Reply of Somalia

INTERNATIONAL COURT OF JUSTICE
18 JUNE 2018
CASE CONCERNING
MARITIME DELIMITATION IN THE INDIAN OCEAN
SOMALIA
v.
KENYA
REPLY OF SOMALIA
VOLUME I

i
Table of Contents
Chapter 1 Introduction .................................................................................... 1
Section I. Procedural History ............................................................. 1
Section II. Issues in Dispute and Summary of Somalia’s
Argument ........................................................................... 2
Section III. Structure of the Reply ........................................................ 6
Chapter 2 Somalia Has Not Acquiesced in a Maritime Boundary with
Kenya ............................................................................................. 7
Section I. Kenya’s Legal Aporias ...................................................... 7
Section II. Kenya’s Inconsistent Position .......................................... 13
A. Kenya’s Statements to the Court...................................... 14
B. The 2009 Memorandum of Understanding ...................... 17
C. Kenya’s Submissions to the CLCS and
Statements to the United Nations .................................... 19
D. Negotiations on the Boundary ......................................... 21
E. Kenya’s Legislation and Statements by Kenyan
Officials............................................................................ 23
Section III. The Absence of an Agreed Boundary Was Widely
Recognized ....................................................................... 28
Section IV. Kenya’s Alleged Activities in the Disputed Area ............ 30
A. Alleged Effectivités: Naval Patrols .................................. 33
B. Alleged Effectivités: Fisheries Jurisdiction and
Marine Scientific Research .............................................. 37
C. Alleged Effectivités: Oil Concession Practice .................. 41
D. Official Kenyan Maps Showing an Equidistant Maritime
Boundary in the Territorial Sea........................................ 45
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Section V. Somalia’s Conduct Does Not Amount to
Acquiescence in Kenya’s Claim ...................................... 46
A. Kenya’s Erroneous Claim that Somalia
Made No Protest until 2014 ............................................. 47
B. Somalia’s Longstanding Position that the Parties’
Maritime Boundary Should Follow an Equidistance
Line .................................................................................. 51
C. Somalia’s Practical Inability to Regulate
Its Maritime Space During the Long Civil War ............... 54
Chapter 3 Delimitation of the Maritime Boundary .............................................. 59
Section I. Kenya Has Provided No Good Reason to
Ignore the Court’s Standard Method................................ 59
The Equidistance/Relevant Circumstances Method
Is the Standard Method Applicable Before the Court ...... 60
B. The Reasons Kenya Gives for Ignoring the
Three-Step Method Are Unpersuasive ............................. 64
Section II. The Three-Step Method Shows the Equidistance
Line to Be an Equitable Solution ..................................... 72
The Construction of the Provisional
Equidistance Line............................................................. 73
B. The Absence of Special or Relevant
Circumstances .................................................................. 78
C. The Non-Disproportionality Test ..................................... 87
Chapter 4 Kenya’s Responsibility For Its Unlawful Acts in the Disputed
Maritime Area .............................................................................. 89
Section I. The Factual Record .......................................................... 89
Section II. Responses to Kenya’s Defence ........................................ 94
Submissions .............................................................................................. 103
1
CHAPTER 1
INTRODUCTION
1.1. This Reply supplements the arguments of law and fact presented in
Somalia’s Memorial, and responds to the arguments set forth in Kenya’s Counter-
Memorial. Somalia maintains its previous position in full. None of the contentions
Kenya advances have caused Somalia to change its approach to this case in any
respect.
Section I. Procedural History
1.2. Somalia instituted these proceedings by means of an Application dated 28
August 2014. In accordance with the Court’s Order of 16 October 2014, Somalia
filed its Memorial on 13 July 2015.
1.3. Kenya submitted its Preliminary Objections to the Court’s jurisdiction on 7
October 2015. Somalia submitted its Written Observations on Kenya’s Preliminary
Objections on 5 February 2016, and the Court held oral hearings from 19
September to 23 September 2016. By Judgment dated 2 February 2017, the Court
rejected Kenya’s Preliminary Objections in their entirety.1
1.4. Pursuant to the 2 February 2017 Order of the Court, Kenya submitted its
Counter-Memorial on 18 December 2017. On 2 February 2018, the Court
authorised a second round of written pleadings. Somalia submits this Reply in
accordance with that Order.
1Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment,
I.C.J. Reports 2017 (hereinafter “Somalia v. Kenya, Preliminary Objections, Judgment”), para. 145.
2
Section II. Issues in Dispute and Summary of Somalia’s Argument
1.5. Consistent with Article 49(3) of the Rules of Court, Somalia will not repeat
the arguments it made in its Memorial, but rather will focus this Reply on “the
issues that still divide” the Parties.
1.6. Somalia observes at the outset that the arguments Kenya offers in the
Counter-Memorial are not only contradictory but fatal to one another. In the second
paragraph of its Introduction, for example, the Counter-Memorial asserts that the
dispute between the Parties has already been settled because “Somalia has
acquiesced in a maritime boundary”.2 In the very next paragraph, however, Kenya
suggests that the boundary remains to be delimited, and is “best resolved by a
negotiated solution”.3
1.7. The latter position, although inconsistent with the former, is similar to the
argument Kenya made in its Preliminary Objections; that is, that there was no
existing boundary, that the location of the boundary was in dispute and that the
Parties had committed to settle the issue exclusively by negotiations. Remarkably,
in the Counter-Memorial Kenya seems to have jettisoned, or at least forgotten, what
it argued during the Preliminary Objections phase. Contradicting what it argued
previously, Kenya’s lead argument in the Counter-Memorial is that there is already
a legally binding maritime boundary, and that it was established by Kenya’s
unilateral claim to a parallel of latitude and Somalia’s alleged “acquiescence” in
that claim. Kenya makes no effort to explain its reversal of position.
2 Counter-Memorial of the Republic of Kenya (hereinafter “KCM”), para. 2.
3 KCM, para. 3.
3
1.8. Other elements of the Counter-Memorial are equally contradictory. Kenya
recognises, for instance, that the equidistance/relevant circumstances method is
“commonly applied” in adjudicated maritime delimitations “in order to achieve an
equitable result”.4 But then it declines to engage with that method on the pretext
that it is inconsistent with the relevant provisions of the U.N. Convention on the
Law of the Sea (“UNCLOS or the “Convention”), its negotiation history and State
practice. In other words, Kenya argues that by “commonly” applying the three-step
method, the Court has gotten the law wrong. Somalia does not share that view. To
the contrary, it is Somalia’s view that, consistent with the Court’s well-established
jurisprudence, the boundary in this case should be delimited by the three-step
equidistance/relevant circumstances method.
1.9. Setting Kenya’s evident difficulties aside, the Counter-Memorial exposes
the three principal areas of dispute between the Parties:
• First, whether it is legally possible to establish a maritime boundary
through acquiescence and whether Somalia did in fact acquiesce in
Kenya’s unilateral parallel boundary claim;
• Second, whether there is any reason to depart from the standard
three-step delimitation method to determine the Parties’ maritime
boundary and, assuming not, what is the equitable solution it
produces; and
4 KCM, para. 276.
4
• Third, whether Kenya violated Somalia’s sovereign rights and
jurisdiction by engaging in seismic and drilling activities in the
disputed area.
1.10. This Reply will demonstrate that Kenya’s assertion that the Parties’
maritime boundary was established by virtue of Somalia’s alleged acquiescence in
Kenya’s unilateral claim is unsustainable in both law and fact.
1.11. As a matter of law, maritime boundaries cannot be established by a
unilateral act. Kenya notably cites no law to support its argument, because there is
none. Under UNCLOS, delimitations can either be effected by agreement or by
adjudication. Acquiescence is neither.
1.12. On the facts, Kenya’s argument is untenable in light of its previous position
that there was never an agreed or settled maritime boundary, and that the Parties’
dispute remained to be resolved by negotiation. Moreover, the evidence shows that
(a) Kenya itself did not consistently treat the parallel of latitude as the Parties’
maritime boundary; (b) the existence of the dispute, including Somalia’s claim to
a boundary based on equidistance, was widely recognised; and (c) Somalia never
accepted Kenya’s claim, whether explicitly or implicitly.
1.13. As a fall-back to its acquiescence argument, Kenya contends that the
“application of the principle of equitable delimitation”5 also leads to the parallel
boundary it claims. Yet because Kenya cannot justify its claim under the standard
three-step method, it chooses to eschew that method altogether. Instead, it simply
re-purposes its acquiescence argument to suggest that the Court should dispense
with the three-step method because the Parties have already indicated that they
5 KCM, para. 275.
5
consider the parallel to be equitable. This fall-back argument fails for all the same
reasons as Kenya’s acquiescence claim. In particular, there are no grounds for
dispensing with the three-step method, and there is no evidence that Somalia ever
considered the parallel to be equitable.
1.14. The Court has made clear that the three-step method must be applied unless
the construction of a provisional equidistance line is not feasible, which is not the
case here. Kenya does not dispute that an equidistance line can be drawn. Somalia
demonstrated in the Memorial that application of the standard method leads to the
conclusion that the equidistance line is an equitable solution. There are no relevant
circumstances that warrant an adjustment to the provisional equidistance line and
it does not result in any disproportionality between the Parties’ relevant coastal
lengths and the maritime spaces appertaining to them. Therefore, Somalia
maintains its submission that the Court should delimit the maritime boundary
between the Parties by means of an equidistance line.
1.15. This Reply also responds to Kenya’s attempts to argue that it did not violate
Somalia’s sovereign rights by authorising and engaging in seismic and drilling
activities in the disputed area between the equidistance line and the parallel. Again,
Somalia has the law and the facts on its side. As Somalia will show, even transient
activities can violate Article 83 of the Convention when, as here, they jeopardise
or hamper the reaching of a final agreement. And the evidence shows that Kenya
and its contractors were well-aware of the existence of a dispute when it authorised
the exploration activities on Somalia’s side of the equidistance line, and sought to
take advantage of Somalia’s weakened position during years of civil strife.
1.16. For these reasons, as more fully detailed below, Somalia respectfully
submits that all of Kenya’s arguments should be rejected and the Court should
establish the Parties’ maritime boundary along an unadjusted equidistance line. It
6
should also find that Kenya violated Somalia’s sovereignty and sovereign rights,
and make full reparation, including compensation, to Somalia for those violations.
Section III. Structure of the Reply
1.17. This Reply consists of two volumes. Volume I comprises the main text of
the Reply and selected figures. Volume II contains a full set of figures, organised
in the order they are referenced in the main text. It also contains 46 documentary
annexes supporting the Reply.
1.18. This Volume consists of four chapters, followed by Somalia’s Submissions.
Following this Introduction, Chapter 2 responds to Kenya’s arguments that
Somalia has acquiesced in Kenya’s claimed parallel of latitude and demonstrates
that Kenya’s argument is not only unfounded in law, but also unsustainable on the
facts. Next, Chapter 3 explains why the Court’s standard delimitation method
must be applied and how its application leads to an unadjusted equidistance line.
Chapter 4 shows that Kenya has violated Somalia’s sovereignty and sovereign
rights by engaging in activities in the disputed area that hampered the reaching of
a boundary agreement.
1.19. Volume I concludes by setting out Somalia’s Submissions.
7
CHAPTER 2
SOMALIA HAS NOT ACQUIESCED IN A MARITIME BOUNDARY
WITH KENYA
2.1. Somalia and Kenya are both Parties to UNCLOS. Articles 15, 74 and 83
provide the law applicable to the delimitation of the territorial sea, the exclusive
economic zone (“EEZ”) and the continental shelf, respectively. All three provisions
make clear that delimitation is to be effected by agreement. Yet Kenya’s main
argument in the present proceedings is that its maritime boundary with Somalia
was somehow effected without agreement, but rather by a unilateral act of Kenya—
a Presidential Proclamation—to which Somalia’s alleged failure to protest
constituted acquiescence.
2.2. Kenya’s submission fails on many grounds, as this Chapter shows. It is
manifestly wrong in law (Section I). It is unsupported by the evidence before the
Court: Kenya’s own legal positions, as repeatedly set out in many international and
domestic fora, directly contradict its claim that the boundary was established
(Section II). Kenya’s claim is also contradicted by other independent sources,
including the United Nations Security Council and the African Union Mission to
Somalia (Section III). Despite Kenya’s assertions to the contrary, Kenya has not
exercised authority over the disputed maritime area north of the equidistance line
since 1979 (Section IV). Finally, and, in any event, Somalia has consistently and
emphatically asserted that the maritime boundary should follow an equidistance
line. It has objected to any claims by Kenya that the boundary follows a parallel
line, as long as it has been able to do so (Section V).
Section I. Kenya’s Legal Aporias
2.3. Kenya’s central argument is that its maritime boundary with Somalia, from
the coast to the outer limit of the continental shelf, was established by virtue of
8
Kenya’s Presidential Proclamations of 1979 and 2005.6 According to Kenya, this
unilateral claim was perfected in law by reason of Somalia’s failure to protest.7
This, according to Kenya, is delimitation by acquiescence.8 But Kenya’s assertion
is unsupported by law or international practice, and is contradicted by the facts.
2.4. Somalia notes at the outset that Kenya does not argue that there is a tacit
agreement between the Parties. It is aware that “[t]he establishment of a permanent
maritime boundary is a matter of grave importance and agreement is not easily to
be presumed”.9 It also knows that “[e]vidence of a tacit legal agreement must be
compelling”,10 a threshold it cannot meet. Aware that it cannot satisfy the
conditions imposed by the applicable law, Kenya chooses to ignore it and invent
an entirely novel approach: delimitation by acquiescence in a unilateral claim.
2.5. Although it invokes acquiescence as an autonomous ground, Kenya does
not explain how this differs from a tacit agreement or from estoppel. Yet it
frequently refers to case-law on tacit agreement, apparently believing it to be
relevant to its novel argument.11
6 KCM, para. 23.
7 Ibid., para. 21.
8 Ibid., para. 237.
9 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659 (hereinafter “Nicaragua v.
Honduras”), para. 253. See also Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment, I.C.J. Reports 2009, p. 61 (hereinafter “Romania v. Ukraine”), para. 68; Dispute
Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay
of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012 (hereinafter
“Bangladesh/Myanmar”), para. 95; 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/Côte d’Ivoire”), para. 212.
10 Nicaragua v. Honduras, para. 253. See also Ghana/Côte d’Ivoire, para. 212.
11 See, e.g., KCM, paras. 210, 263, 312, 316-317.
9
2.6. Even assuming that acquiescence could ever be invoked as a principle of
delimitation under UNCLOS—and it cannot—stringent requirements would have
to be met. There is no reason the threshold would be different from, or lower than,
the high burden needed to establish the existence of a tacit agreement. In the Gulf
of Maine case, the Chamber of the Court considered these concepts to be “different
aspects of one and the same institution”.12 The Eritrea/Ethiopia Boundary
Commission identified at least three requirements, common to tacit agreement,
preclusion, estoppel and acquiescence:
“(1) an act, course of conduct or omission by or
under the authority of one party indicative of its view
of the content of the applicable legal rule … ;
(2) the knowledge (actual or reasonably to be
inferred) of the other party of such conduct or
omission … ; and
(3) a failure by the latter party within a reasonable
time to reject, or dissociate itself from, the position
taken by the first …”.13
2.7. It should be emphasised that there can be no presumption that a unilateral
act of a State can ever create a boundary under international law. Such an approach
would run directly contrary to the fundamental rule that delimitation is established
by agreement. Moreover, it would contradict the elementary principle according to
which “[n]o obligation may result for other States from the unilateral declaration
12 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America), Judgment, I.C.J. Reports 1984, p. 246 (hereinafter “Gulf of Maine”), para. 130. See also
Delimitation of the Border between Eritrea and Ethiopia (Eritrea/Ethiopia), Decision of 13 April
2002, UNRIAA, Vol. XXV, p. 83 (hereinafter “Eritrea/Ethiopia”), para. 3.9.
13 Ibid., p. 85.
10
of a State”.14 As the ICJ held in the Gulf of Maine case, the principle according to
which the boundary shall be determined by agreement
“is simple, yet its importance must not be
underestimated. It must not be seen as a mere ‘selfevident
truth’. The thrust of this principle is to
establish by implication that any delimitation of the
continental shelf effected unilaterally by one State
regardless of the views of the other State or States
concerned is in international law not opposable to
those States”.15
2.8. Yet Kenya considers that its common maritime border with Somalia was
somehow established simply by virtue of a unilateral act, in the form of two
Presidential Proclamations made in 1979 and 2005. This amounts to a clear
rejection of the law of maritime delimitation, and the law on unilateral acts of
States. Kenya’s Presidential Proclamations are mere claims. They cannot entail
“rights and obligations for other States”,16 as Kenya would have them do. As
Charles de Visscher (from whom Kenya quotes rather selectively17) aptly
14 International Law Commission, Guiding Principles applicable to unilateral declarations of States
capable of creating legal obligations, with commentaries thereto in Report of the International Law
Commission on the work of its fifty-eighth session (1 May-9 June and 3 July-11 August 2006), U.N.
Doc. A/61/10 (2006), p. 379. Reply of Somalia (hereinafter “RS”), Vol. II, Annex 33.
15 Gulf of Maine, para. 87. In the same vein: “[L]e Tribunal ne saurait prendre en considération
une délimitation qui ne résulte pas de négociations ou d’un acte équivalent conformément au droit
international. Or, en l’espèce, la prétendue délimitation a été effectuée par un acte juridique
relevant du seul pouvoir de la Guinée et susceptible, comme ceux qui ont été pris par cette même
Guinée au nord, et à la même période, de faire l’objet de modifications unilatérales”. (“[T]he
Tribunal cannot take into consideration a delimitation which does not result from negotiations or an
equivalent act in accordance with international law. In the present case, however, the alleged
delimitation was carried out by a legal act within Guinea’s sole power and liable, like those taken
by Guinea in the north, and at the same time, to be the subject of unilateral amendments”.)
Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, Decision of 14
February 1985, UNRIAA, Vol. XIX, p. 149 (hereinafter “Guinea/Guinea-Bissau”), para. 94. See
also Fisheries Case (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 116, p. 132.
16 KCM, para. 224.
17 See ibid., para. 218.
11
explained, notifications of claims “ne sont pas des actes juridiques autonomes,
c’est-à-dire des actes générateurs par eux-mêmes d’effets de droit. … [L]a
notification par elle-même n’engendre pas d’effets juridiques”.18 Consequently,
notifications of claims do not require a protest: “une notification peut ne susciter
aucune réaction; le destinataire peut garder le silence sans que l’on soit autorisé
à en induire une conséquence juridique à son détriment. On ne peut obliger les
Etats à protester invariablement contre toutes les inductions que le calcul politique
peut attribuer à leur silence”.19
2.9. Lack of protest to a notification of a claim cannot amount automatically (or
otherwise) to an acceptance of the validity and effectiveness of that claim. On the
contrary, for acquiescence to arise, Kenya must prove “a very definite, very
consistent course of conduct on the part of a State [here Somalia] … , that is to say
if there had been a real intention to manifest acceptance or recognition”20 of
Kenya’s claim that the boundary should run along the parallel of latitude.
2.10. Kenya tries to reverse the burden of proof by treating its unilateral
proclamations as creating a boundary and by attempting to impose upon Somalia a
duty to protest. Instead of establishing Somalia’s real intention to manifest its
18 Charles de Visscher, PROBLEMES D’INTERPRETATION JUDICIAIRE EN DROIT INTERNATIONAL
PUBLIC (1963), pp. 182, 184. KCM, Vol. III, Annex 118 (“[notifications of claims] are not
autonomous legal acts, amenable to produce legal effects by themselves. … A notification does not
create by itself a legal effect”.). See also ibid., p. 184 (“C’est qu’en effet les conséquences qu’elle
peut entrainer dépendent de prises de position ultérieures du destinataire, prises de position que la
notification a précisément pour but de provoquer et de rende publiques”.) (Obviously, its possible
legal consequences depend upon the reactions expressed subsequently by its addressee, reactions
which the notification purports to provoke and make public”.).
19 Ibid., pp. 184-185 (“a notification may as well trigger no reaction; the addressee may keep silent,
and no inference to its detriment should be made on the basis of this silence. One cannot require
from States to invariably protest against all inductions which the political calculations seek to
attribute to its silence”.).
20 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3 (hereinafter “North Sea
Continental Shelf”), para 28.
12
acceptance, Kenya presumes that the absence of formal protest to its Presidential
Proclamations amounts to a form of acquiescence.
2.11. To support its far-reaching assertion, according to which unilateral claims
that remain unprotested establish a boundary, Kenya offers only selective examples
of State practice in relation to protests for all sorts of unilateral claims.21 But Kenya
fails to mention that there is no generalized practice in relation to protests. On the
African continent, in particular, protests to claims, far from being systematic, are
rather sporadic.22 Thus, no inference can be drawn from the absence of an official
protest to claims and proclamations, and none should be. In the face of similar
claims advanced by Denmark and the Netherlands in the North Sea Continental
Shelf, the ICJ warned against this: “The dangers of the doctrine here advanced by
[the Applicants], if it had to be given general application in the international law
field, hardly need stressing”.23
2.12. In any event, protest may be called for when one of the two States has
adopted for a long time a consistent conduct that indicates its views on the location
of a maritime boundary. “[A]cquiescence … presupposes clear and consistent
acceptance”.24 Yet Kenya’s conduct is not only wildly inconsistent in this case, but
also it has in no way demonstrated Somalia’s so-called acceptance of it. Thus, even
21 KCM, para. 237.
22 According to the DOALOS website, out of the 38 coastal States in the African region, only six
of them had their claims protested by one or more States (Comoros, Egypt, Equatorial Guinea,
Gabon, Mauritius, Sudan). There were no formal protests registered for the claims of the other 32
coastal States, even though the maritime boundaries of some of them were established by a judicial
or arbitral decision, see. e.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1982, p. 18 (hereinafter “Tunisia/Libya”); Territorial Sovereignty and Scope of the Dispute
(Eritrea and Yemen), Decision of 9 October 1998, UNRIAA, Vol. XXII, p. 209 (hereinafter
“Eritrea/Yemen”); and Ghana/Côte d’Ivoire).
23 North Sea Continental Shelf, para. 33.
24 Gulf of Maine, para. 145 (citing North Sea Continental Shelf, para. 30).
13
supposing that Kenya’s unilateral notification of claims could as such create an
obligation to protest on the part of Somalia (quod non), this alleged obligation has
no effect here since Kenya’s conduct has not been clear and consistent. Indeed,
“silence may also speak, but only if the conduct of the other State calls for a
response”.25 Qui tacet consentire videtur si loqui debuisset ac potuisset—in this
case, there was of course no obligation for Somalia which faced Kenya’s totally
inconsistent behaviour.
