Application requesting the Court to authorize Kenya to file new documentation and evidence

REPUBLIC OF KCNYA
OFFICE OF l'I-IE ATTORNEY-GENERAL
&
DEPARTMENT 017 ,JUSTICR
Our Ref: AG/CONF/19/153 VOL. Il 22nd February, 2021
Mr Philippe Gautier
Registrar
International Court of Justice
Peace Palace
Carnegieplein 2
2517 KJ The Hague
THE NE:THERLANDS
Sir,
RE: IN THE MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA V.
KENYA) CASE
As Agent of the Republic of Kenya ("Kenya") in the above-referenced case, 1 have the
honour to submit this Application requesting the Court to authorize Kenya to file new
documentation and evidence, in the case concerning the Maritime De/imitation in the
/ndian Ocean (Soma/ia v. Kenya) (the "Application").
Procedural History
1. Somalia instituted proceedings against Kenya at the Court on the 281h August. 2014.
The dispute concerns "the establishment of the 5ingle maritime boundary between
Soma/ia and Kenya in the lndian Ocean delimiting the territorial sea. exclusive
economic zone ... and continental shelf. inc/uding the continental she/f beyond 200
nautica/ miles." Somalia asks the Court to delîmit its single maritime border with
Kenya in the lndian Ocean in respect of the territorial sea, the Exclusive Economie
Zone (EEZ) and the continental shelf in accordance with international law. and to
also find that because of its conduct in the disputed area, Kenya has violated
Somalia's territorial integrity and ought to make reparations to Somalia.
2. On the 7th October. 2015, Kenya submitted preliminary objections to jurisdiction
and admissibility of the case herein. Kenya contended, inter alia, that the dispute
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fell within its reservation to the Court' s jurisdiction, as expressed in its Declaration
of the 191h April, 1965 under Article 36(2) of the Statute of the Court. Kenya·s
acceptance of the Court' s jurisdiction specifically excludes:
"Dispute5 in regard to which the Parties ta the dispute have agreed or sha/1
agree to have recourse to some other method or method5 of settlement."1
3. ln the meantime, by letters dated the 22nd February. 2016 and the 29th April, 2019.
Kenya informed the Court that it was making attempts to locate critical evidence in
the nature of a map referred to in Somalia's 1988 Maritime Law. as depicting the
relevant maritime boundary with Kenya. While Somalia had presented its 1988
Maritime Law to the Court through its Memorial. it did not annex the map referred
to in the said law.
4. On the 2nd February 2017, the Court, by a majority, rejected Kenya·s preliminary
objections to jurisdiction and admissibility of the case herein. By an order of the
same date. the Court fixed the l 8th December. 2017 as the new time-limit for the
filing of the Counter-Memorial by Kenya. The Counter-Memorial was filed within
the time-limit thus fixed.
5. On the 161h November, 2017, Kenya wrote to the then President of the Court,
seeking the disqualification of Justice Abdulqawi Ahmed Yusuf. a Somali national,
from sitting on the case herein. The reasons for Kenya·s request for Judge Yusufs
disqualification revolved around the Judge's participation. on behalf of Somalia, in
the Third United Nations Conference on the Law of the Sea. The said participation,
Kenya asserted. made him privy to facts and evidence that are crucial in the case
herein. and therefore placed him in a position of conflict of interest.
6. By an Orcier dated the 2nd February. 2018, the Court fixed the 18th June. 2018 and
the 181h December, 2018 as the time-limits for the filing of a Reply by Somalia and
of a Rejoinder by Kenya. The pleadings were filed within the time-limits thus fixed.
7. Subsequently. the Court fixed the hearings in the case herein for the 9th September.
2019 to the 13th September. 2019.
8. On the 3rd September, 2019, Kenya requested the Court for a postponement of the
hearings for a period of twelve (12) months. in order to recruit a new legal team.
following the disengagement with its erstwhile lawyers on account of" exceptiona/
drcumstances that render [eredj it untenable to continue retaining the service5 of its
[currentj legal team on record" Kenya also informed the Court of its intention to
augment its case by adducing additional evidence.
1 The Declaration of Kenya is cited in full in Somalîa's Memorial at fn 5. lt was deposited on 19 April 1965.
lt is referred to below as "Kenya·s Declaration".
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9. By its decision of the 51h September. 2019, the Court postponed the hearings to the
week beginning the 41h November. 2019.
10. Kenya requested the Court to review the postponement of the hearings to the week
beginning the 4th November, 2019. because the postponement of fifty-five (55) days
was too short for Kenya to procure a new legal team in accordance with its
procurement laws and to undertake a comprehensive review of the pleadings and
prepare for the hearings.
