Judgment of 12 October 2021

12 OCTOBER 2021
JUDGMENT
MARITIME DELIMITATION IN THE INDIAN OCEAN
(SOMALIA v. KENYA)
___________
DÉLIMITATION MARITIME DANS L’OCÉAN INDIEN
(SOMALIE c. KENYA)
12 OCTOBRE 2021
ARRÊT
TABLE OF CONTENTS
Paragraphs
CHRONOLOGY OF THE PROCEDURE 1-28
I. GEOGRAPHICAL AND HISTORICAL BACKGROUND 31-34
II. OVERVIEW OF THE POSITIONS OF THE PARTIES 35
III. WHETHER SOMALIA HAS ACQUIESCED TO A MARITIME BOUNDARY
FOLLOWING THE PARALLEL OF LATITUDE 36-89
IV. MARITIME DELIMITATION 90-197
A. Applicable law 92
B. Starting-point of the maritime boundary 93-98
C. Delimitation of the territorial sea 99-118
D. Delimitation of the exclusive economic zone and the continental shelf
within 200 nautical miles 119-177
1. Delimitation methodology 119-131
2. Relevant coasts and relevant area 132-141
(a) Relevant coasts 132-137
(b) Relevant area 138-141
3. Provisional equidistance line 142-146
4. Whether there is a need to adjust the provisional equidistance line 147-174
5. Disproportionality test 175-177
E. Question of the delimitation of the continental shelf beyond 200 nautical
miles 178-197
V. ALLEGED VIOLATIONS BY KENYA OF ITS INTERNATIONAL OBLIGATIONS 198-213
OPERATIVE CLAUSE 214
___________
INTERNATIONAL COURT OF JUSTICE
YEAR 2021
2021
12 October
General List
No. 161
12 October 2021
MARITIME DELIMITATION IN THE INDIAN OCEAN
(SOMALIA v. KENYA)
Geographical and historical background  Somalia and Kenya adjacent States on coast of
East Africa  1927/1933 treaty arrangement between Italy and United Kingdom concerning
boundaries of their territories in East Africa  Somalia and Kenya gaining independence in 1960
and 1963, respectively  Both States parties to United Nations Convention on the Law of the Sea
(UNCLOS)  Both States having filed submissions with Commission on the Limits of the Continental
Shelf (CLCS) to obtain recommendations on outer limits of continental shelf beyond 200 nautical
miles  CLCS yet to issue recommendations.
*
Overview of the positions of the Parties  Somalia arguing for unadjusted equidistance line
through all maritime areas  Kenya contending maritime boundary already agreed as Somalia
acquiesced to boundary following parallel of latitude.
*
Whether Somalia acquiesced to maritime boundary following parallel of latitude.
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Maritime delimitation to be effected by agreement or recourse to third party possessing
competence  Agreement on maritime boundary usually in written form but other forms possible —
Essential question being existence of shared understanding between States concerning
boundary  High threshold for proof that maritime boundary established by acquiescence or tacit
agreement  Court to examine whether compelling evidence that Kenya’s claim to maritime
boundary maintained consistently, consequently calling for response from Somalia, and clearly and
consistently accepted by Somalia.
Whether claim of Kenya to a boundary at the parallel of latitude maintained consistently 
Kenyan proclamations of 1979 and 2005 asserting boundary along parallel of latitude  Legislation
of Kenya referring to boundary on median or equidistance line  Notes Verbales of Kenya in 2007
and 2008 asking Somalia to confirm agreement to boundary at parallel of latitude 
2009 Submission of Kenya to CLCS and 2009 Memorandum of Understanding (MOU) between both
States recognizing existence of disputed maritime boundaries  2014 negotiations between Parties
and diplomatic correspondence of Kenya in 2014-2015 also suggesting boundary not yet agreed 
No compelling evidence that claim of Kenya to boundary at parallel of latitude maintained
consistently and consequently called for response from Somalia.
Whether Somalia clearly and consistently accepted claim of Kenya to a boundary at the
parallel of latitude  Position of Parties during Third United Nations Conference on the Law of the
Sea not indicating rejection by Somalia of equidistance as possible method of achieving equitable
solution  No indication that Somalia accepted claim of Kenya during bilateral negotiations
in 1980-1981  Somalia’s Maritime Law of 1988 providing for boundary in territorial sea following
“a straight line towards the sea from the land as indicated on the enclosed charts”  Phrase unclear
and not possible to determine its meaning without charts mentioned  2009 MOU and Somalia’s
2009 submission of preliminary information to the CLCS, 2009 letter to UN Secretary-General and
2014 objection to the consideration by CLCS of Kenya’s submission all referring to unsettled
maritime boundary dispute  Context of civil war depriving Somalia of fully operational
government and administration between 1991 and 2005 to be taken into account  No clear and
consistent acceptance by Somalia of maritime boundary at parallel of latitude.
Practice of Parties between 1979 and 2014 concerning naval patrols, fisheries, marine
scientific research and oil concessions also not showing clear and consistent acceptance by Somalia
of maritime boundary at parallel of latitude.
No compelling evidence that Somalia acquiesced to maritime boundary claimed by Kenya 
Consequently no agreed maritime boundary between Parties at parallel of latitude.
*
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Maritime delimitation.
Applicable Law — UNCLOS.
Starting-point of maritime boundary  Concordant views of the Parties — Land boundary
terminus defined in 1927/1933 treaty arrangement constituting starting-point of maritime boundary.
Delimitation of territorial sea  Article 15 UNCLOS  Identification of base points
appropriate to geography of coasts  Disproportionate effect of tiny features  Court selecting
base points solely on solid land on mainland coasts  Median line constructed constituting
boundary in territorial sea.
Delimitation of exclusive economic zone and continental shelf within 200 nautical miles 
Articles 74 and 83 UNCLOS  Three-stage methodology developed by Court — No reason to use
other methodology in present case.
Identification of relevant coasts and relevant area — Relevant coasts being those whose
projections overlap  Court using 200 nautical miles radial projections to identify relevant coasts
of Somalia and Kenya  Relevant area being that in which potential entitlements of parties
overlap  Relevant area in present case constituted by overlap of 200-nautical-mile radial
projections from land boundary terminus.
First stage  Construction of a provisional equidistance line  Identification of appropriate
base points  Provisional equidistance line constructed from endpoint boundary in territorial sea
to 200 nautical miles from starting-point of maritime boundary.
Second stage  Whether relevant circumstances calling for adjustment of provisional
equidistance line  Current security situation in Somalia and in adjacent maritime spaces not
justifying adjustment  No adjustment needed to ensure equitable access to fisheries resources 
No de facto boundary justifying adjustment  Question whether use of equidistance line producing
cut-off effect for Kenya as result of configuration of coastline  Need to consider broader
geographical configuration  Cut-off of Kenya’s maritime entitlements due to concavity of coastline
from Somalia to Tanzania  Pemba island accentuating cut-off effect  Need to adjust the
provisional equidistance line by shifting it north  Adjusted line following geodetic line with initial
azimuth 114º until intersection with 200-nautical-mile limit from coast of Kenya.
Third stage  Verification of absence of significant disproportion between ratio lengths
relevant coasts and ratio respective shares of Parties in relevant area — No significant
disproportionality in present case  Adjusted line achieving equitable solution.
Question of delimitation of continental shelf beyond 200 nautical miles  Both Parties having
filed submissions with CLCS and fulfilled obligations under Article 76 UNCLOS  Awaiting
recommendations of CLCS to delineate outer limits of continental shelf  Lack of delineation of
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outer limits not in and of itself impediment to delimitation of extended continental shelf between
States with adjacent coasts  Essential step in delimitation being determination of existence of
entitlements to extended continental shelf and overlap of such entitlements  Both Parties claiming
continental shelf up to 350 nautical miles on basis of scientific evidence, claims of Parties
overlapping  Neither Party questioning existence or extent of other Party entitlement to
continental shelf beyond 200 nautical miles  Both Parties requesting Court to delimit maritime
boundary up to outer limit of continental shelf  Court proceeding with delimitation  Court
extending geodetic line used for delimitation of exclusive economic zone and continental shelf within
200 nautical miles  Maritime boundary continuing along line up to outer limits of continental
shelves to be established on basis of future recommendations of CLCS or up to area where rights of
third States potentially affected.
Possible grey area of limited size  Not necessary to pronounce on applicable legal régime
in the present case.
*
Alleged violations by Kenya of its international obligations  Not established that Kenya’s
maritime activities in disputed area not made in good faith  No violation of Somalia’s sovereignty
or sovereign rights and jurisdiction  No evidence that Kenya’s activities jeopardized or hampered
reaching of final agreement on delimitation  No violation of Article 74, paragraph 3, or Article 83,
paragraph 3, of UNCLOS  Responsibility of Kenya not engaged.
JUDGMENT
Present: President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
NOLTE; Judge ad hoc GUILLAUME; Registrar GAUTIER.
In the case concerning maritime delimitation in the Indian Ocean,
between
the Federal Republic of Somalia,
represented by
H.E. Mr. Mahdi Mohammed Gulaid, Deputy Prime Minister of the Federal Republic of
Somalia,
as Agent;
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H.E. Mr. Ali Said Faqi, Ambassador of the Federal Republic of Somalia to the Kingdom of
Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg,
as Co-Agent;
Mr. Mohamed Omar Ibrahim, Senior Adviser to the President of the Federal Republic of
Somalia,
as Assistant Deputy Agent;
Mr. Paul S. Reichler, Attorney at Law, Foley Hoag LLP, member of the Bars of the
United States Supreme Court and the District of Columbia,
Mr. Alain Pellet, Professor Emeritus of the University Paris Nanterre, former Chairman of the
International Law Commission, member of the Institut de droit international,
Mr. Philippe Sands, QC, Professor of International Law, University College London,
Barrister, Matrix Chambers, London,
Ms Alina Miron, Professor of International Law, University of Angers,
Mr. Edward Craven, Barrister, Matrix Chambers, London,
as Counsel and Advocates;
Mr. Lawrence H. Martin, Attorney at Law, Foley Hoag LLP, member of the Bars of the
United States Supreme Court, the District of Columbia and the Commonwealth of
Massachusetts,
Mr. Yuri Parkhomenko, Attorney at Law, Foley Hoag LLP, member of the Bar of the District
of Columbia,
Mr. Nicholas M. Renzler, Attorney at Law, Foley Hoag LLP, member of the Bars of the
United States Supreme Court, the District of Columbia and the State of New York,
Mr. Benjamin Salas Kantor, Attorney at Law, Foley Hoag LLP, member of the Bar of the
Supreme Court of the Republic of Chile,
Mr. Ysam Soualhi, Researcher, Centre Jean Bodin (CJB), University of Angers,
as Counsel;
H.E. Mr. Abukar Dahir Osman, Permanent Representative of the Federal Republic of Somalia
to the United Nations,
Mr. Sulayman Mohamed Mohamoud, Attorney General of the Federal Republic of Somalia,
H.E. Mr. Yusuf Garaad Omar, Special Envoy of the President of the Federal Republic of
Somalia for the Red Sea and the Gulf of Aden,
Mr. Osmani Elmi Guled, Solicitor General of the Federal Republic of Somalia,
Mr. Ahmed Ali Dahir, former Attorney General of the Federal Republic of Somalia,
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Mr. Kamil Abdullahi Mohammed, Legal Adviser, Office of the Attorney General of the
Federal Republic of Somalia,
Mr. Abdiqani Yasin Mohamed, Personal Assistant of the Deputy Prime Minister of the
Federal Republic of Somalia,
as Advisers;
Mr. Scott Edmonds, Cartographer, International Mapping,
Ms Vickie Taylor, Cartographer, International Mapping,
as Technical Advisers,
and
the Republic of Kenya,
represented by
The Honourable Paul Kihara Kariuki, Attorney-General of the Republic of Kenya,
as Agent;
H.E. Mr. Lawrence Lenayapa, Ambassador of the Republic of Kenya to the Kingdom of the
Netherlands,
as Co-Agent,
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 28 August 2014, the Government of the Federal Republic of Somalia (hereinafter
“Somalia”) filed in the Registry of the Court an Application instituting proceedings against the
Republic of Kenya (hereinafter “Kenya”) concerning a dispute in relation to “the establishment of
the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the
territorial sea, exclusive economic zone . . . and continental shelf, including the continental shelf
beyond 200 nautical miles”.
In its Application, Somalia sought to found the jurisdiction of the Court on the declarations
made, pursuant to Article 36, paragraph 2, of the Statute of the Court, by Somalia on 11 April 1963
and by Kenya on 19 April 1965.
2. In accordance with Article 40, paragraph 2, of the Statute, the Registrar immediately
communicated the Application to the Government of Kenya. He also notified the Secretary-General
of the United Nations of the filing of the Application by Somalia.
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3. By a letter dated 14 November 2014, the Registrar informed all Member States of the
United Nations of the filing of the Application.
4. In conformity with Article 40, paragraph 3, of the Statute, the Registrar later notified the
Member States of the United Nations, through the Secretary-General, of the filing of the Application,
by transmission of the printed bilingual text.
5. Since the Court included upon the Bench no judge of Kenyan nationality, Kenya proceeded
to exercise its right conferred by Article 31, paragraph 2, of the Statute to choose a judge ad hoc to
sit in the case; it chose Mr. Gilbert Guillaume.
6. By an Order of 16 October 2014, the President of the Court fixed 13 July 2015 as the
time-limit for the filing of the Memorial of Somalia and 27 May 2016 for the filing of the
Counter-Memorial of Kenya. Somalia filed its Memorial within the time-limit so prescribed.
7. On 7 October 2015, within the time-limit set by Article 79, paragraph 1, of the Rules of
Court of 14 April 1978 (as amended on 1 February 2001), Kenya raised preliminary objections to
the jurisdiction of the Court and to the admissibility of the Application. In an Order of 9 October
2015, the Court noted that, by virtue of Article 79, paragraph 5, of the Rules of Court of 14 April
1978 (as amended on 1 February 2001), the proceedings on the merits were suspended.
Consequently, taking account of Practice Direction V, it fixed, by the same Order, 5 February 2016
as the time-limit for the presentation by Somalia of a written statement of its observations and
submissions on the preliminary objections raised by Kenya. Somalia filed such a statement within
the time-limit so prescribed, and the case became ready for hearing in respect of the preliminary
objections.
8. Pursuant to the instructions of the Court under Article 43, paragraph 1, of the Rules of Court,
the Registrar addressed to States parties to the United Nations Convention on the Law of the Sea
(hereinafter “UNCLOS” or the “Convention”) the notifications provided for in Article 63,
paragraph 1, of the Statute. In addition, the Registrar addressed to the European Union, which is also
party to that Convention, the notification provided for in Article 43, paragraph 2, of the Rules of
Court, and asked that organization whether or not it intended to furnish observations under that
provision. In response, the Director-General of the Legal Service of the European Commission
indicated that the European Commission, acting on behalf of the European Union, did not intend to
submit observations in the case.
9. By a communication dated 21 January 2016, the Government of the Republic of Colombia,
referring to Article 53, paragraph 1, of the Rules of Court, asked to be furnished with copies of the
pleadings and documents annexed in the case. Having ascertained the views of the Parties in
accordance with that same provision, and having taken into account the objection raised by one Party,
the Court decided that it would not be appropriate to grant that request. By a letter dated 17 March
2016, the Registrar duly communicated that decision to the Government of Colombia and to the
Parties.
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10. Public hearings on the preliminary objections raised by Kenya were held from 19 to
23 September 2016. By its Judgment of 2 February 2017 (hereinafter the “2017 Judgment”), the
Court rejected the preliminary objections raised by Kenya, and found that it had jurisdiction to
entertain the Application filed by Somalia on 28 August 2014 and that the Application was
admissible.
11. By an Order of 2 February 2017, the Court fixed 18 December 2017 as the time-limit for
the filing of the Counter-Memorial of Kenya. That pleading was filed within the time-limit thus
prescribed.
12. By an Order of 2 February 2018, the Court authorized the submission of a Reply by
Somalia and a Rejoinder by Kenya, and fixed 18 June 2018 and 18 December 2018 as the respective
time-limits for the filing of those pleadings. The Reply and Rejoinder were filed within the
time-limits thus prescribed.
13. By letters dated 26 February 2019, the Parties were informed that the hearings on the merits
would take place from 9 to 13 September 2019. By a letter dated 2 September 2019, received under
cover of a Note Verbale dated 3 September 2019, Kenya requested the Court to postpone the hearings
by 12 months. By a letter dated 4 September 2019, Somalia responded that it considered the request
“manifestly unjustified, harmful to the judicial process and the peaceful resolution of a longstanding
dispute, and highly prejudicial to [it]”. By letters dated 5 September 2019, the Parties were notified
that the Court had decided to postpone the opening of the hearings to 4 November 2019.
By a letter dated 16 September 2019, Kenya requested the Court to reconsider its decision of
5 September 2019 and postpone the oral proceedings until September 2020. By a letter dated
19 September 2019, Somalia argued that there was no basis for the Court to reconsider its decision.
By a letter dated 23 September 2019, Kenya reiterated its request. On 3 October 2019, the
Vice-President of the Court, Acting President in the case, met the representatives of the Parties in
order to ascertain their views with regard to the question of the postponement of the oral proceedings.
By letters dated 16 October 2019, the Parties were informed that the Court had decided to postpone
the opening of the hearings to 8 June 2020.