Section II. Kenya’s Inconsistent Position
2.13. Kenya’s own public statements and positions directly contradict its claim
that the Parties have already delimited their maritime boundary along a parallel of
latitude. These include (a) Kenya’s written and oral pleadings before the Court in
support of its Preliminary Objections; (b) the terms of the Memorandum of
Understanding (“MOU”) signed by the Parties in April 2009; (c) Kenya’s
submissions to the Commission on the Limits of the Continental Shelf (“CLCS” or
“Commission”); (d) the record of the bilateral negotiations on the maritime
boundary between Kenya and Somalia; and (e) official reports and presentations
by the Kenyan Government, the Kenyan National Assembly and Kenya’s
International Boundaries Office.
2.14. These statements, most of which were made on the international level,
totally undermine the factual basis of Kenya’s claim that the Parties’ maritime
boundary has been conclusively delimited along a parallel of latitude through a
process of unilateral assertion (by Kenya) and acquiescence (by Somalia).
25 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 12, para. 121.
14
A. KENYA’S STATEMENTS TO THE COURT
2.15. Kenya’s Preliminary Objections made clear that there is no established
maritime boundary. Kenya argued that, long before Somalia filed its Application
to the Court, the Parties had reached a binding agreement that they
“would delimit the full extent of their maritime
boundary, both within and beyond 200 NM:
a) Only after the CLCS has made its
recommendations concerning establishment
of the continental shelf; and
b) By means of a negotiated agreement …”.26
2.16. Kenya’s Preliminary Objections asserted that “[t]he Parties expressly
agreed … on a negotiated settlement of their maritime boundary. This was
consistent with Kenya’s legislation requiring delimitation by agreement with
Somalia. It was also consistent with the provisions of UNCLOS”.27 In this regard,
Kenya claimed that it was both “committed” and “obligated” to “negotiate a
delimitation agreement with Somalia based on international law”.28 Kenya’s
insistence that the maritime boundary must be delimited by a negotiated agreement
on some future date led Kenya to allege that Somalia had wrongly “attempted to
circumvent its obligation to negotiate an agreement on delimitation after CLCS
review” by filing its Application with the Court.29
2.17. During the oral pleadings in that phase, Kenya’s counsel similarly told the
Court that, “Kenya [has] consistently maintained the view that maritime boundary
26 Preliminary Objections of the Republic of Kenya (hereinafter “KPO”), para. 3.
27 Ibid., para. 17.
28 Ibid., para. 21.
29 Ibid., para. 149.
15
delimitation would be effected by agreement” between the Parties at some time in
the future after the CLCS had provided its recommendations on the delineation of
the outer continental shelf.30 Kenya’s Attorney-General and Agent explicitly and
unambiguously insisted that delimitation of the Parties’ maritime boundary “call[s]
for time, until Somalia achieves greater stability”31 since “maritime boundary
delimitation between Kenya and Somalia requires sensitive bilateral
negotiations”.32 He stated that the process of reaching a negotiated delimitation had
only begun with “preliminary discussions in 2014” following “a volatile
transitional period in Somalia”,33 and he made clear that in Kenya’s view it was not
over. Kenya’s Co-Agent likewise insisted that the Parties’ determination of their
maritime boundary would involve “a complex delimitation that requires sensitive
bilateral negotiations”. She, too, stated that, “it cannot be said that the Parties ever
entered into proper negotiations, let alone exhausted them”.34
2.18. Despite Kenya’s explicit and repeated statements to the Court that the
Parties had agreed that their maritime boundary would be delimited (a) in the
future, and (b) by a process of negotiation, Kenya has now changed tack. It
improbably argues in its Counter-Memorial that the Parties had, in fact, already
conclusively delimited their maritime boundary as a result of Kenya having
“decided to adopt” a parallel of latitude in 1979 and Somalia’s subsequent alleged
30 Verbatim Record, Public sitting held on Wednesday 21 September, at 4:30 p.m. at the Peace
Palace, President Abraham presiding, in the case concerning Maritime Delimitation in the Indian
Ocean (Somalia v. Kenya), Preliminary Objections, I.C.J. Doc. CR 2016/12 (21 Sept. 2016)
(hereinafter “CR 2016/12”), p.16, para. 8 (Akhavan).
31 Verbatim Record, Public sitting held on Monday 19 September 2016, at 10 a.m. at the Peace
Palace, President Abraham presiding, in the case concerning Maritime Delimitation in the Indian
Ocean (Somalia v. Kenya), Preliminary Objections, I.C.J. Doc. CR 2016/10 (19 Sept. 2016)
(hereinafter “CR 2016/10”), p. 17, para. 10 (Muigai).
32 CR 2016/12, p. 40, para. 3 (Muigai).
33 Ibid., p. 40, para. 3 (Muigai).
34 CR 2016/10, p. 53, paras. 20-21 (Muchiri).
16
“acquiescence” in that boundary. Yet this cannot be the case, since it would mean
that Kenya knowingly argued its Preliminary Objections on a false premise: that
the Parties each recognised that delimitation of the maritime boundary had not yet
occurred and would need to occur in the future.
2.19. Kenya’s position is all the more remarkable given its post-hearing statement
to the Court that “negotiations between the Parties prior to the recommendation of
the CLCS, even if it resulted in one or more interim agreements on delimitation
covering some or all maritime areas in dispute, would still be subject to finalization
under the MOU’s agreed procedure”.35 Kenya also stressed in that statement that:
“[I]t should also be noted that, at the first meeting [in
2014], the Parties considered ‘several 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 all
maritime areas in dispute”.36
2.20. Continuing, Kenya wrote to the Court in September 2016:
“There was no commitment or expectation that
negotiations would result in an agreed boundary for
all maritime areas at once. Given the complex
circumstances prevailing 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, say, 50
nautical miles off the coast) and with one or more
35 Letter from H.E. Githu Muigai, Attorney-General and the Agent of the Republic of Kenya, to
H.E. Mr. Philippe Couvrer, Registrar of the International Court of Justice, No.
AG/CONF/19/153/2VOL.IV (26 Sept. 2016), p. 2 (emphasis added). RS, Vol. II, Annex 13.
36 Ibid., p. 4.
17
purposes (such as 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, final agreement. There was, and is,
no pressing need to settle the entire maritime
boundary immediately …”.37
2.21. Even in the Counter-Memorial itself, Kenya cannot escape its own
contradictions. Despite its main argument that the boundary had already been
delimited, Kenya also states that “delimitation of the maritime boundary between
the Parties is a complex issue that is best resolved by a negotiated solution”.38
Somalia does not understand how Kenya can, in the same proceedings, make such
contradictory arguments: arguing first that there was no established maritime
boundary and now that there is.
B. THE 2009MEMORANDUM OF UNDERSTANDING
2.22. The clear terms of the MOU that Kenya and Somalia signed on 7 April 2009
also contradict Kenya’s suggestion that the Parties had delimited their maritime
boundary on the basis of Somalia’s “acquiescence” in a parallel of latitude. The
second paragraph of the MOU stated expressly that the Parties had not delimited
the continental shelf:
“The delimitation of the continental shelf between
the Republic of Kenya and the Somali Republic
(hereinafter collectively referred to as ‘the two
coastal States’) has not yet been settled. This
unresolved delimitation issue between the two
37 Ibid, p. 5.
38 KCM, para. 3.
18
coastal States is to be considered as a ‘maritime
dispute’”.39
2.23. The MOU went on to state that the Parties had a common interest in
establishing the outer limits of the continental shelf beyond 200 M “without
prejudice to the future delimitation of the continental shelf between them”.40 The
fourth paragraph of the MOU stated that Somalia’s submission of preliminary
information indicative of the outer limits of the continental shelf “shall be without
prejudice to the future delimitation of maritime boundaries in the area under
dispute, including the delimitation of the continental shelf beyond 200 nautical
miles”.41 The fifth paragraph of the MOU provided that the recommendations of
the CLCS “shall not prejudice the positions of the two coastal States with respect
to the maritime dispute between them and shall be without prejudice to the future
delimitation of maritime boundaries in the area under dispute, including the
delimitation of the continental shelf beyond 200 nautical miles”.42
2.24. As the Court noted in its decision on Kenya’s Preliminary Objections,
Kenya “emphasize[d] that … the Parties referred to the ‘future delimitation’”
several times in the MOU.43 Although the Court did not accept Kenya’s submission
that the MOU created a binding obligation to delimit the maritime boundary
exclusively through a process of negotiation rather than judicial determination, the
39 Memorandum of Understanding between the Government of the Republic of Kenya and the
Transitional Federal Government of the Somali Republic to Grant to Each Other No-Objection in
Respect of Submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to
the Commission on the Limits of the Continental Shelf, 2599 U.N.T.S. 35 (7 Apr. 2009) (hereinafter
“2009 Memorandum of Understanding”), p. 37 (emphasis added). Memorial of Somalia (hereinafter
“MS”), Vol. III, Annex 6.
40 Ibid., p. 37 (emphasis added).
41 Ibid., p. 38 (emphasis added).
42 Ibid. (emphasis added).
43 Somalia v. Kenya, Preliminary Objections, Judgment, para. 54.
19
Court did observe that it was the position of the Parties that, “at least from the point
in time of signing the MOU, any such delimitation would be in the future”.44
2.25. According to Kenya’s Counter-Memorial, despite entering an agreement in
2009 which expressly acknowledged that the Parties’ maritime boundary was
“unresolved” and “has not yet been settled”, and which expressly recorded the
Parties’ intention to delimit that boundary in “the future”, and despite the position
it took in the Preliminary Objections phase, the Parties’ maritime boundary had in
fact been delimited well before that date through a process of unilateral assertion
(by Kenya) and passive acquiescence (by Somalia). Quite apart from the fact that
Kenya’s acquiescence argument is wrong as a matter of law,45 the clear words of
the MOU demonstrate that this argument is also unsustainable on the facts.
C. KENYA’S SUBMISSIONS TO THE CLCS AND STATEMENTS TO THE
UNITED NATIONS
2.26. In addition to Kenya’s repeated statements to the Court and the
unambiguous terms of the MOU, Kenya’s statements to the CLCS also expressly
acknowledge the absence of any delimitation by acquiescence. In the Executive
Summary to Kenya’s 2009 Submission to the Commission, Kenya referred to “the
unsettled boundary line between Kenya and Somalia”.46 The Submission referred
to Kenya’s “overlapping maritime claims”47 with Somalia and explained that:
“Section 4(4) of the Maritime Zones Act, 1989
provides that the exclusive economic zone boundary
44 Ibid., para. 78 (emphasis added).
45 See supra paras. 2.3-2.12.
46 Republic of Kenya, Submission on the Continental Shelf Submission beyond 200 nautical miles
to the Commission on the Limits of the Continental Shelf: Executive Summary (Apr. 2009), para. 8-
4. MS, Vol. III, Annex 59.
47 Ibid., para. 7-1.
20
between Kenya and Somalia shall be delimited by
notice in the Gazette by the Minister pursuant to an
agreement between Kenya and Somalia on the basis
of international law”.48
2.27. Kenya orally presented its submission to the CLCS on 3 September 2014.
Kenya’s delegation before the Commission was headed by the Attorney-General
(and Agent in this case), who “observed that Kenya had yet to conclude a maritime
boundary agreement with Somalia, although negotiations were ongoing”.49
2.28. After Somalia lodged its objection to Kenya’s Submission, Kenya sent a
note verbale to the Secretary-General of the United Nations on 24 October 2014.
The note referred to the “unresolved delimitation” with Somalia, and stressed that
Kenya “remains committed and continues to pursue more legitimate avenues to
have the delimitation of the maritime boundary amicably resolved, most preferably
through a bilateral agreement with the Somali Federal Republic”.50
2.29. Again, Kenya’s repeated references to the unsettled status of the Parties’
maritime boundary, as well as its unequivocal assurances to the CLCS and United
Nations that delimitation of the boundary would take place by agreement in future,
directly contradict its current claim; namely, that Somalia has engaged in
48 Ibid., para. 7-3.
49 United Nations, Commission on the Limits of the Continental Shelf, Progress of work in the
Commission on the Limits of the Continental Shelf; Statement by the Chair, U.N. Doc. CLCS/85
(24 Sept. 2014), para. 60. MS, Vol. IV, Annex 71.
50 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 (24 Oct. 2014). MS, Vol. III,
Annex 50. See also 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. 141/15 (4 May
2015). MS, Vol. III, Annex 51.
21
“prolonged acquiescence” in a parallel maritime boundary with “binding legal
effect”.51
D. NEGOTIATIONS ON THE BOUNDARY
2.30. During the Third U.N. Conference on the Law of the Sea, Kenya’s
representative noted that Kenya and Somalia had different views on how the
boundary should be delimited:
“We should remain very vigilant in this respect as
our neighbours—both Tanzania and Somalia—seem
to have had the malicious intention of distorting the
marine borders when they extended their territorial
sea, specifying the median line as the dividing line
…”.52
2.31. Later, Somalia and Kenya restated their positions in the context of their
bilateral negotiations on the maritime boundary. In 2013, Kenya’s Cabinet
Secretary for Foreign Affairs and Somalia’s Deputy Prime Minister issued a joint
press release that made clear that the maritime boundary had not yet been delimited:
“The two Ministers underlined the need to work on a framework of modalities for
embarking on maritime demarcation”.53
51 KCM, paras. 4, 6.
52 Permanent Mission to the United Nations of the Republic of Kenya, Report of the Work of the
Second Session of the Third United Nations Conference on the Law of the Sea, held in Caracas,
Venezuela (20 June-29 Aug. 1974), Doc. No. 273/430/001A/15 (28 Oct. 1974), p. 64 (emphasis
added). KCM, Vol. II, Annex 11.
Kenya is thus wrong to state that Somalia’s claim to equidistance first emerged in 2014, see, e.g.,
KCM, paras. 2, 4, 21, 180.
53 Secretary for Foreign Affairs, Republic of Kenya & Deputy Prime Minister, Minister of Foreign
Affairs and International Cooperation, Federal Republic of Somalia, Joint Press Release (31 May
2013). KPO, Vol. II, Annex 31.
22
2.32. In February 2014, Kenya invited Somalia to discuss “the existing dispute
relating to the delimitation of the maritime boundary between the two countries”.54
Between February and August 2014, negotiations were held both at the political
level (between the two States’ respective Ministers of Foreign Affairs) and at a
technical level.55 In March and July 2014, the two delegations exchanged views
over the location of their maritime boundary. Somalia articulated its position that
the “principle of equidistance” was well established in international law and
jurisprudence,56 while Kenya emphasized considerations of “equity and fairness”
which, it maintained, would yield the “parallel of latitude” reflected in its 2005
Presidential Proclamation.57
2.33. These negotiations are telling not only for what they reveal—that Somalia
restated its claim to an equidistance boundary and Kenya to a parallel of latitude—
but also for what they do not show: any reference by Kenya to an agreed or
acquiesced boundary. Not once during the political or technical meetings did
54 Letter from H.E. Dr. Abdirahman Beileh, Minister of Foreign Affairs and International
Cooperation of the Federal Republic of Somalia, to H.E. Ms. Amina Mohamed, Minister of Foreign
Affairs & International Trade of the Republic of Kenya, No. MOFA/SER/MO/ /2014 (13 Mar.
2014). MS, Vol. III, Annex 43.
55 On negotiations, see MS, paras. 3.43-3.56.
56 Federal Republic of Somalia, Report on the Meeting between The Federal Republic of Somalia
and The Republic of Kenya On Maritime Boundary Dispute, Nairobi, Kenya, 26-27 March 2014 (1
Apr. 2014), p. 2. MS, Vol. III, Annex 24. See also Government of Somalia and Government of
Kenya, Joint Report on the Kenya-Somali Maritime Boundary Meeting, 26-27 Mar. 2014 (1 Apr.
2014), p. 5. MS, Vol. III, Annex 31; Note Verbale from the Ministry of Foreign Affairs and
International Trade of the Republic of Kenya to the Ministry of Foreign Affairs and Investment
Promotion of the Federal Republic of Somalia, No. MFA. PROT 7/17A VOL. IV(18) (11 July
2014). MS, Vol. III, Annex 44.
57 Government of Somalia and Government of Kenya, Joint Report on the Kenya-Somali Maritime
Boundary Meeting, 26-27 Mar. 2014 (1 Apr. 2014), p. 3. MS, Vol. III, Annex 31; Federal Republic
of Somalia, Report on the Meeting between The Federal Republic of Somalia and The Republic of
Kenya On Maritime Boundary Dispute, Nairobi, Kenya, 26-27 March 2014 (1 Apr. 2014), p. 2. MS,
Vol. III, Annex 24. See also Government of Somalia and Government of Kenya, Joint Report on
the Kenya-Somalia Maritime Boundary Meeting, 28-29 July 2014 (July 2014). MS, Vol. III, Annex
32.
23
Kenya refer to this argument. According to the ITLOS Special Chamber in
Ghana/Côte d’Ivoire: “[T]he fact that the bilateral exchanges and negotiations on
the delimitation of a maritime boundary took place between the Parties indicates
the absence, rather than the existence, of a maritime boundary”.58
E. KENYA’S LEGISLATION AND STATEMENTS BY KENYAN OFFICIALS
2.34. As shown, Kenya has made multiple representations at the international and
bilateral level to the effect that the boundary was not established, and that it still
had to be negotiated and settled by agreement. It has also done the same at the
internal level as well. Numerous official instruments and statements from Kenyan
government ministries, including the National Assembly of Kenya and the Director
of Kenya’s International Boundaries Office, confirm that Somalia and Kenya had
different views on the maritime boundary, and that the dispute remained to be
settled.
2.35. In 1980, one year after the 1979 Presidential Proclamation, Kenya’s
representative to the UNCLOS negotiations declared before the Kenyan Parliament
that the boundary with Somalia was to be solved by bilateral discussions and
ultimately by a formal agreement (a convention):
“Although this subject of delimitation is still being
discussed, as far as we are concerned here in Kenya,
this point is for the purpose of the proposed
convention …”.59
58 Ghana/Côte d’Ivoire, para. 243.
59 Republic of Kenya, The National Assembly Official Report: Fourth Parliament Inaugurated, Vol.
LII (1980), col. 1281 (quoted in KCM, para. 73) (emphasis added). KCM, Vol. II, Annex 5.
24
2.36. In 1989, ten years after the 1979 Presidential Proclamation, Kenya adopted
its Maritime Zones Act, which provides that:
“The northern boundary of the exclusive economic
zone with Somalia shall be delimited by notice in the
Gazette by the Minister pursuant to an agreement
between Kenya and Somalia on the basis of
international law”.60
2.37. The 1989 Maritime Zones Act was notified to DOALOS, and it remains in
force today. It is still available on the DOALOS website.61 Kenya refers to it in its
international representations62 and in several other pieces of domestic legislation.63
60 Republic of Kenya, Chapter 371, Maritime Zones Act (25 Aug. 1989), § 4(4). MS, Vol. III, Annex
20 (quoted in KCM, para. 79) (emphasis added). The portion of the 1989 Maritime Zones Act
relating to the delimitation of the territorial sea is equally inconsistent with Kenya’s 1979
Presidential Proclamation. It provides that the boundary in the territorial sea “shall extend to a
median line every point of which is equidistant from the nearest points on the baselines from which
the breadth of the territorial waters” are measured. Republic of Kenya, Law No. 2 of 1972,
Territorial Waters Act (16 May 1972), § 2(4). MS, Vol. III, Annex 16.
61 U.N. Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, “Kenya”,
available at
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/KEN.htm (last
updated 14 Oct. 2014). RS, Vol. II, Annex 22.
62 See, e.g., Republic of Kenya, Submission on the Continental Shelf Submission beyond 200
nautical miles to the Commission on the Limits of the Continental Shelf: Executive Summary (Apr.
2009), para. 7-3. MS, Vol. III, Annex 59.
63 See Republic of Kenya, Laws of Kenya, Chapter 2, The Interpretation and General Provisions
Act (1983, revised ed. 2008), § 3(a). MS, Vol. III, Annex 23; Republic of Kenya, Coast
Development Authority Act (18 Jan. 1990), reprinted in LAWS OF KENYA, Chapter 449 (rev. ed.
2012), § 2. RS, Vol. II, Annex 2; c. Section 2 of the Fisheries Act 1991 provides: “‘Kenya fishery
waters’ means the inland waters and the waters of the maritime zones described in the Maritime
Zones Act (Cap. 371)” (Republic of Kenya, Fisheries Act (25 Aug. 1989), reprinted in LAWS OF
KENYA, Chapter 378 (rev. ed. 2012), § 2. RS, Vol. II, Annex 1); Republic of Kenya, Environmental
Management and Co-ordination Act (14 Jan. 2000), reprinted in LAWS OF KENYA, Chapter 387
(rev. ed. 2012), § 2. RS, Vol. II, Annex 3; Republic of Kenya, Energy Act (2006), § 2. RS, Vol. II,
Annex 4; Republic of Kenya, Mining Act, Act No. 12 of 2016 (27 May 2016), § 4. RS, Vol. II,
Annex 5. Official publications by the Kenyan Government also systematically refer to the Maritime
Zones Act. See, e.g., Republic of Kenya, National Environment Management Authority, State of
the Coast Report: Towards Integrated Management of Coastal and Marine Resources in Kenya
(2009), p. 60, para. 7.1.4.5. RS, Vol. II, Annex 8.
25
2.38. Kenya’s interpretation of these instruments in its Counter-Memorial is
contra textum: according to Kenya, they do nothing more than recognize that “there
was no formal agreement”.64 But Kenya’s internal and international representations
clearly do more than this. They recognize that the maritime boundary with Somalia
was still to be delimited. In this manner, they wholly undermine Kenya’s
acquiescence argument. They also acknowledge that this delimitation ought to be
done by a formal treaty, notice of which should be in the Gazette published by the
Minister of Foreign Affairs. It is indeed difficult to see how an informal agreement
could be published in the Gazette. Thus, Kenya’s own legislation sets out that
delimitation with Somalia can be done only by agreement.
2.39. Numerous statements by Kenyan officials similarly confirm that there was
an unresolved boundary dispute with Somalia. For example, in 2012, in the wake
of the deadline for submissions to the CLCS, Kenya’s Ministry of Foreign Affairs
stated that the absence of an agreement on the boundary was a problem for Kenya’s
maritime ambitions:
“The lack of a boundary agreement between Kenya
and Somalia and the continuing instability in the
latter country is likely to delay Kenya’s quest to add
150 additional nautical miles to its territorial waters
in the Indian Ocean. … The Ministry of Foreign
Affairs, in a report to Treasury, says the bid is facing
a challenge meeting international approval because
of the above factors”.65
64 KCM, paras. 79-80, 102, 246, 264.
65 F. Oluoch & M. Kimani, “War hits Kenya's bid to expand waters”, The East African (29 Jan.
2012). RS, Vol. II, Annex 36.
