 24; and (e) a detailed explanation of "[w]hy
absoluteMedian!inesmaynot be anoptionforKenya". 25
26
13. The"intensediscussions" heldatthesecondroundof meetingsinJuly 2014,
attended by the Foreign Ministers, were equally detailed. As Kenya noted in its
written PreliminaryObjections,"Somalia used the meeting to advance a detailed
argument on equidistanceas the only possiblesolution to the maritimeboundary
dispute". Somaliareferredtocase lawfromtheCourt, ITLOSand ad hoc maritime
delimitationarbitrations,and presentedgraphie charts illustratingthe merits of the
28
Parties'arguments.
14. The Kenyandelegationrespondedwitha detailed presentation whichincluded
discussionof maritimedelimitationcase law,the processfor identifyingthe relevant
INIbid.,Slidc4.
19
Ibid.,Slid6.
20 Ibid.Slide 8. Accordingto Kenya's presentation, the relevantcosts are430 km(Kenya)and 1,920
km(Somolia).
21 IbidAccordingto Kenya'spresentation,theratiois 1:4.47.
22Ibid.Accordingto Kenya's presentation,the"Arento beshored" is 805,020 km 2•
:u Ibid. Accordingto Kenya'spresentation,a "Proportionatesharing"of the relevantnrcawouldgive
Kenya147,193km andSomalia657,029km •
2JIbid.Accordingto Kenya'spresentation, the"Proportionatesharing"proposedby Kenyawouldtend
to a ratioof 1:4.46in therespective areasofthetwoStates.
H Ibid.,Slide 10.
26
Memorandum fromtheAG Director,Homof Africa Directorate,to theCabinetSecretary,Ministry
ofForeign Affairs& InternationalTrade, RepublicofKenya(15Aug. 2014),p. 1.
27
KPO, para 109.
21
See M. Al·Sharmaniand M.Omar,Represenwtivesof the Ministryof ForeignAffairsof theFederal
Republic of Somalia, Reportto the File of the Meeting between tite Federal Republic of Somalia and
the Repuhlic of Kenya On Maritime Boundary Dispute. Nairobi, Kenya, 28-29 July 2014 (5 Aug.
2014). WSS, Vol. Il, Annex 4; Memorandum from S. Mokaya·Orina,Head/Legal & Host Country
Affairs Directorate,o CabinetSecretary,Ministryof ForeignAffairs & InternationalTrade, Republic
of Kenya(8 Aug. 2014). coastline, the effect of the concavity of the East African coastline and the reasons
why, in Kenya's view, a parallel of latitude would yield an equitable solution. 29
1S. Both presentations were followed by "heated discussions" about the factual
and legalgrounds for the Parties' respective claims. 30
16. Accordingly, Kenya's claim that the negotiations were conducted at a "high
levetof generality" is not supported by the evidence and is unsustainable.
17. Furthermore, Kenya's suggestion that it "required further time for a proper
31
presentation of its views" is disingenuous. The sole document cited in support of
that statement makes it clear thal on the first day of the meeting held on 28-29 July
2014 the Kenyan delegation requested and was granted time to respond to Somalia's
presentation the following day. 32
18. Kenya's statement that the negotiations were "a confidence-building process
to persuade Somalia to withdraw its objection to Kenya's CLCS submission'' 33 is
equally unsupported. This claim was not made in Kenya's written Preliminary
Objections, and was raised for the very first time during Kenya's oral submissions. 34
There is no hint of this objective in any ofthe contemporaneous evidence. Indeed, the
contemporaneous documentation is to the contrary. 1tdemonstrates that the Parties'
objective in carrying out these high-level, substantive and detailed negotiations
29
See ibid.
10M. AI-ShamumiIIIIdM. Omar, Representativesof the Ministryof ForeignAffnirsof the Federal
RepublicofSomnlia, Report to the File of the Meeting between the Federal Republic o[Somalia and
the Republic of Kenya On Maritime Boundary Dispute, Nairobi, Kenya, 28-29 July 20[.1 (5 Aug.
2014), p. 1.WSS,Vol. Il,Annex4.
11
LetterfromH.E.Mr GithuMuigai, Agentof the Republieof Kenya.to H.E.MrPhilippeCouvreur,
Registrnr(26Sept.2016),p.4.
12
Memorandum fromS. Mokaya-Orino,Head/Legal & Host CountryAffoirsDirectorate,to Cabinet
Secretary,Ministryof ForeignAffairs & InternationalTrode,Republicof Kenya (8 Aug. 2014), p. 2
(statingthal "fa]fier the presentation by the Delegation of Somalia, the Delegation from Kenya
requested for lime to respond to Somalia'spresentation. On the aftemoon of the second day, the
Delegationof Kenyamodea presentationrespondingto the issuesraisedby Somalio. The presentation
touched on: Applicable(maritime) laws in Kenya; factors considered in arriving nt the parallel of
latitude;IIIIdn conclusionpresenting the scenario (parallel of latitude)afler applicationof the said
factors.Kenya, too madereference to a numberof case lnw includingBangladeshV. MyanmarIIIId
RomiiiiiaV. Ukraine,nndeitedStatepracticeandbilateralhistoryinsupportofequitableprinciples".).