14. By a letter dated 23 April 2020, Kenya requested an indefinite postponement of the oral
proceedings in light of the COVID-19 pandemic. By a letter dated 1 May 2020, Somalia opposed the
further postponement of the oral proceedings. By letters dated 19 May 2020, the Parties were
informed that the Court had decided to postpone the hearings to the week of 15 March 2021, and a
detailed schedule for the hearings was provided to them.
15. By letters dated 23 December 2020, the Parties were informed that, in light of the
restrictions in place across the globe as a result of the COVID-19 pandemic, the hearings due to open
on 15 March 2021 would be held by video link. A modified detailed schedule was transmitted to
them at the same time.
16. By a letter dated 28 January 2021, Kenya, referring to “serious difficulties in preparing for
the hearing due to the ongoing global COVID-19 pandemic” and expressing concerns about
proceeding with hearings by video link, requested “that the hearing be postponed until such a time
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as the pandemic conditions would have subsided”. By a letter dated 3 February 2021, Somalia
objected to this request. Further communications on the subject were exchanged between the Parties.
By letters dated 12 February 2021, the Parties were informed that the Court had decided to maintain
the hearings as scheduled, starting on 15 March 2021, in a hybrid format, with some judges attending
the oral proceedings in person in the Great Hall of Justice and others participating remotely by video
link, and with the representatives of the Parties to the case participating either in person or by video
link.
17. On 5 March 2021, Kenya presented a request to produce “new documentation and
evidence”. Enclosed with Kenya’s letter were Appendix 1, accompanied by two annexes, and
Appendix 2, consisting of eight volumes with annexes. Kenya’s letter stated that Volume I of
Appendix 2 explained “the nature and relevance of the new and additional evidence”. By a letter
dated 9 March 2021, Somalia informed the Court that it did not object to the production of the
materials that Kenya wished to submit, except for Volume I of Appendix 2. With respect to Volume I
of Appendix 2, Somalia indicated, however, that it would withdraw its objection if it were given the
opportunity to respond to it.
18. By letters dated 11 March 2021, the Parties were informed that, in light of the absence of
an objection on the part of Somalia and pursuant to Article 56, paragraph 1, of the Rules of Court,
the documents contained in Appendix 1 and in Volumes II to VIII of Appendix 2 could be produced
and would form part of the case file. Having considered the views of the Parties and the particular
circumstances of the case, the Court decided to authorize the production of Volume I of Appendix 2
(hereinafter “Appendix 2”) by Kenya, on the understanding that Somalia would have the opportunity
to comment thereon during the hearings. In addition, the Court decided that if Somalia wished to
comment in writing on the materials that were produced by Kenya and to submit documents in
support of its comments, it should do so no later than 22 March 2021. Somalia commented on these
materials during the hearings and filed written comments on 22 March 2021.
19. By a letter dated 11 March 2021 and received in the Registry on 12 March 2021, the Agent
of Kenya informed the Court that his Government would not be participating in the hearings in the
case and indicated the reasons for that decision. The Agent requested the opportunity to address the
Court orally before the commencement of the hearings and to submit a “position paper”, a copy of
which was enclosed with his letter. By a letter dated 12 March 2021, Somalia objected to the two
requests made by the Agent of Kenya. By letters dated 15 March 2021, the Parties were informed
that the Court had decided not to grant either of the two requests made by Kenya.
20. By a letter dated 15 March 2021, the Co-Agent of Kenya stated that “while affirming that
it [would] not participate in the hearings on the merits, Kenya wishe[d] to inform the Court that it
nevertheless intend[ed] to utilize thirty minutes out of the time allocated to it on the 18th March,
2021, to orally address the Court”. Somalia responded by a letter of the same date, stating that it
welcomed Kenya’s decision to participate in the hearings. By letters dated 16 March 2021, the Parties
were informed that the Court was prepared to give Kenya the opportunity to address it on 18 March
2021 (during the session originally scheduled for Kenya’s oral pleadings), for the purpose of Kenya’s
participation in the oral proceedings and the presentation of its contentions on the merits of the case.
By a letter dated 17 March 2021, Kenya indicated that it would “not utilize the opportunity provided
by the Court” to participate in the oral proceedings on 18 March 2021.
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21. By a letter dated 18 March 2021, Kenya submitted four new documents “for the Court’s
information and consideration”. By a letter dated 22 March 2021, Somalia argued that these
documents were neither new nor critical and were of no probative value in support of Kenya’s
arguments. By letters dated 23 March 2021, the Parties were informed that the Court had decided
that these four new documents and Somalia’s observations thereon would be included in the case
file.
22. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of
the Parties, decided that copies of the pleadings and documents annexed would be made accessible
to the public on the opening of the oral proceedings. It also decided that the additional materials
submitted by Kenya prior to and during the hearings and the written comments of Somalia thereon
(see paragraphs 17, 18 and 21 above) would be made public.
23. Public hearings were held from 15 to 18 March 2021, at which the Court heard the oral
arguments of:
For Somalia: H.E. Mr. Mahdi Mohammed Gulaid,
Mr. Alain Pellet,
Mr. Philippe Sands,
Ms Alina Miron,
Mr. Paul S. Reichler,
Mr. Edward Craven,
Mr. Mohamed Omar Ibrahim.
24. At the hearings, a Member of the Court put a question to Somalia, to which a reply was
given in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to
Article 72 of the Rules of Court, Kenya was invited to submit any comments that it might wish to
make on Somalia’s reply, but no such comments were made.
*
25. In the Application, the following claims were presented by Somalia:
“The Court is asked to determine, on the basis of international law, the complete
course of the single maritime boundary dividing all the maritime areas appertaining to
Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond
200 [nautical miles].
Somalia further requests the Court to determine the precise geographical
co-ordinates of the single maritime boundary in the Indian Ocean.”
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26. In the written proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Somalia,
in the Memorial:
“On the basis of the facts and law set forth in this Memorial, Somalia respectfully
requests the Court:
1. To determine the complete course of the maritime boundary between Somalia and
Kenya in the Indian Ocean, including in the continental shelf beyond 200 [nautical
miles], on the basis of international law.
2. 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
[land boundary
terminus]
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" E
10
(intersection with
200 M limit)
3° 34' 57.05" S 44° 18' 49.83" E
11
(intersection with
350 M limit)
5° 00' 25.71" S 46° 22' 33.36" E
3. To adjudge and declare that Kenya, by its conduct in the disputed area, has violated
its international obligations to respect the sovereignty, and sovereign rights and
jurisdiction of Somalia, and is responsible under international law to make full
reparation to Somalia, including inter alia by making available to Somalia all
seismic 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)”.
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in the Reply:
“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 [nautical
miles], 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
[land boundary
terminus]
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" E
10
(intersection with
200 M limit)
3° 34' 57.05" S 44° 18' 49.83" E
11
(intersection with the
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)”.
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On behalf of the Government of Kenya,
in the Counter-Memorial:
“On the basis of the facts and law set forth in this Counter-Memorial, Kenya
respectfully requests the Court to:
1. Dismiss the requests in paragraphs 2 and 3 of the Submissions at pages 147 and 148
of Somalia’s Memorial dated 13 July 2015.
2. Adjudge and declare that the maritime boundary between Somalia and Kenya in the
Indian Ocean shall follow the parallel of latitude at 1° 39' 43.2" S, extending from
Primary Beacon 29 (1° 39' 43.2" S) to the outer limit of the continental shelf.”
in the Rejoinder:
“On the basis of the facts and law set forth in this Rejoinder, Kenya respectfully
requests the Court to:
1. Dismiss the requests in paragraphs 1, 3 and 4 of [the Submissions in] the Reply of
Somalia.
2. Adjudge and declare that the maritime boundary between Somalia and Kenya in the
Indian Ocean shall follow the parallel of latitude at 1° 39' 43.2" S, extending from
Primary Beacon 29 (1° 39' 43.2" S) to the outer limit of the continental shelf.”
27. At the oral proceedings, the following submissions were presented on behalf of the
Government of Somalia at the hearing of 18 March 2021:
“On the basis of its Memorial of 7 July 2015, its Reply of 18 June 2018, and its
oral pleadings, Somalia respectfully requests the Court:
1. To reject Submissions 1 and 2 of Kenya’s Rejoinder of 18 December 2018.
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 [nautical
miles], 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 (all points referenced
are referred to WGS-84):
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Point No. Latitude Longitude
1
[land boundary
terminus]
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" E
10
(intersection with
200 M limit)
3° 34' 57.05" S 44° 18' 49.83" E
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.”
28. Since Kenya did not participate in the oral proceedings, no formal submissions were
presented on behalf of its Government at the hearings.
*
* *
29. The Court regrets Kenya’s decision not to participate in the oral proceedings held in
March 2021. Nevertheless, the Court had extensive information about Kenya’s views, having
received its Counter-Memorial and Rejoinder, as well as numerous volumes containing additional
evidence and arguments it submitted to the Court in March 2021 (see paragraphs 17, 18 and 21
above).
- 15 -
30. The Court recalls that the oral proceedings were conducted in a hybrid format, in
accordance with Article 59, paragraph 2, of the Rules of Court and on the basis of the Court’s
Guidelines for the Parties on the Organization of Hearings by Video Link, adopted on 13 July 2020
and communicated to the Parties on 12 February 2021. Prior to the opening of the hybrid hearings,
the Parties were invited to participate in comprehensive technical tests, and Somalia did so. During
the oral proceedings, a number of judges were present in the Great Hall of Justice, while others joined
the proceedings via video link, allowing them to view and hear the speaker and see any demonstrative
exhibits displayed. Each Party was permitted to have up to four representatives present in the Great
Hall of Justice at any one time and was offered the use of an additional room in the Peace Palace
from which members of the delegation were able to participate via video link. Members of the
delegations were also given the opportunity to participate via video link from other locations of their
choice.
*
* *
I. GEOGRAPHICAL AND HISTORICAL BACKGROUND
31. Somalia and Kenya are adjacent States on the coast of East Africa. Somalia is located in
the Horn of Africa. It borders Kenya to the south-west, Ethiopia to the west and Djibouti to the
north-west. Somalia’s coastline faces the Gulf of Aden to the north and the Indian Ocean to the east.
Kenya, for its part, shares a land boundary with Somalia to the north-east, Ethiopia to the north,
South Sudan to the north-west, Uganda to the west and Tanzania to the south. Its coastline faces the
Indian Ocean (see sketch-map No. 1 below).
32. On 15 July 1924, Italy and the United Kingdom concluded a treaty regulating certain
questions concerning the boundaries of their respective territories in East Africa, including what
Somalia describes as “the Italian colony of Jubaland”, located in present-day Somalia, and the British
colony of Kenya. By an Exchange of Notes dated 16 and 26 June 1925, the boundary between the
Italian and British colonial territories was redefined in its southernmost section. Between 1925
and 1927, a joint British-Italian commission surveyed and demarcated the boundary. Following the
completion of this exercise, the commission recorded its decisions in an Agreement signed by British
and Italian representatives on 17 December 1927 (hereinafter the “1927 Agreement”). That
Agreement was formally confirmed by an Exchange of Notes of 22 November 1933 between the
British and Italian Governments. The Court will collectively refer to the 1927 Agreement and this
Exchange of Notes as the “1927/1933 treaty arrangement”. Somalia and Kenya gained their
independence in 1960 and 1963, respectively.
33. Both Parties signed UNCLOS on 10 December 1982. Kenya and Somalia ratified it on
2 March 1989 and 24 July 1989, respectively, and the Convention entered into force for them on
16 November 1994.
- 16 -
- 17 -
34. Both Somalia and Kenya have filed submissions with the Commission on the Limits of the
Continental Shelf (hereinafter the “CLCS” or the “Commission”) in order to obtain its
recommendations on matters related to the establishment of the outer limits of their continental
shelves beyond 200 nautical miles, in accordance with Article 76, paragraph 8, of UNCLOS. While
they previously objected to the consideration by the Commission of each other’s submissions, these
objections were subsequently withdrawn. As of the date of the present Judgment, the Commission
has yet to issue its recommendations in respect of the Parties’ submissions.
II. OVERVIEW OF THE POSITIONS OF THE PARTIES
35. The Parties have adopted fundamentally different approaches to the delimitation of the
maritime areas. Somalia argues that no maritime boundary exists between the two States and asks
the Court to plot a boundary line using the equidistance/special circumstances method (for the
delimitation of the territorial sea) and the equidistance/relevant circumstances method (for
the maritime areas beyond the territorial sea). In its view, an unadjusted equidistance line throughout
all maritime areas achieves the equitable result required by international law. Kenya, for its part,
contends that there is already an agreed maritime boundary between the Parties, because Somalia has
acquiesced to a boundary that follows the parallel of latitude at 1° 39' 43.2" S (hereinafter “the
parallel of latitude”). Kenya further contends that the Parties have considered this to be an equitable
delimitation, in light of both the geographical context and regional practice. Kenya submits that, even
if the Court were to conclude that there is no maritime boundary in place, it should delimit the
maritime areas following the parallel of latitude, and that, even if the Court were to employ the
delimitation methodology suggested by Somalia, the outcome, following adjustment to reach an
equitable result, would be a delimitation that follows the parallel of latitude (see sketch-map No. 2
below, depicting the maritime boundaries claimed by the Parties).
- 18 -
- 19 -
III. WHETHER SOMALIA HAS ACQUIESCED TO A MARITIME BOUNDARY
FOLLOWING THE PARALLEL OF LATITUDE
36. The Court will first ascertain whether there is an agreed maritime boundary between the
Parties on the basis of acquiescence by Somalia.
* *
37. Kenya maintains that Somalia has acquiesced to its claim that the maritime boundary
between the Parties follows the parallel of latitude and that there is thus an agreed boundary between
them. According to Kenya, acquiescence requires three elements: first, a course of conduct or
omission by one State indicative of its view regarding the content of the applicable legal rule;
secondly, another State’s knowledge (actual or constructive) of such conduct or omission; and,
thirdly, a failure by the latter State, when a reaction is called for, to reject or dissociate itself within
a reasonable time from the position taken by the first State. Thus, the Respondent’s argument is not
that a maritime boundary can result from unilateral acts, but that it can be established by consent
resulting from the prolonged absence of protest against a claim. Kenya regards acquiescence as a
form of consent that can be equated to tacit agreement. In support of its claim, it invokes decisions
by international courts and tribunals referring to acquiescence and tacit agreement.
38. Kenya contends that by failing to respond to the Proclamation by the President of the
Republic of Kenya of 28 February 1979 (hereinafter the “1979 Proclamation”; see paragraph 54
below), to the Proclamation by the President of the Republic of Kenya of 9 June 2005 (hereinafter
the “2005 Proclamation”; see paragraph 61 below) and to Kenya’s Submission on the Continental
Shelf beyond 200 nautical miles deposited with the CLCS on 6 May 2009 (hereinafter the
“2009 Submission to the CLCS”; see paragraph 65 below), Somalia has acquiesced to Kenya’s claim
that the maritime boundary between the Parties follows the parallel of latitude. In Kenya’s view, a
reaction is called for where there has been an express, official and public notification, through formal
United Nations procedures, of a State’s position concerning maritime delimitation and the sovereign
rights of adjacent coastal States. It argues that the absence of protest in such circumstances constitutes
acquiescence under international law. The Respondent asserts that if Somalia disagreed with Kenya’s
claim, it should have protested promptly, since circumstances such as the proximity of the States
concerned and the giving of formal notice call for a quick and, in some cases, immediate response to
a maritime or territorial claim. According to Kenya, Somalia continued to play an active role in
international relations during its civil war; it was represented at the United Nations throughout this
period and has had an internationally recognized government since 2000. Kenya argues that Somalia
was thus in a position to protest against Kenya’s claim.
39. Kenya states that the Applicant’s failure to react immediately to the 1979 Proclamation or
the 2005 Proclamation was particularly significant given that, pursuant to the 1972 Law on the
Somali Territorial Sea and Ports, Somalia claimed a territorial sea extending to 200 nautical miles
and, therefore, its claim of sovereignty in that area was at stake. In Kenya’s view, Somalia’s
- 20 -
acquiescence was made clear by its agreement to the principle of equitable delimitation during the
negotiations held at the Third United Nations Conference on the Law of the Sea and by its insistence
on deleting any reference to equidistance in Articles 74 and 83 of UNCLOS, a position that was
shared by other African States. Kenya considers it significant that Somalia initiated a rapprochement
with Kenya in 1978 and points out that Somalia did not raise the issue of the 1979 Proclamation
during bilateral meetings held between the Parties in 1980 and 1981.
40. Kenya also argues that Somalia’s Maritime Law of 1988, which mentions a “straight line”
in respect of the territorial sea boundary, refers to the parallel of latitude rather than an equidistance
line. In addition, Kenya highlights Somalia’s lack of reaction or protest when, in 2007 and 2008,
Kenya sent two Notes Verbales in which it stated that it had drawn the boundaries with Somalia
“using the parallel of latitude” and requested that Somalia confirm its agreement to such boundaries.
41. Kenya considers that the terms of the “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” (hereinafter the “MOU”), signed by the Parties in 2009, are consistent with Somalia’s
acquiescence. In Kenya’s view, the Court has already found that the MOU does not concern the
delimitation of the maritime boundary between the Parties and was intended merely to allow them to
make their CLCS submissions before the relevant deadline. It adds that the reference in the MOU to
an unsettled maritime boundary “dispute” concerns only the delimitation of the outer continental
shelf and simply recognizes that the Parties have not yet negotiated a formal agreement.
