Jamhuuriyadda Federaalka Soomaaliya
Xafiiska Ra'iisul Wasaaraha
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The Federal Republic of Somalia
Office of the Prime Minister
Ref: OPM/ (J, / 6/ /03/2021
To: Mr. Philippe Gautier
Registrar
International Court of Justice
Peace Palace
2517 KJ The Hague
Netherlands
Dear Sir:
Date: 22/03/2021
I have the honour of responding to your letter dated 16 March 2021 (No.
154773) in the case concerning Maritime De/imitation in the Indian Ocean {Somalia v.
Kenya), transmitting the text of the question putto the Federal Republic of Somalia by
Judge Bennouna on 16 March 2021.
Question
"I would like the Somali delegation to clarify its position on Kenya's assertion
in its Counter Memorial that boundary pillar 29 at Dar Es Salam, which
represents the terminal point of the land boundary, must be connected 'in a
south-easterly direction, to the limit of territorial waters in a straight line at
right angles to the general trend of the coastline at Dar Es Salam, leaving the
islets of DiuaDamasciaca in Italian territory', in accordance with the general
description of the boundary as set out in the 1927 Agreement (see in regard
paragraphs 33 to 35 of the Counter-Memorial).
My question is therefore as follows: In Somalia's view, does this 1927
Agreement establish the delimitation line of the of the territorial sea
between the two Parties and, if so, what would be the outer limit of this
line?"
Answer
1. Somalia is grateful for Judge Bennouna's question, and the opportunity to set
out its understanding of the 1927 Agreement between Italy and the United Kingdom,
and its relevance to these proceedings.
2. The 1927 Agreement reflects the common understanding of both Parties,
Somalia and Kenya, on the location of the final, southernmost portion of the land
boundary between the two States.
3. Somalia and Kenya agree that the final boundary pillar, identified in the
Agreement as Boundary Pillar 29, is located at a point whose geographical coordinates
are 1 ° 39' 43.30" S and 41 ° 33' 33.49" E.1 They further agree that, pursuant to the
Agreement, the final portion of the land boundary extends from BP 29 in a south
easterly direction "in a straight line at right angles to the general trend of the coastline
at Dar es Salarrt'.2 Somalia depicted the location of the land boundary between BP 29
and its terminus on the Indian Ocean coastline in Figure 4.4 of its Memorial, which was
displayed during Mr. Reichler's oral pleading on 16 March, and was included in
Somalia's Judges' Folder at Tab 53. Somalia does not understand the Parties to be in
disagreement about the location of this final portion of the land boundary.
4. As Judge Bennouna correctly pointed out, the 1927 Agreementprovides that
the straight line between BP 29 and the coastline continues "to the limit of territorial
waters". Although the treaty is silent on the distance between the coastline and that
"limit", Kenya points out in its Counter-Memorial that this was understood as 3
M.3Somalia does not disagree. There is no evidence that either Italy or the United
Kingdom ever claimed a territorial sea greater than 3 M forSomalia (then Italian
Somaliland) or Kenya.
5. The question thus arises: What significance, if any, does the 1927
Agreementhave for the delimitation of the maritime boundary between Somalia and
Kenya? Here again, Somalia and Kenya are in agreement: it has none.4
6. Neither Somalia nor Kenya, since their independence and at all times
thereafter, has ever claimed that the maritime boundary in the territorial sea follows a
1Reply ofSomaJia (hereinafter "SR"), para. 3.50; Counter-Memorial of the Republic of Kenya (hereinafter "KCM"),
para. 30.
2KCM, para. 33; SR, para. 3.53. See Agreement between Italy and the United Kingdom in which are recorded the
decisions of the Commission appointed under Alticle 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 terri tories in East Africa ( 17 Dec. 1927), Appendix I, First Part. Memorial of Somalia
(hereinafter "MS"), Vol. III, Annex 3.
3 KCM, paras. 29, 34.
4See SR, paras. 3.53-3.61; Appendix 2 to Kenya's 22 February 2021 Application, paras. 363-368.
line perpendicular to the coast at Dar es Salam, for any distance. Neither Party accepts
such a line as constituting a maritime boundary. Neither Party accepts or argues for the
1927 Agreement as binding on them in regard to a maritime boundary, for any
· distance.
