Comments in writing of Kenya on the written reply of the Somali Government to the questions put by Judge Crawford at the public sitting held on the morning of 23 September 2016

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KEH/LEG/5A/VOL.II (81)

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 transmit herewith a copy of letter Ref
AG/CONF/19/153/2 VOL IV dated 29 1h September , 2016 by the Agent of

the Republic of Kenya on comments to the written statement of the

Federal Republic of Somalia dated 27 September 2016.

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

The Hague, 30 September 2016

The Registrar of the International Court of Justice

Peace Palace,
Carnegieplein 2, 2517 KJ

The Hague

Encl. OF!·IG-. \lil'I~.\Tl'C!~E\'-t:ENE!Ul
&
DFI'AIH MENT OF r!ISTI('F

--------------------------

AG/CONF/19/153/2 VOLIV 29 Septembet·, 2016

H.E. JvtrPhilippe Couvreur

Registrar
International Court of Justice

Dear Registrar,

ln regard to the case concerning Maritime Df::limitation in the lndian Ocean

(Somalia v Kenya). the Republic of l<.enya has the honour herewith to submit

its comments to the written statement of the Federal Republic of Somalia

dated 27 September 2016 responding to the two questions posed by Judge
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.

ln response to Judge Crawford's first question, the Parties are in agreement

that the two 2014 technical leve/ meetings covered ali maritime areas in

dispute and that there would ultimately be a single agreed maritime boundary

covering the territorial sea, the EEZ, and the continental shelf within and
beyond 200 nautical miles. This confirms the Parties' understanding in the

penultimate paragraph of the MOU that they "shall agree" on a final

delimitation after CLCS recommendations in regard to ali the "maritime

boundaries in the areas in dispute" and not just the continental shelf beyond

200 naulical miles as asserted by 5omalia. 2 Thus. the MOU agreement to

negotiate covers a single maritime boundary in ali areas in dispute, such that

Kenya's reservation istriggered in respect of UNCLOSArticles 15. 74, and 83.

notwithstanding that the Part XV pro cedures also apply to those same
provisions .

The Parties are not agreed on the respons e to Judge Crawford's second

question. By way of mmmary. Kenya's basic position is that the MOU: (a)

' Somalia'sResponse to thequestionsposedl>yJudgcCrawford, 27Scpteml>er2016, para.3.
2See, cg, POK, pnr53;CR 2016/10(Akhavun, pp. 19-20, paras 15-16; Fortcau,p. 33,para.3, p.39, para. 18;
l.myc p 63 paw lfo)
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ISO 900/ :JOOICt.tlijittl requires delimitation by negotiated agreement; (b) requires finalization of the
agreed maritime boundary after CLCSrecommendations; (c) does not exclude

interim agreements or "provisional arrangements of a practical nature" in
accordance with UNCLOS Articles 74(3) and 83(3); and (d) if a Party

express/ywaives its rights under the MOU, or if the Parties express/yagree
upon a different procedure for settlement of the dispute. that would have

had the effect of amending any inconsistent provision of the MOU. Nothing
in the circumstances of the two meetings in 2014 is inconsistent with the

MOU, and there was nothing in them that called for a waiver or variation of
the terms of the MOU.

Somalia' s written statement fails properly to respond either to Judge

Crawford's question orto Kenya's basic position.

First, Kenya observes that Somalia has repeatAd sorne of its earlier arguments
that are wholly irrelevant bath to Judge Crawford's questions and to Kenya's

Preliminary Objections. ln particular, Somalia emphasizes once again that
even if "the text of the MOU did establish an obligation to negotiate an

agreed settlement only after the CLCShad made its final recommendations",
the two technic:allevel meetings in 2014 "met any standard to negotiate that

might have been imposed. Accordingly, following those negotiations the
MOU could no longer serve as a bar to other means of settlement of the

boundary dispute, induding recourse to the Court. " This assertion iswholly
irrelevant because: (a) Judge Crawford's second question only concerns the

requirement of prier CLC5recommendations and not the separate obligation
to negotiate; and (b) Somalia continues to ignore the fact that the agreement

to negotiate under the MOU, even without an additional requirement of
CLCSreview, would stiJl fall squarely within Kenya's reservation on other

methods of settlement and thus exclude the Court's jurisdiction. 4

Second, Somalia's assertion that Kenya has "shifted"S its position on the

obligation to negotiate under the MOU has no merit whatsoever. ln both its
written and oral pleadings, and in its response to Judge Crawford·s second

question, Kenya has clearly and consistently maintained that: (a) the MOU
requires fina/ization of an agreement only after CLCSrecommendations; 6(b)

that consistent with the MOU's agreed procedure. the Parties may obviously
negotiate prier to CLCS recommendations and even conclude interim

agreements over ali or part of the maritime areas in dispute that are
subsequently finalized after CLCSrecommendations: 7 and (c) that the Parties

3Somuliu'Rcsponscpuru.7.
4Sec, cg, CR 2016(Akhavanpp. 20·21. pamand22)undCR 2016/12(Akhavunpp. Ill-Il, para. 4).