42. Kenya contends that a letter sent by the Prime Minister of Somalia to the Secretary-General
of the United Nations on 19 August 2009 did not contain a claim to an “equidistant maritime
boundary” or a protest against Kenya’s maritime boundary claim. It asserts that Somalia’s first
objection to Kenya’s claim was expressed in a letter sent by the Minister for Foreign Affairs and
International Cooperation of Somalia to the Secretary-General on 4 February 2014. Kenya argues
that its consent to negotiate a formal delimitation agreement does not imply that Somalia has not
acquiesced to its claim.
43. Furthermore, Kenya refers to “additional evidence” concerning other conduct of the Parties
between 1979 and 2014, which, in its view, “confirms” Somalia’s acceptance of the parallel of
latitude as the maritime boundary. Kenya asserts that its naval patrols and interceptions, as well as
both Parties’ conduct concerning fisheries, marine scientific research and offshore oil exploration
blocks, have all been consistent with Kenya’s claim. The Respondent maintains that its conduct
would have called for a reaction from the Applicant, if Somalia had considered that Kenya had
encroached on its maritime areas. In this regard, Kenya has submitted a number of maps, reports and
other documents issued by various entities. It contends that the maps submitted by Somalia are
irrelevant, either because they do not purport to show the official position of the Parties or because
they are speculative or of unknown provenance.
*
- 21 -
44. Somalia notes that Article 15, Article 74 and Article 83 of UNCLOS make clear that
delimitation is to be effected by agreement. It recognizes that a maritime boundary may be
established by an agreement that is not in written form, but contends that a maritime boundary cannot
be established by unilateral acts. In this regard, Somalia maintains that Kenya has not explained how
acquiescence differs from tacit agreement. According to Somalia, even if acquiescence could be
invoked as a principle of delimitation, Kenya would have to prove a prolonged and consistent course
of conduct indicating its own view on the location of the maritime boundary, as well as a very definite
course of conduct by Somalia showing its intention clearly and consistently to accept Kenya’s claim.
Somalia argues that lack of protest against a notification of a claim cannot automatically amount to
an acceptance of that claim.
45. Somalia maintains that Kenya’s own public statements and positions directly contradict its
contention that the Parties have already delimited their maritime boundary along the parallel of
latitude. In this regard, Somalia refers to Kenya’s 2009 Submission to the CLCS, Kenyan domestic
law, Kenya’s statements to the United Nations, official Kenyan reports and presentations, the terms
of the 2009 MOU, the record of the bilateral negotiations between the Parties and Kenya’s pleadings
before the Court in support of its preliminary objections. The Applicant adds that other States and
international organizations have recognized that the maritime boundary between the Parties remains
to be delimited.
46. Somalia further maintains that, in any event, it did not wait until 2014 before protesting
against Kenya’s claim. It contends that it articulated its claim to an equidistance line in 1974 during
the Third United Nations Conference on the Law of the Sea and that this claim was embodied in its
Maritime Law of 1988. Somalia asserts that “[t]he Somali language does not contain a word precisely
equivalent to ‘equidistance line’ in English” and that the phrase “a straight line toward the sea from
the land” in Article 4, paragraph 6, of the 1988 Law “was intended to be equivalent to an equidistance
line”. The Applicant also contends that it is unreasonable and unrealistic to expect a State that was
ravaged by civil war and had no functioning government to have lodged formal diplomatic protests
against a purported claim to a boundary line, stressing that it protested against Kenya’s claim “once
it resumed having a functioning government after the long civil war”. In this regard, it draws attention
to the letter sent by its Prime Minister to the Secretary-General of the United Nations on 19 August
2009, which stated, inter alia, that the continental shelf between Somalia and Kenya had not yet been
delimited. Somalia adds that its opposition to a maritime boundary at the parallel of latitude, as well
as its protests against Kenya’s award of offshore concessions for maritime areas north of the
equidistance line, were reflected in news reports published in 2012 and in a 2013 report of the
Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2060 (2012).
47. With respect to other conduct of the Parties referred to by Kenya, Somalia argues that
“maritime effectivités” cannot be invoked in themselves to support the existence of a maritime
boundary. In Somalia’s view, Kenya’s purported displays of authority in the disputed area were in
any event sporadic, infrequent and recent, and were undertaken at a time when, on account of civil
war, there was no functioning Somali government able to monitor such activities or exercise effective
control over them. Somalia considers that the maps, reports and documents adduced by
- 22 -
the Respondent provide no support for the existence of a maritime boundary as claimed by Kenya.
It refers to other maps, asserting that they either depict an equidistant maritime boundary or show
Kenya’s northernmost concession blocks following a course that closely resembles an equidistance
line. The Applicant contends that, in any event, even the consistent conduct of two States over a long
period of time is not sufficient evidence of an agreement.
* *
48. The Court recalls that both Kenya and Somalia are parties to UNCLOS. For the
delimitation of the territorial sea, Article 15 of the Convention provides for the use of a median line
“failing agreement between [the two States] to the contrary”, unless “it is necessary by reason of
historic title or other special circumstances to delimit the territorial seas of the two States in a
[different] way”. The delimitation of the exclusive economic zone and the continental shelf is
governed by Article 74, paragraph 1, and Article 83, paragraph 1, of the Convention, respectively.
The Court has noted that “[t]he texts of these provisions are identical, the only difference being that
Article 74 refers to the exclusive economic zone and Article 83 to the continental shelf” (Maritime
Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 65, para. 179). They establish that
delimitation “shall be effected by agreement on the basis of international law”.
49. The Court reiterates that maritime delimitation between States with opposite or adjacent
coasts must be effected by means of an agreement between them, and that, where such an agreement
has not been achieved, delimitation should be effected by recourse to a third party possessing the
necessary competence (Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 299, para. 112 (1)). Maritime
delimitation cannot be effected unilaterally by either of the States concerned (ibid.; Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 66, para. 87; Fisheries (United
Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 132).
50. An agreement establishing a maritime boundary is usually expressed in written form.
The Court considers, however, that the “agreement” referred to in Article 15, Article 74, paragraph 1,
and Article 83, paragraph 1, of the Convention may take other forms as well. The essential question
is whether there is a “shared understanding” between the States concerned regarding their maritime
boundaries (see Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 23, para. 43,
and p. 31, para. 69). The Court notes that both Parties recognize that the delimitation of maritime
boundaries requires such a shared understanding.
51. The jurisprudence relating to acquiescence and tacit agreement may be of assistance when
examining whether there exists an agreement that is not in written form regarding the maritime
boundary between two States. In this regard, the Court recalls that “acquiescence is equivalent to
tacit recognition manifested by unilateral conduct which the other party may interpret as consent”
(Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America), Judgment, I.C.J. Reports 1984, p. 305, para. 130; see also Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992,
p. 577, para. 364). If the circumstances are such that the conduct of the other State calls for
- 23 -
a response, within a reasonable period, the absence of a reaction may amount to acquiescence
(Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, pp. 50-51, para. 121; Temple of Preah Vihear
(Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 23). This is based on the principle
“[q]ui tacet consentire videtur si loqui debuisset ac potuisset” (ibid.). In determining whether a
State’s conduct calls for a response from another State, it is important to consider whether the State
has consistently maintained that conduct (Fisheries (United Kingdom v. Norway), Judgment, I.C.J.
Reports 1951, pp. 138-139). In evaluating the absence of a reaction, duration may be a significant
factor (see e.g. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, I.C.J. Reports 2008, pp. 95-96, paras. 274-276; Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J.
Reports 1992, pp. 408-409, para. 80; Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 32).
52. The Court has set a high threshold for proof that a maritime boundary has been established
by acquiescence or tacit agreement. It has emphasized that since “[t]he establishment of a permanent
maritime boundary is a matter of grave importance”, “[e]vidence of a tacit legal agreement must be
compelling” (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253; see also
Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, pp. 38-39, para. 91; Delimitation
of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS
Reports 2017, p. 70, para. 212). Acquiescence “presupposes clear and consistent acceptance” of
another State’s position (Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 309, para. 145). To date, the
Court has recognized the existence of a tacit agreement delimiting a maritime boundary in only one
case, in which the parties had “acknowledge[d] in a binding international agreement that a maritime
boundary already exist[ed]” (Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 38,
para. 90). In the present case, the Court will use the criteria it has identified in earlier cases and
examine whether there is compelling evidence that Kenya’s claim to a maritime boundary at the
parallel of latitude was maintained consistently and, consequently, called for a response from
Somalia. It will then consider whether there is compelling evidence that Somalia clearly and
consistently accepted the boundary claimed by Kenya.
53. In this respect, the Parties present arguments regarding Kenya’s 1979 Proclamation,
2005 Proclamation, 2009 Submission to the CLCS and their respective domestic laws. They also
refer to other conduct of the Parties in the period between 1979 and 2014. The Court will examine
these arguments in turn.
*
- 24 -
54. In the 1979 Proclamation, the President of Kenya declared:
“1. That notwithstanding any rule of law or any practice which may hitherto have
been observed in relation to Kenya or the waters beyond or adjacent to the territorial
Sea of Kenya, the Exclusive Economic Zone of the Republic of Kenya extend[s] across
the sea to a distance of two hundred nautical miles measured from the appropriate base
line from where the territorial sea is measured as indicated in the Map annexed to this
Proclamation. Without prejudice to the foregoing, the Exclusive Economic Zone of
Kenya shall:
(a) in respect of its southern territorial waters boundary with the United Republic of
Tanzania be an eastern latitude north of Pemba island to start at a point obtained by
the northern intersection of two arcs one from the Kenya Lighthouse at Mpunguti
ya Juu, and the other from Pemba island Lighthouse at Ras Kigomasha.
(b) in respect of its northern territorial waters boundary with [the] Somali Republic be
on eastern latitude South of Diua Damasciaca Island being latitude 1° 38' South.
2. That this Proclamation shall not affect or be in derogation of the vested rights
of the Republic of Kenya over the Continental Shelf as defined in the Continental Shelf
Act 197[5].
3. All States shall, subject to the applicable laws and regulations of Kenya, enjoy
in the Exclusive Economic Zone the freedom of navigation and overflight and of the
laying of sub-marine cables and pipelines and other internationally lawful recognized
uses of the sea related to navigation and communication.
4. That the scope and regime of the Exclusive Economic Zone shall be as defined
in the schedule attached to this Proclamation.”
55. This Proclamation was transmitted by the Secretary-General to the Permanent Missions of
the Member States of the United Nations on 19 July 1979.
56. The 1979 Proclamation was concerned with Kenya’s exclusive economic zone. It stated
that “the Exclusive Economic Zone of Kenya shall . . . in respect of its northern territorial waters
boundary with [Somalia] be on . . . latitude 1° 38' South”.
57. The Court notes that Kenya’s Territorial Waters Act of 1972 had established in its
Section 2, subsection 1, that “[e]xcept as provided in subsection (4) of this section the breadth of the
territorial waters of the Republic of Kenya shall be twelve nautical miles”. Subsection 4 had stated
that “[o]n the coastline adjacent to neighbouring States the breadth of the territorial sea shall extend
to a Median Line”. The Territorial Waters Act was revised in 1977, but the text of Section 2,
subsection 4, remained the same. The Act remained in force when the 1979 Proclamation was issued.
The Court thus observes that Kenya was not consistently claiming a maritime boundary with Somalia
at a parallel of latitude in all maritime areas.
- 25 -
58. On 25 August 1989, shortly after ratifying UNCLOS, Kenya adopted the Maritime Zones
Act (hereinafter the “1989 Maritime Zones Act”), which is still in force. In respect of the delimitation
of the territorial sea, that Act employs similar terms to Kenya’s Territorial Waters Act of 1972.
Section 3, subsection 4, of the 1989 Maritime Zones Act provides:
“On the coastline adjacent to neighbouring states, the breadth of the territorial
waters shall extend to [a line] every point of which is equidistant from the nearest points
on the baselines from which the breadth of the territorial waters of each of [the]
respective states is measured.”
As regards the delimitation of the exclusive economic zone, Section 4, subsection 4, of the Act
provides that “[t]he 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”.
59. Kenya contends that Section 3, subsection 4, of the 1989 Maritime Zones Act merely
reflects the terms of Article 15 of UNCLOS, which, it explains, applies “the median line in the
territorial sea as a provisional method ‘failing agreement’ on delimitation”. It considers that the
provision is without prejudice to the parallel of latitude boundary adopted in the 1979 Proclamation
and maintains that Kenyan legislation neither asserts nor requires territorial sea delimitation based
on a median line. Kenya further argues that Section 4, subsection 4, of the 1989 Maritime Zones Act
simply recognizes that, notwithstanding the 1979 Proclamation, a formal agreement has not been
concluded with Somalia in respect of the boundary of the exclusive economic zone.
60. The Court considers that Kenya’s position is at odds with the text of the 1989 Maritime
Zones Act, which refers neither to the 1979 Proclamation nor to a boundary at the parallel of latitude,
for either the territorial sea or the exclusive economic zone. In respect of the exclusive economic
zone, the text of Section 4, subsection 4, of the 1989 Maritime Zones Act provides that the northern
boundary of the exclusive economic zone with Somalia shall be delimited pursuant to “an agreement
between Kenya and Somalia”. These words stand in contrast to the text of Section 4, subsection 3,
which provides that the southern boundary with Tanzania shall be “on an easterly latitude”,
employing similar terms to those found in the 1979 Proclamation. Section 4, subsection 4, thus
implies that, unlike the situation of the boundary between Kenya and Tanzania, Kenya considered in
1989 that there was no agreement with Somalia on their maritime boundary. The Act refers instead
to an agreement to be concluded and published in the future. It was therefore reasonable for Somalia
to understand Kenya’s position to be that an agreement was to be negotiated and concluded at a later
date.
61. Kenya’s 2005 Proclamation replaced the 1979 Proclamation, while generally reaffirming
its terms. With regard to the exclusive economic zone, the 2005 Proclamation modified the parallel
of latitude claimed as the boundary with Somalia. Paragraph 1 of the 2005 Proclamation, in its
relevant part, reads as follows:
- 26 -
“Without prejudice to the foregoing, the Exclusive Economic Zone of Kenya
shall:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) In respect of its northern territorial waters boundary with [the] Somali Republic be
on eastern latitude South of Diua Damascia[ca] Island being latitude 1° 39' 34"
degrees south.”
The Proclamation included two schedules, which contained co-ordinates defining the “area of the
territorial waters” and the “Exclusive Economic Zone” of Kenya. In the first schedule, the
northernmost point of the outer limit of Kenya’s territorial sea is on the parallel of latitude. This
implied that, for Kenya, the boundary of its territorial sea with Somalia also followed the same
parallel of latitude. According to Kenya, the parallel of latitude was adjusted from the one in the
1979 Proclamation for greater accuracy, so that it coincided with the tangent to the southernmost
islet of Diua Damasciaca.
62. On 25 April 2006, the Secretary-General notified the Member States of the United Nations
and the States parties to UNCLOS that, in accordance with Article 16, paragraph 2, and Article 75,
paragraph 2, of the Convention, Kenya had deposited two lists of geographical co-ordinates of points,
as contained in the 2005 Proclamation. The 2005 Proclamation was subsequently published in the
Law of the Sea Bulletin No. 61.
63. Kenya has also drawn the Court’s attention to two Notes Verbales from the Ministry of
Foreign Affairs of Kenya to the Ministry of Foreign Affairs of the Transitional Federal Government
of Somalia, dated 26 September 2007 and 4 July 2008. In the Note Verbale of 26 September 2007,
which concerned the process of delineation of the outer limits of its continental shelf, Kenya claimed
that the maritime boundaries between the two countries “have been drawn using the parallel of
latitude[], in accordance with Articles 74, 83 of the UNCLOS” and requested Somalia to confirm
“that the Transitional Federal Government agrees with the way the maritime boundaries between the
two countries are drawn . . . as deposited with the United Nations by the Government of the Republic
of Kenya”. The aide-memoire attached to the Note Verbale stated that “the boundaries between our
two countries have not been defined”. In the Note Verbale of 4 July 2008, Kenya asked the
Government of Somalia “to state its position to the Government of the Republic of Kenya that the
Transitional Federal Government of Somalia agrees with the maritime boundaries between the two
countries as drawn and deposited with the United Nations by the Government of the Republic of
Kenya”.
64. The Court observes that the Notes Verbales did not characterize the maritime boundary
claimed by Kenya as an agreed boundary, but rather invited Somalia to confirm its agreement. It has
not been shown that Somalia provided such confirmation.
65. In its 2009 Submission to the CLCS, Kenya states that the maritime space over which it
exercises sovereignty, sovereign rights and jurisdiction was determined on the basis of the provisions
of UNCLOS, “as implemented by the following legislation and proclamations: the Territorial Waters
Act, 1972; the Maritime Zones Act, 1989, Cap. 371; and, the Presidential Proclamation of 9 June
2005 . . . in respect of Kenya’s territorial sea and exclusive economic zone”. It also states that “the
outer edge of the continental margin appurtenant to Kenya’s land territory extends beyond
200 [nautical miles] measured from the territorial sea baseline”. The lists of co-ordinates and the
maps included by Kenya in its submission show a single maritime boundary with Somalia at a parallel
of latitude, extending beyond 200 nautical miles to the claimed outer limit of its continental shelf.