7. To the contrary, as Professer Sands explained in his oral pleading on 15
March, Somalia, since it first identified a maritime boundary with Kenya, has claimed
that the boundary follows an equidistance line commencing on the coast at Dar es
Salam.5 Kenya for its part, daims that the boundary follows a parallel of latitude
emanating from that point, although, by its legislation, it has also claimed an
equidistance boundary, at least in the territorial sea.6
8. Given that neither Party accepts, or has ever accepted, that the boundary in
the territorial sea is formed by an extension of the land boundary into the sea at a right
angle to the coast at Dar es Salam, and neither Party has asked the Court to adopt such
a boundary, it is Somalia's view that this provision of the 1927 agreement is of no
significance to the present proceedings.
9. The second part of Judge Bennouna's questionis based on the assumption
that the 1927 Agreement establishes a line of delimitation between the Parties in the
territorial sea, and asks how far it extends. As indicated above, Somalia does not accept
that any line of maritime delimitation, binding on the Parties to these proceedings, was
established in 1927, or at any time thereafter. However, in the hypothetical
circumstance that such a line was established, Somalia considers that itcould not in any
circumstance extend beyond 3 M. That appears to be Kenya's view, as well.7This is
because neither Italy nor the United Kingdom claimed a territorial sea greater than 3 M
for Somalia or Kenya, as of 1927; nor is there any evidence that they did so thereafter.
After independence, neither Somalia nor Kenya ever claimed such a line as a territorial
sea boundary, much less did they purport to extend it beyond 3 M.8
10. The case of Guyana v. Suriname is instructive on this point. In 1799, the
colonial authorities established the western bank of the Corentyne River as the
boundary between "Suriname and Berbice, a colony then situated in the eastern part of
modern Guyana".9 In 1936, a Mixed Boundary Commission determined that becausethe
entire river fell under Dutch sovereignty, Suriname should control access to the river
5 CR2021/02, paras. 54-55.
6 CR2021/02, para. 31. See Republic of Kenya, Law No. 2 of 1972, Territorial Waters Act (16 May 1972), para.
2(4). MS, Vol. III, Annex 16; Republic of Kenya, Chapter 371, Maritime Zones Act (25 Aug. 1989), § 3(4). MS,
Vol. III, Annex 20.
1See KCM, paras. 28, 29, 33,35, 335.
8Jbid., para. 335.
9Arbitration regarding the de/imitation of the maritime boundary between Guyana and Suriname, Award of 17
September 2007, UNRIAA, Vol. XXX, p. 1 (hereinafter "Guyana v. Suriname"), para. 137.
Villa Somalia, E-mail: [email protected] or Ps
from the Atlantic Ocean in the north.10 To facilitate this, bath parties acceptedthat the
boundary in the territorial sea - then 3 M - would follow a line of 10 degrees emanating
from the final boundary pillar closest to the coast. 11 The treaty that embodied this
agreement was never signed, most likely because of the outbreak of World War II, but
the colonial powers respected and enforced this boundary, including in the territorial
sea, for 30 years.12
11. During the arbitral proceedings, Suriname (now independent) argued that
the 10 degree line should form the maritime boundary for the entire length of the now-
12 M territorial sea, given the parties' historical acceptance of the line and the fact that
the Mixed Boundary Commission had not specified the breadth of the territorial sea.13
Guyana, which claimed that the boundary should follow an "historical equidistance line",
disagreed. lt contended that, even if the first leg of the boundary followed a 10 degree
line, it should only do so for 3 M, and then connect to an equidistance line by the
shortest route.14
12. The arbitral tribunal decided, unanimously, that although there was no
binding treaty between the Parties, there was an "historical arrangement of unusual
nature" that the boundary should follow a 10 degree line from the final boundary
marker, but on/y for 3 M.15It rejected Suriname's submission that the enlargement of
the territorial sea from 3 M to 12 M required an extension of the 10 degree line to the
new limit, 16 finding that the circumstances that led to the adoption of the 10 degree line
did not justify its extension beyond 3 M.17
13. The arbitral tribunal further decided that, beyond 3 M, the boundary should
follow an equidistance line throughout the EEZ and continental shelf, to the 200 M limit
claimed by both parties. lt then drew a diagonal line to connect the seaward terminusof
the 10 degree line (at 3 M) to the equidistance line by the shortest distance.18 This is
depicted in a map attached hereto as Appendix 1.
10/bid. , para. 137.
111bid., para. 138.
121bid , paras. 139, 299.
13Jbid, para. 286.
14Jbid., paras. 288, 289.
15/bid., paras. 307,323.
16 Ibid. , paras. 310, 311.
11Jbid. , paras. 314, 315.