13LellerfromH.E.Mr GithuMuigni,Agentof the Republicof Kenya,to H.E. Mr PhilippeCouvreur,
Regislrar(26Sept.2016),p.3.
3~See CR 2016112,p.33,para.20(Lowe).
-6- between March and July 2014 was to reach an agreement on the boundary in ali
35
maritime zones. As the Kenyan Ambassador to Somalia put it at the March 2014
meeting, the Parties were to "work hard to find a speedy solution to the current
maritimedisputebetweenthe two countries."36
III. WAIVER
19. As Somalia explained in its response of 27 September to Judge Crawford's
second question, it considers that Kenya's full engagement in these high-level,
substantiveand detailed negotiations, for the purposeof reachingan agreementon the
entirecourseof the maritimeboundary,constitutesa waiver,either by agreementwith
Somalia or unilaterally, of any "rights" it might have had under the MOU to a prior
recommendationby the CLCS. Kenya'sstrained effort to downplay the negotiations,
both in oral argument and its 26 September letter, reflects ils concem that Somalia
may be righton the waiverissue.
20. Kenya thus begins its answer to Judge Crawford's second question by
asserting that "it cannot besaid that Somalianegotiated in good faith ... or that there
were 'meaningfulnegotiations' on delimitation of the maritime boundary consistent
with the jurisprudence of the Court." 37 As shawn above, these assertions are
contradicted bythecontemporaneousdocumentaryevidence.
lSSee. eg., Leuer from H.E. Dr. AbdirahmanBeileh, Ministerof ForeignAffairs and International
Cooperationof the federal Republieof Somaliu,to II.E. Ms. AminaMohwned,Ministerof Foreign
Affairs& InternationalTradeof the Republicof Kenya,No. MOFA/SER/M0//20 14 (13 Mar.2014).
MS, Vol.Ill, Annex43 (indieotingthal the purposcof thencgotiotionsis to "discuss u resolutionto"
the Parties'"existingdisputerclatingto thedelimitationofthe[ir] maritimeboundwy"); Note Verbale
fromtheMinistryof ForeignAffairsondInternationalTrodeof the Republieof Kenyato the Ministry
of Foreign Affnirs & lnvestment Cooperation of the Federal Rcpublie of Somalia, No.
MFAIREUJ3/21A(24July2014).WSS,Vol. Il,Anncx24(statingthottheJuly2014meetingwas"to
discuss the issue on the delimitationof the two countries fsicl overloppingmaritime boundwy".);
Govemmentof Somalia andGovemmentof Kenya,Joint Reporton the Kenya-SomaliaMaritime
BoundaryMeeting,28-29July 2014(July 2014)(indicutingthal the Parties intendedto "bridge the
gaps belweenthe two panies' positions"on "the maritimeboundwy betweenKenyaond Somalia");
MemorandumfromAg. Director,Homof AfricaDirector,to CabinetSecretary,Ministryof Foreign
Affairs& InternationalTrnde,Republicof Kenya(15 Aug.2014)(statingthatthe Panicsintended"to
continueworkingon" "thedelimmitution (sic) the Kenya·Somalinmaritimeboundwy"··witha view
to reachinun amicablesolution".)
ltFedernlRepublicofSomalia, Reporton theMeetingbctweenTheFederalRepublicofSomalia and
71reRepublicof KenyaOn MaritimeBoundaryDispute,Nairobi,Kenya,26-27 March2014 (l Apr.
2014),p. 1.MS,Vol.Ill,Annex24.
37LetterfromH.E. MrGithuMuigni,Agentof theRepublieof Kenya,to H.E.MrPhilippeCouvreur,
Registror(26 SepL2016),p. 6. Kenyacites theNorth Sea casesn.'inominalsupportfor thisn.'isertion.
-7 - 21. Kenya's next argument against waiver is a non sequitur: that "Somalia had
clearly rejected its commitments under the MOU", and that, therefore, the
negotiations "cannot be construed as subsequent conduct or any form ofwaiver". 38
22. Kenya never explains how the second proposition follows from the first. ln
fact, there is no relation between the two points. Somalia is alleged to have failed to
comply with its non-objection obligation under the MOU, which is found in
paragraph 5 and is not even addressed by paragraph 6 (the penultimate paragraph) of
the agreement- the source of Kenya's supposed "rights" to a prior recommendation
by the CLCS. lt is unclear why Kenya believes thal it cannot be held to have engaged
in conduct entirely inconsistent with its "rights" under paragraph 6, and thereby
waived those "rights", on the basis ofSomalia's alleged breach of an obligation found
in a different partf the MOU.