- 27 -
66. The Court notes that Kenya’s 2009 Submission to the CLCS was made for the purpose of
delineating the outer limits of its continental shelf, which is a process distinct from the delimitation
of the continental shelf (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J.
Reports 2012 (II), p. 668, para. 125). In this regard, Kenya’s submission indicates that “Kenya has
overlapping maritime claims with the adjacent coastal States of Somalia to the north and with the
United Republic of Tanzania to the south” and mentions that Kenya and Somalia had signed the 2009
MOU agreeing that they would not object to each other’s submissions to the CLCS. The MOU
provides that
“[t]he submissions made before the Commission and the recommendations approved by
the Commission thereon 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”.
67. As previously noted by the Court in the 2017 Judgment, the terms of the MOU suggest
“that the two States recognize that they have a ‘maritime dispute’ that is ‘unresolved’” (I.C.J.
Reports 2017, p. 32, para. 72) and identify the “area under dispute” as that “in which the claims of
the two Parties to the continental shelf overlap, without differentiating between the shelf within and
beyond 200 nautical miles” (ibid., p. 35, para. 84). They also suggest that “the Parties intended to
acknowledge the usual course that delimitation would take . . . namely engaging in negotiations with
a view to reaching agreement” (ibid., p. 40, para. 97). In this connection, the MOU provides that
“[t]he delimitation of maritime boundaries in the areas under dispute . . . shall be agreed between the
two coastal States on the basis of international law”.
68. The Court observes that Kenya’s 2009 Submission to the CLCS also alludes to the lack of
agreement between the Parties on the maritime boundary in the exclusive economic zone. In respect
of the boundary with Tanzania, the submission explains that “[a]n agreement is in place between
Kenya and Tanzania concerning the delimitation of maritime boundaries”. However, in respect of
the boundary with Somalia, the submission states that the exclusive economic zone boundary “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”, thus employing the same terms as Section 4, subsection 4,
of the 1989 Maritime Zones Act. The submission also notes the existence of an “unsettled boundary
line between Kenya and Somalia”. From these terms, it was reasonable for Somalia to maintain its
understanding that an agreement had yet to be negotiated and concluded.
69. On 26 and 27 March 2014, at the request of the Kenyan Government, the Parties met in
Nairobi to engage in negotiations on maritime delimitation. The mere fact that these negotiations
took place suggests that the Parties recognized the need to delimit the maritime boundary between
them (see Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire),
Judgment, ITLOS Reports 2017, p. 73, paras. 221-222, and p. 78, para. 243). This is confirmed by
the Parties’ joint report on the negotiations, which states that they considered “several options and
methods including bisector, perpendicular, median and parallel of latitude”, but that they “could not
reach a consensus on the potential maritime boundary line acceptable to both countries to be
adopted”. Nowhere does the report imply that there already was an agreed maritime boundary
between the Parties.
- 28 -
70. Finally, the Court observes that Kenya’s recognition that no agreement on the maritime
boundary with Somalia has been reached was also reflected in its two Notes Verbales to the
Secretary-General from the Permanent Mission of Kenya to the United Nations, dated 24 October
2014 and 4 May 2015, and in its statements made to the Court during the preliminary objections
phase of the case.
71. In light of the foregoing, the Court concludes that Kenya has not consistently maintained
its claim that the parallel of latitude constitutes the single maritime boundary with Somalia. Kenya’s
claim was contradicted by its Territorial Waters Act of 1972, which remained in force in 1979, its
1989 Maritime Zones Act and its 2009 Submission to the CLCS. Under these circumstances, it was
reasonable for Somalia to understand that its maritime boundary with Kenya in the territorial sea, in
the exclusive economic zone and on the continental shelf would be established by an agreement to
be negotiated and concluded in the future. The Court thus concludes that there is no compelling
evidence that Kenya’s claim and related conduct were consistently maintained and, consequently,
called for a response from Somalia.
*
72. The Court recalls that Kenya’s claim of acquiescence is based on Somalia’s alleged
acceptance of a maritime boundary at the parallel of latitude, in particular through its prolonged
absence of protest. The Court will address this argument of Kenya, bearing in mind the conclusion
drawn above (see paragraph 71).
73. Kenya has emphasized that it issued the 1979 Proclamation while the Parties were actively
participating in the negotiations held at the Third United Nations Conference on the Law of the Sea
and that Somalia’s lack of reaction should be assessed in light of the positions it took in that context.
Discussions during the Conference on the question of the delimitation of maritime areas resulted in
the adoption of Article 15, Article 74, paragraph 1, and Article 83, paragraph 1, of UNCLOS. The
Court notes that the latter two provisions reflect the view held by both Kenya and Somalia during
the negotiations that the delimitation of the exclusive economic zone and the continental shelf
between States with adjacent or opposite coasts should be effected by agreement “in order to achieve
an equitable solution”. These provisions, however, do not set forth a specific method of delimitation
and it cannot be inferred from the Parties’ positions during the Conference that Somalia rejected
equidistance as a possible method of achieving an equitable solution.
74. In the years immediately following Kenya’s 1979 Proclamation, the Parties engaged in
discussions on a variety of issues regarding their bilateral relations, such as trade and exploitation of
marine resources. However, there is no indication that Somalia accepted Kenya’s claim to a boundary
along a parallel of latitude during that period. In this regard, Kenya has submitted minutes of a
meeting held between the Vice-Presidents of the two States on 6 May 1980, but these minutes make
no mention of any discussion of the Parties’ maritime boundaries or the 1979 Proclamation. The
same is true of other evidence submitted by Kenya in relation to meetings held between the Parties
in 1981.
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75. Until 1989, Somalia did not claim an exclusive economic zone or define its continental
shelf. Article 1, paragraph 1, of the 1972 Law on the Somali Territorial Sea and Ports defined
Somalia’s territorial sea as extending to 200 nautical miles, without including any provision
pertaining to its delimitation. Shortly before ratifying UNCLOS, Somalia adopted the Maritime Law
of 1988, approved by Law No. 5 on 26 January 1989. Article 7 of the Maritime Law provides that
Somalia’s exclusive economic zone shall extend to 200 nautical miles, and Article 8 defines its
continental shelf both within and beyond 200 nautical miles. The Maritime Law does not refer to the
delimitation of either of these areas. Article 4 defines Somalia’s territorial sea as extending to
12 nautical miles and addresses the issue of its delimitation with Kenya, providing in the relevant
part of paragraph 6:
“If there is no multilateral treaty, the Somali Democratic Republic shall consider
that the border between the Somali Democratic Republic and the Republic of Djibouti
and the Republic of Kenya is a straight line toward the sea from the land as indicated
on the enclosed charts.”
76. Somalia has not produced the charts mentioned in the provision, explaining that they may
have been lost or destroyed during the civil war. It maintains that “the phrase ‘straight line toward
the sea’ was intended to be equivalent to an equidistance line”. Kenya contends that, although the
meaning of this phrase is unclear, taking Somalia’s contemporary practice into account, it should be
interpreted as a reference to the parallel of latitude.
77. The Court notes that Article 4, paragraph 6, of the Maritime Law also refers to the
delimitation of maritime areas in relation to the Republic of Yemen, employing the phrase “a median
line”. The phrase “a straight line toward the sea from the land” is not clear and, without the charts
mentioned, its meaning cannot be determined. Kenya submits a number of documents, including the
Mining Code of the Somali Democratic Republic of 1984 and several maps, which, in its view,
support its interpretation of this phrase. The text of the Mining Code, adopted prior to the Maritime
Law of 1988, does not serve to clarify the meaning given by the latter to the phrase “a straight line
toward the sea from the land”. Article 58 of the Mining Code concerns only the establishment of
concession blocks in Somali territory. The Mining Code did not itself regulate Somalia’s maritime
boundaries. Similarly, the maps submitted by Kenya depict only oil concession blocks. As the Court
will further explain below (see paragraphs 86 and 87), such blocks, in and of themselves, cannot be
taken to indicate the existence of a maritime boundary.
78. Somalia did not react immediately to the 2005 Proclamation. However, its view was made
clear on several occasions in 2009. As noted above (see paragraph 67), the MOU concluded that year
between the Parties refers to an unsettled maritime dispute. Somalia’s 2009 submission of
preliminary information to the CLCS reproduces the text of the MOU and indicates that
“[u]nresolved questions remain in relation to [the] bilateral delimitation of the continental shelf with
neighbouring States”. In addition, in a letter dated 19 August 2009 and addressed to the
Secretary-General of the United Nations, the Prime Minister of Somalia maintained that “[t]he
delimitation of the continental shelf . . . has not yet been settled”, further stating that
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“[i]t would appear that Kenya claims an area extending up to the latitude of the point
where the land 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 the delimitation of the continental shelf between two States with adjacent
coasts. Somalia bases itself on the latter view”.
Furthermore, as noted by the Court in the 2017 Judgment, in 2014 Somalia “objected to the
consideration by the CLCS of Kenya’s submission on the ground that there existed a maritime
boundary dispute between itself and Kenya” (I.C.J. Reports 2017, p. 14, para. 19). Somalia withdrew
its objection in 2015, noting that the dispute had been submitted to the Court.
79. Finally, the Court cannot ignore the context of the civil war that afflicted Somalia,
depriving it of a fully operational government and administration between 1991 and 2005. These
circumstances were public and notorious (see e.g. Security Council, Report of the Secretary-General
on the protection of Somali natural resources and waters, UN doc. S/2011/661, 25 October 2011,
para. 22), and they were also recognized by Kenya in the previous phase of the proceedings. This
context needs to be taken into account in evaluating the extent to which Somalia was in a position to
react to Kenya’s claim during this period.
80. For the foregoing reasons, the Court considers that the conduct of Somalia between 1979
and 2014 in relation to its maritime boundary with Kenya, as examined above, in particular its alleged
absence of protest against Kenya’s claim, does not establish Somalia’s clear and consistent
acceptance of a maritime boundary at the parallel of latitude.
*
81. Kenya also argues that other conduct of the Parties between 1979 and 2014 confirms
Somalia’s acceptance of a maritime boundary at the parallel of latitude. Kenya refers, in particular,
to the Parties’ practice concerning naval patrols, fisheries, marine scientific research and oil
concessions (see paragraph 43 above). The Court will now consider this argument of Kenya.
82. The Court recalls that, in the context of a maritime delimitation dispute, as for territorial
disputes, the date on which the dispute crystallized is of significance. Acts occurring after such date
are in principle irrelevant to the determination of a maritime boundary and cannot be taken into
consideration, “having been carried out by a State which, already having claims to assert in a legal
dispute, could have taken those actions strictly with the aim of buttressing those claims” (Territorial
and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 697-698, para. 117; see also Sovereignty over
Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment,
I.C.J. Reports 2008, pp. 27-28, para. 32; Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 682, para. 135).
- 31 -
83. Kenya argues that there was no dispute between the Parties until 2014. However, when it
submitted its Preliminary Objections in 2015, it stated that “[i]t was only in 2009 that Somalia first
disputed Kenya’s 1979 EEZ maritime boundary”. Somalia, for its part, argues that the Parties have
been engaged in a maritime boundary dispute since the 1970s. The Court recalls that the MOU
concluded by the Parties in 2009 and Kenya’s 2009 Submission to the CLCS indicate that a maritime
dispute existed between them as of 2009 (see paragraphs 66-68 above). Somalia has not provided the
Court with sufficient evidence to conclude that the dispute emerged before 2009. Accordingly, the
Court considers that the Parties’ activities after 2009 cannot be taken into consideration for the
purpose of determining the maritime boundary.
84. In light of the foregoing, the Court will examine the conduct of the Parties referred to by
Kenya. The Court begins by considering the evidence of naval patrols. Maps depicting and logs
recording Kenya’s naval patrols and interceptions in the territorial sea show that some law
enforcement activities were conducted by Kenya north of the equidistance line claimed by Somalia.
Occasionally, however, they were also conducted north of the parallel of latitude that it claims as the
maritime boundary. Kenya’s naval patrols and interceptions were thus not necessarily consistent with
its maritime boundary claim. Moreover, one of the maps submitted by Kenya is marked “secret” and
the remaining evidence does not establish that Somalia had knowledge of these activities.
85. The evidence on fisheries and marine scientific research activities also does not support
Kenya’s claim. Kenya submitted a fishing licence it had granted to a French vessel on 20 June 2011
for the period between July 2011 and June 2012, which included co-ordinates for fishing areas north
of the equidistance line. There is no evidence, however, that Somalia had knowledge of these
activities, which, in any event, took place after 2009. Kenya also submitted a report issued by the
Ministry of Fisheries and Marine Transport of Somalia for the period 1987/1988, which referred to
the positions studied in a survey conducted by the Intergovernmental Oceanographic Commission
(hereinafter the “IOC”) of UNESCO. However, this report includes no indication of any maritime
boundary. Similarly, a map published by the Ministry of Fisheries of Somalia and reproduced in a
1987 report of the United Nations Environment Programme does not depict the boundary of
Somalia’s southernmost fishery region or its maritime boundary with Kenya. It therefore cannot be
concluded from this map that Somalia considered the maritime boundary to be established at the
parallel of latitude. Other documents submitted by Kenya as evidence  including a map produced
by the IOC, an offshore trawling survey of Kenya conducted by the Food and Agriculture
Organization of the United Nations and the United Nations Development Programme, and a
technical paper reflecting the results of a survey programme conducted in co-operation with
Norwegian agencies  were not produced by the Parties and thus cannot be taken to reflect their
official positions.
86. As regards oil concessions, the Parties have referred to a number of maps produced by
third parties, as well as by Kenyan and Somali institutions. Kenya has also referred to the terms of
Somalia’s Mining Code (see paragraph 77 above) and Petroleum Law. The Court notes that the
Parties have established offshore oil concession blocks employing different lines since the 1970s.
However, the Parties have referred only to limited practice that took place before 2009, such as
- 32 -
a series of contracts concluded since 2000 in relation to the oil concession block identified by Kenya
as Block L-5 and the drilling of the first exploratory well slightly north of the equidistance line
claimed by Somalia, between December 2006 and January 2007. For the most part, the Parties have
referred to practice after 2009, which, for the reasons previously explained (see paragraphs 82 and 83
above), is irrelevant to the determination of the maritime boundary.
87. The Court notes Kenya’s argument that the conduct of the Parties, including with respect
to oil concessions, reflects the existence of a de facto maritime boundary. Even assuming that the
limited evidence of practice before 2009 could be taken to suggest that a de facto line along the
parallel of latitude may have been used by the Parties for the location of oil concession blocks, at
least for some time, the Court observes that this may have been “simply the manifestation of the
caution exercised by the Parties in granting their concessions” (Sovereignty over Pulau Ligitan and
Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 664, para. 79). The Court
also recalls that a de facto line “might in certain circumstances correspond to the existence of an
agreed legal boundary or might be more in the nature of a provisional line or of a line for a specific,
limited purpose, such as sharing a scarce resource” (Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007 (II), p. 735, para. 253). The Court considers that “proof of the existence of a maritime
boundary requires more than the demonstration of longstanding oil practice or adjoining oil
concession limits” (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte
d’Ivoire), Judgment, ITLOS Reports 2017, p. 71, para. 215).
88. For the reasons set out above, the Court considers that other conduct of the Parties
between 1979 and 2014 does not confirm that Somalia has clearly and consistently accepted a
maritime boundary at the parallel of latitude.
*
89. In conclusion, the Court finds that there is no compelling evidence that Somalia has
acquiesced to the maritime boundary claimed by Kenya and that, consequently, there is no agreed
maritime boundary between the Parties at the parallel of latitude. Kenya’s claim in this respect must
therefore be rejected.
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IV. MARITIME DELIMITATION
90. In view of the conclusion just reached, the Court will now turn to the delimitation of the
maritime areas appertaining to Somalia and Kenya.
91. In its Application, Somalia requested the Court to determine, on the basis of international
law, the complete course of the single maritime boundary dividing all the maritime areas appertaining
to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical
miles (see paragraph 25 above).
A. Applicable law
92. Both Somalia and Kenya are parties to UNCLOS (see paragraph 33 above). The provisions
of the Convention must therefore be applied by the Court in determining the course of the maritime
boundary between the two States.
B. Starting-point of the maritime boundary
93. Although the Parties initially proffered divergent views on the appropriate approach to
defining the starting-point of the maritime boundary, those views evolved in the course of the
proceedings and are now by and large concordant.
94. According to Somalia, the construction of the maritime boundary line begins with the
identification of the land boundary terminus, which it locates at 1° 39' 44.07" S and 41° 33' 34.57" E.
To locate the land boundary terminus, Somalia first explains that the terminal point of the Parties’
land boundary was defined with a high degree of precision in the 1927/1933 treaty arrangement
between the two colonial Powers, the United Kingdom and Italy. Somalia contends that, consistent
with the terms of the 1927 Agreement, the final permanent boundary beacon, known as Primary
Beacon No. 29, or “PB 29”, at the location known as “Dar Es Salam”, must be connected to the
low-water line by means of a straight line, perpendicular to the coast. It submits that the point at
which this perpendicular line intersects the low-water line is the proper starting-point of the maritime
boundary. Somalia situates this point on the low-water line approximately 41 metres south-east of
PB 29. Somalia further contends that its approach to defining the starting-point of the maritime
boundary is in conformity with Article 5 of UNCLOS, which states that the normal baseline for
measuring the breadth of the territorial sea is the “low-water line”.