26
2.40. In 2013, the Kenyan Ministry of Mining issued a Sector Plan for Oil and
Other Minerals 2013-2017, which explained that:
“Kenya has a maritime boundary dispute with
Somalia, in the Indian Ocean Waters. There is also
gazetted oil and gas exploration blocks that are
located in the disputed area offshore the Lamu basin,
and resolution of the dispute will be required to
avoid resource-fuelled disputes, which are even
harder to mediate than others”.66
2.41. In October 2014, after Somalia submitted its Application instituting these
proceedings, the Department Committee on Defence and Foreign Relations of the
Kenyan National Assembly “held a joint workshop with various government
agencies to deliberate on Somalia and Kenya’s International Boundaries on [the]
9th to 12th October 2014 in Mombasa”.67 During the four-day governmental
workshop, the Director of Kenya’s International Boundaries Office and
Chairperson of the Taskforce on Delineation of Kenya’s Outer Continental Shelf,
Mrs Juster Nkoroi E.B.S., delivered a presentation entitled Kenya’s International
Boundaries—Legal Challenges/Issues. During that presentation, Mrs Nkoroi
explained that, “to-date, Kenya’s maritime space had not yet been finalized
because of claims of it overlapping Somalia’s maritime zone”. Mrs Nkoroi had
nothing to say about “acquiescence”. Rather, she “informed the meeting of the need
to urgently complete the process of defining Kenya’s boundaries”.68
66 Republic of Kenya, Ministry of Mining, Sector Plan for Oil and Other Minerals 2013-2017
(2013), pp. 4-5 (emphasis added). RS, Vol. II, Annex 10.
67 Republic of Kenya, National Assembly, Departmental Committee on Defence and Foreign
Relations, Report of the Workshop on Somalia and International Boundaries (Oct. 2014), p. 5. RS,
Vol. II, Annex 11.
68 Ibid., p. 21.
27
2.42. In addition to making it clear that the Parties’ maritime boundary had not
been delimited, Mrs Nkoroi candidly explained the basis of Kenya’s objection to
an equidistant maritime boundary with Somalia. It was, she said, based on Kenya’s
desire to exploit the “immense amount of wealth potential” in the area of the outer
continental shelf that falls on Somalia’s side of the equidistance line:
“[T]o-date, Kenya’s maritime space had not yet been
finalized because of claims of it overlapping
Somalia’s maritime zone …. Somalia’s insistence on
the use of a median line to delimit the maritime zone
in the Indian Ocean would result in Kenya losing a
considerable amount of area in the outer continental
shelf (OCS). This is to be avoided as an immense
amount of wealth potential is to be found in the
seas”.69
2.43. In the same vein, the Director of Committee Services, Ms Florence Atenyo-
Abonyo, informed the Kenyan Parliament that “the matter regarding disputes over
international terrestrial and maritime boundaries had been with us for a long
time”.70 The report of the final session similarly noted that the key theme of the
meeting was “the need for Kenya to urgently complete the process of defining its
boundaries”.71
2.44. Based on its own repeated and recent positions, Kenya’s new-found
argument on acquiescence is implausible and unarguable.
69 Ibid.
70 Ibid., p. 11.
71 Ibid., p. 22.
28
Section III. The Absence of an Agreed Boundary Was Widely Recognized
2.45. Kenya is not alone in recognising that the Kenya-Somalia maritime
boundary remains to be delimited. This is also the view of many other States and
international organisations, including the United Nations.
2.46. On 11 April 2011, for example, the U.N. Security Council issued
Resolution 1976, which referred to the need for Somalia’s maritime boundaries to
be delimited as soon as possible. It:
“Invite[d] States and regional organizations to
continue their support and assistance to Somalia in
its efforts to develop national fisheries and port
activities in line with the Regional Plan of Action,
and in this regard emphasize[d] the importance of the
earliest possible delimitation of Somalia’s maritime
spaces in accordance with the Convention”.72
Given the Security Council’s role in the fight against piracy and smuggling in the
waters off the coast of Somalia, it knew, and was concerned, that the maritime
boundary with Kenya remained to be delimited.
2.47. In August 2011, the absence of a delimited maritime boundary was
acknowledged in a note verbale from Norway73 to the United Nations. This note
referred to Resolution 1976 and underscored the existence of “unresolved issues of
maritime delimitation between Somalia and neighbouring coastal States”. In this
context, Norway drew attention to the terms of the MOU between Somalia and
72 U.N. Security Council, Resolution 1976 (2011), U.N. Doc. S/RES/1976 (11 Apr. 2011), p. 3
(emphasis added). KCM, Vol. III, Annex 95.
73 The Court will recall the important role Norway played in the preparation of Somalia’s CLCS
submission and in the drafting of the MOU. See Somalia v. Kenya, Preliminary Objections,
Judgment, paras. 100-104.
29
Kenya, noting that the Parties’ CLCS submissions “shall be without prejudice to
the future delimitation of maritime boundaries in the areas under dispute”. Norway
emphasised the importance of a timely delimitation of Somalia’s unresolved
maritime boundaries to “lay the foundation for the protection and future
exploitation by Somalia of its natural resources, and thus safeguard important
interests of future Somali generations”.74
2.48. In July 2013, the U.N. Monitoring Group on Somalia published a report
which discussed the existence of a “conflict” over the Parties’ maritime boundary
and made specific reference to the two Parties’ different claims:
“Conflict between Somalia and Kenya over the
maritime boundary
27. Somalia and Kenya have differing interpretations
of their maritime boundary and associated offshore
territorial rights. Currently, Somalia claims its
maritime boundary with Kenya lies perpendicular to
the coast, though this boundary is not enshrined in a
mutually accepted agreement with Kenya, which
envisages the maritime boundary as being defined by
the line of latitude protruding from its boundary with
Somalia”.75
It was further underlined that “Somalia and Kenya would be required to initiate a
separate process to negotiate a mutually acceptable maritime boundary”.76
74 Note Verbale from the Permanent Mission of Norway to the United Nations to the Secretariat of
the United Nations (17 Aug. 2011). KPO, Vol. II, Annex 4.
75 United Nations, Monitoring Group on Somalia and Eritrea, Report of the Monitoring Group on
Somalia and Eritrea pursuant to Security Council resolution 2060 (2012): Somalia, U.N. Doc.
S/2013/413 (12 July 2013), para. 27. MS, Vol. III, Annex 64.
76 Ibid., para. 32.
30
2.49. The maritime zone of intervention of the African Union Mission in Somalia
(“AMISOM”) off the coast of Somalia covers, in their southern district, an area
running virtually along an equidistance line, as seen in Figure R2.1 (following this
page). Kenya could not have been unaware of this, since it joined the AMISOM
forces in 200777 and was in charge of the Southern District.78
2.50. These statements and actions reflect a recognition by the international
community that the Parties had not delimited their maritime boundary before
Somalia’s Application to the Court in 2014, and certainly had not established a
boundary along a parallel of latitude.
Section IV. Kenya’s Alleged Activities in the Disputed Area
2.51. Although Kenya bases its acquiescence argument on its own Presidential
Proclamations of 1979 and 2005, it also invokes its alleged effectivités—that is, its
activities in the disputed area which Somalia allegedly did not protest—as
confirmation of the parallel boundary it claims.79 This argument is wrong both in
law and on the facts.
2.52. As a matter of legal principle, effectivités cannot constitute an element to
be taken into account for purposes of maritime delimitation. Maritime effectivités,
unlike displays of sovereignty over land territory, can only be taken into account if
they reflect a tacit agreement.80 If they do, they might constitute a relevant
77 KCM, para. 96.
78 Fred Oluoch, “UN unveils new look Amisom as Kenya joins up”, The East African (11 Feb.
2012). RS, Vol. II, Annex 37.
79 See KCM, paras. 115-154.
80 See Gulf of Maine, paras. 126-154; Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303, para.
304; Romania v. Ukraine, para. 197; Territorial and Maritime Dispute (Nicaragua v. Colombia),
MARITIME
ZONE
SOUTH
MARITIME
ZONE
NORTH
AMISOM:
MARITIME ZONES OF INTERVENTION
Figure R2.1
Source: Security Council document S/2012/544, p. 225 (2012).

31
circumstance for delimitation under the standard three-step method. As noted
above, Kenya makes no argument that there has been a tacit agreement in this
case.81
2.53. Kenya surprisingly invokes the award of the arbitral tribunal in Guyana v.
Suriname, which effectively contradicts its argument. The tribunal there observed
that the jurisprudence “reveal[s] a marked reluctance of international courts and
tribunals to accord significance to the oil practice of the parties in the determination
of the delimitation line”.82 Indeed, as ITLOS recently observed:
“international courts and tribunals have been
consistent in their reluctance to consider oil
concessions and oil activities as relevant
circumstances justifying the adjustment of the
provisional delimitation line”.83
2.54. This reluctance applies not only in relation to oil activities, but also when
the alleged display of public or state authority concerns fishing or policing. As
noted by the arbitral tribunal in Barbados v. Trinidad and Tobago:
“In examining the record of this case, the Tribunal
does not find activity of determinative legal
significance by Barbados in the area claimed by
Trinidad and Tobago north of the equidistance line.
Seismic surveys sporadically authorised, oil
concessions in the area and patrolling, while relevant
do not offer sufficient evidence to establish estoppel
Judgment, I.C.J. Reports 2012, p. 624 (hereinafter “Nicaragua v. Colombia”), para. 220;
Ghana/Côte d’Ivoire, paras. 467-481.
81 See supra para. 2.4.
82 Arbitration regarding the delimitation of the maritime boundary between Guyana and Suriname,
Award of 17 September 2007, UNRIAA, Vol. XXX, p. 1 (hereinafter “Guyana v. Suriname”), para.
390 (cited in KCM, paras. 367, 370).
83 Ghana/Côte d’Ivoire, para 476.
32
or acquiescence on the part of Trinidad and Tobago.
Nor, on the other hand, is there proof of any
significant activity by Trinidad and Tobago relevant
to the exercise of its own claimed jurisdiction north
of the equidistance line.
Moreover, Trinidad and Tobago’s argument to the
effect that, as held by the International Court of
Justice in Cameroon v. Nigeria (I.C.J. Reports 2002,
p. 303), oil wells are not in themselves to be
considered as relevant circumstances, unless based
on express or tacit agreement between the parties,
finds application in this context. While the issue of
seismic activity was regarded as significant by the
International Court of Justice in the Aegean Sea case
(I.C.J. Reports 1976, p. 3), the context of that
decision on an application for provisional measures
is not pertinent to the definitive determination of a
maritime boundary”.84
2.55. Therefore, as a matter of principle, the activities that Kenya claims to have
undertaken in the disputed maritime area cannot be invoked to support the
existence of a maritime boundary along a parallel of latitude in which Somalia has
allegedly acquiesced.
2.56. Kenya’s claim is not only refuted by the jurisprudence, but also by the
evidence Kenya invokes. The evidence establishes that Kenya’s purported displays
of authority in the disputed maritime area were, at most, sporadic, infrequent and
recent. They were also undertaken when, due to civil war, there was no functioning
Somali government that was able to monitor or inform itself about the activities of
other States in the maritime areas off Somalia’s coast, let alone exercise effective
84 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the
delimitation of the exclusive economic zone and the continental shelf between them, Decision of 11
April 2006, UNRIAA, Vol. XXVII, p. 147 (hereinafter “Barbados v. Trinidad and Tobago”), paras.
363-364.
33
control over them. Further, some of the purported displays of authority that Kenya
relies on were undertaken pursuant to express authorisation by the U.N. Security
Council to enter Somalia’s maritime space—which was depicted as extending up
to an equidistance line with Kenya—for the purpose of multinational U.N.
peacekeeping operations.
A. ALLEGED EFFECTIVITÉS: NAVAL PATROLS
2.57. In support of its claim to have exercised authority over the maritime space
up to a parallel line since 1979, Kenya relies on a “secret” naval command map
purportedly issued in 1980.85 Kenya has notably not adduced any evidence to show
whether (if at all) the Kenyan Navy undertook patrols up to the parallel line
between the 1979 Proclamation and the enactment of Kenya’s Maritime Zones Act
in 1989, a decade later. It certainly does not suggest that the “secret” map was ever
communicated to Somalia.
2.58. Instead, Kenya relies on logs of a handful of Kenyan vessels that, it claims,
show “considerable activity” in the vicinity of the claimed parallel boundary in
1990 and 1991.86 Kenya’s reliance on this evidence is a telling reflection of the
weakness of its case. In particular:
a) The logs in question simply refer to vessels patrolling in the vicinity of
Kenya’s “north border”. They cast no light on where that border was
considered to be. The contents of the logs are therefore equally
consistent with the existence of an equidistant boundary as a parallel
boundary.
85 KCM, para. 120
86 Ibid., para. 125.
34
b) In any event, as Kenya has recognized, in the early 1990s Somalia was
afflicted by a devastating civil war that destroyed the basic
infrastructure of the State. In those circumstances, Somalia could not
detect incursions into its maritime space, much less take active and
effective steps to prevent them. Indeed, Kenya’s Counter-Memorial
expressly highlights “the absence of Somalia’s maritime enforcement
capacity” and “Somalia’s manifest inability to control her land and
maritime territory”87—an absence and inability that were even more
marked in the early stages of a civil war that would last two decades.
Kenya’s evidence of maritime patrols in the disputed areas is confined
to the period when it recognises that Somalia had no ability to control
entry into those waters.
2.59. Kenya also shows a diagram purportedly depicting Kenyan naval patrols
and interceptions in the territorial sea between 1990 and 2014.88 Several key
aspects of this diagram reveal the shortcomings in Kenya’s case.
a) Nearly all of the points plotted on the map are merely described as
“Ships’ Logs Extracts from Kenya Navy Ships Patrols 2008-2015”.
They thus purport to describe the transient89 locations of Kenyan naval
vessels in the disputed maritime space after the maritime boundary
dispute had arisen between the Parties. Nor is there any suggestion that
87 KCM, para. 183.
88 Ibid., para. 123 and Figure 1-13. Despite the title of the diagram, a small number of alleged patrols
depicted in the diagram purportedly occurred beyond the 12 M limit of the territorial sea.
89 The table of “Ship Log Extracts” on which the map of Kenyan naval patrols was purportedly
based shows that the vessels were present at particular locations for less than 45 minutes in the vast
majority of cases, and in some instances were present for as little as 5 minutes. See Brief from Lt.
Col. J.S. Kiswaa, Kenya Navy, to Commander, Kenya Navy, No. KN/56/Ops/Trg (July 2015),
Annex A, Ship Log Extracts from Kenya Navy Ships Patrol Within the Common Border (June 2015).
KCM, Vol. II, Annex 44.
35
these vessels were engaged in any activity other than in the exercise of
the internationally recognised rights of freedom of navigation (between
12 M and 200 M from the coast) and innocent passage (within 12 M).
This transient presence of Kenyan vessels in the disputed maritime
space therefore cannot constitute evidence of effectivités in support of
Kenya’s claim.
b) The map shows several alleged “Interception[s] of Merchant Vessels
by Kenyan Navy Ships while on Patrol 1990-2014”. This graphic is
based on a table of 22 alleged interception points produced by Kenya.
Kenya’s map deliberately focuses on just some interceptions and does
not show all 22 recorded in the underlying table.90 Unlike Kenya’s
Figure 1-13, Figure R2.2 (following page 36) shows the location of all
22 of the alleged interceptions based on the coordinates provided by
Kenya. As can be seen, 14 of the alleged interceptions occurred in
maritime space south of the equidistance line. They therefore provide
no support for Kenya’s claim to a parallel boundary. Two occurred in
an area of the territorial sea north of the parallel line, suggesting that
the Kenyan navy undertook interceptions without regard to the
existence of any maritime boundary. Just four interceptions allegedly
occurred in the area between the equidistance line and the parallel line
during a period of nearly a quarter of a century. Of those four, two
allegedly occurred in the 1990s (when there was no effective
government in Somalia) and the other two allegedly occurred in 2008
90 Brief from Lt. Col. J.S. Kiswaa, Kenya Navy, to Commander, Kenya Navy, No. KN/56/Ops/Trg
(July 2015), Annex C, Interception of Merchant Vessels by Kenya Navy Ships while on Patrol in
the Common Border FM 1990-2014 (23 July 2015). KCM, Vol. II, Annex 44.
36
and 2011, by which time the dispute over the maritime boundary had
plainly arisen between the Parties.91
2.60. From at least 2012 onwards patrols and interceptions by the Kenyan Navy
in Somalia’s maritime space took place under the auspices of AMISOM, pursuant
to express authorisation by the U.N. Security Council. On 5 January 2012, the
Peace and Security Council of the African Union extended AMISOM’s area of
operations in Somalia to four sectors. Those sectors included the “Maritime Zone:
South” sector, which extended up to an equidistance line both within and beyond
the territorial sea, as seen in Figure R2.1 (following page 30).
2.61. On 22 February 2012, the U.N. Security Council adopted Resolution 2036
welcoming “the willingness of the Government of Kenya for Kenyan forces to be
incorporated into AMISOM”. It authorised AMISOM to “establish[] a presence in
the four sectors set out in the AMISOM strategic Concept of 5 January” and “to
take all necessary measures as appropriate in those sectors”, while acting “in full
respect of the sovereignty [and] territorial integrity” of Somalia.92 Thus, from 2012
onwards Kenya was authorised to patrol Somalia’s maritime space as part of a
U.N.-approved multinational peacekeeping mission premised on full respect for
Somalia’s sovereignty over its maritime space. Even before that point, it appears
that Kenya engaged in activities in Somalia’s maritime space as part of AMISOM’s
peacekeeping remit, rather than in the purported exercise of any sovereign authority
by Kenya.93
91 Ibid. In any case, the accuracy of the underlying data is undermined by the fact that the coordinates
supplied by Kenya would place the remaining four alleged naval interceptions on land.
92 U.N. Security Council, Resolution 2036 (2012), U.N. Doc. S/RES/2036 (22 Feb. 2012), p. 3, para.
1. RS, Vol. II, Annex 20.
93 As Kenya emphasises: “From January 2007, Kenya played a key role in the African Union
Mission in Somalia (‘AMISOM’). Its participation in AMISOM included a maritime component,
200 M limit
12 M limit
No. 2 29/05/92
No. 1 14/09/12
No. 14 27/10/08
KENYA
SOMALIA
Pemba I.
Zanzibar I.
Kismaayo
MOGADISHU
Mombasa
40°E 42°E 44°E
44°E
0°
2°S
4°S
6°S
0°
2°S
4°S
6°S
INDIAN
OCEAN
Kenya’s Parallel
Claim Line
Equidistance Line
Prepared by: International Mapping
INTERCEPTIONS BY THE KENYAN NAVY:
1990-2014
Mercator Projection
WGS-84 Datum
(Scale accurate at 2°S)
0 50 100 150
Nautical Miles
0 100 200
Kilometers
300
High tide coastlines are based on the NGA Prototype Global Shoreline Data Base.
Supplemental shoreline information was digitized from NGA charts 61210, 61220, 61230,
61240, 61250, 61260,61270, 61280, 62050, 62070, 62080 and 62090.
Figure R2.2
1990
1991
1992
1993
1999
2008
2011
2012
2014
Dates of alleged
vessel interceptions:

37
2.62. Accordingly, far from supporting Kenya’s claim, the naval patrols in fact
affirm Somalia’s entitlement to an equidistant maritime boundary.
2.63. The fundamental weakness of Kenya’s case is further demonstrated by its
reliance on a letter from a Kenyan naval officer dated 5 October 2017, just in time
for Kenya’s Counter-Memorial. The letter, which contains only uncorroborated
assertions—is the only evidence Kenya offers for its argument that its Navy “is
guided by” the 1979 and 2005 Proclamations. 94 A self-serving and unsubstantiated
assertion made for litigation purposes in 2017 about alleged historical practice
regarding the location of a disputed boundary has no probative value in a case
commenced in 2014. This was made clear by ITLOS in Bangladesh/Myanmar.95
B. ALLEGED EFFECTIVITÉS: FISHERIES JURISDICTION AND
MARINE SCIENTIFIC RESEARCH
2.64. Kenya’s purported evidence concerning marine scientific research and
fisheries activities in the disputed maritime area equally lacks any probative
weight.
2.65. First, it is notable that (a) most of the marine scientific activities that Kenya
relies on were in fact activities of international organisations, rather than activities
undertaken by Kenya; and (b) with one exception, Kenya makes no claim that any
of those activities by international organisations actually took place within the
disputed maritime area. On the contrary, Kenya’s reliance on those marine
scientific activities is largely limited to pointing to a handful of maps produced by
and the Kenyan navy incurred significant costs in patrolling both Somali and Kenyan maritime areas
north and south of the parallel of latitude”. KCM, para. 96.
94 KCM, para. 127 (citing Letter from Lt. Col. M.R. Atodonyang. Kenya Navy, to Ms. Juster Nkoroi,
Head, Kenya International Boundaries Office (5 Oct. 2017). KCM, Vol. II, Annex 48).
95 Bangladesh/Myanmar, paras. 114-115.
38
those organisations in connection with their research. Not one purports to show the
Parties’ maritime boundary.
2.66. In any event, even if some of those marine scientific research activities had
been undertaken within the disputed area, Kenya makes no claim to have authorised
them, which would be necessary in order for those activities to constitute potential
evidence of the exercise of authority over the disputed area by Kenya.96 As such,
those activities are incapable of providing any support for a claim that Kenya has
engaged in effectivités in the disputed maritime area.
2.67. Second, even if (quod non) Kenya had undertaken marine scientific
research activities in the disputed maritime area, they would be legally incapable
of providing any support for a claim to a particular maritime boundary. Article 241
of UNCLOS makes this explicit:
“Marine scientific research activities shall not
constitute the legal basis for any claim to any part of
the marine environment or its resources”.
2.68. Third, notwithstanding their legal irrelevance, an analysis of the evidence
demonstrates that the marine scientific research activities identified by Kenya
provide no arguable factual support for the existence of a parallel maritime
boundary:
96 Under Article 246(1) of UNCLOS, “Coastal States, in the exercise of their jurisdiction, have the
right to regulate, authorize and conduct marine scientific research in their exclusive economic zone
and on their continental shelf in accordance with the relevant provisions of this Convention”.
Similarly, Article 245 of UNCLOS states that “Coastal States, in the exercise of their sovereignty,
have the exclusive right to regulate, authorize and conduct marine scientific research in their
territorial sea. Marine scientific research shall be conducted only with the express consent of and
under the conditions set forth by the coastal State”. Kenya does not claim to have authorised any
marine scientific research activities undertaken in the disputed areas of the territorial sea, EEZ or
continental shelf.