23. Kenya claims, contrary to the evidence, that it was driven to initiale and
engage in the negotiations because of Somalia's violation of its non-objection
obligation. ln fact, Kenya first invited Somalia to commence negotiations to delimit
39
the maritime boundary the year before Somalia committed its alleged violation.
24. By the time negotiations began in March 2014, Somalia's objection to
Kenya's CLCS submission was in place, and Kenya sought to place this issue on the
Agenda for the "Maritime Boundary Meeting". However, at Somalia's insistence,
40
Kenya agreed to remove the matter from the Agenda and it was not discussed.
Ibid., p. 6 n.20.Somalia notes, howcvcr,!hot in thotcase lhc thrce partiesogrccd thotthcrc was no
point in procccdingwith ncgotiationsaftcrjust six monthsof tripartitetalks givcn their innbilityto
agree even on questionsof the applicabledelimitationmethod.North Seo ContinentalShe/f (Federal
Rep11blicofGcrmanylDenmark; FederalRep11blio cfGermanyiNetherlands),J11dgmentI,.C.J. Reports
1969,p.3, para.9.
JRLettcrfromH.E. MrGithu Muigoi,Agentof the Republicof Kenya,lo H.E.Mr PhilippeCouvreur,
Registrnr(26Sept.2016),p.6.
39
SeeJointPressReleasebyKenyanCabinetSecrelaryforForeignAfTairs(Hon.AminoMoharned)
andSomaliDepulyPrimeMinister,Ministerof ForeignAfToirs & lntemationnlCooperution(Hon.
FawziaYusufH.Adam)(31 May2013),p.2.KPO,Vol.JI,Annex31.Seea/soNoteVerbalefromthe
Minislryof ForeignAIairsand InternationalTradeof theRepublicof Kenyato theEmbassyof the
FederalRepublicofSomalia inNairobi,No.MFA.PROf/7/811(7Mar.2014).WSS,Vol.JI,Annex
23.
<ISee Somalinand Kenya,Joint Reporton Maritime BmmdaryMeeting. 26.27 Mar. 20f.l, pp. 1-2.
MS,Vol.Ill, Annex31.
-8- 25. Significantly, Kenya agreed to this removal without reserving any of its rights
under the MOU, and then proceeded to engage in two rounds of substantive
negotiations to reach agreement on the maritime boundary. ln its submission of 26
September, Kenya acknowledges, in particular, "[t]he absence of an express
reservation as to the timeliness in terms of the penultimate paragraph of the
MOU...". 41
26. Kenya cannot have it both ways. lt cannot simultaneously argue, on the one
hand, that the negotiations were specifically intended to give effecl to Kenya 'srights
under the MOU, and, on the other, that the negotiations were not subsequent conduct
in relation to Kenya's rights under the same document.
27. If the negotiations were specifically connected with, and intended to give
practical effect to, the Parties' rights and obligations under the MOU, then Kenya's
conduct in relation to those negotiations-and its failure to expressly reserve any right
it had to a prior recommendation by the CLCS-would clearly give rise to a waiver of
Kenya's rights." ln Somalia's view, for the reasons expressed in its letter of 27
September and above, they did constitute such a waiver.
28. Kenya protests thal the two meetings in 2014 were not held "in order to
43
implement the agreed procedures under the MOU". Somalia does not agree that the
MOU established any "agreed procedures" with respect to delimitation. If it did,
however, then the negotiations that took place would plainly fall within the purview
of those "agreed procedures". The Court has previously held that negotiations may
fall within the scope of a particular instrument even though no express reference is
4
made to the instrument during the negotiations. "
41LellerfromH.E.MrGithu Muigai,Agentof the Republicof Kenya,to H.E.Mr PhilippeCouvreur,
Registrar(26Sept.2016),p.3.
42Kenyaassertsthat it "consistentlyheldthe view"thal "rtlhe MOUrequiresa negotiatedagreement,
to be linalizedfier CLCS recommendations". Ibid.pp. 6-7. None of the documentsKenyacites at
footnotes22-25ofitsresponsesprovideanysupportforthiscontention.
43
Ibid.,p.3.
44
Application of the lntemationa/ Convention on the Elimination of Al/ Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, JudgmentI.C.J. Reports
2011,p. 85, para 30 (stnting:"While il is not necessnrythal nStatemust expresslyrefer toa specifie
treatyin its exchangeswiththeotherStale toenubleil Interto invokethal instrumentbeforetheCourt
(MilitnryandPanunilitnryActivitiesinand againstNicaragua(Nicaragua v. UniledStates of America),
Jurisdiction andAdmis.fibility.JudgmentI.C.J. Reports 1984,pp. 428-429,para. lB), theexchanges
-9- 29. Accordingly, if the MOU created "agreed procedures" for the negotiated
delimitation of the common maritime boundary, then negotiations regarding
delimitation of that boundary are self-evidently within the ambit of those procedures.