95. In its Counter-Memorial and Rejoinder, Kenya made reference to PB 29 itself as being the
appropriate starting-point for the delimitation of the maritime boundary. It argued against a
starting-point located on the low-water line. The Court, however, notes that subsequently, in
Appendix 2, where Kenya discussed how a provisional equidistance line ought to be constructed, it
stated that such a line “begins from [a land boundary terminus] on the low-water line extending
south-east from PB29”. Taking these views into account, the Court can conclude that the Parties
agree on the method for identifying the starting-point of the maritime boundary.
- 34 -
96. As to the exact location of PB 29, Somalia first argued that its co-ordinates are
1° 39' 43.3" S and 41° 33' 33.49" E. In its Counter-Memorial, Kenya replied that the precise
co-ordinates of PB 29 are slightly different, at 1° 39' 43.2" S and 41° 33' 33.19" E. However, in the
oral proceedings, Somalia indicated that it would be prepared to accept the co-ordinates proposed by
Kenya for PB 29 for the purposes of identifying the starting-point of the maritime boundary in the
Indian Ocean.
97. As to the exact location of the land boundary terminus, the Parties have put forward
co-ordinates that are approximately the same. The co-ordinates for the land boundary terminus
identified by Kenya by employing British Admiralty Chart 3362 — namely 1° 39' 44.0" S and
41° 33' 34.4" E — differ only slightly from the co-ordinates identified by Somalia using the
United States National Geospatial Agency (US NGA) Nautical Chart 61220 (see paragraph 94
above). During the oral proceedings, Somalia stated that it would “be content with the outcome”
regardless of which chart the Court chose to employ.
98. Taking into account the views of the Parties, the Court considers that the starting-point of
the maritime boundary is to be determined by connecting PB 29 to a point on the low-water line by
a straight line that runs in a south-easterly direction and that is perpendicular to “the general trend of
the coastline at Dar Es Salam” in accordance with the terms of the 1927/1933 treaty arrangement.
On the basis of British Admiralty Chart 3362, the Court determines that the co-ordinates for the
starting-point of the maritime boundary are 1° 39' 44.0" S and 41° 33' 34.4" E1 (see sketch-map
No. 3 below).
1 All the co-ordinates given by the Court are by reference to WGS 84 as geodetic datum. All delimitation lines
described by the Court are geodetic lines and all azimuths provided are geodetic azimuths based on WGS 84.
- 35 -
- 36 -
C. Delimitation of the territorial sea
99. The Parties have differing views on the delimitation of the territorial sea. Somalia submits
that the delimitation of the territorial sea is to be effected pursuant to Article 15 of the Convention.
100. Article 15 of the Convention, which concerns the delimitation of the territorial sea,
provides:
“Where the coasts of two States are opposite or adjacent to each other, neither of
the two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above provision does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith.”
101. Somalia maintains that a median line should constitute the maritime boundary between
the Parties in the territorial sea.
102. On the basis of US NGA Nautical Chart 61220, and using the CARIS-LOTS software,
Somalia has selected various base points on its side of the land boundary terminus which, according
to Somalia, influence the location of the median line within 12 nautical miles. Two of these base
points are located on the Diua Damasciaca islets. Base point S1 has the geographical co-ordinates
1° 39' 43.30" S and 41° 34' 35.40" E. For base point S2, Somalia provides the following geographical
co-ordinates: 1° 39' 35.90" S and 41° 34' 45.29" E. The third point, S3, is located on a low-tide
elevation off the southern tip of a small peninsula known as Ras Kaambooni, with the co-ordinates
1° 39' 14.99" S and 41° 35' 15.68" E.
103. On the Kenyan side of the land boundary, Somalia has identified two base points on the
most seaward points on the charted low-tide coast. According to Somalia, these points control the
median line within the territorial sea. For base point K1, Somalia provides the co-ordinates
1° 42' 00.06" S and 41° 32' 47.38" E; for base point K2, the co-ordinates are 1° 43' 04.77" S and
41° 32' 37.18" E.
104. Relying on these base points, Somalia suggests a median line in the territorial sea with
five turning points as follows:
Turning point Co-ordinates
T1 1° 40' 05.92" S - 41° 34' 05.26" E
T2 1° 41' 11.45" S - 41° 34' 06.12" E
T3 1° 43' 09.34" S - 41° 36' 33.52" E
T4 1° 43' 53.72" S - 41° 37' 48.21" E
T5 1° 44' 09.28" S - 41° 38' 13.26" E
- 37 -
The line proposed by Somalia is depicted on sketch-map No. 4 reproduced below. As Somalia sees
it, there are no “special circumstances” making this line “arbitrary, unreasonable or unworkable”,
and it should therefore constitute the maritime boundary to be adopted by the Court for the
delimitation of the territorial sea.
105. Kenya argued in its Counter-Memorial that the maritime boundary, including the part in
the territorial sea, already exists and that it follows the parallel of latitude (see sketch-map No. 4
below). The Court has already concluded (see paragraph 89 above) that no such boundary was agreed
between the Parties. Kenya, in the same written pleading, referred to the 1927/1933 treaty
arrangement and stated that it “provided for the establishment of [a] boundary of the territorial sea”.
Kenya drew attention to Appendix I of the 1927 Agreement, which states that the line proceeds from
PB 29 “in a south-easterly direction, to the limit of territorial waters in a straight line at right angles
to the general trend of the coast-line at Dar Es Salam, leaving the islets of Diua Damasciaca in Italian
territory”. According to Kenya, the resulting line, which it describes as running perpendicular to the
general direction of the coast “must be extended further into the territorial sea (which extended up to
3 nautical miles at the time)”.
106. Kenya has however not asked the Court to delimit any segment of the maritime boundary
on the basis of the 1927/1933 treaty arrangement. In the submissions contained in its
Counter-Memorial and its Rejoinder, it asks the Court to adjudge and declare that the maritime
boundary follows the parallel of latitude from the starting-point to the outer limit of the continental
shelf (see paragraph 26 above). It took the same position in its Appendix 2, filed just a few days
before the opening of the hearings.
107. During the oral proceedings, a Member of the Court, referring to the Counter-Memorial
of Kenya, asked the following question: “In Somalia’s view, does th[e] 1927 Agreement establish
the delimitation line of the territorial sea between the two Parties, and if so, what would be the outer
limit of this line?” Somalia responded that “[n]either [it] nor Kenya, since their independence and at
all times thereafter, has ever claimed that the maritime boundary in the territorial sea follows a line
perpendicular to the coast at Dar es Salam, for any distance”. It further added that neither Party
accepted nor argued for the 1927 Agreement as binding on them in regard to a maritime boundary,
for any distance.
108. Kenya was given an opportunity to comment on Somalia’s reply to the question but did
not do so.
109. The Court notes that neither Party asks it to confirm the existence of any segment of a
maritime boundary or to delimit the boundary in the territorial sea on the basis of the 1927/1933
treaty arrangement. It recalls that in their legislation concerning the territorial sea neither Party has
referred to the terms of the 1927/1933 treaty arrangement to indicate the extent of the territorial sea
in relation to its adjacent neighbour. Kenya’s legislation has referred to a median or equidistance line
(see paragraphs 57 and 58 above) and Somalia’s Maritime Law of 1988 refers to “a straight line
toward the sea from the land as indicated on the enclosed charts” (see paragraphs 75-77 above).
The Court further notes that the agenda of the meeting between Somalia and Kenya, held on 26 and
27 March 2014, to discuss the maritime boundary between the two countries, covered all maritime
- 38 -
zones, including the territorial sea. The delegations discussed “several options and methods” for
determining the maritime boundary, although they could not reach an agreement. In a presentation
examining an “Equity-based Maritime boundary scenario”, which is attached to the joint report on
that meeting, Kenya referred to Articles 15, 74 and 83 of the Convention as relevant to maritime
delimitation. It emphasized that Article 15 provides for delimitation through a “[m]edian line for
[the] territorial sea unless there is an agreement to the contrary based on [a] claim by historical title
and or special circumstances” (emphasis in the original). In light of the above, the Court therefore
considers it unnecessary to decide whether the 1927/1933 treaty arrangement had as an objective the
delimitation of the boundary in the territorial sea.
110. Kenya criticizes Somalia’s choice of US NGA Nautical Chart 61220 for the selection of
the base points and maintains that British Admiralty Chart 3362 should be used if a provisional
equidistance line is to be constructed in the territorial sea. For the provisional equidistance line in the
territorial sea, Kenya has selected the base points K1, K2, K3 and K4 and the base points S1, S2 and
S3, with the following co-ordinates:
Base points on Kenya’s coast:
Base point Co-ordinates
K1 1° 39' 51.6" S - 41° 33' 28.4" E
K2 1° 40' 39.6" S - 41° 32' 55.3" E
K3 1° 42' 40.1" S - 41° 32' 41.8" E
K4 1° 43' 12.2" S - 41° 32' 38.5" E
Base points on Somalia’s coast:
Base point Co-ordinates
S1 1° 39' 36.3" S - 41° 33' 40.4" E
S2 1° 39' 40.9" S - 41° 34' 35.4" E
S3 1° 38' 57.0" S - 41° 35' 21.9" E
The line that it constructs on this basis lies slightly to the north of the line proposed by Somalia (see
sketch-map No. 4 below).
- 39 -
- 40 -
111. The Court recalls that the delimitation methodology is based on the geography of the
coasts of the two States concerned, and that a median or equidistance line is constructed using base
points appropriate to that geography. Although in the identification of base points the Court will have
regard to the proposals of the parties, it need not select a particular base point, even if the parties are
in agreement thereon, if it does not consider that base point to be appropriate. The Court may select
a base point that neither party has proposed (Maritime Delimitation in the Black Sea (Romania v.
Ukraine), Judgment, I.C.J. Reports 2009, p. 101, paras. 116-117, p. 103, para. 123, p. 104, para. 125,
and p. 108, para. 138). The Court further recalls that it “has sometimes been led to eliminate the
disproportionate effect of small islands”, by not selecting a base point on such small maritime
features (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 104-109, para. 219, referring to North Sea
Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 36, para. 57; see also Delimitation of the
Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012,
p. 47, para. 151). As the Court has stated in the past, there may be situations in which “the
equitableness of an equidistance line depends on whether the precaution is taken of eliminating the
disproportionate effect of certain ‘islets, rocks and minor coastal projections’” (Continental Shelf
(Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64).
112. The Court considers that there are serious reasons to question the appropriateness of the
base points, as proposed by the Parties, that determine the course of the median line within the
territorial sea.
113. The Court notes that the Parties have not selected the same base points for the delimitation
of the territorial sea. Kenya has expressed doubts about the use of base points located on unknown
low-tide features that have not been confirmed by a field visit. The first two base points that Somalia
proposes on its side of the land boundary terminus are located on the Diua Damasciaca islets. They
have a significant effect on the course of the median line in the territorial sea, pushing it to the south.
Somalia’s third base point, off the southern tip of Ras Kaambooni, also has the effect of significantly
pushing the course of the median line to the south. Kenya maintains that this base point “appears
nowhere” when base points are calculated using British Admiralty Chart 3362. On the Somali side
of the starting-point, the base points that Kenya would use to construct the median line (which differ
from those used by Somalia) also push the initial course of the median line to the south. The
placement of base points on the tiny maritime features described above has an effect on the course
of the median line that is disproportionate to their size and significance to the overall coastal
geography.
114. In the circumstances of the present case, the Court considers it appropriate to place base
points for the construction of the median line solely on solid land on the mainland coasts of the
Parties. It does not consider it appropriate to place base points on the tiny arid Diua Damasciaca
islets, which would have a disproportionate impact on the course of the median line in comparison
to the size of these features. For similar reasons, the Court does not consider it appropriate to select
a base point on a low-tide elevation off the southern tip of Ras Kaambooni, which is a minor
protuberance in Somalia’s otherwise relatively straight coastline in the vicinity of the land boundary
terminus, which constitutes the starting-point for the maritime delimitation.
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115. The appropriate base points selected by the Court on Somalia’s coast are the following:
Base point Co-ordinates
S1 1° 39' 40.4" S - 41° 33' 31.1" E
S2 1° 39' 34.4" S - 41° 33' 36.6" E
S3 1° 39' 21.6" S - 41° 33' 48.6" E
S4 1° 39' 09.2" S - 41° 34' 00.7" E
116. The appropriate base points selected by the Court on Kenya’s coast are the following:
Base point Co-ordinates
K1 1° 39' 42.4" S - 41° 33' 29.5" E
K2 1° 39' 49.0" S - 41° 33' 24.9" E
K3 1° 40' 09.3" S - 41° 33' 12.9" E
K4 1° 40' 25.5" S - 41° 33' 02.9" E
117. The resulting line starts from the land boundary terminus at co-ordinates 1° 39' 44.0" S
and 41° 33' 34.4" E and has the following turning points:
Turning point Co-ordinates
1 1° 40' 18.4" S - 41° 34' 17.5" E
2 1° 40' 32.1" S - 41° 34' 32.8" E
3 1° 41' 12.8" S - 41° 35' 22.8" E
4 1° 41' 39.0" S - 41° 36' 00.9" E
5 1° 42' 39.9" S - 41° 37' 21.6" E
6 1° 44' 01.2" S - 41° 39' 02.8" E
The geographical co-ordinates of the point (Point A) at the distance of 12 nautical miles from the
coast are 1° 47' 39.1" S and 41° 43' 46.8" E. That median line is depicted on sketch-map No. 5 below.
- 42 -
- 43 -
118. The Court observes that the course of the median line as described in paragraph 117
corresponds closely to the course of a line “at right angles to the general trend of the coastline”,
assuming that the 1927/1933 treaty arrangement, in using this phrase, had as an objective to draw a
line that continues into the territorial sea, a question that the Court need not decide (see paragraph 109
above).
D. Delimitation of the exclusive economic zone and the continental shelf
within 200 nautical miles
1. Delimitation methodology
119. The Court will now proceed to the delimitation of the exclusive economic zone and the
continental shelf within 200 nautical miles from the coasts of the Parties. The relevant provisions of
the Convention for this exercise are contained in Article 74 of UNCLOS for the delimitation of the
exclusive economic zone and Article 83 for the delimitation of the continental shelf.
Article 74, paragraph 1, provides:
“The delimitation of the exclusive economic zone between States with opposite
or adjacent coasts shall be effected by agreement on the basis of international law, as
referred to in Article 38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution.”
Article 83, paragraph 1, reads as follows:
“The delimitation of the continental shelf between States with opposite or
adjacent coasts shall be effected by agreement on the basis of international law, as
referred to in Article 38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution.”
120. In substance, these two provisions are identical, thus facilitating the establishment of a
single maritime boundary delimiting two distinct maritime zones with their own specific legal
régimes (see e.g. Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985,
p. 33, para. 33; Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 295, para. 96).
121. The above-quoted provisions are of a very general nature and do not provide much by
way of guidance for those involved in the maritime delimitation exercise. The goal of that exercise
is the achievement of an “equitable solution”. If two States have freely agreed on a maritime
boundary, they are deemed to have achieved such “an equitable solution”. However, if they fail to
reach an agreement on their maritime boundary and the matter is submitted to the Court, it is the task
of the Court to find an equitable solution in the maritime delimitation it has been requested to effect.
122. Since the adoption of the Convention, the Court has gradually developed a maritime
delimitation methodology to assist it in carrying out its task. In determining the maritime delimitation
line, the Court proceeds in three stages, which it described in the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine) (Judgment, I.C.J. Reports 2009, pp. 101-103,
paras. 115-122).
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123. In the first stage, the Court will establish the provisional equidistance line from the most
appropriate base points on the coasts of the parties. As the Court has stressed, “the line is plotted on
strictly geometrical criteria on the basis of objective data” (ibid., p. 101, para. 118).
124. In accordance with Articles 74 and 83 of the Convention, the delimitation shall achieve
an equitable solution. The Court has explained that “the achievement of an equitable solution requires
that, so far as possible, the line of delimitation should allow the coasts of the Parties to produce their
effects in terms of maritime entitlements in a reasonable and mutually balanced way” (Territorial
and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 703,
para. 215). The Court will therefore, in the second stage, “consider whether there are factors calling
for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable
result” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment,
I.C.J. Reports 2009, p. 101, para. 120, referring to Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002,
p. 441, para. 288). Various factors, referred to as “relevant circumstances”, may call for the
adjustment or shifting of the provisional line. These factors are mostly geographical in nature,
although there is no closed list of relevant circumstances. They are not specified in the provisions of
the Convention related to delimitation, which do not use the term “relevant circumstances”. These
relevant circumstances have been identified and developed in the practice of the Court, the
International Tribunal for the Law of the Sea and arbitral tribunals in the context of each case. As
observed by the Arbitral Tribunal in the case between Barbados and Trinidad and Tobago, the
relevant circumstances are “case specific” (Arbitration between Barbados and the Republic of
Trinidad and Tobago, Award of 11 April 2006, United Nations, Reports of International Arbitral
Awards (RIAA), Vol. XXVII, p. 215, para. 242).