39
a) Kenya relies on a diagram produced by the Dr Fridtjof Nansen
Programme in its survey of fishing routes and stations in September
1982.97 But (i) the survey did not purport to record the location of
Kenya’s maritime boundaries; (ii) horizontal and vertical lines were
used throughout the diagram for ease of visual representation of the
various areas surveyed; and (iii) the particular horizontal line on which
Kenya relies corresponds to a location several miles south of the
claimed parallel maritime boundary, as Kenya recognises.98
b) Kenya also refers to the fact that a survey of fisheries by the UNESCO
Intergovernmental Oceanographic Commission (“UNESCO IOC”) in
1987-88 referred to seven points in Somalia’s EEZ, one of which was
roughly parallel with the land boundary terminus.99 Yet the survey did
not purport to record or reflect the location of the Parties’ maritime
boundary. Nor does it provide any information as for how or why the
seven points for examination, six of which were far north of the parallel
boundary line now claimed by Kenya, were selected.
c) In addition, Kenya relies on a diagram contained in a report published
in 1998 by the UNESCO IOC.100 The basis on which that diagram was
produced is unclear (an ambiguity which is reinforced by the reference
to a “MEDIAN LINE” in the legend of the map). Subsequent maps
produced by the UNESCO IOC show an equidistant, rather than
parallel, boundary line. For example, in 2006 the UNESCO IOC
97 KCM, paras. 134-135 and Figure 1-17.
98 Kenya acknowledges that the northern limit of the “investigated area” was “3.5M south of the
parallel of latitude line claimed in the 1979 EEZ Proclamation”. KCM, para. 134.
99 KCM, para. 132 and Figure 1-16.
100 See KCM, para. 136 and Figure 1-18.
40
produced a report on a workshop on marine biodiversity data
mobilisation containing a diagram showing the concentration of
poriferan species in the EEZs of coastal states in Africa. The map,
reproduced as Figure R2.3 (in Volume II only) depicts the boundary
between Kenya’s EEZ and Somalia’s EEZ as an equidistance line.101
2.69. As for its alleged effectivités relating to the exercise of fisheries jurisdiction,
Kenya cannot produce a map more persuasive than Figure 1-14. That map—
published by the Somali Ministry of Fisheries and Marine Resources on an
unknown date before 1987—depicts seven fishery development regions.102 It does
not show (nor does it purport to show) any maritime boundary with Kenya. Nor
does it evidence any activities by Kenya.103
2.70. Kenya also claims that it “issued fishing licences to foreign vessels
indicating the parallel of latitude as the maritime boundary with Somalia”.104 The
licenses were, however, issued in 2011-2012,105 well after Kenya had recognised
the existence of a maritime boundary dispute with Somalia. In any event, there is
101 U.N. Educational, Scientific & Cultural Organization, Intergovernmental Oceanographic
Commission, Training Course Report No. 89: ODINAFRICA: Marine Biodiversity Data
Mobilisation Workshop on Sponges, U.N. Doc. IOC/2006/TCR/89 (4-18 Nov. 2006). RS, Vol. II,
Annex 17. In 2007 the UNESCO IOC produced a materially identical map showing that the
boundary between Kenya’s EEZ and Somalia’s EEZ follows an equidistance line. See U.N.
Educational, Scientific & Cultural Organization, Intergovernmental Oceanographic Commission,
Nineteenth Session of the IOC Committee on International Oceanographic Data and Information
Exchange (IODE-XIX): Ocean Data and Information Network for Africa (ODINAFRICA), U.N.
Doc. IOC/IODE-XIX/35 (22 Feb. 2007). RS, Vol. II, Annex 18.
102 KCM, para. 129, Figure 1-14.
103 Far from supporting the existence of a parallel boundary line, the lines which are shown further
up the east coast of Somalia follow a south-easterly direction. This suggests that if the map had
included a line for the edge of the southernmost fishery region (which it did not) then that line would
have also followed a south-easterly course.
104 KCM, para. 137.
105 Ibid.
41
no evidence that Somalia was ever aware that Kenya had issued fishing licences
encroaching on Somalia’s maritime space.
2.71. In this regard it has been widely recognised that, as a result of Somalia’s
lack of maritime enforcement capacity, vessels from many States have engaged in
illegal fishing in Somalia’s territorial waters and EEZ—activities that Somalia has
been unable to prevent. In 2015 the U.N. Monitoring Group on Somalia highlighted
the extent of the illegal activities in Somalia’s maritime space and Somalia’s
practical inability to prevent them from occurring. It wrote:
“Taking advantage of the limited maritime
surveillance capability of the Federal Government of
Somalia, many foreign vessels fish in Somali waters
in contravention of international law and the Federal
Government of Somalia Fisheries Law, either
without licences or with forged documents, and
without reporting data to any Somali authority…
Illegal, unreported and unregulated fishing
represents a significant threat to peace and security
in Somalia”.106
2.72. This purported activity cannot, therefore, support Kenya’s claim.
C. ALLEGED EFFECTIVITÉS: OIL CONCESSION PRACTICE
2.73. Kenya also tries to found its effectivités argument on its oil concession
practice in the disputed area. An analysis of the evidence, however, proves that
Kenya’s historical conduct undermines, rather than supports, its claim to have
consistently exercised authority up to a parallel maritime boundary.
106 U.N. Monitoring Group on Somalia and Eritrea, Report of the Monitoring Group on Somalia
and Eritrea pursuant to Security Council resolution 2182 (2014): Somalia, U.N. Doc. S/2015/801
(19 Oct. 2015), paras. 34-35. RS, Vol. II, Annex 23.
42
2.74. As Somalia explained in its Memorial,107 a map of Kenya’s oil concessions
produced by Petroconsultants S.A. in 1978 shows the northern limit of Kenya’s
northernmost offshore concession block following a line that closely resembles an
equidistance line. Similar maps produced by oil services companies covering the
years 1979, 1982, 1984, 1985, 1994, 1995 and 1996 all demonstrate that Kenya’s
northernmost concession blocks continued to respect an equidistance line until the
late 1990s.108
2.75. Kenya contests the relevance of those maps in its Counter-Memorial, in part
on the (telling) basis that, “during this period, Kenya did not award blocks in that
maritime area”.109 Kenya thus admits to having non-effectivités in the disputed area.
Kenya recognises, however, that several of the maps “do appear to show Block L-
5 drawn at the equidistance line in the territorial sea” for several years in the
1990s.110
2.76. Indeed, one of the maps that Kenya’s cites in support of its claim to a
parallel maritime boundary—a map produced by the National Oil Corporation of
Kenya in 1995—shows clearly that the perimeter of the northernmost concession
107 MS, para. 3.21 and Figure 3.5A.
108 See MS, Vol. II, Annexes M2-M7: Petroconsultants S.A., Kenya (Coastal Area): Synopsis 1979
(Feb. 1980). MS, Vol. II, Annex M2; Petroconsultants S.A., Kenya (Coastal Area): Synopsis 1982
(Jan. 1983). MS, Vol. II, Annex M3; Petroconsultants S.A., Kenya: Synopsis 1984 (Jan. 1985). MS,
Vol. II, Annex M4; Petroconsultants S.A., Kenya: Synopsis 1985 (Including Current Activity) (Apr.
1986). MS, Vol. II, Annex M5; Petroconsultants S.A., Kenya: Synopsis 1994 (Jan. 1995). MS, Vol.
II, Annex M6; Petroconsultants S.A., Kenya: Synopsis 1995 (July 1996). MS. Vol. II, Annex M7;
Petroconsultants S.A., Kenya: Current Status and Synopsis 1996 (June 1997). MS. Vol. II, Annex
M8.
109 KCM, para. 143.
110 Ibid., para. 144.
43
block (L-5) was tailored precisely so that it followed an equidistance line.111 About
that block, Kenya explains in the Counter-Memorial: “Within the EEZ, the block
was extended southwards away from the Somali maritime boundary (rather than
eastwards along the parallel)”.112 But this only highlights that “the focus of offshore
activity [was] in the southern portion of the Lamu basin”113— that is, away from
the disputed area.
2.77. Thus, for two decades following the 1979 Presidential Proclamation,
Kenya’s practice with respect to the granting of offshore oil concessions was
limited to concessions that occasionally went up to—but never beyond—an
equidistance line. Indeed, Kenya does not claim in its Counter-Memorial that it
awarded oil concessions north of the equidistance line at any point between
attaining independence in 1963 and the turn of the century almost four decades
later.
2.78. As Somalia has explained in its Memorial, it was only mid-way through
Somalia’s two-decade long civil war, in the mid-2000s, that Kenya first began to
award oil concessions in the area north of the equidistance line.114 Kenya candidly
acknowledges that its expansion into this area in the new millennium was driven
by “rising commercial interest”.115
111 See ibid.; National Oil Corporation of Kenya, Hydrocarbon Potential of the Coastal Onshore
and Offshore Lamu Basin of South-East Kenya: Integrated Report (1995). KCM, Vol. II, Annex
38.
112 KCM, para. 144 (emphasis in original).
113 Ibid. (emphasis added).
114 MS, para. 3.22.
115 KCM, para. 146.
44
2.79. Kenya is notably vague about these activities. While it states that Block L-
5 was “reconfigured”116 on an unspecified date in the early 2000s, it was only in
December 2006 that the first exploratory well was drilled in the expanded Block
L-5.117 And even then, the well was just north of the equidistance line, at a point
approximately 17.5 M south of the claimed parallel boundary line.118 Kenya also
states that it established a new Block L-13 “along the parallel”.119 Again, no date
is provided by Kenya; however, it appears that the first grant of a concession for
this block did not occur until 2008.120
2.80. Kenya’s Counter-Memorial does not refer to any drilling activities or
granting of oil concessions between the drilling of the exploratory well in Block L-
5 marginally north of the equidistance line in December 2006 and the conclusion
of a production sharing contract for Block L-21 on 29 June 2012.121 By that date,
of course, both Parties had long since clearly recognised the existence of a maritime
boundary dispute. Indeed, they concluded an MOU about that dispute in 2009.
Moreover, the purported extension of those blocks up to a parallel line prompted
vigorous formal protests by the Somali Government.122
116 Ibid., para. 147.
117 Ibid., para. 151.
118 See Ibid., para. 151 and Figure 1-25.
119 KCM, para. 147.
120 See MS, para. 8.20.
121 As Somalia notes in its Memorial, it appears that Kenya offered a re-drawn Block L-5 for surface
exploration and drilling in April 2009. In 2015 (after Somalia’s claim was filed before the Court) it
was reported that exploratory drilling was scheduled to take place in this block sometime later in
2015. See ibid., para. 8.22.
122 See ibid., para. 8.27.
45
2.81. Accordingly, it can be seen that Kenya’s oil concession practice amounted
to no more than:
a) Over two decades of not carrying out any activities in the area between
the parallel line and the equidistance line, consistent with the existence
of an equidistant boundary line;
b) The purported “extension” of only two concession blocks up to a
parallel line at a time when Somalia had been afflicted by a decadelong
civil war that had destroyed all effective government and
enforcement capacity in the country; and
c) The awarding of additional oil concessions covering the disputed area
only at various points in time after the Parties had formally recognised
the existence of a maritime boundary dispute.
D. OFFICIAL KENYAN MAPS SHOWING AN EQUIDISTANT MARITIME
BOUNDARY IN THE TERRITORIAL SEA
2.82. Kenya’s position is also contradicted by the fact that since 1979 Kenya has
published various maps that depict the maritime boundary with Somalia along an
equidistant line, rather than a parallel of latitude. Those maps provide additional
evidence that Kenya has not consistently claimed jurisdiction up to a parallel line.
2.83. In 1980 the Kenyan Ministry of Agriculture published a detailed map of
Kenya which clearly showed an equidistant maritime boundary in the territorial
sea. That map is reproduced as Figure R2.4 (in Volume II only).123
123 Republic of Kenya, Ministry of Agriculture, Exploratory Soil Map of Kenya (1980). RS, Vol. II,
Annex 6.
46
2.84. Fifteen years later, in 1995 the National Oil Corporation of Kenya produced
a report on the hydrocarbon potential of the Lamu Basin. The report contains a map
which also shows an equidistant maritime boundary in the territorial sea. It is
reproduced as Figure R2.5 (in Volume II only).124
2.85. Similarly, in 2003 the Survey of Kenya produced a National Atlas on behalf
of the Government of Kenya which contained several maps which all showed a
south-easterly boundary with Somalia in the territorial sea,125 including Figure
R2.6 (in Volume II only).
2.86. Consistent with the terms of the Territorial Waters Act 1972 and the
Maritime Zones Act 1989, the website of the Kenyan Marine and Fisheries
Research Institute even now contains maps showing an equidistant maritime
boundary in the territorial sea. Two of those maps, one showing coral reefs on the
Kenyan coastline and the other showing fish landing sites there, are reproduced in
Volume II as Figures R2.7 and R2.8.126
Section V. Somalia’s Conduct Does Not Amount to Acquiescence in
Kenya’s Claim
2.87. The absence of any consistent pattern of conduct by Kenya in respect of its
maritime boundary is fatal to any claim based on alleged “acquiescence”. However,
124 National Oil Corporation of Kenya, Hydrocarbon Potential of the Coastal Onshore and Offshore
Lamu Basin of South-East Kenya: Integrated Report (1995). KCM, Vol. II, Annex 38.
125 See Republic of Kenya, Survey of Kenya, NATIONAL ATLAS OF KENYA (5th ed., 2003), pp. 66,
69. RS, Vol. II, Annex 7.
126 Kenya Marine and Fisheries Research Institute, Kenya Coastal Development Project, Integrated
Coastal Biodiversity Management System: Kenyan Coral Reefs (4 Oct. 2017), available at
http://icbims.kmfri.co.ke/maps/221/view. RS, Vol. II, Annex 15; Kenya Marine and Fisheries
Research Institute, Kenya Coastal Development Project, Integrated Coastal Biodiversity
Management System: Fish Landing Sites (4 Oct. 2017), available at
http://icbims.kmfri.co.ke/maps/231/view. RS, Vol. II, Annex 14.
47
even if Kenya had engaged in a consistent pattern of conduct (quod non), it has put
forward no plausible evidence that Somalia has committed any acts or omissions
that could conceivably be characterised as “acquiescence” in such conduct. On the
contrary (and as Kenya is well aware), Somalia has always had a different claim,
based on equidistance. Somalia has consistently asserted that claim and acted in
accordance with it. Moreover, even if the absence of protest to a unilateral claim
by a State were capable of giving rise to a maritime boundary delimitation—which
it is not—this would be irrelevant in the context of this case, as Somalia has
repeatedly and unequivocally protested against Kenya’s assertion of a parallel
maritime boundary.
A. KENYA’S ERRONEOUS CLAIM THAT SOMALIA MADE NO PROTEST UNTIL
2014
2.88. Kenya’s claim that Somalia failed to protest against Kenya’s assertion of a
parallel maritime boundary until 2014127 contradicts Kenya’s own pleadings at an
earlier stage in these proceedings. In its Preliminary Objections Kenya stated that:
“It was only in 2009 that Somalia first disputed Kenya’s 1979 EEZ maritime
boundary”.128
2.89. The suggestion that Somalia did not lodge any formal objection prior to
2014 is manifestly untenable given the letter from the Prime Minister of Somalia
to the Secretary-General of the United Nations dated 19 August 2009, which stated:
“The delimitation of the continental shelf between
the Somali Republic and the Republic of Kenya has
not yet been settled. It would appear that Kenya
claims an area extending up to the latitude of the
127 Kenya makes this erroneous assertion a number of times throughout its Counter-Memorial. See
KCM, paras. 10, 27, 200.
128 KPO, para. 18 (emphasis added).
48
point where the border reaches the coast, while,
instead, in accordance with the international law of
the sea, an equidistance line normally constitutes the
point of departure for delimitation of the continental
shelf between two States with adjacent coasts.
Somalia bases itself on the latter view. This
unresolved delimitation issue is to be considered as
a ‘maritime dispute’…”.129
2.90. Numerous independent sources confirm that Kenya’s claim that Somalia
expressed no protest against Kenya’s assertion of a parallel maritime boundary
until 2014 is manifestly wrong. The evidence before the Court shows that Somalia
protested much earlier—consistent with the position it has long adopted on an
equidistance boundary—once it resumed having a functioning government after
the long civil war.
2.91. In April 2012 Reuters published an article reporting on the “row between
Kenya and Somalia over their maritime border”. The article explained that
Somalia’s position was that the maritime border “continues into the ocean
diagonally southeast and that a horizontal border would be unfair”.130
2.92. Three months later, Reuters reported that Somalia had protested against
Kenya’s decision to award offshore oil and gas concessions for maritime areas
north of the equidistance line. The article explained that the Government of
Somalia had “accused Kenya … of awarding offshore oil and gas exploration
blocks illegally to multinationals Total and Eni because the concessions lie in
129 Letter from H.E. Omar Abdirashid Ali Sharmarke, Prime Minister of the Transitional Federal
Government of the Somali Republic, to H.E. Ban Ki-Moon, Secretary-General of the United
Nations, No. XRW/00506/08/09 (19 Aug. 2009) (emphasis added). MS, Vol. III, Annex 37.
130 Kelly Gilblom, “Kenya, Somalia border row threatens oil exploration”, Reuters (20 Apr. 2012).
MS, Vol. IV, Annex 104.
49
waters claimed by Somalia”. It added that, “Somalia says the boundary should
extend perpendicular to the coastline”. 131
2.93. In July 2012, Stimson, an independent policy research centre in the United
States, produced a report entitled Indian Ocean Rising: Maritime Security and
Policy Challenges. The report contained a map of “Jurisdictional Claims in the
Indian Ocean Region”, which showed an equidistant Kenya/Somalia EEZ
boundary.132 The Stimson report also stated that Somalia had an “Unresolved
maritime boundary with Kenya”, while Kenya had an “Unresolved boundary with
Somalia”.133
2.94. Somalia’s opposition to a parallel maritime boundary was also recorded by
the U.N. Monitoring Group on Somalia in its July 2013 report, in the section
entitled “Conflict between Somalia and Kenya over the maritime boundary”:
“The FGS has thus refused to recognise oil licenses
granted to multinational companies by Kenya and
which protrude into waters defined as Somali
according to that perpendicular demarcation line. Oil
multinational companies affected by the FGS
opposition have included French oil company Total
(Kenyan license L22), Italian major ENI (Kenyan
licenses L21, L23 and L24), US oil firm Anadarko
(Kenyan license L5) and Norway’s majority statefunded
Statoil (Kenyan license L26) ….
The FGS has persuaded Statoil, Anadarko and Total
to withdraw their claims that partially infringe on
131 Kelly Gilblom, “Somalia challenges Kenya over oil blocks”, Reuters (6 July 2012). MS, Vol.
IV, Annex 107.
132 Caitlyn Antrim, “International Law and Order: The Indian Ocean and South China Sea” in
INDIAN OCEAN RISING: MARITIME SECURITY AND POLICY CHALLENGES (D. Michel & R. Sticklor
eds., 2012), p. 68. RS, Vol. II, Annex 34.
133 Ibid., p. 83.
50
Somalia’s demarcation line. However, ENI, which
has been allocated three licenses that fall within the
[sic] Somalia’s definition of Somali waters has yet
to withdraw its claims at the time of submission of
this report.134 The remaining dispute between ENI
and the FGS, and the persistence of a contested
perpendicular line of demarcation, may serve to
create further animosity between the Governments
of Somalia and Kenya at a time when both are at
loggerheads over the creation of a political
administration in Jubaland.
This territorial dispute could exacerbate tensions
between Somalia and Kenya that have already been
sharpened by political disagreements over the
control of Kismayo and the Jubaland territory …”.135
2.95. Somalia’s protests against the claim to a parallel maritime boundary
resulted in Kenya’s suspension of one oil operator in 2012:
“Kenya suspended Norwegian oil company Statoil
from block L26 in late 2012, as the company was
unwilling to meet financial obligations of
developing exploration activities in the block while
legal uncertainty prevailed over the Kenyan-Somali
maritime boundary”.136
134 Footnote 27 in the original, which stated: “In November 2012, an FGS oil official informed ENI
in writing that the three other oil majors had withdrawn their claims from Kenyan waters. In
February 2013, the FGS was still in negotiations with ENI regarding the withdrawal of their claim,
but in email correspondence also left open the possibility of negotiating a prior license which is
situated in Puntland”. U.N. Monitoring Group on Somalia and Eritrea, Report of the Monitoring
Group on Somalia and Eritrea pursuant to Security Council resolution 2060 (2012): Somalia, U.N.
Doc. S/2013/413 (12 July 2013), p. 249, at fn. 27. MS, Vol. III, Annex 64.
135 Ibid., pp. 248-249, paras. 28-30 (internal footnotes omitted).
136 Ibid., p. 249, para. 33 (internal footnotes omitted).
51
B. SOMALIA’S LONGSTANDING POSITION THAT THE PARTIES’MARITIME
BOUNDARY SHOULD FOLLOW AN EQUIDISTANCE LINE
2.96. As explained in the Memorial, Somalia has long claimed that the Parties’
maritime boundary should follow an equidistance line.137
2.97. As long ago as 1974, Somalia articulated its claim to an equidistance line
during the UNCLOS negotiations. Kenya was aware of this position. As Kenya’s
representative noted during the third session of the Conference:
“We should remain very vigilant in this respect as
our neighbours—both Tanzania and Somalia—seem
to have had the malicious intention of distorting the
marine borders when they extended their territorial
sea, specifying the median line as the dividing line
…”.138
2.98. Consistent with that position, as Kenya notes in its Counter-Memorial, in
1978 the Somali Government offered an oil and gas concession block which
followed a south-easterly line that closely tracked an equidistance line for
approximately 100 M.139
2.99. The claim to an equidistant maritime boundary was formally enshrined in
Article 4(6) of the Somali Maritime Law of 1988, which provided that the maritime
boundary with Kenya “is a straight line towards the sea”.140 As Somalia has
137 See, e.g., MS, paras. 3.6, 3.21 n. 95.
138 Permanent Mission to the United Nations of the Republic of Kenya, Report on the Work of the
Second Session of the Third United Nations Conference on the Law of the Sea, held in Caracas,
Venezuela (20 June-29 Aug. 1974), Doc. No. 273/430/001A/15 (28 Oct. 1974), para. 80 (emphasis
added). KCM, Vol. II, Annex 11.
139 KCM, para. 141.
140 Somali Democratic Republic, Ministry of Fisheries and Sea Transport, Somali Maritime Law
(1988), Art. 4(6). MS, Vol. III, Annex 10.
52
explained—and as Kenya notably disregards in its Counter-Memorial—while the
Somali language has no word precisely equivalent to the English word
“equidistance”, it is clear that the language of the 1988 Law was intended to
describe an equidistance line.141 At no time after the 1988 Law was enacted did
Kenya lodge any objection to the existence of such a boundary line. On the
contrary, Kenya explicitly endorsed the principle of an equidistant maritime
boundary the following year (at least in the territorial sea) when it enacted the
Maritime Zones Act 1989—a legislative endorsement that remains in force
today.142
2.100. The position reflected in Somalia’s 1988 Law is consistent with its repeated
objections to Kenya’s claim to a parallel boundary. In contrast to Kenya, there is
no conflict between the position that Somalia advances before the Court and the
content of Somalia’s own maritime legislation for the last 30 years.