11. On the 30th September, 2019. the Vice President of the Court and the acting
President in the case herein invited the representatives of the Parties to a meeting
at The Hague on the 3rd October. 2019. The meeting was called in accordance with
Article 31 of the Rules of Court for the purpose of ascertaining the Parties· views
with regard to questions of procedure in the case. and in particular. as concerned
Kenya's renewed request for a postponement of the hearings.
12. During the said meeting. Kenya affirmed its continued commitment to the Court.
despite adverse decisions by the Court. ln this regard. Kenya made reference to the
Courfs decision dismissing Kenya's preliminary objections to jurisdiction and
admissibilîty of the case herein. the failure by Justice Yusuf to recuse himself from
the case and the decision by the Court to pronounce itself on Kenya's request for
postponement before granting Kenya the opportunity to respond to Somalia's
contentions. despite Kenya having promptly expressed the intention to respond
thereto.
13. Following the said meeting, the Registrar, by a letter dated the l 61ti October. 2019.
informed the Parties of the Court·s decision to postpone the hearings to the week
beglnning the 8th June. 2020. There has never been a response to Kenya's request
to the Court for the recusal of Judge Yusuf.
14. By a letter dated the 23rd April, 2020, Kenya requested the Court to postpone the
hearing on account of the difficulties occasioned to Kenya's preparations by the
COVID-19 pandemic. By a letter of the 191h May, 2020, the Registrar informed
Kenya that the Court had decided to postpone the oral proceedings to March 2021 .
"[ijn light of the exceptional circumstances related to the COVID-19 pandemic."
15. On the 251h June. 2020, the Court amended Article 59(2) of the Rules of Court. to
provide for hearings via video link, as follows:
"The Court may decide, for health. security or other compelling reasons. ta
hold a hearing entirely or in part by video link. The parties sha/1 be consu/ted
on the organization of such a hearing."
16. On the 11 th December. 2020, Kenya wrote to the Court informing it of the
difficulties that it was facing in its preparations for the case. including the fact that
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it had not been possible, due to the pandemic conditions. to hold preparatory
meetings with the new legal team.
17. By a letter dated the 23rd December, 2020, and without any reference to Kenya's
letter of the 11 th December, 2020 informing the Court of the difficulties Kenya was
facing in its preparations for the hearings due to the pandemic conditions. the
Registrar informed Kenya that the Court had decided to hold the March 2021
hearing by video link.
18. On the 28th January. 2021, Kenya wrote to the Court seeking a postponement of
the hearing, on the ground that Kenya was unprepared for the hearing due to, inter
a/ia, the difficulties occasioned by the COVID-19 pandemic. By a communication
dated the 12th February. 2021 and following an exchange of correspondence
between the Parties. the Court decided to maintain the hearing dates as scheduled,
that is, as commencing on the 15th March. 2021. The Court did not provide any
reason(s) for not granting Kenya's request.
The Reason for the Application
19. Kenya makes this Application while being well aware of the current stage of the
proceedings but also conscious of its fundamental right to present the best defence
possible in this important matter. Kenya submits that the submission of the evidence
and documents is necessary to provide the Court with a complete factual record of
the relationship between the Parties as it relates to the maritime boundary, which
the Court may not currently possess. The admission of such evidence is necessary
for the sound administration of justice by the Court and to ensure that the Court
has before it all the relevant facts in order to properly and fairly adjudicate the
matter.
20. The present Application to submit new evidence is a continuation of the ongoing
efforts of Kenya to present ail of the relevant facts and evidence to the Court. in
support of its claims. Notably, the existence of missing and highly relevant evidence
was already evident during the written proceedings and was further highlighted
during subsequent communications with the Court, as set out in the procedural
history hereinabove. Most particularly, the Republic of Somalia ("Somalia"), whlle
asserting that its 1988 Maritime Law's reference to a ''straight line" refers to an
equidistance line, conveniently failed to produce the map included in the law.2
21. This Somali map, which the Court should reasonably expect Somalia to produce, is
critical since it has the potential of undermining Somalia's entire claim, as "by the
express terms of Article 4(6) of Somalia's 1988 Maritime Law, whatever Somalia's
missing map depicts is categorically not an equidistant line."3 The fact that this
2 See MS Vol. Ill, Annex 10 and Somalia's arguments in MS, para. 3.6, especially fn. 62: SR, paras. 2.99-2.100:
see also KCM. para. 85 and KR. para. 105.
3 KR. para. 105.
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critical evidence was missing and that Kenya was making attempts at locating the
same was communicated to the Court through Kenya's letters of the 22nd February.
2016 and the 29th April, 2016, referenced hereinabove. ln its letter of the 3rd
September. 2019. Kenya also informed the Court of its intention to adduce
additional evidence in the context of the then intended change in its legal team. We
have enclosed herewith copies of the said letter for ease of reference.