125. In the third and final stage, the Court will subject the envisaged delimitation line, either
the equidistance line or the adjusted line, to the disproportionality test. The purpose of this test is to
assure the Court that there is no marked disproportion between the ratio of the lengths of the relevant
coasts of the parties and the ratio of the respective shares of the parties in the relevant area to be
delimited by the envisaged line, and thus to confirm that the delimitation achieves an equitable
solution as required by the Convention. Whether there is such a marked disproportion is a matter for
the Court’s appreciation in each case by reference to the overall geography of the area (Maritime
Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 129,
para. 213).
* *
126. Somalia maintains that the three-stage delimitation methodology described above is in
the circumstances of this case the only appropriate method for delimiting the maritime boundary
between Somalia and Kenya.
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127. Kenya argues in its written pleadings that the three-stage methodology is not mandatory.
It does not deny that this method may be appropriate to achieve an equitable solution in certain cases;
however, in its view, it is not appropriate in the present case. Kenya submits that, in light of the
applicable law, the regional geographical context and practice, and the conduct of the Parties, the
parallel of latitude is the appropriate methodology to achieve an equitable solution. It contends that,
in any event, the parallel of latitude provides for the most equitable delimitation in this case.
* *
128. The Court observes that the three-stage methodology is not prescribed by the Convention
and therefore is not mandatory. It has been developed by the Court in its jurisprudence on maritime
delimitation as part of its effort to arrive at an equitable solution, as required by Articles 74 and 83
of the Convention. The methodology is based on objective, geographical criteria, while at the same
time taking into account any relevant circumstances bearing on the equitableness of the maritime
boundary. It has brought predictability to the process of maritime delimitation and has been applied
by the Court in a number of past cases (e.g. Maritime Delimitation in the Black Sea (Romania v.
Ukraine), Judgment, I.C.J. Reports 2009, p. 101, paras. 115 et seq.; Territorial and Maritime
Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 695, para. 190; Maritime
Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 65, para. 180; Maritime Delimitation in
the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the
Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2018 (I), p. 190,
para. 135). The three-stage methodology for maritime delimitation has also been used by
international tribunals (see Delimitation of the Maritime Boundary in the Bay of Bengal
(Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 67, para. 239; Bay of Bengal Maritime
Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, RIAA, Vol. XXXII, p. 106,
para. 346; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire),
Judgment, ITLOS Reports 2017, p. 96, para. 324).
129. The Court will not use the three-stage methodology if there are “factors which make the
application of the equidistance method inappropriate” (see Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007 (II), p. 741, para. 272), for instance if the construction of an equidistance line from the
coasts is not feasible (ibid., p. 745, para. 283). This, however, is not the case in the present
circumstances where such a line can be constructed.
130. Moreover, the Court does not consider that the use of the parallel of latitude is the
appropriate methodology to achieve an equitable solution, as suggested by Kenya. A boundary along
the parallel of latitude would produce a severe cut-off effect on the maritime projections of the
southernmost coast of Somalia (see sketch-map No. 2 above).
131. The Court therefore sees no reason in the present case to depart from its usual practice of
using the three-stage methodology to establish the maritime boundary between Somalia and Kenya
in the exclusive economic zone and on the continental shelf.
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2. Relevant coasts and relevant area
(a) Relevant coasts
132. The Court must first identify the relevant coasts of the Parties, namely those coasts whose
projections overlap (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment,
I.C.J. Reports 2009, p. 97, para. 99).
133. As regards its own relevant coast, Somalia maintains that it extends for 733 km, from the
land boundary terminus with Kenya in the south to the area just south of Cadale, some 92 km north
of Mogadishu. Somalia notes that, north of this point its coast arcs gradually away from the area of
overlapping entitlements and is therefore no longer relevant to the delimitation with Kenya.
134. Concerning Kenya’s relevant coast, Somalia, in its written pleadings, submitted that all
of Kenya’s coast is relevant except for two sections facing due south and thus away from the
delimitation area, namely the north-eastern extremities of Ungama Bay in the central portion of
Kenya’s coast and the final section of Kenya’s coast as it approaches Tanzania. Excluding these two
sections, Somalia concluded that the total length of Kenya’s relevant coast is 466 km. At the hearings,
however, Somalia agreed that all of Kenya’s coast, from the border with Somalia in the north to the
border with Tanzania in the south, is relevant, with a length of 511 km (see sketch-map No. 6 below).
135. While Kenya accepts that Somalia’s relevant coast has a length of 733 km, it nonetheless
maintains that, if Somalia’s approach, using a radial projection from the land boundary terminus, is
applied consistently, the radial projection from the land boundary terminus should extend to
350 nautical miles with the result that Somalia’s relevant coast measures only 714 km. It
acknowledges, however, that the difference is not significant.
136. Concerning its own relevant coast, Kenya indicates that it generally agrees with Somalia’s
approach. It states, however, that it would also include a 30 km section of coastline south of Chale
Point on its coast, and therefore estimates its relevant coastal length at approximately 511 km
following its natural configuration (see sketch-map No. 7 below).
137. The Court, using radial projections which overlap within 200 nautical miles (see
paragraph 132 above), has identified that the relevant coast of Somalia extends for approximately
733 km and that of Kenya for approximately 511 km (see sketch-map No. 8 below).
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- 48 -
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(b) Relevant area
138. The Parties disagree as to the identification of the relevant area. Somalia proceeds in two
steps, first drawing 200-nautical-mile envelopes of arcs from the Parties’ baselines and identifying
the area where those arcs intersect as the area of overlapping potential entitlements, excluding the
area south of the agreed Kenya-Tanzania boundary. This produces a total relevant area of
213,863 sq km within 200 nautical miles. Somalia then adds to this area the maritime space beyond
200 nautical miles in which the potential entitlements of the Parties overlap. Although it accepts the
role of potential entitlements for the determination of the relevant area, in fact, it limits the relevant
area beyond 200 nautical miles in the north by the parallel of latitude drawn from the land boundary
terminus. It appears that Somalia has done so on the basis of the claim submitted by Kenya to the
CLCS. Somalia considers that this combined area constitutes the totality of the relevant area in the
circumstances of the case, thus measuring approximately 319,542 sq km (see sketch-map No. 6
above).
139. Kenya rejects Somalia’s approach to identifying the relevant area. According to Kenya,
Somalia acts inconsistently when it applies one approach to define the relevant area within
200 nautical miles and a different approach to define the area beyond 200 nautical miles. For Kenya,
the relevant area consists of the entire frontal projections of the Parties’ relevant coasts out to
350 nautical miles. In the west, the relevant area is bounded by the coasts of the Parties from
Ras Wasin in the south of Kenya, through the land boundary terminus to the Somali headland of
Gees Warshikh in the north. The southern limit of the relevant area is bounded by the agreed
boundary between Kenya and Tanzania. In the east, the relevant area is bounded by the continental
shelf limits as submitted by Somalia to the CLCS dated 21 July 2014. To define the relevant area in
the north, Kenya adopts a straight line perpendicular to the coast to connect the end of the relevant
coast at Gees Warshikh to the continental shelf limit. The total relevant area thus defined measures
525,300 sq km (see sketch-map No. 7 above).
140. The Court cannot accept Somalia’s approach to identifying the relevant area beyond
200 nautical miles since it is not in conformity with past pronouncements of the Court on what
constitutes the relevant area. The Court has explained on a number of occasions that “[t]he relevant
area comprises that part of the maritime space in which the potential entitlements of the parties
overlap” (see Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2018 (I), p. 184, para. 115; Territorial and Maritime Dispute (Nicaragua v.
Colombia), Judgment, I.C.J. Reports 2012 (II), p. 683, para. 159). The Court also recalls its
observation that “the relevant area cannot extend beyond the area in which the entitlements of both
Parties overlap” (ibid., p. 685, para. 163). The fact that Kenya has limited its claim to the extended
continental shelf submitted to the CLCS by the parallel of latitude does not mean that its potential
entitlements cannot extend to the north of that parallel. Rather, that claim is based on Kenya’s
assertion that the parallel of latitude constitutes the maritime boundary between the two States, an
assertion which the Court has found unproven and cannot accept.
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141. The Court is of the view that, in the north, the relevant area extends as far as the overlap
of the maritime projections of the coast of Kenya and the coast of Somalia. The Court considers it
appropriate to use the overlap of the 200-nautical-mile radial projections from the land boundary
terminus. As far as the southern limit of the relevant area is concerned, the Court notes that the Parties
agree that the maritime space south of the boundary between Kenya and Tanzania is not part of the
relevant area. The relevant area, as identified by the Court for the purpose of delimiting the exclusive
economic zone and the continental shelf up to 200 nautical miles from the coasts, measures
approximately 212,844 sq km (see sketch-map No. 8 above).
3. Provisional equidistance line
142. The Court must next construct the provisional equidistance line. To do so, it must identify
the appropriate base points on the Parties’ relevant coasts which will be used for that purpose.
* *
143. Somalia suggests that the base points should be identified by using appropriate software
based on the relevant nautical charts. It submits that the software automatically selects those points
that generate the equidistance line, that is a line every point of which is equidistant from the nearest
points on the Parties’ baselines from which the breadth of the territorial sea is measured. Having used
the CARIS-LOTS software, based on US NGA Nautical Chart 61220, Somalia has identified two
base points on its side of the land boundary terminus and two base points on the Kenyan side. It
provides the following geographical co-ordinates for the base points on the Somali side, for base
point S3 1° 39' 14.99" S and 41° 35' 15.68" E and for base point S4 1° 35' 37.21" S and
41° 38' 01.00" E. The two base points that Somalia identified on the Kenyan side have the following
co-ordinates: base point K2 1° 43' 04.77" S and 41° 32' 37.18" E and base point K3 1° 46' 10.97" S
and 41° 30' 45.14" E. It submits that these four base points control the entire course of the
equidistance line up to 200 nautical miles from the coast.
144. Kenya contends, in Appendix 2, that Somalia failed to use the most reliable charted data.
Kenya criticizes the reliance by Somalia on US NGA Nautical Chart 61220, arguing that it contains
no new or independent charted data. Kenya draws the Court’s attention to the fact that US NGA
Nautical Chart 61220 indicates that its charted data are derived from the relevant British Admiralty
or Italian charts. In Kenya’s view, the appropriate chart to be used for the selection of base points is
British Admiralty Chart 3362, which offers the best available charted data. Based on that chart and
using the same CARIS-LOTS software, Kenya identifies the following base points for the
construction of the provisional equidistance line:
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Base points on Kenya’s coast:
Base point Co-ordinates
K4 1° 43' 12.2" S - 41° 32' 38.5" E
K5 1° 43' 39.0" S - 41° 32' 28.4" E
K6 1° 46' 26.3" S - 41° 30' 36.2" E
Base points on Somalia’s coast:
Base point Co-ordinates
S3 1° 38' 57.0" S - 41° 35' 21.9" E
S4 1° 35' 49.9" S - 41° 38' 1.8" E
Kenya admits that its proposed provisional equidistance line shows only slight differences from that
proposed by Somalia.
145. Somalia also pointed out at the hearings that there was very little difference between the
two equidistance lines constructed from the base points it had selected or from those selected by
Kenya. It concluded that it would be content for the Court to use either US NGA Nautical
Chart 61220 or British Admiralty Chart 3362, or any other chart that the Court might consider even
more reliable.
* *
146. Taking into account the views of the Parties, the Court considers that it can rely on British
Admiralty Chart 3362. It identifies the following base points as appropriate for the construction of
the provisional equidistance line within 200 nautical miles of the coasts:
Base points on Somalia’s coast:
Base point Co-ordinates
S4 1° 39' 09.2" S - 41° 34' 00.7" E
S5 1° 38' 24.0" S - 41° 34' 35.8" E
S6 1° 34' 50.2" S - 41° 37' 19.9" E
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Base points on Kenya’s coast:
Base point Co-ordinates
K4 1° 40' 25.5" S - 41° 33' 02.9" E
K5 1° 47' 11.4" S - 41° 29' 10.5" E
K6 1° 47' 55.0" S - 41° 28' 49.4" E
The provisional equidistance line constructed on the basis of these base points begins from the
endpoint of the maritime boundary in the territorial sea (Point A) and continues until it reaches
200 nautical miles from the starting-point of the maritime boundary, at a point (Point 10') with
co-ordinates 3° 31' 41.4" S and 44° 21' 02.5" E (see sketch-map No. 9 below). The turning points
between Point A and the 200-nautical-mile limit are the following:
Turning point Co-ordinates
7 2° 01' 57.8" S - 42° 02' 26.7" E
8 2° 05' 37.1" S - 42° 08' 26.9" E
9 2° 11' 13.0" S - 42° 17' 25.5" E
10 2° 20' 12.3" S - 42° 32' 04.8" E
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- 55 -
4. Whether there is a need to adjust the provisional equidistance line
147. The Court will next consider whether there are factors requiring the adjustment or shifting
of the provisional equidistance line in order to achieve an equitable solution. Since the cases
concerning the North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), such factors have been referred to in the jurisprudence of the
Court as relevant circumstances (Judgment, I.C.J. Reports 1969, p. 53, para. 101).
* *
148. Somalia sees no reason for adjusting the provisional equidistance line. It maintains that
the relevant circumstances that may justify the adjustment of the equidistance line in order to reach
an equitable solution are essentially of a geographical nature. Somalia mentions three such
circumstances in particular, namely: the cut-off effect of the provisional equidistance line,
appreciated within the general geographical context; the cut-off effect of such a line due to concavity
of the coast; and the presence of islands in the relevant maritime area. In Somalia’s view, there are
no such circumstances in the present case. Nor are there any other unusual or anomalous geographical
circumstances since the coasts of the Parties are comparatively straight and unremarkable. It contends
that the Kenya-Tanzania maritime boundary agreement is res inter alios acta for Somalia and that it
cannot have any bearing on the delimitation in the present case. It adds that the effect of that boundary
agreement can only consist of depriving Kenya of some of its entitlements beyond 200 nautical miles.
Somalia concludes that the provisional equidistance line should remain intact since no adjustment is
required or justified.
*
149. Kenya, for its part, invokes five circumstances which, it considers, require the adjustment
of the provisional equidistance line. In its view, any such adjustment should result in a boundary
following the parallel of latitude. First, Kenya contends that the provisional equidistance line would
lead to a severe reduction in its coastal projection constituting a significant, pronounced and
unreasonable cut-off effect with respect to its maritime areas.
150. The second relevant circumstance requiring the adjustment of the provisional
equidistance line is, according to Kenya, constituted by the regional practice of using parallels of
latitude to define the maritime boundaries of States on the Eastern African coast.
151. Vital security interests of both the Parties and the international community at large are,
in Kenya’s view, another relevant circumstance that confirms the need to adjust the provisional
equidistance line to the parallel of latitude. Kenya refers to the security threats of terrorism and piracy
in support of its call for such an adjustment.
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152. Kenya further argues that evidence of the Parties’ long-standing and consistent conduct
in relation to oil concessions, naval patrols, fishing and other activities reflects the existence of a
de facto maritime boundary along the parallel of latitude and that this constitutes yet another relevant
circumstance that requires the adjustment of the provisional equidistance line to the parallel of
latitude.
153. Finally, Kenya contends that an unadjusted equidistance line would have devastating
repercussions for the livelihoods and economic well-being of Kenya’s fisherfolk who are said to
depend on fisheries in coastal areas near the Kenya-Somalia boundary. As Kenya sees it, their
equitable access to those natural resources therefore requires the adjustment of the provisional
equidistance line to the parallel of latitude. Kenya presents this as the fifth relevant circumstance to
be taken into account by the Court.
* *
154. At this stage, the Court must “verify that the provisional equidistance line, drawn by the
geometrical method from the determined base points on the coasts of the Parties is not, in light of the
particular circumstances of the case, perceived as inequitable” (Maritime Delimitation in the Black
Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 112, para. 155). If it is, the Court
should adjust the line in order to achieve an equitable solution as required by Articles 74 and 83 of
the Convention.
155. As summarized above, Kenya perceives the provisional equidistance line as inequitable
while Somalia does not see any plausible reason for adjusting the line and believes that it would
constitute an equitable boundary.
156. The Court notes that Kenya, by invoking various factors which it considers as constituting
relevant circumstances in the context of this case, has consistently sought a maritime boundary that
would follow the parallel of latitude. The Court has already concluded that no maritime boundary
between Somalia and Kenya following the parallel of latitude was established in the past. Nor has
the Court accepted the methodology based on the parallel of latitude for establishing the maritime
boundary between the Parties as advocated by Kenya. Kenya would now like to achieve the same
result by a major shifting of the provisional equidistance line, changing its south-easterly direction
to an exclusively easterly direction. The Court considers that such a shifting of the provisional
equidistance line, as argued for by Kenya, would represent a radical adjustment while clearly not
achieving an equitable solution. It would severely curtail Somalia’s entitlements to the continental
shelf and the exclusive economic zone generated by its coast adjacent to that of Kenya. A line thus
adjusted would not allow the coasts of the Parties to produce their effects in terms of maritime
entitlements in a reasonable and mutually balanced way (Territorial and Maritime Dispute
(Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 703, para. 215; Maritime
Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 127,
para. 201).
157. The Court will begin by considering those factors, relied on by Kenya, which are
non-geographical in nature.