6Somalia's Rcsponsc. para.6.
POK. parus31. .16. 69. 73. 1146;CR 2016/10 (Agent, ppara10; Akha\un, pp. 20p:.,1r;a
Lowe,p. 64, puJ7): POKAnne...Memorandumof Umlcrst:mdiKcn -Saom; 599 UYJSa.5 (2009),
p.38. - . .
1The l'artics, f(Jrcxarnph:. agrccd on the limaritime delimitation nt the llrst tcchmcal mcctmg
in201•1;MS. para. 3.5Anncx31, pp. 3-4. are obviously free to agree on a different procedure by mutual consent, but

that without such a subsequent agreement. the Parties continue to have

obligations to respect the agreed procedure under the MOU.B

Third, Somalia's continued assertion that alleged "lengthy and detailed"
negotiations were exhausted after two technical levet meetings 9 at which

preliminary views were exchanged is both irrelevant to Judge Crawford's
10
questions and wholly inconsistent with the evidence before the Court. ln
fact, Somalia's assertion that the second technical level meeting consisted of

"heated discussions without any possible solution" and that the Kenya
Foreign Minister allegedly agreed that the Parties were so "far aparf' that

there would only be one "final" attempt at an amicable resolution, 11is based
solely on its internai "Report to the File", prepared in English (and therefore

for English speakers) rather than Somali, just a few days prier to the filing of
1
Somalia's Application. 2 Kenya has challengerl the accuracy and credibility of
this document. 13which is in direct contradiction with the Joint Report of the

second technical meeting of 28-29 July 2014- that the Parties agreed was an
"accu rate reflection" of the discussion - and which states that "both sides

agreed to adjourn and to reconvene on 25th - 26th August 2014 in

Mogadishu, Somalia to continue working on these issues in an attempt to
bridge the gaps between the two parties' positions ... The formula "to bridge

the gaps between the two parties" was in fact inserted in the Joint Report
upon the proposai of 5omalia.' Furthermore, even if Somalia's implausible

assertion that the Kenyan delegation's inability to visit Mogadishu in view of

security concerns somehow immediately exhausted negotiations is accepted,
it would still have no bearing whatsoever on the fact that the MOU's agreed

procedure falls squarely within Kenya's reservation and thus excludes the
Court's jurisdiction.

16
Fourth, Somalia sets out what it considers to be the applicable law on
amendment of treaties and waiver of rights but fails both to mention that

according to the jurisprudence of the Court, any waiver of rights must be
express,17and to establish that the doctrine of waiver can be applied to the

aCR:!016/12{Akhavanp.13.para. 7).
9Somalia's Reip!mse,par..1.s2. 4 and 6.
1POK. para98·102 and 109;CR lil(Muchiripp46-9paras4·11).
11
Somalia'sRcspoosc,paru.4.
I13SS.Anne.'<4.
CR 2016/10 (Muchp.50, para. 17).
14MS, Anne 3.
•InternaiMemorandfwm AG Director.Hornof AfricaDircctoralclo the Cubim:tSecretary, dated 15August
20H (providedto the Courton 14June2016).
'"Sumulia's Rcsponse.paras. 9-10. _
17Case of ('~rNonrlginn/.nans (Frai/Cl!,. NarwayJ (l'rdimimuyC..lReports 19J7, ~6·

('[a]bandunmenl cannOlbe prcsumcd or infcrrcd; il mus~prc.dccMsitay andP~nrmmlitwy
.·lt·rivimu/ againsNicaragu(Nin u·aguav United Stmes of lMcnf ,Jd.melll, /.( J. Reports
/986 p.14,33, pa45('[ulnlessuncquiv1ytie~dte rcscrvJtioncnnstitutcsa lnnt~citntof
the jurisdiction voluntarily occcplcd by Jhe UCertain PhosphaLan ~~ ~uu Nauru '
Austra!iPrclimiuary Objc~ .mgmirt,1f,,Reports /9p. 240. ::!47,parl•\\Ill sufltcc to note
thal in fact uthnritic.sdid nol at any limct:Oècta clcar und uncAm1cd .·ktil•itit!son 1he•

facts of the present case. 18 ln particular. Somalia completely ignores the

undisputed fact that: (a) Somalia unilaterally rejected the MOU and declared
it "null and void "'- that is. non-existenl as a treaty- thus leaving in Somalia's

view no treaty that could be amended by waiver;' 9 (b) it subsequently

objected to l<.enya'sCLCSsubmission in breach of the MOU;2° and (c) that il"
categorically refused to even discuss the MOU at the first technical level

meeting convened at the initiative of Kenya. 21Under such circumstances. it is
difficult to understand how Kenya's conduct in calling for negotiations can

credibly be said to have been regarded by Somalia as having constituted an
2
express waiver of Kenya's rights to prier CLCS recommendations 2 (or an
implicit waiver for that matter). let alone its right to a negotiated settlement

rather than recourse to judicial settlement. 23 lt is also difficult to understand

how Somalia can possibly suggest that Kenya should have explicitly
"reserved" its rights under the MOU, 24 particularly at that initial stage in

negotiations before any agreement that might have affected the maritime
delimitation was in sight. and indeed when Somalia categorically refused even

to discuss its rejection and breach of the MOU at the 2014 technical leve!