22 . lt is on the basis of the foregoing that Kenya has continued its ongoing efforts to
locate and present all of the relevant facts and evidence to the Court. in support of
its daims. including since the initial postponement of the oral proceedings in
September 2019. The fact that the Court does not yet have ail of the relevant
evidence before it is a critical factor in assessing the merits of the Application.
23. Despite Kenya's best efforts, the COVID-19 pandemic has prevented Kenya and its
advisers from locating evidence. which Kenya understands is located in historical
and national archives around the world. This is demonstrated in detail in the
Witness Statement of Charles Gurdon. the Head of Kenya's Research Team annexed
hereto as Appendix 1. Given that the dawn of the pandemic was nearly at the same
time that Kenya had commenced the gathering of additional relevant evidence.
Kenya has not been able to access or access fully many of these archives that can
reasonably be assumed to contain material evidence relevant to the issues before
the Court in this case. The COVID-19 pandemic is an exceptional circumstance that
Kenya could not have foreseen. Nor can Kenya mitigate or control the effects that
the pandemic has had on its ability to collect relevant evidence and to have a fair
and equal opportunity to present its position in this case.
24. Notwithstanding the difficulties occasioned by the pandemic, Kenya has taken best
efforts to gather some evidence which it considers relevant and material to the fair
resolution of the dispute herein. While the evidence gathering is incomplete. Kenya
wishes to submit to the Court what has thus far been gathered, as an indication of
its good faith and determination to ensure that the Court is adequately informed
with regard to the matters in issue.
25. Kenya·s continued research and analysis has yielded signiflcant evidence. The
evidence relates to key issues in dispute between the Parties. Amongst other things.
the evidence relates to the following:
(i) That for over three decades, both Parties acted in a manner that was
consistent with Kenya's claim to a maritime boundary along the parallel of
latitude;
(ii) the parallel of latitude achieves an equitable result in this case;
(iii) in its submissions to the Court, Somalia has misapplied the three-step
delimitation methodology in multiple ways;
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(iv) refuting Somalia's argument that it was unable to protest against Kenya's
claim to a boundary along the parallel of latitude during Somalia's civil war;
and
(v) contradicting Somalia's claims regarding the lawfulness of Kenya's activities
in the now-disputed maritime area.
26. Kenya recognizes that Soma lia will be entitled to respond to the totality of new
evidence that Kenya requests to submit in due course. The Application in no way
prejudices Somalia's procedural rights in the current proceedings. lndeed, much of
the documentation, such as Somalia's relationship with Soma Oil & Gas. is already
known to Somalia. Ensuring that the Court's eventual Judgment is based on the
totality of relevant evidence - and thus not vulnerable to criticism relating to
procedural and substantive fairness - will benefit Somalia as much as Kenya.
27. Kenya submits that the jurisprudence of the Court demonstrates that the Court has
endeavored to perform its adjudicative function based on a factual record that is
complete and up-to-date.4 This fundamental approach is especially appropriate in
the present case, which concerns the determination of the maritime boundary
between two sovereign States in perpetuity, and which is without an appellate
recourse. Moreover, the Court' s Judgment will not only determine the rights of the
Parties. but directly impact local communities that have depended on the maritime
areas in question for their livelihood for decades. The Court, therefore. must reach
its conclusions regarding the existence and location of a boundary on a fully
informed basis. This irnperative must take priority over any minimal inconvenience
that Somalia might experience from reviewing and addressing relevant additional
evidence and documentation or any inconvenience caused by the necessary
procedural adaptations.
28. ln making this Application, Kenya reiterates its respectful submission to the Court.
made initially in Kenya's letter dated the 28th January, 2021 under Ref.
AG/CONF/19/153 VOL. Il, about the inappropriateness of conducting hearings in
this matter by video link. As Kenya observed in the said letter:
" ... holding an oral proceeding on the merits by video link in this case would
be highly prejudicial to Kenya and comparatively favorable to Somalia.
Kenya ' s essentia I position is that an agreement was reached between the two
countries on the existence of the maritime boundary along a parallel of
latitude in the l 970s and 1980s, which endured thereafter until the filing of
this case. Demonstrating this to the Court at an oral proceeding requires a
4 Military and Paramilitary Activities in and agaimt Nicaragua (Nicaragua v. United States- of America). Merits,
Judgment. I.C.J. Reports 1986, p. 14. at p. 39. para. 58 ("general principles as to the judicîal process requin~
that the facts on which lts Judgment is based should be those occurring up to the close of the oral proceedings
on the merîts of the case.").
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complex presentation of numerous historical documents. maps. and other
information that is not suitable for presentation by video link. Kenya is very
willing to appear before the Court to present its position, but is concerned
that it does not possess reliable and high-quality technology necessary for
doing so by video link, to guarantee reliable Internet connectivity from
Nairobi. Having counsel in the Peace Palace able to address the Court
directly and in-person, while simultaneously presenting visual evidence with
the support of proximate technical staff. is critical to a fair and full
presentation of Kenya 's case. and cannot be undertaken adequately by
counsel and support staff scattered across the globe."