2.101. In this regard, various maps produced by independent third parties during
the period of Somalia’s alleged acquiescence show a maritime boundary along an
equidistance line, not a parallel of latitude. Those maps reflect and are consistent
with Somalia’s longstanding support for a boundary with Kenya based on
equidistance, and undermine again Kenya’s claim that Somalia acquiesced, with
binding effect, in the parallel.
141 MS, para. 3.6, fn. 62. In the Somali language no word bears precisely the same meaning as
“equidistance”. The Somali Maritime Law uses the expression “straight line toward the sea”. The
Government of Somalia considers that this expression was clearly intended to describe an
equidistance line rather than (as Kenya suggests) a parallel line.
142 The Maritime Zones Act 1989 provides in section 3(4) that: “On the coastline adjacent to
neighbouring States, the breadth of the territorial waters shall extend to every point of which is
equidistant from the nearest points on the baselines from which the breadth of the territorial waters
of each of respective states is measured”. Republic of Kenya, Chapter 371, Maritime Zones Act (25
Aug. 1989). MS, Vol. III, Annex 20.
53
2.102. For example, a 1992 study of The Maritime Boundaries of the Indian Ocean
Region143 depicts the Somalia-Kenya boundary along an equidistance line, not the
parallel of latitude (reproduced in Volume II as Figure R2.9).
2.103. In 2001 the multinational oil company TotalFinaElf delivered a
presentation to the Government of Somalia. The presentation contained several
maps which all showed the Jorre concession block extending to the equidistance
line.144 An example is reproduced as Figure R2.10 (following page 54).
2.104. As noted above, in 2012 the U.N. Monitoring Group on Somalia published
a map illustrating the AMISOM monitoring sectors.145 The map, at Figure R2.1
(following page 30), clearly shows the southern sector extending up to an
equidistance line between Somalia’s and Kenya’s maritime zones.
2.105. Kenya makes much in its Counter-Memorial of a handful of graphics
produced by Soma Oil, a private company incorporated in the United Kingdom,
which depict a parallel line.146 But the graphics were presented at a conference in
Kenya in 2014 (well after the dispute had arisen between the Parties). The maps
simply reflect that, given the maritime boundary dispute, Somalia has complied
with its obligations under Article 83(3) of UNCLOS by refraining from
undertaking any measures in the disputed area that might jeopardise or hamper the
reaching of a final agreement on the Parties’ maritime boundary. That Somalia has
complied with its obligations under UNCLOS, while Kenya has not, provides no
143 Vivian Louis Forbes, THE MARITIME BOUNDARIES OF THE INDIAN OCEAN REGION (1995), p.
159. RS, Vol. II, Annex 32.
144 Total Fina Elf, Meeting with Authorities of Somalia (3 Feb. 2001), slides 2, 32, 34, 35, 38. RS,
Vol. II, Annex 25.
145 See supra para. 2.48.
146 See KCM, paras. 160-162.
54
support for Kenya’s claim. Indeed, as Article 83(3) expressly states, Somalia’s
compliance with its obligations under that article “shall be without prejudice to the
final delimitation”.
2.106. As a result, Kenya’s claim that “Somalia did not either protest that line [the
parallel line asserted by Kenya] or claim a contrary equidistance line as its maritime
boundary until 2014”,147 is unsupported by the evidence before the Court and is
wrong. In fact, Somalia has consistently claimed that the maritime boundary should
follow an equidistance line and has repeatedly and emphatically objected to
Kenya’s claim to a parallel maritime boundary. Apart from the many contradictions
in Kenya’s own conduct and legislation, its claim that Somalia has acknowledged
the existence of a parallel maritime boundary is manifestly unsustainable on the
evidence.
C. SOMALIA’S PRACTICAL INABILITY TO REGULATE ITS MARITIME SPACE
DURING THE LONG CIVIL WAR
2.107. Finally, the assessment of Somalia’s actions and inactions in relation to
Kenya’s unilateral claims and activities cannot be divorced from the circumstances
prevailing in Somalia during this period, in particular the devastating and longlasting
civil war, including the lack of a central governmental authority for
approximately two decades.
2.108. Kenya is particularly dismissive about this situation and denies that any
legal consequence may stem from it with respect to a so-called duty to protest.148
Yet when “a lack of protest would normally appear to suggest a degree of
acquiescence, [several] elements need to be weighed by the Tribunal in considering
147 Ibid., para. 200.
148 Ibid., paras. 228-229.
MAP OF THE JORRE BLOCK
Figure R2.10
Source: Map from presentation delivered by TotalFinaElf
to the Government of Somalia (2001).

55
the evidence … [including] the fact that civil hostilities were in progress”.149 In the
same vein, the Eritrea/Yemen tribunal considered it to be unreasonable to oppose
to Eritrea its lack of protest when considering the circumstances in which the 1990
Sharing Agreement between Yemen and British Petroleum was concluded:
“Ethiopia was then locked in its final struggle with
the Eritrean liberation movement, the Mengistu
regime was close to collapse, and to suggest that
Eritrea today should be taxed with Ethiopia’s failure
during that period to find and protest the terms of the
agreement may be unreasonable”.150
2.109. Kenya has recognised Somalia’s practical inability to acquiesce in any
maritime boundary during the civil war that engulfed the country. Kenya’s
Attorney-General himself described the situation in his closing submission before
the Court at the hearing on Kenya’s Preliminary Objections: “Somalia has only
recently begun to emerge from a long period of instability caused by civil war,
humanitarian disaster and widespread terrorism. In particular, Somalia has no
maritime enforcement capacity”.151 Indeed, Kenya’s counsel noted that even today,
“Somalia is still in the midst of a fragile post-conflict transition”.152
2.110. Over a decade earlier, in 2005, the Transitional Federal Government of
Somalia and the Government of Kenya signed an Agreement on Technical and
Economic Co-Operation which expressly “[r]ecogniz[ed] that the conflicts that
have ravaged Somalia for a decade and a half have spared little of the country’s
149 Eritrea/Yemen, para. 306.
150 Ibid., para. 415. See also ibid., para. 520 (“These agreements were not protested by Ethiopia
(though it should be remembered that the Hunt agreement was made at a time when the Ethiopian
civil war was still raging)”).
151 CR 2016/12, p. 40, para. 3 (Muigai).
152 CR 2016/10, pp. 25-26, para. 25 (Akhavan).
56
natural and man-made assets” and that “the destruction of Somalia’s infrastructure
… is overwhelming”.153
2.111. The breakdown in the infrastructure of the State made it impossible for
Somalia to govern and protect its natural assets. As the U.N. Secretary-General
explained in 2011: “Since the overthrow of the Siad Barre regime in 1991, there
has been little or no national framework for environmental and natural resource
governance in Somalia due to the absence of an effective central government”.154
In particular, “[t]he lack of State control or governance results in widespread
misuse of Somalia’s natural resources”.155 Moreover, “a weak legal and
institutional framework and the inability of the Transitional Federal Government
to enforce laws within Somali waters, makes the [Somali maritime] area attractive
for illegal, unreported and unregulated fishing”.156
2.112. The Secretary-General’s report continued:
“Although Somalia has signed a number of
applicable international and regional agreements, the
Government and regional administrations lack
implementation and enforcement capacity. The
challenges are enormous: political instability;
inadequate baseline data; absence of research and
monitoring capabilities; weak technical capacity;
153 Agreement on Technical and Economic Co-operation between the Government of the Republic
of Kenya and the Transitional Federal Government of the Republic of Somalia (6 Sept. 2005).
KCM, Vol. IV, Annex 149.
154 U.N. Security Council, Report of the Secretary-General on the protection of Somali natural
resources and waters, U.N. Doc. S/2011/661 (25 Oct. 2011), para. 22. RS, Vol. II, Annex 19.
155 Ibid., para. 5.
156 Ibid., para. 18. In this respect, the Report explained that: “According to a number of Somalia and
international observers, with the fall of the Siad Barre regime, foreign-flagged industrial fishing
trawlers began encroaching on the resource-rich Somali waters …. According to a 2005 FAO
estimate, approximately 700 foreign-flagged trawlers were engaged in illegal, unreported and
unregulated fishing in and around Somali waters”. Ibid., para. 40.
57
and lack of funding. Somalia’s lack of monitoring
and law enforcement capabilities makes it
vulnerable to criminal activities, including the illegal
dumping of toxic waste”.157
2.113. Against this backdrop, Kenya’s suggestion that Somalia should have
promptly objected—“within no more than a few weeks or months”158—to any
maritime claim advanced by Kenya in the 1990s or 2000s is as unrealistic as it is
without legal foundation. It is particularly unjustified to expect a State ravaged by
civil war and with no functioning government to lodge formal diplomatic protests
against a purported claim to a parallel boundary line which is made through a
unilateral declaration, in direct contradiction of Kenya’s own maritime legislation,
and at stark variance with the absence of any effectivités in the maritime space up
to the claimed boundary line.
* * *
2.114. For all of the foregoing reasons, Kenya’s claim to a maritime boundary
consisting of a parallel of latitude based on Somalia’s purported acquiescence in
such a boundary must be rejected. As Kenya has offered no other purported
justification for the boundary it has proposed, the Court should delimit the maritime
boundary between Somalia and Kenya in accordance with the now-standard threestep
method, as described in the next Chapter.
157 U.N. Security Council, Report of the Secretary-General on the protection of Somali natural
resources and waters, U.N. Doc. S/2011/661 (25 Oct. 2011), para. 61. RS, Vol. II, Annex 19.
158 KCM, para. 237.
58
59
CHAPTER 3
DELIMITATION OF THE MARITIME BOUNDARY
3.1. Chapter III of Kenya’s Counter-Memorial argues that even if Somalia did
not acquiesce in its parallel boundary claim, the “application of the principle of
equitable delimitation under international law would lead to the same result”.159
The argument appears as a fall-back, premised on the evident weakness of the
submissions on “acquiescence”. This Chapter explains why the alternative
argument fails as badly as its main one.
3.2. Section I exposes the many errors in Kenya’s presentation. In particular, it
shows that the reasons Kenya offers for attempting to bypass the three-step method
regularly used by the Court to delimit maritime boundaries is unpersuasive. The
text and negotiating history of the Convention, State practice and jurisprudence do
not support Kenya’s attempt to jettison the Court’s now well-established method.
3.3. Section II addresses the application of the standard three-step method and
confirms that it leads inevitably to the conclusion that the most equitable boundary
is an unadjusted equidistance line, as Somalia has proposed. None of Kenya’s
arguments against the equitableness of the equidistance line withstands scrutiny. In
the circumstances of this case, the equidistance line does not inequitably cut off the
maritime entitlements of either Party and is plainly proportionate.
Section I. Kenya Has Provided No Good Reason to Ignore the Court’s
Standard Method
3.4. Kenya argues that application of the principle of equitable delimitation
leads to precisely the same parallel boundary as that upon which its improbable
159 KCM, para. 275.
60
“acquiescence” claim is based. Its argument turns on three core assertions, none of
which withstands scrutiny:
• First, Kenya argues that the now-standard three-step method—i.e., the
equidistance/special circumstances rule (in the territorial sea) and the
equidistance/relevant circumstances rule (in the EEZ and continental
shelf)—is not mandatory;160
• Second, it contends that the Parties have shown through their practice that
they consider Kenya’s parallel of latitude to be an equitable result, and that
such practice should be respected; and
• Third, it maintains that the “parallel of latitude is in any event objectively
an equitable solution, taking into account all the relevant circumstances in
this maritime delimitation”.161
3.5. Somalia addresses each of these arguments in turn.
THE EQUIDISTANCE/RELEVANT CIRCUMSTANCES METHOD IS THE
STANDARD METHOD APPLICABLE BEFORE THE COURT
3.6. Kenya acknowledges that the equidistance/relevant circumstances method
is “commonly applied in order to achieve an equitable result”.162 The Court’s most
recent maritime boundary delimitation decision—Costa Rica v. Nicaragua—
160 Kenya’s Counter-Memorial does not separately address the delimitation of the territorial sea
under Article 15 of the Convention and the EEZ/continental shelf under Articles 74 and 83. Because
the Court’s approach to the delimitation of these zones is functionally identical, Somalia too will
not give them separate treatment in this Reply.
161 See KCM, para. 278(e).
162 Ibid., para. 276.
61
reaffirmed that the three-step method is the “established methodology”.163 And in
the immediately preceding delimitation case—Peru v. Chile—the Court similarly
recognized that the equidistance/relevant circumstances method is “[t]he usual
methodology applied by the Court”.164
3.7. Despite Kenya’s recognition that the three-step method is the “established”
and “usual” approach, it nevertheless contends that it is not “mandatory or …
appropriate in all circumstances”.165 According to Kenya, “[a]n equidistance line
… is only one method among others that may be deployed to achieve the overriding
objective of an equitable solution”.166
3.8. The Court will immediately note the conceptual confusion at the heart of
Kenya’s argument: it erroneously equates the equidistance/relevant circumstances
method, on the one hand, with an equidistance line, on the other. As the Court well
knows, however, the two are not the same.
3.9. The equidistance/relevant circumstances “method” (which is perhaps more
accurately described as a “process”) is the approach international courts and
tribunals follow to achieve the equitable result UNCLOS requires.167 An
equidistance line, in contrast, is a particular delimitation method that may—or may
163 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Merits, Judgment, I.C.J. Reports 2018 (hereinafter “Costa Rica v. Nicaragua”), para. 135.
164 Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 3, para. 184.
165 KCM, para. 276.
166 Ibid., para. 296.
167 Following that process, the Court (1) draws a provisional equidistance line, (2) determines
whether there are relevant circumstances that warrant an adjustment to that line and (3) confirms
that the delimitation achieved by application of the first two steps does not result in a marked
disproportion and is not otherwise inequitable. See Romania v. Ukraine, paras. 115-122.
62
not—result from the application of the equidistance/relevant circumstances
process.
3.10. Accordingly, while there is truth to Kenya’s assertion that “[n]onequidistance
methods … are also admitted by international law”,168 that cannot
itself be a reason to abandon the three-step method. Whether or not an equidistance
line is the proper end-point of the delimitation process, the Court has long made
clear that, with only very limited exceptions, it must be the starting point (subject
to later adjustment if warranted). Indeed, the Court has indicated that the only time
it will not be appropriate to start the delimitation process with an equidistance line
is when “the construction of [an equidistance line] is not feasible”.169
3.11. Notably, Kenya makes no argument that the construction of an equidistance
line is not feasible in this case. Instead, it attempts to argue that its refusal to begin
the delimitation with an equidistance line and follow the rest of the three-step
process is supported by the relevant provisions of UNCLOS and its negotiating
history, State practice and jurisprudence.
3.12. Before addressing each of these erroneous assertions, a preliminary
observation is required. Specifically, Kenya’s lengthy discussion of UNCLOS, the
State practice and the jurisprudence is presented at an entirely theoretical level. The
purpose is, as stated, to show generally that the three-step method is not mandatory
in all cases.
3.13. When it comes to explaining why the three-step method should be set aside
in the particular circumstances of this case, however, Kenya’s Counter-Memorial
168 KCM, para. 296.
169 Nicaragua v. Colombia, para. 195.
63
is notably restrained. It limits itself to the argument that “in the present case
application of the ‘three-stage’ methodology is not appropriate because the parties
have already indicated what is an equitable solution, namely the parallel of
latitude”.170 But it offers no practical or juridical impediment to the use of the
“three-stage” method in this case.
3.14. In other words, Kenya says, since the Parties’ have both nominally
recognized the parallel of latitude as fair, the Court need not waste its time with the
three-step method. This, of course, is an obvious re-purposing of Kenya’s
acquiescence argument in a different guise. As such, it can and should be rejected
for all the reasons expressed in the previous chapter. Somalia has never acquiesced
in Kenya’s parallel claim, or otherwise done anything ever to indicate that it
considers the parallel to be an equitable solution.171
3.15. The reason Kenya offers for setting aside the three-step method in this case
thus fails. As a result, Kenya’s effort to argue that the three-step method is not
mandatory in all cases is beside the point. Since Kenya has not shown any valid
reason to dispense with the method in this case, Somalia respectfully invites the
Court to apply that method.
3.16. That said, in the interest of completeness, and so as not to let Kenya’s
presentation go unanswered, Somalia will respond to Kenya’s irrelevant assertions
concerning the text and negotiating history of UNCLOS, State practice and
jurisprudence in the sections that follow.
170 KCM, para. 308(a).
171 See supra paras. 2.44-2.48, 2.86-2.112.
64
B. THE REASONS KENYA GIVES FOR IGNORING THE THREE-STEP METHOD
ARE UNPERSUASIVE
1. The Provisions and Negotiating History of UNCLOS
3.17. With respect to the provisions of UNCLOS, Kenya states that Articles 73
and 84 of the Convention “do not prescribe any mandatory methodology to achieve
an equitable solution”.172 It then points to the fact that during the negotiations, a
number of States took the view that “that maritime delimitation must be based not
on equidistance, but on the principle of ‘equitable result’”.173
3.18. The fact that Articles 73 and 84 do not prescribe any mandatory
delimitation method may be correct, but it is also irrelevant. The Court’s
jurisprudence, and that of other international tribunals, has brought structure and
predictability to the delimitation process in the 36 years since the signing of the
Convention. For the Court, the three-step method represents the “develop[ment]
[of] its case law in the direction of greater certainty”.174
3.19. Kenya’s argument that some States took the view that “maritime
delimitation must not be based on equidistance”175 is equally irrelevant, and reflects
the same conceptual confusion mentioned above. That is, the three-step process
and the equidistance method are not the same. Applying the three-step method is
not the same as insisting on equidistance. The three-step method is consistent with
172 KCM, para. 298.
173 Ibid. (emphasis in original).
174 Speech by H.E. Judge Gilbert Guillaume, President of the International Court of Justice, to the
Sixth Committee of the General Assembly of the United Nations (31 Oct. 2001), p. 8. KCM, Vol.
III, Annex 120.
175 KCM, para. 298 (emphasis in original).
65
the possibility that, in appropriate circumstances (which are not present in this
case), the final delimitation line will be something other than an equidistance line.
3.20. With respect to the negotiating history, Kenya also points to comments
made by Somali representatives to the effect that the delimitation process should
be guided by “equitable principles”.176 Kenya appears to consider that there is some
contradiction between equitable principles, on the one hand, and the
equidistance/relevant circumstances method on the other. There is not. The
equidistance/relevant circumstances method was developed by the Court precisely
to ensure that the delimitation process achieves an equitable solution. Kenya itself
admits that the standard three-step method is a means of “achiev[ing] an equitable
result”.177 There is therefore nothing in the statements by Somalia’s representatives
that preclude Somalia (and the Court) from relying on the three-step method in this
case.
3.21. Moreover, even if Somalia’s negotiating position during UNCLOS III
could somehow be said to be inconsistent with the application of the
equidistance/relevant circumstances method (quod non), it would not be
reasonable, necessary or consistent with the law to reject the application of that
method on such a tenuous basis now. The equidistance/relevant circumstances
method had not crystallized into law 36 years ago, but it has now. Kenya offers no
reason not to apply it here.
176 Ibid., para. 300.
177 Ibid., para. 276.
66
2. State Practice
3.22. Concerning State practice, Kenya argues that “States use a range of
methods in order to achieve an equitable solution”.178 Kenya considers this “highly
significant” for the Court’s choice of a method of delimitation179 for two reasons:
(a) “State practice is a constituent element of customary international law”, and (b)
it constitutes “‘subsequent practice’ within the meaning of Article 31(3)(b) of the
Vienna Convention on the Law of Treaties”.180 Kenya is misguided on both counts.
3.23. First, agreements between other States cannot be indicative of the law
applicable in the context of an adjudicated delimitation. Agreement is one of two
means of delimitation under UNCLOS; the other is third-party dispute resolution.
In the case of agreements, the fairness of the result is evidenced by the parties’
decision to enter into the agreement itself. In the case of adjudicated delimitations,
the three-step method is the established approach for reaching an equitable result.
3.24. It is also far from clear that such agreements can, as such, be said to reflect
rules of customary international law, much less customary law that might warrant
a departure from the three-step process in this case. Maritime delimitation
agreements are frequently influenced by extra-legal considerations—political,
historical, economic and so on.181 Each agreement turns on its own facts. Moreover,
178 Ibid., para. 302.
179 Ibid., paras. 302-303.
180 Ibid., para. 303.
181 Kenya shares this view. See CR 2016/10, p. 17, para. 10 (Muigai) (arguing that a “full and final
settlement will have to contain several important elements that call for a negotiated agreement”,
some of which apparently cannot be taken into account in a legal proceeding); CR 2016/12, p. 40,
para. 3 (Muigai) (“This maritime boundary dispute arises in a delicate political context. … The
maritime boundary delimitation between Kenya and Somalia requires sensitive bilateral
negotiations that can encompass not just strictly legal issues, but also our very real political and
security concerns, as well as practical arrangements to address them”.); Letter from H.E. Githu
Muigai, Attorney-General and the Agent of the Republic of Kenya, to H.E. Mr. Philippe Couvrer,
67
Kenya has not explained how the delimitation agreements it refers to manifest the
requisite opinio juris.
3.25. Second, Kenya also says that State practice constitutes “‘subsequent
practice’ … relevant to the interpretation of UNCLOS”.182 This argument is equally
unsupportable.
3.26. Article 31(3)(b) of the Vienna Convention provides that subsequent
practice shall “be taken into account” in interpreting UNCLOS if it “establishes the
agreement of the parties regarding [the treaty’s] interpretation”.183 Somalia does
not see how State practice in reaching bilateral maritime delimitation agreements
can be considered indicative of any agreement regarding legal interpretation of
Articles 74 or 83. This is especially so in light of the fact, mentioned above, that
bilateral agreements are often influenced by non-legal factors.
3.27. Moreover, whatever the nominal state or characterization of State practice,
the Court has been categorical. Insofar as delimitation method is concerned, “[t]he
legal rule is now clear”: “[i]n all cases, the Court” follows the standard method
unless it is not feasible.184
3.28. In another strained attempt to extract something from the State practice,
Kenya conjures up a “rule” of regional custom in favour of delimiting maritime
Registrar of the International Court of Justice, No. AG/CONF/19/153/2VOL.IV (26 Sept. 2016).
RS, Vol. II, Annex 13.
182 KCM, para. 303.
183 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 332 (23 May 1969), entered into force
27 Jan. 1980, Art. 31(3)(b). Written Statement of Somalia (hereinafter “WSS”) (5 Feb. 2016), Vol.
II, Annex 1.
184 Speech by H.E. Judge Gilbert Guillaume, President of the International Court of Justice, to the
Sixth Committee of the General Assembly of the United Nations (31 Oct. 2001), p. 11. KCM, Vol.
III, Annex 120.
68
boundaries by parallels of latitude.185 It asserts that the “parallel of latitude has all
along been considered a solution that would ‘be suitable for equitable integration
into the existing delimitations of the [East] African region’”.186
3.29. That is not true. Parallels of latitude have not “all along been considered
a[n] [equitable] solution”187 in East Africa, and Kenya has provided no compelling
evidence to support its claim. The only agreements Kenya points to are Tanzania’s
two maritime boundaries—with Kenya in the north and Mozambique in the south.