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158. As far as the security interests of Kenya are concerned, the Court is fully aware of and
does not underestimate the serious threats to security in the region. These threats are certainly of
legitimate concern to the States in the region and to the international community at large. The Court
notes the efforts of the international community, in particular the United Nations and the African
Union, as well as of various countries, including Kenya, to assist Somalia in re-establishing peace
and security after many years of internal conflicts. The Court observes that boundaries between
States, including maritime boundaries, are aimed at providing permanency and stability. This being
so, the Court believes that the current security situation in Somalia and in the maritime spaces
adjacent to its coast is not of a permanent nature. The Court is therefore of the view that the current
security situation does not justify the adjustment of the provisional equidistance line. Moreover, the
Court recalls its statement in a previous case that legitimate security considerations may be a relevant
circumstance “if a maritime delimitation was effected particularly near to the coast of a State”
(Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II),
p. 706, para. 222). This is not the case here, as the provisional equidistance line does not pass near
the coast of Kenya. The Court also recalls that “control over the exclusive economic zone and the
continental shelf is not normally associated with security considerations and does not affect rights of
navigation” (ibid.).
159. Access for Kenya’s fisherfolk to natural resources is another factor which Kenya brings
to the attention of the Court when arguing for the adjustment of the line. Such a factor can be taken
into account by the Court as a relevant circumstance in exceptional cases, in particular if the line
would “likely . . . entail catastrophic repercussions for the livelihood and economic well-being of the
population of the countries concerned” (Delimitation of the Maritime Boundary in the Gulf of Maine
Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 342, para. 237; see also
Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway),
Judgment, I.C.J. Reports 1993, pp. 71-72, paras. 75-76). In the Gulf of Maine case, the Chamber of
the Court did not find that the delimitation line it constructed would have such consequences. On the
basis of the evidence before it, the Court is not convinced that the provisional equidistance line would
entail such harsh consequences for the population of Kenya in the present case. In any event, as it
appears from a map provided by Kenya, 17 out of 19 fish landing sites are located near or at the
Lamu Archipelago, and would therefore be unaffected by an equidistance line. Only two landing
sites are close to the land boundary terminus. Moreover, in the present case, the Court has to consider
the well-being of the populations on both sides of the delimitation line. In light of the foregoing, the
Court cannot accept Kenya’s argument that the provisional equidistance line would deny Kenya
equitable access to fisheries resources that are vital to its population.
160. The Court now turns to another argument put forward by Kenya. It contends that the
evidence of the Parties’ long-standing and consistent conduct in relation to oil concessions, naval
patrols, fishing and other activities reflects the existence of “a de facto maritime boundary” along the
parallel of latitude which calls for the adjustment of the provisional equidistance line. In the past,
summarizing its jurisprudence and that of various arbitral tribunals, the Court stated that:
“although the existence of an express or tacit agreement between the parties on the siting
of their respective oil concessions may indicate a consensus on the maritime areas to
which they are entitled, oil concessions and oil wells are not in themselves to be
considered as relevant circumstances justifying the adjustment or shifting of the
provisional equidistance line. Only if they are based on express or tacit agreement
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between the parties may they be taken into account.” (Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, pp. 447-448, para. 304.)
The same is true for other types of conduct, such as naval patrols or fishing activities. The Court has
already concluded that no maritime boundary along the parallel of latitude has been agreed by the
Parties (see paragraphs 88 and 89 above). There is no de facto maritime boundary between Somalia
and Kenya. The Court therefore cannot accept the argument of Kenya that, on the basis of the conduct
of the Parties, the provisional equidistance line has to be adjusted so that it coincides with the alleged
de facto maritime boundary.
161. The Court will now consider the two remaining arguments that, according to Kenya, call
for the adjustment of the provisional equidistance line. Kenya submits that the application of an
equidistance line would produce a significant cut-off effect with respect to its maritime areas. It also
points out that the cut-off effect produced by the equidistance line is severely exacerbated past the
200-nautical-mile limit, essentially to the point that Kenya would be completely cut off from the
outer limit of the continental shelf. Kenya further argues that the regional context and practice require
the adjustment of the provisional equidistance line.
162. The Court and international tribunals have acknowledged that the use of an equidistance
line can produce a cut-off effect, particularly where the coastline is characterized by concavity
(e.g. North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 17, para. 8, and p. 49, para. 89; Bay of
Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, RIAA,
Vol. XXXII, p. 123, para. 408). In 1985, the Court reaffirmed that an equidistance line “may yield a
disproportionate result where a coast is . . . markedly concave or convex” (Continental Shelf (Libyan
Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 44, para. 56). The International Tribunal
for the Law of the Sea, while stating that “in the delimitation of the exclusive economic zone and the
continental shelf, concavity per se is not necessarily a relevant circumstance”, has also confirmed
that
“when an equidistance line drawn between two States produces a cut-off effect on the
maritime entitlement of one of those States, as a result of the concavity of the coast,
then an adjustment of that line may be necessary in order to reach an equitable result”
(Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar),
Judgment, ITLOS Reports 2012, p. 81, para. 292).
163. Somalia argues that, to the extent that there is any cut-off effect suffered by Kenya, it is
solely the result of the agreed maritime boundary between Kenya and Tanzania. The Court considers
that any cut-off effect as a result of the Kenya-Tanzania maritime boundary is not a relevant
circumstance. The agreements between Kenya and Tanzania are res inter alios acta (Arbitration
between Barbados and the Republic of Trinidad and Tobago, Award of 11 April 2006, RIAA,
Vol. XXVII, p. 238, para. 346). They “cannot per se affect the maritime boundary” between Kenya
and Somalia (Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2018 (I), p. 187, para. 123). However, the issue to be considered in the
present case is whether the use of an equidistance line produces a cut-off effect for Kenya, not as a
result of the agreed boundary between Kenya and Tanzania, but as a result of the configuration of
the coastline.
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164. If the examination of the coastline is limited only to the coasts of Kenya and Somalia,
any concavity is not conspicuous. However, examining only the coastlines of the two States
concerned to assess the extent of any cut-off effect resulting from the geographical configuration of
the coastline may be an overly narrow approach. It is true that in the case concerning the Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
Intervening), the Court stated that the concavity of the coastline may be a relevant circumstance for
the purposes of delimitation “when such concavity lies within the area to be delimited” (Judgment,
I.C.J. Reports 2002, p. 445, para. 297). However, it is worth recalling the specific context of that
case, and in particular the Court’s observation that “the concavity of Cameroon’s coastline is
apparent primarily in the sector where it faces Bioko” (ibid.), an island that is subject to the
sovereignty of a third State, namely Equatorial Guinea. Prior to making this statement, the Court had
concluded that “[t]he part of the Cameroon coastline . . . fac[ing] Bioko . . . cannot therefore be
treated as facing Nigeria so as to be relevant to the maritime delimitation between Cameroon and
Nigeria” (ibid., p. 443, para. 291). The Court’s statement thus should not be understood as excluding
in all circumstances the consideration of the concavity of a coastline in a broader geographical
configuration.
165. Examining the concavity of the coastline in a broader geographical configuration is
consistent with the approach taken by this Court and international tribunals. In the two North Sea
Continental Shelf cases, the Court examined the coasts of three States, with Germany in the middle.
The Court described the cut-off effect as follows:
“in the case of a concave or recessing coast . . . the effect of the use of the equidistance
method is to pull the line of the boundary inwards, in the direction of the concavity . . .
‘cutting off’ the coastal State from the further areas of the continental shelf outside of
and beyond this triangle” (North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment,
I.C.J. Reports 1969, p. 17, para. 8).
The Court expressed this view in the context of proceedings that had been joined, while the cases
themselves remained separate. The Court noted that “although two separate delimitations [were] in
question, they involve[d]  indeed actually g[a]ve rise to  a single situation” (ibid., p. 19,
para. 11). The Court emphasized that “[t]he fact that the question of either of these delimitations
might have arisen and called for settlement separately in point of time, does not alter the character of
the problem with which the Court is actually faced” (ibid.).
166. In both the Bangladesh/Myanmar and Bangladesh v. India cases, even though the issue
was that of a boundary between the two respective States, the International Tribunal for the Law of
the Sea, in the former case, and the Arbitral Tribunal, in the latter, each looked at the concavity of
the coasts of the three States as a whole, with Bangladesh in the middle. In Bangladesh v. India, the
Arbitral Tribunal quoted from the Judgment in the North Sea Continental Shelf cases, the Award in
the Guinea/Guinea-Bissau case and the Judgment in the Bangladesh/Myanmar case to point out that
when there are three adjacent States along a concave coastline, the equidistance method has the
“drawback of resulting in the middle country being enclaved by the other two” (Bay of Bengal
Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, RIAA, Vol. XXXII,
pp. 123-124, paras. 413-416).
167. In the present case, the potential cut-off of Kenya’s maritime entitlements should
be assessed in a broader geographical configuration. This was also the approach adopted by the
Arbitral Tribunal in the Guinea/Guinea-Bissau case. It took into consideration “the whole of
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West Africa” in order to seek “a solution which would take overall account of the shape of its
coastline”. It noted that “[t]his would mean no longer restricting consideration to a short coastline
but to a long coastline” that included the coastline of Sierra Leone (Delimitation of the Maritime
Boundary between Guinea and Guinea-Bissau, Award of 14 February 1985, International Law
Reports, Vol. 77, p. 683, para. 108, emphasis in the original). It expressed the view that “while the
continuous coastline of the two Guineas  or of the three countries when Sierra Leone is included 
is generally concave, that of West Africa in general is undoubtedly convex” (ibid.). The Tribunal
observed that “[i]n order for the delimitation between the two Guineas to be suitable for equitable
integration into the existing delimitations of the West African region . . . it is necessary to consider
how all these delimitations fit in with the general configuration of the West African coastline” (ibid.,
p. 684, para. 109). The Tribunal also noted that the overall concavity of the coastline of the two States
was “accentuated” if it considered “the presence of Sierra Leone further south”, with Guinea situated
in the middle between Guinea-Bissau and Sierra Leone (ibid., pp. 681-682, paras. 103-104).
168. The potential cut-off of Kenya’s maritime entitlements cannot be properly observed by
examining the coasts of Kenya and Somalia in isolation. When the mainland coasts of Somalia,
Kenya and Tanzania are observed together, as a whole, the coastline is undoubtedly concave, even
more so than the coastline of Guinea-Bissau, Guinea and Sierra Leone considered together, which
the Arbitral Tribunal characterized as concave (see paragraph 167 above). Kenya faces a cut-off of
its maritime entitlements as the middle State located between Somalia and Tanzania. The presence
of Pemba Island, a large and populated island that appertains to Tanzania, accentuates this cut-off
effect because of its influence on the course of a hypothetical equidistance line between Kenya and
Tanzania (see sketch-map No. 10 below).
169. The provisional equidistance line between Somalia and Kenya progressively narrows the
coastal projection of Kenya, substantially reducing its maritime entitlements within 200 nautical
miles. This cut-off effect occurs as a result of the configuration of the coastline extending from
Somalia to Tanzania, independently of the boundary line agreed between Kenya and Tanzania, which
in fact mitigates that effect in the south, in the exclusive economic zone and on the continental shelf
up to 200 nautical miles.
170. The Court recalls its jurisprudence and that of international tribunals according to which
an adjustment of the provisional equidistance line is warranted if the cut-off effect is “serious” or
“significant” (see Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2018 (I), pp. 196-197, para. 156; Delimitation of the Maritime Boundary in
the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 120, para. 425; Bay of
Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, RIAA,
Vol. XXXII, p. 124, para. 417).
171. In the view of the Court, even though the cut-off effect in the present case is less
pronounced than in some other cases, it is nonetheless still serious enough to warrant some
adjustment to address the substantial narrowing of Kenya’s potential entitlements.
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172. The Court has affirmed that “the achievement of an equitable solution requires that, so
far as possible, the line of delimitation should allow the coasts of the Parties to produce their effects
in terms of maritime entitlements in a reasonable and mutually balanced way” (Territorial and
Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 703, para. 215).
This is an important standard to be used in making an adjustment to the provisional equidistance line.
The Court, however, bears in mind the following principles: “there is . . . no question of refashioning
geography, or compensating for the inequalities of nature”, “equity does not necessarily imply
equality” and “there can be no question of distributive justice” (Continental Shelf (Libyan Arab
Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 39-40, para. 46). In other words, an
adjustment should not produce an unreasonable result for Somalia.
173. The adjustment of a provisional equidistance line must be assessed on a case-by-case
basis. As the Arbitral Tribunal observed in the Arbitration between Barbados and the Republic of
Trinidad and Tobago, “[t]here are no magic formulas” to be used for the adjustment of a provisional
equidistance line (Award of 11 April 2006, RIAA, Vol. XXVII, p. 243, para. 373). Rather, it is a result
of an overall appreciation of the relevant circumstances by the Court in seeking to achieve an
equitable solution. In order to attenuate the cut-off effect described above, the Court considers it
reasonable to adjust the provisional equidistance line.
174. In view of the above considerations, the Court believes that it is necessary to shift the line
to the north so that, from Point A, it follows a geodetic line with an initial azimuth of 114º. This line
would attenuate in a reasonable and mutually balanced way the cut-off effect produced by the
unadjusted equidistance line due to the geographical configuration of the coasts of Somalia, Kenya
and Tanzania. The resulting line would end at its intersection with the 200-nautical-mile limit from
the coast of Kenya, at a point (Point B) with co-ordinates 3° 4' 21.3" S and 44° 35' 30.7" E (see
sketch-map No. 11 below).
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5. Disproportionality test
175. In the final stage, the Court will check whether the envisaged delimitation line leads to a
significant disproportionality between the ratio of the lengths of the Parties’ respective relevant
coasts and the ratio of the size of the relevant areas apportioned by that line.
176. The relevant coast of Somalia is 733 km long and that of Kenya 511 km long (see
paragraph 137 above). The ratio of the relevant coasts is 1:1.43 in favour of Somalia. The maritime
boundary determined by the Court divides the relevant area within 200 nautical miles of the coast in
such a way that approximately 120,455 sq km would appertain to Kenya and the remaining part
measuring approximately 92,389 sq km would appertain to Somalia. The ratio between the maritime
zones that would appertain respectively to Kenya and Somalia is 1:1.30 in favour of Kenya. A
comparison of these two ratios does not reveal any significant or marked disproportionality.
177. The Court is thus satisfied that the adjusted line that it has established as the maritime
boundary for the exclusive economic zones and the continental shelves of Somalia and Kenya within
200 nautical miles in the Indian Ocean, described in paragraph 174 above, achieves an equitable
solution as required by Article 74, paragraph 1, and Article 83, paragraph 1, of the Convention.
E. Question of the delimitation of the continental shelf
beyond 200 nautical miles
178. The Court finally turns to the question of the delimitation of the continental shelf beyond
200 nautical miles. It is recalled that both Parties have asked the Court to determine the complete
course of the maritime boundary between them, including the continental shelf beyond 200 nautical
miles (see paragraphs 26 and 27 above).
* *
179. Somalia states that the Court has jurisdiction to delimit this maritime area. In this respect,
Somalia argues that there is a clear distinction in the Convention between the Court’s task, which
consists of the delimitation of the continental shelf between the Parties under Article 83 of the
Convention, and the role of the Commission on the Limits of the Continental Shelf, which is to make
recommendations to coastal States on matters related to the establishment of the outer limits of their
continental shelf under Article 76 of the Convention. Somalia stresses that both Kenya and Somalia
have made full submissions to the Commission concerning the extent of their respective continental
shelves beyond 200 nautical miles, and therefore that they have fulfilled their obligations under
Article 76, paragraph 8, of the Convention. Somalia acknowledges that in its Judgment of
19 November 2012 (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J.
Reports 2012 (II), p. 669, para. 129), the Court declined to exercise its jurisdiction over Nicaragua’s
claim for the delimitation of the extended continental shelf. However, Somalia contends that this was
not because the Court considered that the making of a recommendation by the Commission had any
priority over delimitation. Rather, in Somalia’s view, the Court considered that, in the absence of a
full submission to the Commission, Nicaragua had not established that it had an entitlement to a
continental shelf beyond 200 nautical miles that overlapped with Colombia’s entitlement.
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180. Somalia further maintains that the Court’s jurisdiction with respect to the delimitation of
the continental shelf beyond 200 nautical miles is not affected by the absence of the delineation of
the outer limits of the Parties’ respective entitlements on the basis of the Commission’s
recommendations.
181. Somalia asserts that the Court has all the necessary information before it to carry out the
delimitation in this maritime area, since the Parties have discharged the procedural obligation
imposed upon them under Article 76, paragraph 8, of the Convention to provide the Commission
with information on the limits of their continental shelves beyond 200 nautical miles. It adds that the
“Parties’ entitlements to a continental shelf beyond 200 [nautical miles are] not in dispute between
them”. It cites the Judgment of 14 March 2012 rendered by the International Tribunal for the Law of
the Sea in the Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar),
where the Tribunal was satisfied with the information contained in the parties’ submissions to the
Commission (Judgment, ITLOS Reports 2012, p. 116, paras. 448-449). Thus, in Somalia’s view,
there is no legal or practical impediment to the Court’s determination of the course of the Parties’
maritime boundary while the Commission is engaged in the task of considering each Party’s
submission and making its recommendations for the purpose of delineating the outer limit of each
Party’s continental shelf.
182. Somalia argues that the legal principles applicable to delimitation of the continental shelf
beyond 200 nautical miles are the same as those applicable to delimitation within 200 nautical miles.