meetings. Somalia cannot now benefit from its own unlawful conduct (ex
turpi causanon orituractio).2S

Furthermore. the evidence before the Court clearly demonstrates that Kenya

did not ever suggest. whether expressly or implicitly. that the agreed

procedures under the MOU were no longer valid or no longer applicable or
otherwise amended. Kenya was engaged in good faith confidence-building

measures to persuade Somalia to withdraw its objection to Kenya's CLCS
submission consistent with the MOU and to change Somalia's earlier position

from June 2013 when it refused to negotiate on maritime boundary
6
delimitation with Kenya.2 To the contrary, Kenya clearly and consistently
insisted on 5omalia's compliance with the MOU. including its obligation of

TI!ITitnofthfCongo (DemocratieRep11li1~t(eCcmgu l' UgandaJ11dgmen,1CJ Reporl2005, p.161!.
266,pBra.293 ('wni.,.ersor renonciationsofclnims or rightsmusteithcr beexpress or unequivocally implicdfrom
the conductof the Stutcallch:~tuwavcdor n:nounccd ils right',citing ILC report,une. A/56/10, 2001, P
308: 'lu]lthoughitmbepossibleto infcrn wail'crfromtheconclue!of the Stules concernedor fromnunilateral
statcmcnt, the conduct or stntcment must be unequivocal'). Arbitral authoriefect: Campbell
(United Kingdom ,. Portugal) (IIJ31)2 RIAA 1145, 1156('il t:stdt:principe,admis par le droit de tous les pays,

que les renonciations nesc présumentjamais ct que, constituentdes Jbandons d'undroit, d'une facultéou même
d"unc cspéwnce, sont toujoursde sirietc interpretAtion'·)The ï\ronprins Gustaf Adolf' (Sweden, USA) (1932! 2
RJAA 1239, 1299{'A renunciationto nrighiori~mrsm>tto be prcsumcd. lt must be shown by conclusJ\'e
evidence').
u l'OK,paras72, 99-100, 104and Annex37, pnra 109, para 116and Anne'<13, paras. 119-22 and MS Annex
50,para124-5and Anncx 44.
19
MS, Annexes 24und41.
zoMSAnnexes 41 and 42.
2l'OK,para. lOOamiMS, Annex24.
2Sumulin's Responsc, par1.1 .
2Jfor the sorne rcason, Somalia's argument thal the MOU was somelum ..amcndcd'' hy mutual agreement IS
bascless (para. Il). Such nnnmendmcnt- likca wnivcr- must beexpress.
J"--~•:.•rr>o:n~nnnnru.12
: .•'--~""""fNirorPlfiJ lj(j).•

"no objection .., and made express reference on multiple occasions, including
in its communications with the CLCS. 27 and in the 31 May 2013 Joint
Declaration of the Foreign Ministers of Kenya and 5omalia,2° to the
establishment of a mechanism for a negotiated settlement of the maritime

boundary dispute in accordance with the penultimate paragraph of the
MOU. 29

Fifth, and most importantly, there is no reason why Kenya would have had

to "reserve'' its position in relation to the MOU. That position is that the
MOU is an agreement to settle the maritime boundary, not by litigation but
by negotiation and agreement. The 2014 meetings were negotiations . The
MOU stated that "the delimitation of maritime boundaries in the areas under

dispute, including the delimitation of the continental shelf beyond 200
nautical miles, shall be agreed by the two coastal States on the basis of
international law after the Commission has concluded the examination of the

separate submissions made by each of the two coastal States and made its
recommendations to two coastal States... Nothing precludes the making of
particular arrangements and agreements prior to that stage. Those
negotiations were consistent with delimitation of the areas in dispute by

agreement: litigation is not.

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

YÇ>urssincerely, 1

1 1 L
-- 1 , ---
•/" .(
Githu Muigai, EGH, sc /
Attorney-General and thë 'Agêntof the Republic of Kenya

2Sec, cg, POK. paoaand 1\nm:x43.
:s POK. para. RHund Annexe32.1 and
:CR 2016/12 (Akhavan. p. 13, para. K.citing MS. Anncx 61).