29. Kenya affirms that the foregoing position holds true in respect of any hearings that
the Court may hold concerning the merits of the present Application, pursuant to
Article 56(2) of the Ru les of Court.
The Legal Basis for the Application
30. The Statute of the Court explicitly recognizes the discretion of the Court to accept
new evidence after the expiration of the initial time-limits for such subrnissions.5
According to Article 56 of the Rules of Court. even after the conclusion of written
proceedings. the Parties have the ability to submit to the Court new documentation
and evidence. Article 56(2) states that the Court, after hearing the Parties on the
matter, can authorize the production of new evidence if deemed necessary.
notwithstanding the opposition of one of the Parties.
31. The Court' s Practice Direction IX adds that the Court will allow the admission of
new evidence after the conclusion of the written proceedings, "if it considers it
necessary and if the production of the document at this stage of the proceedings
appears justified to the Court" . ln accordance with Practice Direction IX, the current
Application indicates the necessity for the Court to admit the additional evidence
and the difficulties in producing the document at an earlier stage.
32. The Court has repeatedly made clear that the Court's essential mandate to
administer international justice on a fully informed basis must prevail over a rigid
application of its procedural rules and the Court's proceedings. more generally. As
the Court has explained.
"[t]he provisions of the Statute and Rules of Court concerning the
presentation of pleadings and evidence are designed to secure a proper
administration of justice, and a fair and equal opportunity for each party to
comment on its opponent's contentions. " 6
5 Statute of the ICJ, Article 52.
" Military and Paramilltary Activities in and against Nicaragua (Nicaragua v. United States of America). Merlts.
Judgment. I.C.J. Reports 1986, p. 14. at p. 26. para. 31.
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33.Though no two cases are identical. the Courfs jurisprudence and practice
demonstrate that such requests have been favourably considered in the past. ln the
Dispute regarding Navigational and Related Rights, for example. Costa Rica
expressed its desire to produce five new documents after the filing of the Parties'
written submissions, in accordance with Article 56 of the Rules of Court.
Notwithstanding Nicaragua's objection to the request, the Court decided to
"authorize the production of four of the five documents [ ... ], it being understood
that Nicaragua would have the opportunity [ ... ] to comment subsequently thereon
and to submit documents in support of those comments. " 7
34. ln the Black Sea case, the Court allowed Remania to submit additional evidence
after the close of written proceedings. in accordance with Article 56 of the Rules of
Court, despite objections from Ukraine, after Romania provided explanations as to
the necessity of the additional documents. 8
35. lndeed, the flexibility of the Court with respect to the application of its own time•
limits and procedures in the interest of justice is well established, and its discretion
is wide in this regard, even to the effect of reopening oral proceedings if deemed
necessary in the interest of justice. 9 This reflects the understanding. first expressed
by the Court' s predecessor. that the sound administration of justice requires that a
"decision of an international dispute of the present order should not mainly depend
on a point of procedure"10 but, rather, on the merits of the positions of the Parties,
based on a complete factual record.
The New Documentation and Evidence
36. Enclosed with this Application for the consideration of the Court are:
i. The Witness Statement of Charles Gurdon. Head of Kenya's Research Team
(Appendîx 1):
ii. Three hundred and fifteen (315) pages of submissions explaining the nature and
relevance of the new and additional evidence (Appendix 2);
iii. a list of the new documentation and evldence ("List of Annexes"); and.
7 Dispute regarding Navigational and Relared Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports
2009, p. 213, at p. 220. para. 8.
8 Maritime De/imitation in the Black Sea (Roman/a v. Ukraine). Judgment, I.C.J. Report! 2009. p. 61. at p.
65, para. 7.
9 Nudear Tf.!1t1 (New Zealand v. France), Judgment. LC.J. Reports 1974, p. 457, at p. 468. para. 34.
10 Free Zone1 of Upper Savoy and District of Cex (French Republic v. Sw/11 Confederation), PCIJ Report
Series E-No. 8, p. 155, para. 176.
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iv. two USB sticks, for use by the Registry. containing electronic copies of the
Application, Appendix 1 (the Witness Statement). Appendix 2 (the Submlssions).
the List of Annexes, and the Annexes themselves.
37. For the reasons set out in this Application, Kenya respectfully requests that the Court
grant the Application to submit new evidence and documents.
38. Kenya continues to be commltted to this matter being determined fairly and in an
environrnent that accords both Parties a reasonable and practîcal opportunity to
holistically and fully present their respective cases.
The Republic of Kenya thanks the Registry of the International Court of Justice for its
cooperation and takes the opportunity of this correspondence to renew toit the assurances
of its highest consideration.
nu 1
Attorney General and
Agent of the Republic of Kenya
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