These two agreements account for just a tiny number of the many potential
maritime boundaries on the “African coast of the Indian Ocean”.188 Regional
custom cannot be built on the odd example or two.
3.30. More fundamentally, the agreements Kenya points to can have no bearing
on the delimitation between Somalia and Kenya. In its most recent maritime
boundary decision in Costa Rica v. Nicaragua, the Court made it clear that nearby
delimitations, whether effected by agreement or by adjudication, can have no
bearing on the delimitation at hand.
3.31. In response to Costa Rica’s argument that its agreement with Panama was
relevant to the delimitation with Nicaragua, the Court stated that a
“judgment rendered by the Court between one of the
Parties and a third State or between two third States
cannot per se affect the maritime boundary between
the Parties. The same applies to treaties concluded
185 See KCM, paras. 312, 325, 342.
186 Ibid., para. 325.
187 See ibid.
188 Ibid., para. 323.
69
between one of the Parties and a third State or
between third States”.189
3.32. Accordingly, Kenya’s attempt to invoke a “rule” of regional practice—
especially one that does not exist—is unavailing.
3. Jurisprudence
3.33. Kenya argues that “[t]he jurisprudence of the Court demonstrates that: (a)
[t]he three-stage approach is a common but not mandatory methodology; and that
(b) [o]ther methods may be and are used, including delimitation using the parallel
of latitude”.190 It also argues that “[a] mechanical application of equidistance,
including the ‘three-stage’ methodology, would be contrary to the relevant
provisions of UNCLOS and inconsistent with State practice”.191
3.34. By asserting that a “mechanical application of … the ‘three-stage’
methodology … would be contrary to the relevant provisions of UNCLOS and
inconsistent with State practice”, Kenya appears to be suggesting that the Court has
gotten the law wrong all these years. Somalia disagrees with that proposition. As
indicated above, the Court has rightly made it clear that the three-step method is
now the “usual” and “established” method it applies to achieve an equitable
solution.192
3.35. As former President Guillaume stated more than 15 years ago in his 2001
address to the Sixth Committee of the U.N. General Assembly (a speech on which
189 Costa Rica v. Nicaragua, para. 123 (emphasis added).
190 KCM, para. 307.
191 Ibid., para. 308.
192 See supra paras. 3.6-3.11.
70
Kenya itself relies193): “The legal rule is now clear”: “In all cases, the Court …
must first determine provisionally the equidistance line … [and] then ask itself
whether there are special or relevant circumstances requiring this line to be adjusted
with a view to achieving equitable results”.194
3.36. Kenya can therefore obtain no advantage from citing to cases dating back
to 1982 and earlier, well-before the three-step method became settled, to support
its unorthodox view of the jurisprudence.195 For this reason, Somalia sees no need
to burden the Court with a case-by-case examination of the jurisprudence Kenya
cites.
3.37. Moreover, the only justification the Counter-Memorial offers for departing
from the three-step method in this case is unpersuasive. As stated, it argues that “in
the present case application of the ‘three-stage’ methodology is not appropriate
because the Parties have already indicated what is an equitable solution, namely
the parallel of latitude”.196
3.38. Kenya purports to base this argument on the Court’s observation in its 1982
Judgment in Tunisia/Libya that “‘the Court must take into account whatever indicia
are available of the line or lines which the Parties themselves may have considered
193 See KCM, para. 282, fn. 380.
194 Speech by H.E. Judge Gilbert Guillaume, President of the International Court of Justice, to the
Sixth Committee of the General Assembly of the United Nations (31 Oct. 2001), p. 11. KCM, Vol.
III, Annex 120.
195 These cases include: the 1969 North Sea Continental Shelf cases, cited at KCM, para. 312; the
ICJ’s 1982 Tunisia/Libya and 1984 Gulf of Maine decisions, cited at KCM, para. 313; and decisions
of ad hoc arbitral tribunals in Guinea/Guinea-Bissau (1985) and St. Pierre & Miquelon (1992), also
discussed at KCM, para. 313.
196 KCM, para. 308(a).
71
equitable or acted upon as such’”.197 According to Kenya, since both Kenya and
Somalia have, through their practice, indicated that they consider the parallel of
latitude to be equitable, the Court must give effect to the parallel.
3.39. Somalia showed in Chapter 2 of this Reply that it has never indicated that
it considered the parallel boundary to be equitable.198 Kenya’s argument based on
Tunisia/Libya therefore fails on the evidence before the Court.
3.40. But even if there were some limited concordant practice (which there is
not), Kenya’s argument would still fail. The recent judgment of the ITLOS Special
Chamber in Ghana/Côte d’Ivoire is particularly instructive in this regard. In that
case, there was an undisputed record of mutual, concordant and substantive practice
(including in the issuance of oil concessions) around the same delimitation line
over the course of four decades—conduct that was much more consistent and
uniform than Kenya even argues is the case here.
3.41. Ghana first argued that there was a tacit agreement between the parties. The
Special Chamber rejected that argument.199 Ghana also argued in the alternative
exactly what Kenya argues here: that the parties’ indication of the line they
considered equitable must be given effect, or at least considered a “relevant
circumstance” requiring adjustment of the provisional equidistance line.200
3.42. The Special Chamber dismissed Ghana’s arguments as an unjustifiable
“attempt to revive a tacit maritime boundary that was rejected by the Special
197 Ibid., para. 314 (citing Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1982, p. 18, para. 118).
198 See supra paras. 2.87-2.106.
199 Ghana/Côte d’Ivoire, paras. 211-228.
200 Ibid., paras. 102, 104, 457-460.
72
Chamber by circumventing the high standard of proof required for the existence of
a tacit agreement”. In rejecting Ghana’s alternative argument, the Chamber
explained that to accept it “would, in effect, undermine its earlier finding on the
existence of a tacit agreement”.201
3.43. The Court should do the same here. Kenya cannot revive its unpersuasive
acquiescence argument by dressing it up in the garb of “equitable principles”.
* * *
3.44. For all these reasons, Kenya has offered no reason why the Court should
depart from the standard three-step method in this case.
Section II. The Three-Step Method Shows the Equidistance Line to Be an
Equitable Solution
3.45. Because it resists the application of the equidistance/relevant circumstances
approach, Kenya’s Counter-Memorial makes no argument that applying the
standard method yields the parallel of latitude that Kenya claims. Nor does it offer
any criticism of the manner in which Somalia applied the method in its Memorial.
3.46. Kenya has nothing to say about the definition of the relevant coasts and
relevant area, the construction of the provisional equidistance line or Somalia’s
conduct of the disproportionality test. The reason Kenya fails to engage with the
three-step method is obvious: no faithful application of that process could possibly
result in the parallel of latitude, or anything close to it.
201 Ibid., para. 478.
73
3.47. To the contrary, the result of the three-step method is the unadjusted
equidistance line identified in Somalia’s Memorial. Somalia will briefly show
again below how applying the three-step method results in an unadjusted
equidistance line, and not the parallel of latitude Kenya claims.
THE CONSTRUCTION OF THE PROVISIONAL EQUIDISTANCE LINE
1. Starting Point of the Maritime Boundary
3.48. The construction of a provisional equidistance line begins with the
identification of the land boundary terminus (“LBT”). There is little difference
between the Parties on this point.
3.49. In March 2014, the Parties agreed that they would “rely on Pillar BP29 as
reflected in the 1924 Anglo-Italian Treaty to constitute the starting point solely for
the purposes of establishing a maritime boundary”.202 There are therefore just two
issues for the Court to resolve: (1) the precise location of BP29 and (2) how to
connect BP29 (which is located slightly inland) to the low-water line.
3.50. With respect to the first issue, Somalia explained how it determined the
location of BP29 in its Memorial.203 Kenya takes no issue with Somalia’s method
but comes up with slightly different coordinates. Whereas Somalia places BP29 at
1°39’43.30” S - 41°33’33.49” E, Kenya claims that it is located at 1°39’43.22” S -
41°33’33.19” E. The difference between the two coordinates is de minimis, just
some 10 metres.
202 Government of Somalia and Government of Kenya, Joint Report on the Kenya-Somali Maritime
Boundary Meeting, 26-27 Mar. 2014 (1 Apr. 2014), pp. 3-4. MS, Vol. III, Annex 31.
203 MS, paras. 4.18-4.20.
74
3.51. The discrepancy between the two points, such as it is, appears to relate to
the imprecision of geo-rectifying different satellite images.204 Because the
difference is so small, Somalia would be content for the Court to adopt Kenya’s
proposed coordinates for BP29.
3.52. BP29 cannot, however, be the starting point of the maritime boundary
because, as stated, it is not located on the coast. This raises the second issue: how
to connect BP29 to the low-water line.
3.53. The 1927 Agreement provides that the land boundary extends from BP29
to the sea in a south-easterly direction “in a straight line at right angles to the
general trend of coastline at Dar Es Salam”.205 Consistent with the agreement,
Somalia’s Memorial connected BP29 to the low-water line by means of a line
perpendicular to the general direction of the coast.206
3.54. Kenya agrees that the 1927 Agreement reflects the Parties’ understanding
on the land boundary.207 It nevertheless suggests that Somalia’s method is
erroneous because it connects BP29 to the low-water line, whereas, Kenya says,
204 This discrepancy can be seen by comparing Figures R3.1A and R3.2A (in Volume II only).
Figure R3.1A shows Somalia’s and Kenya’s proposed locations for BP29 plotted on Google Earth
imagery from 2010. (Figure R3.1B is an unannotated version of the same image.) Figure R3.2A
depicts the Parties’ proposed locations for BP29 plotted on Digital Globe imagery taken on an
unknown date. (Figure R3.2B is an unannotated version of the same Digital Globe image.) As the
Court can see, the spot on the ground that Somalia identified as the location of BP29 based on the
Google Earth imagery (Figure R3.1A) is virtually identical to the location of the same spot on the
Digital Globe imagery (Figure R3.2A).
205 Agreement between Italy and the United Kingdom in which are recorded the decisions of the
Commission appointed under Article 12 of the Treaty between His Britannic Majesty and His
Majesty the King of Italy, signed at London on July 15, 1924, regulating certain questions
concerning the boundaries of their respective territories in East Africa (17 Dec. 1927), Appendix I,
First Part. MS, Vol. III, Annex 3.
206 MS, para. 4.22.
207 KCM, para. 29. See also MS, para. 4.2, n. 149.
75
the 1927 Agreement provides that BP29 “must be connected to the ‘line of mean
sea-level ordinary spring tides’”.208
3.55. Kenya has misread the 1927 Agreement. The 1924 Treaty between Italy
and the United Kingdom originally defined the last segment of the land boundary
by means of a line running “due southwards” to a point “on the coast”.209 It then
provided: “The coast shall be defined as the line of mean sea level ordinary spring
tides”.210
3.56. But when the Jubaland Boundary Commission surveyed and demarcated
the entirety of the new boundary between 1925 and 1927, it decided to move the
short section of the boundary running due south slightly to the west, “so that its
southern terminal point should be 15 metres inland from high water mark”211; i.e.,
the location of BP29. From that newly defined point, the final section of the
boundary was redefined to run in a south-easterly direction “in a straight line at
right angles to the general trend of coastline at Dar Es Salam”.212 In other words,
the 1924 definition of “the coast” as “the line of mean sea level ordinary spring
tides” was rendered irrelevant.
208 KCM, para. 34.
209 Treaty between Italy and the United Kingdom regulating certain Questions concerning the
Boundaries of their Respective Territories in East Africa, signed at London (15 July 1924), and
Exchange of Notes defining a Section of the said Boundaries, Rome (16 & 26 June 1925), 35
L.N.T.S. 380 (1925), p. 388. MS, Vol. III, Annex 2.
210 Ibid.
211 Agreement between Italy and the United Kingdom in which are recorded the decisions of the
Commission appointed under Article 12 of the Treaty between His Britannic Majesty and His
Majesty the King of Italy, signed at London on July 15, 1924, regulating certain questions
concerning the boundaries of their respective territories in East Africa (17 Dec. 1927), para. 7. MS,
Vol. III, Annex 3.
212 Ibid., Appendix I, First Part.
76
3.57. In any event, in the context of modern maritime boundary delimitations, the
law is clear: consistent with Article 5 of the Convention, the starting point for a
maritime boundary must be “the low-water line along the coast as marked on largescale
charts officially recognized by the coastal State”.
3.58. Neither Party appears to have identified its officially recognized charts prior
to these proceedings. In its Memorial, Somalia adopted U.S. NGA Nautical Chart
61220, the chart datum for which is lowest low water;213 that is, the lowest tide
observed along that coastline.214 Kenya’s Counter-Memorial does not identify any
chart. Nor does Kenya identify where the low-water line according to “mean sealevel
ordinary spring tides” would be located. Accordingly, Somalia submits that
the low-water line as identified on U.S. NGA Nautical Chart 61220 is the
appropriate place to locate the LBT and begin this delimitation.
3.59. Despite its complaint about the need to start the maritime boundary from
“the line of mean sea level ordinary spring tides”, Kenya notably fails to offer a
method for connecting BP29 to that line. It simply avoids the question by arguing
that the maritime boundary should “follow the parallel of latitude … extending
from Primary Beacon 29”.215 It offers no explanation as to how its approach is
consistent with the text of the 1927 Agreement, nor does it provide a basis in fact
or law to support its approach.
3.60. Somalia submits that its approach is the one required by the terms of the
1927 Agreement. It is also consistent with the jurisprudence. International courts
213 See United States National Geospatial-Intelligence Agency, Chart 61220: Manda Island to
Kismaayo (20 Jan. 2014). RS, Vol. II, Annex 42.
214 International Hydrographic Organization, Hydrographic Dictionary (5th ed., 1994), p. 135. RS,
Vol. II, Annex 41.
215 KCM, Submission No. 2.
77
and tribunals tend to follow the direction of the last segment of the land boundary
until it reaches the low-water line. For example, in Ghana/Côte d’Ivoire, the
Special Chamber connected the low-water line to the last boundary pillar marking
the end of the agreed land boundary by a line following the same azimuth as the
line connecting that pillar with the penultimate one.216 The arbitral tribunal in
Guyana v. Suriname took a similar approach.217
3.61. Following the approach laid out in the 1927 Agreement, Somalia’s
Memorial identified a point on the low-water line 41 metres distant from BP29,
with coordinates 1°39’44.07” S - 41°33’34.57” E. Somalia submits that it is that
point where the maritime boundary should begin.218
2. The Provisional Equidistance Line
3.62. Once the starting point of the maritime boundary is determined, the
equidistance/relevant circumstances method calls for the “establish[ment] [of] a
provisional delimitation line, using methods that are geometrically objective and
also appropriate for the geography of the area in which the delimitation is to take
place”.219 This requires (1) defining the Parties’ relevant coasts and the relevant
area; (2) identifying the relevant basepoints; and (3) drawing the provisional
equidistance line.220
216 Ghana/Côte d’Ivoire, paras. 352-356.
217 See Guyana v. Suriname, paras. 137-138, 308.
218 If Kenya’s proposed coordinates for the location of BP 29 were used to compute the location of
the LBT, the LBT would be located at the following coordinates: 1° 39’ 44.168” S - 41° 33' 34.52”
E. This point is just 3.39 metres southwest of the LBT proposed in Somalia’s Memorial.
219 Romania v. Ukraine, para. 116.
220 See, e.g., ibid., paras. 77-78, 116-118, 127, 153-154; Nicaragua v. Colombia, para. 200.
78
3.63. Somalia presented its views on these issues in its Memorial.221 Kenya’s
Counter-Memorial does not dispute any aspect of Somalia’s presentation.
Remarkably, it does not address the questions of relevant coasts and relevant area,
the appropriate basepoints or the drawing of the equidistance line at all.
3.64. Because its discussion of these points is entirely unrebutted, Somalia will
not burden the Court by repeating it here. It will merely remind the Court that
following the conventional approach, Somalia determined the provisional
equidistance line to be as depicted in Figure 6.1 of Somalia’s Memorial and
reproduced as Figure R3.3 (on the following page).
B. THE ABSENCE OF SPECIAL OR RELEVANT CIRCUMSTANCES
3.65. The second step of the standard delimitation process is to “consider whether
there are factors calling for the adjustment or shifting of the provisional
equidistance line in order to achieve an equitable result”.222
3.66. In its Memorial, Somalia showed that there are no special circumstances in
the territorial sea or relevant circumstances in the EEZ/continental shelf that
warrant an adjustment to the provisional equidistance line in this case.223 Because
it does not engage with the three-step method, Kenya does not directly challenge
Somalia’s analysis. That said, the Counter-Memorial does advert to three
considerations that, it says, should inform “the assessment of an equitable solution”
in this case and weigh against the adoption of the equidistance line.224
221 MS, paras. 6.16-6.38.
222 Romania v. Ukraine, para. 120.
223 MS, paras. 5.22-5.26, 6.45-6.53.
224 KCM, para. 342.
200 M limit
12 M limit
KENYA
SOMALIA
Pemba I.
Zanzibar I.
Kismaayo
MOGADISHU
Mombasa
40°E 42°E 44°E
44°E
0°
2°S
4°S
6°S
0°
2°S
4°S
6°S
INDIAN
OCEAN
Prepared by: International Mapping
THE EQUIDISTANCE LINE
Mercator Projection
WGS-84 Datum
(Scale accurate at 2°S)
0 50 100 150
Nautical Miles
0 100 200
Kilometers
300
High tide coastlines are based on the NGA Prototype Global Shoreline Data Base.
Supplemental shoreline information was digitized from NGA charts 61210, 61220, 61230,
61240, 61250, 61260,61270, 61280, 62050, 62070, 62080 and 62090.
Figure R3.3

79
3.67. These are: (1) “consideration of the regional context”;225 (2) “a cut-off
effect” that equidistance allegedly produces “with respect to the maritime areas of
Kenya”;226 and (3) the fact that equidistance would accord Somalia “more maritime
area per kilometre of coast than … Kenya”.227 None of these arguments is tenable.
1. The Regional Context
3.68. Kenya’s invocation of the regional context according to which “various
delimitation agreements in this region of Africa have adopted the same ‘parallel of
latitude’ delimitation methodology as an equitable solution” merely crossreferences
its earlier discussion of these same agreements as a reason to depart from
the three-step process.228 The argument is no more persuasive in this context than
it was there. It therefore can and should be rejected for the reasons stated at
paragraphs 3.28 to 3.32 above.
2. The Cut-Off Effect
3.69. Kenya also contends that the equidistance line produces an inequitable cutoff
effect in that “it substantially narrows Kenya’s coastal projection into its EEZ,
from a coastal length (measured as a straight line) of 424km to only 180km
measured at the 200M limit, i.e. a reduction of 58%”.229
3.70. In addition, Kenya says, “[t]he cut-off effect … is even more pronounced
beyond 200M. In that sector of the boundary, the application of the equidistance
225 Ibid.
226 Ibid., para. 343.
227 Ibid., para. 352.
228 Ibid., para. 342 (cross-referencing ibid., paras. 326-332).
229 Ibid., para. 343.
80
principle would prevent Kenya from having any entitlement out to the edge of the
continental shelf in accordance with UNCLOS Article 76”.230
3.71. Kenya depicts this alleged cut-off effect in Figure 3-1 of its Counter-
Memorial. That figure employs two tricks to create the illusion of a cut-off of
Kenya where there is none (or at least none that is relevant to the delimitation with
Somalia).
3.72. First, the figure depicts Kenya’s agreed boundary with Tanzania by means
of a dark black line. Kenya recognizes the effect of the delimitation with Tanzania,
saying: “The cut-off effect flows in part from the maritime boundary between
Kenya and Tanzania”.231 “In part” is a substantial understatement. As demonstrated
in the annotated version of Kenya’s Figure 3-1 reproduced as Figure R3.4 (on the
following page), projections drawn perpendicular to the general direction of
Kenya’s coast show that any alleged cut-off that Kenya may suffer is entirely the
result of its agreement with Tanzania, not the equidistance line with Somalia.
3.73. Second, Kenya depicts by means of the same dark black line its claimed
parallel of latitude and the 200 M limit that would appertain to Kenya if the
boundary were indeed the parallel of latitude. The inclusion of these lines is plainly
intended to evoke the impression that the provisional equidistance line deprives
Kenya of maritime areas to which it would otherwise be entitled. This is pure
fiction.
3.74. Of course the equidistance line reduces Kenya’s maritime space as
compared to its parallel claim line. Any delimitation produces some degree of cut-
230 Ibid., para. 344.
231 Ibid., para. 347 (emphasis added).
Figure R3.4
Source: Kenyan Counter-Memorial, pg. 147.
KENYA’S FIGURE 3.1
(Annotated)

81
off. The objective is, as the Court has stated, to share out the cut-off in a “reasonable
and mutually balanced way”.232 The provisional equidistance line does exactly that.
3.75. Moreover, any cut-off that may result from Kenya’s boundary with
Tanzania can be of no relevance for the purposes of the delimitation between
Somalia and Kenya.
3.76. In the Court’s most recent decision in Costa Rica v. Nicaragua, Costa Rica
argued that an equidistance boundary with Nicaragua, coupled with Costa Rica’s
agreed boundary with Panama, would inequitably cut it off. It argued for an
adjustment of the equidistance line in its favour on this basis.233 In fact, Costa Rica
demonstrated that the combination of equidistance with Nicaragua and its agreed
boundary with Panama would cut off its maritime space well short of 200 M—a
far more severe cut-off than the one claimed by Kenya, whose maritime space
extends well beyond 200 M even with an equidistance boundary with Somalia.
3.77. The Court rejected Costa Rica’s argument on the ground that a State’s
“relations with [one neighbour] cannot justify an adjustment of the equidistance
line in its relations with” another.234 Any cut-off caused as a result of Costa Rica’s
agreement with Panama, or Kenya’s with Tanzania, is therefore of no relevance to
third States like Nicaragua or Somalia. It cannot be taken into account for the
purposes of the delimitation between Somalia and Kenya.
232 Romania v. Ukraine, para. 201. See also Bangladesh/Myanmar, para. 326.
233 Costa Rica v. Nicaragua, para. 150.
234 Ibid., para. 156.
82
3.78. Moreover, any cut-off Kenya may suffer as the result of its delimitation
with Tanzania is due to its own actions. Somalia made this point in its Memorial,
where it observed:
“Through this Agreement [with Tanzania], Kenya
effectively renounced a part of its entitlement in the
continental shelf beyond 200 M. This is obvious
when one compares the results of the Agreement
with the respective shares of continental shelf if
Kenya and Tanzania had simply adopted an
equidistance line beyond 200 M. Had they done so,
Kenya would have enjoyed considerably more
continental shelf beyond 200 M than the 2009
Agreement gives it”.235
3.79. Kenya does not appear to disagree. Indeed, it does not respond on this point
at all. The silence is telling. It effectively admits that Somalia is correct.