181bid., para. 323.See a/soCase Concerning Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, J.C.J Reports 2002, p.303, para. 307 ("The
Court notes, however, that point G, which was detennined by the two Parties in the Maroua Declaration of 1 June
1975, does not lie on the equidistance line between Cameroon and Nigeria, but to the east ofthat line. Cameroon is
therefore entitled to request that from point G the boundary of the Parties' respective maritime areas should retum to
the equidistance line .... The Court accordingly considers that from point G the delimitation line should directly join
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
(fl1
14. In case the Court were inclined to adopt a similar approach here - in spite of
the Parties' common position that the 1927 Agreement should have no bearing on the
delimitation of their maritime boundary in the territorial sea - there would also be a
need to connect the end of the 3 M perpendicular line to the equidistance line, if the
Court were to agree with Somalia that equidistance constitutes an equitable solution in
the circumstances of this case. Somalia's depiction of such a scenario is attachedhereto
as Appendix 2, with the proviso that this is not the solution that Somalia seeks, or
considers justified. Somalia, to be clear, believes that the entire boundary should be
based on equidistance.
15. For the sake of completeness, there is one case in which a divided arbitral
tribunal ruled that a continental shelf boundary agreed by France and Portugal in 1960
for their respective colonies, Senegal and Guinea Bissau, should be extended in
conformity with the present-day concept of the continental shelf. This became a central
issue in the arbitration between Senegal and Guinea Bissau almost three decades later.
The arbitral tribunal determined that the 1960 agreement delimited the "continental
shelf between the Parties over the whole extent of that maritime space as defined at
present".19It understood the agreement as embodying a "dynamic criterion" for
determining the breadth of the shelf: that is, "a dynamic conception of the continental
shelf, since the outer limit would depend on technological developments and could
consequently move further and further to seaward.20 The same factors did not,
however, justify an extension of the boundary in territorial sea and contiguous zone as
defined in the 1960 agreement, since these were not subject to the same "dynamic
conception" as the continental shelf. 21
16. The Court subsequently upheld the validity of the arbitral award, without
addressing the substantive issues.22 In Guyana v. Suriname,the arbitral tribunal
considered the Guinea Bissau/Senegal award and determined that it had no application
to the territorial sea li mit. 23
17.Somalia again thanks Judge Bennouna for his question, and it trusts that this
response will be deemed satisfactory.
the equidistance line at a point with co-ordinates 8° 21 '20" longitude east and 4° 17'00" latitude north, which will
be called X. The boundary between the respective maritime areas of Cameroon and Nigeria will therefore continue
beyond point G in a westward direction until it reaches point X at the above-mentioned co-ordinates. The boundary
will turn at point X and continue southwards along the equidistance line.")
19Case Concerning the De limitation of the Maritime Boundary between Guinea-Bissau and Se ne gal, Decision oj31
July 1989, UNRIAA, Vol. XX, para 85.
20 Ibid. ,para. 85.
21 /hid.
22See Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, J.C.J Reports 1991,p. 53, para. 69.
23 Guyana v. Suriname, para. 311.
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
()Il
Please accept, Sir, renewed assurances of my highest consideration.
H.E.
Deputy Prime Mini
Agen
Federal Republic of
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
APPENDIX 1
, ..
6'N
THE TRIBUNAL'S DELIMITATION IN
GUYANA/SURINAME
25
Mercator Projectioo
WGS-84 Datum
(Solt.«o,. rat.-,tB'N)
25
Nautkal Miles
so
Ki1ometers
75
Prepared by: International Mapping
ATLANTIC
OCEAN
GUYANA
so
100
- ------- --+------8''N
7'N
+ 6'N
SURINAME
S7'W 56°W
APPENDIX 2
SOMALI A
I: / ,; •S4
KENYA /d
>' Diua
Sl Damasciaca
~~ Islands
LBT 51 & S2 1 r
K1
Kenya's
Territorial
Sea
PERPENDICULAR TO THE 3M LIMIT THEN
ALONG THE 3M LIMIT UNTIL REACHING
THE STRICT EQUIDISTANCE UNE
Mercator Projection
WGS-84 Oatum
(S(ala accurate at2-S)
Nautical Miles
12
KHomet ers
18
Hlgh tldt (<MIStlltlti .... bl~d on the NGA l"l'ototype Gk>NI ~·•~ne oau Ba~•Suppln1e
nt.ol ,honline infOfm-'lion w.as digitized from NGA ch ans 61210, 61220, 61230,
6 1240, 61250, 61260.61270, 61280, 62050, &2070, 62090«\d 62090.
Prepared by: International Mapping
12
24
I
I
I
Somalia's
Territorial
Sea
/ 7w;w1W
/
/
I
/
I
/ND/AN
OCEAN
I
I
I
I
I
Somalia’s written reply to the question asked by Judge Bennouna at the end of the hearing held on 16 March 2021