As such, conduct by Kenya during those negotiations would give rise to a unilateral
45
waiver of itsrights under the MOU.
30. As a fallback position, Kenya argues that "irrespective of any purported
waiver" of the temporal requirement, there was "no waiver of a right to a negotiated
46
agreement as the method of settlement". Somalia reiterates that its primary case is
that theMOU did not establish an obligation to seek to reach a negotiated agreement.
Even if it did, however, for the reasons explained above and in Somalia's written and
oral pleadings, through its participation in high-level, detailed, intensive and
substantive negotiations in2014 Somalia amply fulfilled that obligation.
31. Somalia considers it telling thal, in contrast to ils own answers to Judge
Crawford's questions, which extensively cited to the case law on the issue of waiver,
Kenya's answers cite none. That failure constitutes a tacit admission thal the relevant
case law is unhelpful to Kenya's case.
IV. THE IMPORTANCE OF A TIMELV RESOLUTION OF THE MARITIME
BOUNDARV DISPUTE
32. Finally, Somalia must respond to Kenya's assertion that there is "no pressing
need to seUle the entire boundary immediately". 47 Kenya's argument is again
contradicted by contemporaneous evidence and Kenya's own submissions.
33. By way of example, in a Note Verbale to the United Nations dated 24 October
2014, Kenya referred to "bilateral diplomatie negotiations, at the highest levels
must referto the subject-mntterof the trentywithsufficientclllrittheStateagainstwhicha
clnimismadeto identifythalthereis,ormaybe,a disputewithregardto thatsubject-mntter".).
4~Conversely, ifKenyais righithatthe2014delimitationnegotiations did nolconstitutean
implementationofthe"ngreedprocedure"containedintheMOU, thenitmustlogicallyfollowthatthe
MOUdidnotestablishanexclusivemeansofsettling themaritimedispute. IfthePartieswereablelo
conductdelimitationnegotiationsoutsidetheframeworkof theMOU- as Kenya's orgument
necessorilyimplies-then thiswoulddemonstratethatthe MOUdid notcreatea single,compulsory
method forresolvingthemaritimedispute.
46
LellerfromH.E. MrGithuMuigoi, Agentof the Republicof Kenya,to H.E.Mr PhilippeCouvreur,
Registrar(26ept.2016),p.7(emphn om iies).
47
Ibid.p.S.
- 10 - possible"whichwereaimedat "resolving this matter expeditiously ... witha view to
continuingpeacefulcooperation,securityandstabilityintheregion". 48
34. ln addition, a newspaper article from June 2013 annexed to Kenya's
PreliminaryObjectionsreportsthatas longago as 2010 a teamof maritimeboundary
specialistsfrom the CommonwealthSecretariatconducteda training workshopfor
Kenyan govemment officiais on the basis that, "establishing clear maritime
boundarieswill have important implications for security, shipping, environmental
protection, fishingandoffshoreresourceexplorationin theregion". 49
35. Kenya'ssuggestionthat there is no urgencyis difficultto reconcilewith its
expressacknowledgmentthat "Somalia is stiJlin the midstof a fragile post-conflict
transition",5°havingjust emerged from"a long periodof instabilitycaused by civil
war, humanitariandisaster and widespreadterrorism"st; that "border security is a
52
fundamentalthreat to Kenya" ; and that maritime security in the disputed area
"continues to pose an existential threat to Kenya and other countries within the
region".53 Ali of these factors make an early resolutionof the maritime boundary
disputea matterofnecessity.
41
Note Verbalefromthe PennonentMissionof the Republicof Kenyato the UnitedNationsto H.E.
Bon Ki-Moon,Secretury·Genernlof the UnitedNations, No. 586/14(24 Oct. 2014). MS, Vol. Ill,
Annex 50(emphusisuddcd).
9
~ ArticlefromHiiraan,"SomuliuCabinetrejectsuppeulfortalks on borderdisputewith Kenya" (10
June2013).KPO,Vol. liAnnex32.
50CR2016/10, p.23,piii'.B25 (Akhavun).
51CR2016112,p.38,purn.3 (Muigai).
2
' CR2016/12,p. 14,paru.10(Akhuvan)
51
CR2016/10, p.23, paru.25(Akhuvun.)
- Il-
Comments in writing of Somalia on the written reply of the Kenyan Government to the questions put by Judge Crawford at the public sitting held on the morning of 23 September 2016