3.80. The situation before the Court is analogous to the one in Barbados v.
Trinidad and Tobago, in which Trinidad and Tobago argued that the combined
effect of an equidistance line with Barbados and its agreed delimitation with
Venezuela resulted in an inequitable cut-off.236 The arbitral tribunal rejected this
argument, ruling: “Barbados cannot be required to ‘compensate’ Trinidad and
Tobago for the agreements it has made by shifting Barbados’ maritime boundary
in favour of Trinidad and Tobago”.237 In just the same way, Somalia cannot be
made to compensate Kenya for the consequences of its agreement with Tanzania.
3.81. Even setting aside this critical point, Kenya’s arguments are still
unpersuasive. It complains that the consequences of the combination of its agreed
235 MS, para. 7.53.
236 Barbados v. Trinidad and Tobago, para. 339.
237 Ibid., para. 346.
83
boundary with Tanzania and the equidistance line with Somalia are (1) to
“substantially narrow[] [its] coastal projection”238 and (2) “to prevent [it from]
enjoying sovereign rights over the continental shelf … to the full extent authorized
by international law”.239 Yet the case law makes clear that these considerations do
not justify an adjustment to the equidistance line, let alone an abandonment of the
three-step process.
3.82. In the Bangladesh/Myanmar and Bangladesh v. India cases, both ITLOS
and the arbitral tribunal rejected Bangladesh’s arguments that the three-step
method was inappropriate in a case of pronounced coastal concavity, which—as
both tribunals recognized—caused a severe cut-off of Bangladesh’s maritime
space. Instead, they applied the three-step method and adjusted the provisional
equidistance line in favour of Bangladesh due to the effects of that concavity.240
Even so, the equitable solutions in both cases left Bangladesh with a pronounced
narrowing of its seaward projection, from a coastal length of approximately 394
km to just 103 km at the 200 M limit. As shown in Figure R3.5 (following page
84), this is a much more severe limitation than Kenya claims to suffer in this case.
3.83. The final delimitations also prevented Bangladesh from enjoying sovereign
rights over the continental shelf to the full extent authorized by law. Whereas the
outer limit of Bangladesh’s continental margin as presented in its submission to the
CLCS was 417 M from the coast, the combination of the ITLOS judgment and the
arbitral award cut off its continental shelf rights just 304 M from the coast. As the
arbitral tribunal in Bangladesh v. India explained “international jurisprudence on
238 KCM, para. 343.
239 Ibid.
240 Bangladesh/Myanmar, paras. 323-340; The Bay of Bengal Maritime Boundary Arbitration
(Bangladesh v. India), Award, 2014, PCA Case No. 2010-16 (hereinafter “Bangladesh v. India”),
paras. 478-480.
84
the delimitation of the continental shelf does not recognize a general right of coastal
States to the maximum reach of their entitlements …”.241
3.84. Kenya’s final effort to salvage its cut-off argument is equally flawed. It
argues that the equidistance line would, in percentage terms, reduce its total
maritime space more than the parallel of latitude would reduce Somalia’s.242
According to Kenya, the parallel of latitude would reduce Somalia’s entire EEZ by
6% and its continental shelf by 9%.243 In contrast, Kenya says, the equidistance line
would reduce Kenya’s EEZ by 45% and its continental shelf by 98%.244
3.85. Kenya cites no jurisprudence or other authority to support this approach,
presumably because there is none. The relative effect on Somalia is less than the
effect on Kenya for the simple reason that Somalia has a much longer coastline.
Somalia’s coast measures nearly 3,000 km in length. In contrast, Kenya’s is just
over 400 km.
3.86. For purposes of its argument, Kenya takes into account Somalia’s entire
coast, not just its relevant coast, and all of the waters and shelf appurtenant to that
coast, not just those that are relevant to this delimitation.245 It is therefore an
inevitable―not inequitable―consequence of any delimitation that the percentage
reduction in Somalia’s total maritime space will be smaller than the reduction in
Kenya’s.
241 Bangladesh v. India, para. 469 (emphasis added).
242 See KCM, paras. 349-351.
243 Ibid., para. 349.
244 Ibid., para. 350.
245 See ibid., Figure 3-2.
Figure R3.5
MAP 12 FROM THE AWARD IN
BANGLADESH / INDIA
(Annotated)
394 km
103 km

85
3.87. Moreover, as is clear from Figure R3.6 (following page 86), the alleged
reduction in Kenya’s continental shelf is largely caused by its 2009 agreement with
Tanzania to extend their maritime boundary along a parallel of latitude beyond 200
M, to the limit of national jurisdiction, rather than delimit the boundary by means
of an equidistance line.246
3.88. For these reasons, Kenya has failed to make out any plausible argument that
it would suffer an inequitable cut-off if the Court adopts the equidistance line as
the maritime boundary between the Parties.
3. Disproportionality Between Coastal Length and Maritime Space
3.89. Finally, Kenya contends that the equidistance line is inequitable because it
would give Somalia “far more maritime area per kilometre of coast than [it would
give] Kenya”.247 According to Kenya, taking account of Somalia’s coast and
maritime territory “as far as the Horn of Africa”, equidistance would accord 371
km2 of maritime space per kilometre of coast and Kenya 262 km2.248
3.90. Kenya notably “does not suggest that ‘proportionality’, which has its proper
role as a ‘stage three’ check on the proposed boundary under the three-stage
approach, is a legal principle applicable to determination of an equitable line”.249
It nevertheless considers it “a helpful analytical tool by which to identify and
illustrate the degree of a cut-off”.250
246 See ibid., para. 110.
247 Ibid., para. 352.
248 Ibid.
249 Ibid.
250 Ibid.
86
3.91. Here again, Kenya cites no jurisprudence or other legal authority to support
its “maritime-space-per-kilometre-of-coast” approach. It is pure invention, the
evident purpose of which is to invite the Court to take pity on Kenya and
compensate it for its comparatively shorter coast. This would, however, violate the
Court’s consistent admonition, first stated in the North Sea cases, that
“[t]here can never be any question of completely
refashioning nature, and equity does not require that
a State without access to the sea should be allotted
an area of continental shelf, any more than there
could be a question of rendering the situation of a
State with an extensive coastline similar to that of a
State with a restricted coastline. Equality is to be
reckoned within the same plane, and it is not such
natural inequalities as these that equity could
remedy”.251
3.92. The only coasts and areas that are relevant to the delimitation now at issue
are the relevant coasts and the relevant area as properly defined in Somalia’s
Memorial,252 to which Kenya makes no objection in its Counter-Memorial.
Kenya’s attempt to expand the focus is legally unjustifiable. As the Court ruled in
the Black Sea case, only those coasts that “generate projections which overlap with
projections from the coast of the other Party” are “considered as relevant for the
purpose of the delimitation” of the maritime boundary.253
3.93. When (as discussed below) the disproportionality analysis is performed
properly taking account of the relevant coasts and the relevant area in this case, the
conclusion is inescapable: the equidistance line is equitable.
251 North Sea Continental Shelf, para. 91.
252 MS, paras. 6.16-6.38.
253 Romania v. Ukraine, para. 99.
200 M limit
Kenya
Tanzania
COMOROS SEYCHELLES
Pemba I.
Zanzibar I.
Kismaayo
MOGADISHU
Cadale
Mombasa
38°E 40°E 42°E 44°E 46°E 48°E
40°E 42°E
44°E 46°E 48°E
38°E
0°
2°S
2°N
4°S
6°S
8°S
0°
2°S
2°N
4°N
6°N
6°S
4°S
8°S
INDIAN OCEAN
TANZANIA
ETHIOPIA
KENYA
SOMALIA
Kenya / Tanzania Equidistance
Kenyan OCS area lost due to
Agreement with Tanzania
Kenya / Somalia Equidistance
Prepared by: International Mapping
ANY CUTOFF KENYA SUFFERS IS THE
RESULT OF ITS AGREEMENT
WITH TANZANIA
Mercator Projection
WGS-84 Datum
(Scale accurate at 2°S)
0 50 100 150 200 250 300
Nautical Miles
0 100 200
Kilometers
300 400 500 600
High tide coastlines are based on the NGA Prototype Global Shoreline Data Base.
Supplemental shoreline information was digitized from NGA charts 61210, 61220, 61230,
61240, 61250, 61260,61270, 61280, 62050, 62070, 62080 and 62090.
Figure R3.6

87
C. THE NON-DISPROPORTIONALITY TEST
3.94. The Court explained in Romania v. Ukraine that at the third and final step
of the delimitation process it will check whether the delimitation line resulting from
the application of the first two steps “lead[s] to any significant disproportionality
by reference to the respective coastal lengths and the apportionment of areas that
ensue”.254
3.95. Somalia conducted the required proportionality analysis in its Memorial.255
Because it rejects the three-step method in its entirety, Kenya did not rebut or
otherwise take issue with Somalia’s analysis. For purposes of this Reply, Somalia
will therefore limit itself to reminding the Court that dividing the area of
overlapping entitlements within 200 M by means of the provisional equidistance
line results in an allocation of 103,627 km2 (48.5%) to Somalia and 110,236 km2
(51.5%) to Kenya. The ratio is 0.94:1 in favour of Kenya.256
3.96. Including also the area beyond 200 M, equidistance would accord Kenya
41% of the relevant area (including some 16,700 km2 beyond 200 M) and Somalia
59%.257 The resulting ratio is 1.44:1 in favour of Somalia.
3.97. These ratios are to be compared to the ratio of the Parties’ relevant coasts,
which is 1.57:1 in Somalia’s favour.258
254 Ibid., para. 210.
255 MS, paras. 6.54-6.57.
256 Ibid., para. 6.56, Figure 6.12.
257 Ibid., para. 7.58.
258 Ibid., para. 6.30.
88
3.98. Neither calculation suggests that there is any disproportionality, gross or
otherwise. By way of comparison, in Nicaragua v. Colombia, the Court’s final
delimitation had “the effect of dividing the relevant area between the Parties in a
ratio of approximately 1:3.44 in Nicaragua’s favour. The ratio of relevant coasts
[was] approximately 1:8.2 [in Nicaragua’s favour]”.259 Nevertheless, the Court
concluded that this outcome did “not entail such a disproportionality as to create
an inequitable result”.260
3.99. An unadjusted equidistance line therefore plainly constitutes an equitable
solution in this case.
* * *
3.100. For all the foregoing reasons, Kenya has not shown any compelling—or
even plausible—reason to depart from the standard three-step method long used by
the Court. And when that method is followed, as it must be, it leads inevitably to
the conclusion that an unadjusted equidistance line in the territorial sea, the EEZ
and the continental shelf, including the continental shelf beyond 200 M, constitutes
the equitable solution that the law requires
259 Nicaragua v. Colombia, para. 243.
260 Ibid., para. 247.
89
CHAPTER 4
KENYA’S RESPONSIBILITY FOR ITS UNLAWFUL ACTS IN THE
DISPUTED MARITIME AREA
Section I. The Factual Record
4.1. In its Memorial, Somalia provided evidence in support of its claim that,
starting in or around 2000, Kenya engaged in unlawful seismic and drilling
activities in the disputed maritime area,261 and that the Somali government
protested against these activities when it was informed of them and in a position to
react.262 Kenya’s activities violate Somalia’s sovereignty and sovereign rights, and
Kenya’s obligations under Article 83(3) of the Convention.
4.2. Kenya has not challenged the admissibility of this request. Nor has Kenya
denied that it has undertaken extensive exploratory activities in the disputed
maritime area.263 Though it challenges the publicly available evidence presented
by Somalia in its Memorial,264 Kenya’s Counter-Memorial fails to clarify the
factual situation. It declines to present direct evidence concerning the nature and
extent of its own activities. In any case, on the basis of the evidence presented in
Somalia’s Memorial, and further evidence obtained since then and addressed
261 MS, paras. 3.22-3.24, 8.19-8.27.
262 MS, paras 8.20, 8.23, 8.24, 8.27.
263 Kenya denies only once that drilling took place in the disputed area in 2015 (namely for block
L-5), as discussed in Somalia’s Memorial. See MS, para. 8.22; KCM, para. 376(c). However, Kenya
offers no evidence to substantiate this denial. See ibid. The denial contradicts Total’s press release
announcing that exploratory drilling was scheduled. See Total S.A., Press Release: Total Enters
Exploration in Kenya by Acquiring a 40% Stake in Five Offshore Blocks in the Lamu Basin (21
Sept. 2011). MS, Vol. IV, Annex 102.
264 KCM, para. 376.
90
below, it is indisputable that Kenya has acted in the disputed maritime area in a
manner contrary to its obligations under international law.
4.3. As confirmed by a public presentation made by Kenya’s Commissioner for
Petroleum Energy in 2011, it was around 2000 that Kenya started the “[a]ward of
offshore PSC’s [Production Sharing Contracts] and reinvigorated exploration”.265
The same document confirms that, since then, intensive seismic testing was
undertaken prior to the licencing of the blocks (“Large amounts of 2D data
available”). It also shows that as of 2011, “4 wells [had been] drilled in offshore
Lamu Basin”266, one of which (Pomboo-1) was drilled by Woodside in 2007 close
to, but on the Somali side of, the equidistance line.267 The evidence confirms that
when Kenya has awarded blocks for exploration, the oil companies’ “[e]xploration
[o]bligations – Includes [sic] seismic data acquisition and drilling obligation with
minimum expenditure (Negotiable)”.268
4.4. After 2012, Kenya intensified its seismic activity in the disputed area. Prior
to the organization of further rounds of licencing to oil companies, the National Oil
Corporation of Kenya, duly mandated under Kenyan law to represent Kenya’s
Government, concluded an agreement with Western Geco (an affiliate of
265 Martin M. Heya, Ministry of Energy, Republic of Kenya, Overview of Petroleum Exploration in
Kenya: Presentation to the 5th East African Petroleum Conference and Exhibition 2011 (25 Feb.
2011), slide 6. RS, Vol. II, Annex 9. Figure 1-26 in Kenya’s Counter-Memorial is taken from this
document.
266 Ibid. See also Republic of Kenya, Ministry of Energy and Petroleum, Strategic Environmental
and Social Assessment of the Petroleum Sector in Kenya: Final Report (Dec. 2016), slide 26. Annex
12.
267 See Martin M. Heya, Ministry of Energy, Republic of Kenya, Overview of Petroleum
Exploration in Kenya: Presentation to the 5th East African Petroleum Conference and Exhibition
2011 (25 Feb. 2011), slide 25. RS, Vol. II, Annex 9 (giving the coordinates as 1° 57’ 16.15” S 41°
56’ 28.02” E). See also MS, para. 8.21.
268 Martin M. Heya, Ministry of Energy, Republic of Kenya, Overview of Petroleum Exploration in
Kenya: Presentation to the 5th East African Petroleum Conference and Exhibition 2011 (25 Feb.
2011), slide 28. RS, Vol. II, Annex 9.
91
Schlumberger).269 In particular, it granted Western Geco exclusive rights to obtain,
store, interpret and sell to third Parties the data resulting from 2D seismic surveys,
notably in the disputed maritime area.
4.5. It is clear from the draft agreement between Kenya and Western Geco,
which is readily available online and included as Annex 27 to this Reply, that, at
the time of its signature in 2013, Kenya and its commercial partners were fully
aware that it covered a disputed area. The maps attached as appendices to the draft
2013 agreement, such as Figure R4.1 (following page 92), all depict Somalia’s and
Kenya’s claim lines.
4.6. Several clauses of the 2013 draft agreement are specifically applicable to
the disputed area. Clause 3.8 obliges the National Oil Corporation of Kenya and
Western Geco to seek Somalia’s consent for the survey in the disputed area:
“To the extent Acquisition Work is rendered in an
area requiring access, ingress or egress across waters
subject to the claimed exclusive jurisdiction of a
state other than Kenya, National Oil shall assist
WesternGeco in their efforts to obtain the required
rights of access, ingress and egress to the Area of
Operations. If the right of access, ingress or egress
269 See Consumers Federation of Kenya, “How the latest string of National Oil Corporation of
Kenya (NOCK) contracts will affect you the consumer” (20 Mar. 2014), available at
http://www.cofek.co.ke/index.php/news-and-media/399-how-the-latest-stri…-
of-kenya-nock-will-affect-you-the-consumer. RS, Vol. II, Annex 43; Samuel Kamau
Mbote, “COFEK question National Oil Western Geco contract to store Kenya Oil Data”, Oil
News Kenya (22 Mar. 2014). RS, Vol. II, Annex 38. The Consumers Federation of Kenya’s
website contains links to the relevant instruments concluded between the National Oil Corporation
of Kenya and WesternGeco. See Draft Agreement between National Oil Corporation of Kenya
and Eastern Echo DMCC (Aug. 2013), available at
http://cofek.co.ke/Western%20Geco%20and%20National%20Oil%20-
%20New%20Acquisition%20Agreement%202013.docx. RS, Vol. II, Annex 27. The agreement
was preceded by a Memorandum of Understanding between the National Oil Corporation of
Kenya and Eastern Echo DMCC. See Memorandum of Understanding between the National Oil
Corporation of Kenya and Eastern Echo DMCC (26 July 2013). RS, Vol. II, Annex 26.
92
into such waters is denied by the state claiming
jurisdiction, the Parties shall without undue delay
meet in good faith to agree a course of action
mitigating such denial, including the potential
release of relevant seismic data to such state.
National Oil shall advise WesternGeco of any
limitations or restrictions affecting access, ingress
and egress to the Area of Operations that they are
aware of and WesternGeco shall abide by such
limitations or restrictions. WesternGeco shall not be
obliged to enter into disputed territorial waters or
the waters of another state during the performance
of this Agreement”.270
4.7. Clause 8.3 provides for a procedure in case of a dispute over the boundaries
of the area:
“In the event that a dispute arises in connection with
the geographical boundaries of the Area of
Operations, as detailed in Appendix 1, which dispute
affects the performance by WesternGeco of its
obligations under this Agreement thereto, the Parties
shall meet to reach a mutually agreeable resolution
of the dispute. Should the Parties to the dispute fail
to reach a mutually agreeable resolution within a
reasonable timeframe, provided however
WesternGeco is prevented from acquiring,
processing and/or reprocessing, or marketing the
Survey Data and/ or Data as a result of the dispute,
WesternGeco reserves the right to terminate
Agreement early without any further liabilities to it.
In the event of such early termination by
WesternGeco, National Oil shall pay Western Geco
270 Draft Agreement between National Oil Corporation of Kenya and Eastern Echo DMCC (Aug.
2013), available at
http://cofek.co.ke/Western%20Geco%20and%20National%20Oil%20-
%20New%20Acquisition%20Agreement%202013.docx, Art. 3.8 (emphasis added). RS, Vol. II,
Annex 27.
NOCK / WESTERN GECO
DRAFT AGREEMENT
Figure R4.1
Source: Map from Appendix 1 of the 2013 Draft Agreement
between NOCK and Western Geco (2013).

93
the totality (100%) of the Survey Costs as detailed in
Appendix 2”.271
4.8. The draft agreement shows that Kenya and Western Geco were fully aware
that they had to seek Somalia’s consent for these activities. Nevertheless, they did
not approach Somalia or otherwise seek that consent. According to the map
attached to the draft agreement (Figure R4.1, following page 92), the disputed area
was targeted as a priority/Phase 1 area. Without obtaining the consent of Somalia,
Western Geco proceeded to obtain data from some 10,000 km of 2D seismic
surveys, as Schlumberger, Ltd.’s website confirms.272
4.9. The information on the status of resources acquired through exploratory
seismic surveys is politically and commercially sensitive. This data, which under
the draft agreement is protected by exclusivity and confidentiality clauses, is also
capable of generating revenues both for the National Oil Corporation of Kenya and
for Western Geco. Somalia has repeatedly protested these activities through letters
sent to the oil companies, informing them of the unlawful acts which they were
undertaking.273 It also conveyed directly to Kenya its concern over the deleterious
impact of these activities on the ongoing negotiations.274
4.10. Despite Kenya’s invasive attitude, Somalia has always shown restraint in
the disputed maritime area, since it was clear that the Parties had divergent claims.
It should be noted that in 1991, all operators that had licences in Somalia’s offshore
271 Ibid., Art. 8.3 (emphasis added). RS, Vol. II, Annex 27.
272 See Schlumberger, Ltd., “Multiclient Latest Projects: Kenya Deepwater 2D 2013 Multiclient
Seismic Survey”, available at http://www.multiclient.slb.com/latest-projects/africa/kenya_2d.aspx
(last accessed 11 May 2018). RS, Vol. II, Annex 31.
273 MS, paras. 8.20, 8.23, 8.24, 8.27.
274 See ibid., para. 3.56; Kelly Gilblom, “Somalia challenges Kenya over oil blocks”, Reuters (6
July 2012). MS, Vol. IV, Annex 107.
94
waters claimed force majeure due to the civil war. It was only in 2013-2014 that
the Government of Somalia approached oil companies for new licensing
offshore.275 At that time, the existence of a dispute with Kenya was well-known.276
Somalia chose the only course of conduct consistent with its international
obligations: to refrain from unilateral activities in the disputed area and to firmly
maintain its claim to an equidistance boundary. For these reasons all licensing by
the Somali government was done outside the disputed area.277
Section II. Responses to Kenya’s Defence
4.11. The facts speak for themselves and are difficult to challenge. Kenya
attempts to legitimise its actions with four arguments, none of which is tenable:
a) Until 2014, there was no disputed area;278
b) The only rules applicable are those set forth in Article 83(3), which
exclude any obligation to respect sovereignty and sovereign
rights;279
c) Due to their allegedly transient characteristics, Kenya’s unilateral
activities do not violate Article 83(3);280 and
275 See Soma Oil & Gas Exploration, Ltd., Unlocking Somalia's Potential: 1st International Forum
on Somalia Oil, Gas & Mining (27-28 Apr. 2015). RS, Vol. II, Annex 28. A more complete version
of this presentation dated 2016 is annexed here as Annex 30. See Soma Oil & Gas Exploration, Ltd.,
Unlocking Somalia's Potential: Company Presentation Q2 2016 (2016). RS, Vol. II, Annex 30.
276 See supra paras. 2.45-2.49, 2.96-2.106.
277 See also Spectrum Geo, “Spectrum signs Seismic Data Agreement to Kick-Start Oil Exploration
Offshore Somalia” (7 Sept. 2015). RS, Vol. II, Annex 29; “Spectrum ASA completes the acquisition
of 2D seismic data offshore Somalia”, Oil News Kenya (5 May 2016). RS, Vol. II, Annex 39.
278 KCM, paras. 359-362.
279 Ibid., paras. 363-364.
280 Ibid., para. 376.
95
d) In any event, Kenya ceased these activities in 2016 (two years after
the commencement of these proceedings and over a year after it
received Somalia’s Memorial).281
4.12. Kenya’s main argument is there was no area in dispute before 2014.282 This
is not persuasive, since—as shown in Chapter 2—Kenya had been aware since the
end of the 1970s that Somalia claimed a boundary running along the equidistance
line, different from Kenya’s parallel of latitude claim. The two States subsequently
maintained their divergent claims. An area of overlapping claims had thus emerged
at the latest by the end of the 1970s, and has remained in dispute ever since, a
situation recognized inter alia by the 2009 MOU.283
4.13. In its Memorial, Somalia demonstrated that Kenya’s exploration activities,
insofar as they have been undertaken in an area that the Court could attribute to
Somalia, constitute a violation of Somalia’s sovereignty (when activities took place
in the territorial sea) and sovereign rights (when they took place in the
EEZ/continental shelf). Kenya’s only response to this argument is that “the
‘principle of exclusivity’… wrongly conflates the sovereignty that the coastal State
enjoys in the territorial sea with the more limited ‘sovereign rights’ in the EEZ and
continental shelf”.284
4.14. Contrary to Kenya’s assertion, Article 77 of UNCLOS provides that a
State’s rights over the continental shelf are exclusive: “The rights [to explore and
exploit the continental shelf] referred to in paragraph 1 are exclusive in the sense
that if the coastal State does not explore the continental shelf or exploit its natural
281 Ibid, paras. 378-379.
282 Ibid, paras. 355-362.
283 See 2009 Memorandum of Understanding. MS, Vol. III, Annex 6.
284 KCM, para. 363.
96
resources, no one may undertake these activities without the express consent of the
coastal State”. A Special Chamber of ITLOS recently confirmed this, unanimously
and without ambiguity:
“The Special Chamber agrees with the statements of
the two Parties that the sovereign rights which
coastal States enjoy in respect of the continental
shelves off their coasts are exclusive in nature and
that coastal States have an entitlement to the
continental shelves concerned without the need to
make a relevant declaration”.285
4.15. Insofar as Kenya’s activities took place in an area on Somalia’s side of the
boundary, these activities transgressed upon Somalia’s sovereignty (over the
territorial sea) and sovereign rights (over the EEZ/continental shelf). As a
consequence, Kenya and its partner companies obtained politically and
commercially sensitive data relating to the status of resources, their location and
their exploitability.
4.16. Kenya’s activities also constitute a violation of its obligations under Article
83(3) irrespective of precisely where in the disputed area they were undertaken.
Article 83(3) provides:
“Pending agreement as provided for in paragraph 1,
the States concerned, in a spirit of understanding and
cooperation, shall make every effort to enter into
provisional arrangements of a practical nature and,
during this transitional period, not to jeopardize or
hamper the reaching of the final agreement. Such
285 Ghana/Côte d’Ivoire, para. 590. See also North Sea Continental Shelf, para. 18; Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J.
Reports 1993, p. 38, para. 64; Aegean Sea Continental Shelf (Greece v. Turkey), Request for the
Indication of Interim Measures of Protection, Order, I.C.J. Reports 1976, p. 3, para. 31.
97
arrangements shall be without prejudice to the final
delimitation”.
4.17. In the words of the ITLOS Special Chamber in Ghana/Côte d’Ivoire,
Article 83(3) “contains two interlinked obligations for the States concerned,
namely to ‘make every effort to enter into provisional arrangements of a practical
nature’ and ‘during this transitional period, not to jeopardize or hamper the
reaching of the final agreement’”.286 The obligation “to make every effort to enter
into provisional arrangements” is not in question in the present case. Nevertheless,
Kenya argues that in 2016 it made a proposal to Somalia to conclude practical
arrangements for exploration and exploitation in the disputed area.287 The argument
is unpersuasive. Kenya’s proposal, made two years after Somalia filed the
Application introducing these proceedings, is not relevant to the present case. It
cannot cure the absence of any equivalent proposal, in 2000 or later. Rather, it
confirms that Kenya recognized its obligation, the possibility of making a proposal,
and its failure to do so before 2016.
4.18. Kenya violated the second obligation under Article 83(3); namely, that
“during this transitional period” it should do nothing “to jeopardize or hamper the
reaching of the final agreement”. As the Special Chamber in Ghana/Côte d’Ivoire
held:
“Article 83, paragraph 3, covers two situations in this
transitional period, namely the situation where a
provisional arrangement has been reached which
would regulate the conduct of the parties in the
disputed area and the situation where no such
286 Ghana/Côte d’Ivoire, para. 626.
287 KCM, para. 378 (citing Letter from H.E. Githu Muigai, Attorney-General and Agent of the
Republic of Kenya, to H.E. Mr. Philippe Couvreur, Registrar of the International Court of Justice,
No. AG/CONF/19/153/2 VOL.III (27 May 2016), para. 10. KCM, Vol. II, Annex 62).
98
provisional arrangement has been reached. The
obligations States encounter in respect of a disputed
maritime area for which no provisional arrangement
exists are described by the words ‘not to jeopardize
or hamper the reaching of the final agreement’. In
interpreting these words, account has to be taken of
the general obligation under article 83, paragraph 3,
of the Convention that in the transitional period
States have to act ‘in a spirit of understanding and
cooperation’”.288
4.19. In 2016, when it belatedly decided to make a proposal to Somalia to
conclude a provisional arrangement, Kenya expressly recognised that it had an
obligation of restraint:
“The Republic of Kenya, in respecting the above
obligation [Article 83(3)], has acted with restraint
and the activities she has undertaken in the area
under contention have been solely of a transitory
character in order not to cause irreparable prejudice
to Somalia, or to otherwise jeopardize or hamper the
conclusion of a final agreement”.289
4.20. Referring to the arbitral award in Guyana v. Suriname,290 Kenya claims that
only activities causing a permanent physical change to the marine environment
could amount to a violation of the obligation of restraint.291 But this test, adopted
by the arbitral tribunal in Guyana v. Suriname,292 does not constitute an absolute
gauge for determining compliance with Article 83(3). The provision refers to
288 Ghana/Côte d’Ivoire, para. 630.
289 Letter from Amb. (Dr.) Amina Mohamed, Cabinet Secretary of Foreign Affairs of the Republic
of Kenya, to H.E. Abdusalam H. Omer, Minister of Foreign Affairs and Investment Promotion of
the Federal Republic of Somalia, No. MFA.INT.8/15A (18 May 2016). RS, Vol. II, Annex 16.
290 Guyana v. Suriname, para. 467.
291 KCM, para. 370.
292 Guyana v. Suriname, para. 467.
99
activities that may have the effect of “jeopardiz[ing] or hamper[ing] the reaching
of the final agreement”. Thus, unilateral activities in a disputed area are not judged
solely by their physical effects, but also by their likely effect on the reaching of a
final agreement. In some cases, non-invasive acts such as seismic surveys can be
provocative and inflammatory, as States consider them to be a violation of their
sovereign rights. If some show restraint in their reactions, others may adopt strong
enforcement actions to prevent them (or even military action, as was the case in
Guyana v. Suriname293).
4.21. In this case, Kenya’s unilateral activities were perceived by the
Government of Somalia and the Somali population as an attempt to deprive
Somalia of its rights under international law, and to contribute to a de facto regime
that might be irreversible. The chairman of the U.N. Monitoring Group on Somalia
noted in his 2013 report addressed to the Security Council:
“Conflict between Somalia and Kenya over the
maritime boundary
The FGS [Federal Government of Somalia] has thus
refused to recognise oil licenses granted to
multinational companies by Kenya and which
protrude into waters defined as Somali according to
that perpendicular demarcation line. ...
The FGS has persuaded Statoil, Anadarko and Total
to withdraw their claims that partially infringe on
Somalia’s demarcation line. However, ENI, which
has been allocated three licenses that fall within the
Somalia’s definition of Somali waters has yet to
withdraw its claims at the time of submission of this
report. The remaining dispute between ENI and the
FGS, and the persistence of a contested
perpendicular line of demarcation, may serve to
293 Ibid., para. 445.
100
create further animosity between the Governments
of Somalia and Kenya at a time when both are at
loggerheads over the creation of a political
administration in Jubaland.
This territorial dispute could exacerbate tensions
between Somalia and Kenya that have already been
sharpened by political disagreements over the
control of Kismayo and the Jubaland territory”.294
4.22. In the same vein, the 2016 Report underlines that:
“[T]here is a continuing dispute between Kenya and
Somalia over their maritime border, where the rights
to considerable oil and gas reserves could be at stake.
How the dispute is resolved could have significant
implications for relations between Kenya and
Somalia, thus also affecting peace and security in the
region. ...
As previously noted by the Monitoring Group in its
report for 2013, a disputed maritime border between
Kenya and Somalia could have significant
implications for regional peace and security. The
disputed area covers a triangle -shaped territory in
the Indian Ocean of about 100,000 km2 with
considerable potential for commercial quantities of
oil and gas reserves”.295
4.23. The Heritage Institute for Policy Studies, an independent policy research
and analysis institute based in Mogadishu, also noted in a 2014 report that:
294 United Nations, Monitoring Group on Somalia and Eritrea, Report of the Monitoring Group on
Somalia and Eritrea pursuant to Security Council resolution 2060 (2012): Somalia, U.N. Doc.
S/2013/413 (12 July 2013), pp. 247-250 (emphasis added). MS, Vol. III, Annex 64.
295 U.N. Monitoring Group on Somalia and Eritrea, Report of the Monitoring Group on Somalia
and Eritrea pursuant to Security Council resolution 2244: Somalia, U.N. Doc. S/2016/919 (31 Oct.
2016), paras. 82, 188 (emphasis added). RS, Vol. II, Annex 24.
101
“While the FGS is hardly in a position to dispense of
international partners like Kenya in its fight against
al-Shabaab, it seems that Nairobi’s desire for nearterm
hydrocarbon exploration and exploitation in
Somalia not only adds a layer of complexity to the
situation, but may actually run counter to reestablishing
a stable and functioning state”.296
4.24. It is therefore a matter of international and bilateral concern that Kenya’s
unilateral activities in the disputed maritime area have generated mistrust and
animosity in relations between the Parties. This jeopardizes and hampers the
possibility of reaching a final agreement between them and exacerbates the risks to
international peace and security.
4.25. For these reasons, Kenya has violated its international obligations towards
Somalia. It therefore has a duty to make full reparation, including but not limited
to the payment of appropriate compensation.
296 Dominik Balthasar, The Heritage Institute for Policy Studies, Oil in Somalia: Adding Fuel to the
Fire? (2014), p. 8. RS, Vol. II, Annex 35.

103
SUBMISSIONS
On the basis of the facts and law set forth in its Memorial and this Reply, Somalia
respectfully requests the Court:
1. To reject Submissions 1 and 2 of Kenya’s Counter-Memorial.
2. To determine the complete course of the maritime boundary between
Somalia and Kenya in the Indian Ocean, including in the continental shelf
beyond 200 M, on the basis of international law.
3. To determine the maritime boundary between Somalia and Kenya in the
Indian Ocean on the basis of the following geographical coordinates:
Point No. Latitude Longitude
1
(LBT)
1°39’44.07” S 41°33’34.57” E
2 1°40’05.92” S 41°34’05.26” E
3 1°41’11.45” S 41°34’06.12” E
4 1°43’09.34” S 41°36’33.52” E
5 1°43’53.72” S 41°37’48.21” E
6 1°44’09.28” S 41°38’13.26” E
7
(intersection
with 12 M limit)
1°47’54.60” S 41°43’36.04” E
8 2°19’01.09” S 42°28’10.27” E
9 2°30’56.65” S 42°46’18.90” S
10
(intersection
with 200 M
limit)
3°34’57.05” S 44°18’49.83” E
104
11
(intersection
with 350 M
limit)
5°00’25.71” S 46°22’33.36” E
4. To adjudge and declare that Kenya, by its conduct in the disputed area, has
violated its international obligations and is responsible under international
law to make full reparation to Somalia, including inter alia by making
available to Somalia all seismic, geologic, bathymetric and other technical
data acquired in areas that are determined by the Court to be subject to the
sovereignty and/or sovereign rights and jurisdiction of Somalia, and to
repair in full all damage that has been suffered by Somalia by the payment
of appropriate compensation.
(All points referenced are referred to WGS-84)

VOLUME I
FIGURES
Figure R2.1 AMISOM: Maritime Zones of Intervention following page 30
Figure R2.2 Interceptions by the Kenyan Navy: 1990-2014 following page 36
Figure R2.10 Map of the Jorre Block following page 54
Figure R3.3 The Equidistance Line following page 78
Figure R3.4 Kenya’s Figure 3.1 (Annotated) following page 80
Figure R3.5 Map 12 from the Award in Bangladesh/India
(Annotated)
following page 84
Figure R3.6 Any Cutoff Kenya Suffers is the Result of Its
Agreement with Tanzania
following page 86
Figure R4.1 NOCK/Western Geco Draft Agreement following page 92

VOLUME II
FIGURES
Figure R2.1 AMISOM: Maritime Zones of Intervention
Figure R2.2 Interceptions by the Kenyan Navy: 1990-2014
Figure R2.3 Number and Distribution of Poriferan Species in the African EEZs
Figure R2.4 Exploratory Soil Map of Kenya
Figure R2.5 New Exploration Blocks and Location of Wells in the Lamu Basin
Figure R2.6 National Oil Corporation of Kenya Location Map
Figure R2.7 On-line Map of Kenyan Coral Reefs
Figure R2.8 On-line Map of Kenyan Fish Landing Sites
Figure R2.9 Maritime Jurisdictions in the Vicinity of the Arabian Peninsula and the
Horn of Africa
Figure R2.10 Map of the Jorre Block
Figure R3.1A The Parties’ Proposed Location of BP29 Plotted on Google Earth
Imagery: 2010
Figure R3.1B Unannotated Version of Google Earth Imagery: 2010
Figure R3.2A The Parties’ Proposed Location of BP29 Plotted on Digital Globe
Imagery (Date Unknown)
Figure R3.2A Unannotated Version of Digital Globe Imagery (Date Unknown)
Figure R3.3 The Equidistance Line
Figure R3.4 Kenya’s Figure 3.1 (Annotated)
KENYAN LEGISLATION
Annex 1 Republic of Kenya, Fisheries Act (25 Aug. 1989), reprinted in Laws of
Kenya, Chapter 378 (rev. ed. 2012)
Annex 2 Republic of Kenya, Coast Development Authority Act (18 Jan. 1990),
reprinted in Laws of Kenya, Chapter 449 (rev. ed. 2012)
Annex 3 Republic of Kenya, Environmental Management and Co-ordination
Act (14 Jan. 2000), reprinted in Laws of Kenya, Chapter 387 (rev. ed.
2012)
Annex 4 Republic of Kenya, Energy Act (2006)
Annex 5 Republic of Kenya, Mining Act, Act No. 12 of 2016 (27 May 2016)
KENYAN GOVERNMENT DOCUMENTS
Annex 6
Annex 7
Annex 8
Annex 9
Republic of Kenya, Ministry of Agriculture, Exploratory Soil Map of
Kenya (1980)
Republic of Kenya, Survey of Kenya, NatioNal atlas of KeNya (5th
ed., 2003)
Republic of Kenya, National Environment Management Authority,
State of the Coast Report: Towards Integrated Management of Coastal
and Marine Resources in Kenya (2009)
Martin M. Heya, Ministry of Energy, Republic of Kenya, Overview of
Petroleum Exploration in Kenya: Presentation to the 5th East African
Petroleum Conference and Exhibition 2011 (25 Feb. 2011)
EXHIBITS
Figure R3.5 Map 12 from the Award in Bangladesh/India (Annotated)
Figure R3.6 Any Cutoff Kenya Suffers is the Result of Its Agreement with
Tanzania
Figure R4.1 NOCK/Western Geco Draft Agreement
Annex 10 Republic of Kenya, Ministry of Mining, Sector Plan for Oil and Other
Minerals 2013-2017 (2013)
Annex 11 Republic of Kenya, National Assembly, Departmental Committee on
Defence and Foreign Relations, Report of the Workshop on Somalia
and International Boundaries (Oct. 2014)
Annex 12 Republic of Kenya, Ministry of Energy and Petroleum, Strategic
Environmental and Social Assessment of the Petroleum Sector in
Kenya: Final Report (Dec. 2016)
Annex 13 Letter from H.E. Githu Muigai, Attorney-General and the Agent of
the Republic of Kenya, to H.E. Mr. Philippe Couvrer, Registrar of the
International Court of Justice, No. AG/CONF/19/153/2VOL.IV (26
Sept. 2016)
Annex 14 Kenya Marine and Fisheries Research Institute, Kenya Coastal
Development Project, Integrated Coastal Biodiversity Management
System: Fish Landing Sites (4 Oct. 2017), available at http://icbims.
kmfri.co.ke/maps/231/view
Annex 15 Kenya Marine and Fisheries Research Institute, Kenya Coastal
Development Project, Integrated Coastal Biodiversity Management
System: Kenyan Coral Reefs (4 Oct. 2017), available at http://icbims.
kmfri.co.ke/maps/221/view
DIPLOMATIC CORRESPONDENCE
Annex 16 Letter from Amb. (Dr.) Amina Mohamed, Cabinet Secretary of Foreign
Affairs of the Republic of Kenya, to H.E. Abdusalam H. Omer, Minister
of Foreign Affairs and Investment Promotion of the Federal Republic
of Somalia, No. MFA.INT.8/15A (18 May 2016)
UNITED NATIONS DOCUMENTS
Annex 17 U.N. Educational, Scientific & Cultural Organization,
Intergovernmental Oceanographic Commission, Training Course
Report No. 89: ODINAFRICA: Marine Biodiversity Data Mobilisation
Workshop on Sponges, U.N. Doc. IOC/2006/TCR/89 (4-18 Nov. 2006)
Annex 18 U.N. Educational, Scientific & Cultural Organization,
Intergovernmental Oceanographic Commission, Nineteenth Session
of the IOC Committee on International Oceanographic Data and
Information Exchange (IODE-XIX): Ocean Data and Information
Network for Africa (ODINAFRICA), U.N. Doc. IOC/IODE-XIX/35 (22
Feb. 2007)
Annex 19 U.N. Security Council, Report of the Secretary-General on the
protection of Somali natural resources and waters, U.N. Doc.
S/2011/661 (25 Oct. 2011)
Annex 20 U.N. Security Council, Resolution 2036 (2012), U.N. Doc. S/RES/2036
(22 Feb. 2012)
Annex 21 U.N. Monitoring Group on Somalia and Eritrea, Report of the
Monitoring Group on Somalia and Eritrea pursuant to Security
Council resolution 2002 (2011), U.N. Doc. S/2012/544 (13 July 2012)
Annex 22 U.N. Office of Legal Affairs, Division for Ocean Affairs and the
Law of the Sea, “Kenya”, available at http://www.un.org/Depts/los/
LEGISLATIONANDTREATIES/STATEFILES/KEN.htm (last updated
14 Oct. 2014)
Annex 23 U.N. Monitoring Group on Somalia and Eritrea, Report of the
Monitoring Group on Somalia and Eritrea pursuant to Security
Council resolution 2182 (2014): Somalia, U.N. Doc. S/2015/801 (19
Oct. 2015)
Annex 24 U.N. Monitoring Group on Somalia and Eritrea, Report of the
Monitoring Group on Somalia and Eritrea pursuant to Security
Council resolution 2244: Somalia, U.N. Doc. S/2016/919 (31 Oct.
2016)
PETROLEUM INDUSTRY DOCUMENTS
Annex 25 Total Fina Elf, Meeting with Authorities of Somalia (3 Feb. 2001)
Annex 26 Memorandum of Understanding between National Oil Corporation of
Kenya and Eastern Echo DMCC (26 July 2013)
Annex 27 Draft Agreement between National Oil Corporation of Kenya and
Eastern Echo DMCC (Aug. 2013), available at http://cofek.co.ke/
Western%20Geco%20and%20National%20Oil%20-%20New%20
Acquisition%20Agreement%202013.docx
Annex 28 Soma Oil & Gas Exploration, Ltd., Unlocking Somalia’s Potential: 1st
International Forum on Somalia Oil, Gas & Mining (27-28 Apr. 2015)
Annex 29 Spectrum Geo, “Spectrum signs Seismic Data Agreement to Kick-
Start Oil Exploration Offshore Somalia” (7 Sept. 2015)
Annex 30 Soma Oil & Gas Exploration, Ltd., Unlocking Somalia’s Potential:
Company Presentation Q2 2016 (2016)
Annex 31 Schlumberger, Ltd., “Multiclient Latest Projects: Kenya Deepwater 2D
2013 Multiclient Seismic Survey”, available at http://www.multiclient.
slb.com/latest-projects/africa/kenya_2d.aspx (last accessed 11 May
2018)
ACADEMIC ARTICLES AND LEGAL AUTHORITIES
Annex 32 Vivian Louis Forbes, The Maritime Boundaries of the Indian Ocean
Region (1995)
Annex 33 International Law Commission, Guiding Principles applicable to
unilateral declarations of States capable of creating legal obligations,
with commentaries thereto in Report of the International Law
Commission on the work of its fifty-eighth session (1 May-9 June and
3 July-11 August 2006), U.N. Doc. A/61/10 (2006)
Annex 34 Caitlyn Antrim, “International Law and Order: The Indian Ocean and
South China Sea” in Indian Ocean Rising: Maritime Security and
Policy Challenges (D. Michel & R. Sticklor eds., 2012)
Annex 35 Dominik Balthasar, The Heritage Institute for Policy Studies, Oil in
Somalia: Adding Fuel to the Fire? (2014)
PRESS REPORTS
Annex 36 F. Oluoch & M. Kimani, “War hits Kenya’s bid to expand waters”, The
East African (29 Jan. 2012)
Annex 37 Fred Oluoch, “UN unveils new look Amisom as Kenya joins up”, The
East African (11 Feb. 2012)
Annex 38 Samuel Kamau Mbote, “COFEK question National Oil Western Geco
contract to store Kenya Oil Data”, Oil News Kenya (22 Mar. 2014)
Annex 39 “Spectrum ASA completes the acquisition of 2D seismic data offshore
Somalia”, Oil News Kenya (5 May 2016)
MISCELLANEOUS
Annex 40 United Republic of Tanzania, Government Notice No. 209 (24 Aug.
1973), published in Gazette of the United Republic of Tanzania,
No. 36, Vol. LIV, Supplement No. 48 (7 Sept. 1973)
Annex 41 International Hydrographic Organization, Hydrographic Dictionary
(5th ed., 1994)
Annex 42 United States National Geospatial-Intelligence Agency, Chart 61220:
Manda Island to Kismaayo (20 Jan. 2014)
Annex 43 Consumers Federation of Kenya, “How the latest string of National Oil
Corporation of Kenya (NOCK) contracts will affect you the consumer”
(20 Mar. 2014), available at http://www.cofek.co.ke/index.php/newsand-
media/399-how-the-latest-string-of-national-oil-corporation-ofkenya-
nock-will-affect-you-the-consumer