Somalia maintains that there is no relevant circumstance which could justify an adjustment of the
provisional equidistance line beyond 200 nautical miles.
183. Any reduction in Kenya’s overall maritime entitlements beyond 200 nautical miles,
Somalia submits, “could only arise as a result of Kenya’s bilateral agreement with Tanzania, by
which Kenya voluntarily divested itself of a very large maritime area south of the negotiated parallel
boundary”. As Somalia sees it, Kenya “voluntarily shortened its own extended continental shelf
entitlement by agreement with Tanzania”. Somalia further relies on the Award in the Arbitration
between Barbados and the Republic of Trinidad and Tobago (Award of 11 April 2006, RIAA,
Vol. XXVII, p. 238, para. 346) for the proposition that, as a third party in relation to the agreement
concluded between Kenya and Tanzania, it cannot be required to “compensate” for Kenya’s choice.
Therefore, Somalia requests the Court to refrain from making any adjustment of the provisional
equidistance line beyond 200 nautical miles.
*
184. In keeping with its view that Somalia has acquiesced in a maritime boundary following
the parallel of latitude, Kenya contends that that boundary extends on this same course beyond
200 nautical miles to the outer limits of the continental shelf, as indicated in its 2009 Submission to
the CLCS. The Court has already held (paragraph 89 above) that there is no agreed maritime
boundary between the Parties at the parallel of latitude through acquiescence.
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185. Kenya states that, if the Court were to reject its claim regarding Somalia’s acquiescence
to a maritime boundary along the parallel of latitude and apply the three-stage methodology, then
several relevant circumstances would call for an adjustment of the provisional equidistance line in
order to achieve an equitable solution (see paragraphs 149-153 above). Kenya argues that it would
suffer from a very significant cut-off effect beyond 200 nautical miles if Somalia’s claimed
equidistance line were adopted as the maritime boundary. Such a line, Kenya contends, would cut it
off from 98 per cent of its potential entitlement to the continental shelf beyond 200 nautical miles
and deprive it entirely of any entitlement to the outer limits of the continental shelf at 350 nautical
miles from the Kenyan coast. It adds that the situation would be as if the outer continental shelf in
this area were generated by the coastal projections of Somalia and Tanzania alone, and Kenya simply
did not exist. That cut-off effect has also been invoked by Kenya as a relevant circumstance requiring
the adjustment of the provisional equidistance line in the exclusive economic zone and on the
continental shelf within 200 nautical miles. Kenya does not ask the Court to treat the maritime
boundary agreements between Kenya and Tanzania, and between Tanzania and Mozambique, as
opposable to Somalia. Rather, these agreements establish the “regional context” within which the
boundary between the Parties must be appraised. According to Kenya, there is no question of being
“compensated” for the agreements it has entered into, as Somalia claims. It insists that an equitable
maritime delimitation cannot ignore equitable delimitations that were agreed in the past, consistent
with the applicable law at the time: this is a matter both of “historical equity” and “common sense”.
* *
186. The Court held in the 2017 Judgment that it has jurisdiction over the Application filed by
Somalia on 28 August 2014 and that the Application is admissible (I.C.J. Reports 2017, p. 53,
para. 145(3)). In that Application, Somalia requested the Court to determine the course of the
maritime boundary between the Parties in the Indian Ocean, including on the continental shelf
beyond 200 nautical miles (ibid., p. 10, para. 11; see also paragraphs 25-27 above).
187. The Court recalls that, as expounded in the case concerning Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), “any
claim of continental shelf rights beyond 200 miles [by a State party to UNCLOS] must be in
accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the
Continental Shelf established thereunder” (Judgment, I.C.J. Reports 2007 (II), p. 759, para. 319).
188. The Court observes that both States have made submissions on the limits of the
continental shelf beyond 200 nautical miles to the Commission in accordance with Article 76,
paragraph 8, of the Convention. Kenya made its submission to the Commission on 6 May 2009,
while Somalia made its own submission on 21 July 2014 and provided an amended Executive
Summary on 16 July 2015. In addition, each Party filed an objection to consideration by the
Commission of the other’s submission. These objections were subsequently withdrawn. The Court
notes that both Somalia and Kenya have fulfilled their obligations under Article 76 of the
Convention. At the same time, the Commission has yet to consider these submissions and make any
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recommendations to Somalia and to Kenya on matters related to the establishment of the outer limits
of their continental shelves. It is only after such recommendations are made that Somalia and Kenya
can establish final and binding outer limits of their continental shelves, in accordance with Article 76,
paragraph 8, of UNCLOS.
189. The Court emphasizes that the lack of delineation of the outer limit of the continental
shelf is not, in and of itself, an impediment to its delimitation between two States with adjacent
coasts, as is the case here. As the International Tribunal for the Law of the Sea observed,
“the exercise by international courts and tribunals of their jurisdiction regarding the
delimitation of maritime boundaries, including that of the continental shelf, is without
prejudice to the exercise by the Commission of its functions on matters related to the
delineation of the outer limits of the continental shelf” (Delimitation of the Maritime
Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS
Reports 2012, p. 100, para. 379).
190. To support the argument that the Court may proceed to the delimitation of the continental
shelf beyond 200 nautical miles on the basis of the information contained in the Parties’ submissions
to the Commission, Somalia avails itself, in particular, of the Judgment in the Bangladesh/Myanmar
case. It is true that in that Judgment, the Tribunal proceeded to determine the maritime boundary of
the continental shelf beyond 200 nautical miles on the basis of the submissions made by Bangladesh
and Myanmar to the Commission. The Tribunal was convinced that, in view of the uncontested
scientific evidence on the unique nature of the Bay of Bengal and information submitted to it during
the proceedings, there was a continuous and substantial layer of sedimentary rocks extending from
Myanmar’s coast to the area beyond 200 nautical miles. It noted that a “thick layer of sedimentary
rocks covers practically the entire floor of the Bay of Bengal” (Judgment, ITLOS Reports 2012,
p. 115, para. 445). It thus concluded that both Parties had entitlements to a continental shelf
extending beyond 200 nautical miles (ibid., pp. 115-116, paras. 446 and 449). This being so, the
Court notes that, in reaching that conclusion, the Tribunal in that case took particular account of the
“unique situation [in the Bay of Bengal], as acknowledged in the course of negotiations at the Third
United Nations Conference on the Law of the Sea” (ibid., p. 115, para. 444).
191. The Court observes that the entitlements of the Parties to the continental shelf beyond
200 nautical miles are to be determined by reference to the outer edge of the continental margin, to
be ascertained in accordance with Article 76, paragraphs 4 and 5, of UNCLOS (ibid., p. 114,
para. 437).
192. Paragraphs 4 and 5 of Article 76 provide:
“4. (a) For the purposes of this Convention, the coastal State shall establish the outer
edge of the continental margin wherever the margin extends beyond
200 nautical miles from the baselines from which the breadth of the territorial
sea is measured, by either:
(i) a line delineated in accordance with paragraph 7 by reference to the
outermost fixed points at each of which the thickness of sedimentary rocks
is at least 1 per cent of the shortest distance from such point to the foot of
the continental slope; or
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(ii) a line delineated in accordance with paragraph 7 by reference to fixed
points not more than 60 nautical miles from the foot of the continental
slope.
(b) In the absence of evidence to the contrary, the foot of the continental slope shall
be determined as the point of maximum change in the gradient at its base.
5. The fixed points comprising the line of the outer limits of the continental shelf
on the sea-bed, drawn in accordance with paragraph 4 (a) (i) and (ii), either shall
not exceed 350 nautical miles from the baselines from which the breadth of the
territorial sea is measured or shall not exceed 100 nautical miles from the
2,500 metre isobath, which is a line connecting the depth of 2,500 metres.”
193. The entitlement of a State to the continental shelf beyond 200 nautical miles thus depends
on geological and geomorphological criteria, subject to the constraints set out in Article 76,
paragraph 5. An essential step in any delimitation is to determine whether there are entitlements, and
whether they overlap. The situation in the present case is not the same as that addressed by the
International Tribunal for the Law of the Sea in the Bangladesh/Myanmar case. In that case, the
unique situation in the Bay of Bengal and the negotiation record at the Third United Nations
Conference on the Law of the Sea, which threw a particular light upon the parties’ contentions on
the subject, were sufficient to enable the Tribunal to proceed with the delimitation of the area beyond
200 nautical miles.
194. The Court notes that in their submissions to the Commission both Somalia and Kenya
claim on the basis of scientific evidence a continental shelf beyond 200 nautical miles, and that their
claims overlap. In most of the area of overlapping claims beyond 200 nautical miles, both Parties
claim that their continental shelf extends to a maximum distance of 350 nautical miles. The Court
further notes that neither Party questions the existence of the other Party’s entitlement to a continental
shelf beyond 200 nautical miles or the extent of that claim. Their dispute concerns the boundary
delimiting that shelf between them. Both Parties in their submissions — Somalia in those presented
at the close of the hearings and Kenya in its Rejoinder — request the Court to delimit the maritime
boundary between them in the Indian Ocean up to the outer limit of the continental shelf. For the
reasons set out above, the Court will proceed to do so.
195. As regards the relevant circumstances invoked by Kenya for the adjustment of the
provisional equidistance line, the Court has already considered them earlier and adjusted the line
accordingly in the exclusive economic zone and on the continental shelf up to 200 nautical miles.
The Court recalls that both Somalia and Kenya have claimed a continental shelf extending up to
350 nautical miles in the greater part of the area of overlapping claims. Somalia has claimed a
continental shelf beyond 200 nautical miles, including in the area between the point OL1, located at
the end of the equidistance line it claims as the maritime boundary, at co-ordinates 5° 00' 25.69" S
and 46° 22' 33.34" E, and point OL7, located further north, close to the parallel of latitude, at
co-ordinates 2° 00' 47.69" S and 49° 26' 05.09" E. Kenya has claimed a continental shelf up to
350 nautical miles in the area between the point ECS1, located on the hypothetical line constructed
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as an extension of the existing boundary with Tanzania at co-ordinates 4° 41' 00.29" S and
46° 34' 36.02" E, and the point ECS38, located further north at a short distance from the parallel of
latitude, at co-ordinates 1° 44' 21.82" S and 47° 24' 13.79" E. In view of the foregoing, the Court
considers it appropriate to extend the geodetic line used for the delimitation of the exclusive
economic zone and the continental shelf within 200 nautical miles to delimit the continental shelf
beyond 200 nautical miles.
196. The Court therefore concludes that the maritime boundary beyond 200 nautical miles
continues along the same geodetic line as the adjusted line within 200 nautical miles until it reaches
the outer limits of the Parties’ continental shelves which are to be delineated by Somalia and Kenya,
respectively, on the basis of the recommendations to be made by the Commission or until it reaches
the area where the rights of third States may be affected. The direction of that line is depicted on
sketch-map No. 12 below.
*
197. Depending on the extent of Kenya’s entitlement to a continental shelf beyond
200 nautical miles as it may be established in the future on the basis of the Commission’s
recommendation, the delimitation line might give rise to an area of limited size located beyond
200 nautical miles from the coast of Kenya and within 200 nautical miles from the coast of Somalia,
but on the Kenyan side of the delimitation line (“grey area”). This possible grey area is depicted on
sketch-map No. 12. Since the existence of this “grey area” is only a possibility, the Court does not
consider it necessary, in the circumstances of the present case, to pronounce itself on the legal régime
that would be applicable in that area.
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- 71 -
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V. ALLEGED VIOLATIONS BY KENYA OF ITS INTERNATIONAL
OBLIGATIONS
198. In its final submissions, Somalia requests the Court 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”. Somalia, however, stated during the oral
proceedings that it does not insist on compensation for past violations. It asks the Court to order
Kenya to cease its wrongful acts and to make available to Somalia the technical data acquired in
areas that are determined by the Court to be subject to the sovereignty or sovereign rights and
jurisdiction of Somalia.
199. Somalia argues that by its unilateral actions in the disputed area, Kenya has violated
Somalia’s sovereignty over the territorial sea and its sovereign rights and jurisdiction in the exclusive
economic zone and on the continental shelf, as well as the principles enshrined in UNCLOS.
Recalling Article 77 of UNCLOS, Somalia maintains that economic activities in a disputed maritime
area, including exploration and exploitation, constitute a violation of the exclusive rights of the State
whose jurisdiction over that area is recognized following delimitation. It adds that when it was
informed of such activities and was in a position to react, it protested against them. In the Applicant’s
view, Kenya’s argument that there was no area in dispute before 2014 is not persuasive, because an
area of overlapping claims had emerged by the end of the 1970s and has remained in dispute ever
since.
200. Somalia also argues that irrespective of where in the disputed area Kenya’s activities took
place, they were in violation of Kenya’s obligation, under Article 74, paragraph 3, and Article 83,
paragraph 3, of UNCLOS, not to jeopardize or hamper the reaching of a final agreement concerning
the delimitation of the exclusive economic zone and continental shelf. In Somalia’s view, violations
of these provisions arise not only from unilateral activities that physically affect the marine
environment, but, in some cases, from non-invasive acts as well, such as seismic surveys, which
States can consider as a violation of their sovereign rights. The Applicant asserts that Kenya’s
unilateral activities in the disputed maritime area “have generated mistrust and animosity in relations
between the Parties”, jeopardizing and hampering the possibility of reaching a final agreement
between them.
*
201. Kenya argues that there was no dispute over the maritime boundary until 2014, when
Somalia formally asserted an equidistance line. Thus, it maintains that it had the right to engage
freely in activities consistent with its sovereign rights in areas where it had claimed and exercised
uncontested jurisdiction. In its view, such activities cannot be said to be unlawful, even if the areas
concerned had been in dispute and are now attributed by the Court to Somalia. The Respondent adds
that Somalia wrongly conflates the sovereignty that coastal States enjoy in the territorial sea with the
more limited sovereign rights exercised in the exclusive economic zone and on the continental shelf.
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202. As regards Article 74, paragraph 3, and Article 83, paragraph 3, of UNCLOS, Kenya
argues that the obligation, during the transitional period, not to jeopardize or hamper the reaching of
a final agreement, does not preclude all activities in the disputed area. Kenya maintains that this
obligation is concerned only with activities that lead to permanent physical change in the disputed
area, and that it does not apply to activities commenced prior to a dispute. The Respondent contends
that the expansive interpretation of this obligation proposed by Somalia is contrary to the
jurisprudence of the Court and that of international tribunals. Kenya adds that Somalia has not
provided evidence that either its Government or its population ever perceived Kenya’s alleged
activities as an attempt to deprive Somalia of its rights under international law. Kenya points out that
most of the activities referred to by Somalia predate the emergence of the dispute in 2014 and that
they were transitory in nature. Thus, it argues that Somalia has failed to establish that Kenya
authorized any unlawful activities in the disputed area.
* *
203. The Court will first examine the Applicant’s argument that, by its unilateral actions in the
disputed area, Kenya has violated Somalia’s sovereignty over the territorial sea and its sovereign
rights and jurisdiction in the exclusive economic zone and on the continental shelf. The Court recalls
that Somalia’s submission “is made in the context of proceedings regarding a maritime boundary
which had not been settled prior to the decision of the Court. The consequence of the Court’s
Judgment is that the maritime boundary . . . has now been delimited as between the Parties”
(Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II),
p. 718, para. 250). The Court considers that when maritime claims of States overlap, maritime
activities undertaken by a State in an area which is subsequently attributed to another State by a
judgment “cannot be considered to be in violation of the sovereign rights of the latter if those
activities were carried out before the judgment was delivered and if the area concerned was the
subject of claims made in good faith by both States” (Delimitation of the Maritime Boundary in the
Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 159, para. 592).
204. Somalia complains of surveying and drilling activities conducted or authorized by Kenya
in the Lamu Basin, referring in particular to the offshore oil concession blocks identified by Kenya
as Blocks L-5, L-13, L-21, L-22, L-23, L-24 and L-26. The Court notes that these concession blocks
are located entirely or partially north of the equidistance line claimed by Somalia as the maritime
boundary. There is no evidence that Kenya’s claims over the area concerned were not made in good
faith. Under the circumstances, the Court concludes that it has not been established that Kenya’s
maritime activities, including those that may have been conducted in parts of the disputed area that
have now been attributed to Somalia, were in violation of Somalia’s sovereignty or its sovereign
rights and jurisdiction.
205. The Court now turns to the Applicant’s argument that Kenya’s activities were in violation
of Article 74, paragraph 3, and Article 83, paragraph 3, of UNCLOS. These paragraphs, which refer
to the exclusive economic zone and the continental shelf respectively, read as follows:
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“Pending agreement as provided for in paragraph 1, the States concerned, in a
spirit of understanding and co-operation, 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 arrangements shall be
without prejudice to the final delimitation.”
206. Under these provisions, States with opposite or adjacent coasts that have not reached an
agreement on the delimitation of the exclusive economic zone or continental shelf are under an
obligation to “make every effort . . . during this transitional period, not to jeopardize or hamper the
reaching of the final agreement”. The Court considers that the “transitional period” mentioned in
these provisions refers to “the period after the maritime delimitation dispute has been established
until a final delimitation by agreement or adjudication has been achieved” (Delimitation of the
Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017,
p. 168, para. 630). As previously noted (see paragraph 83 above), the Court is of the view that a
maritime delimitation dispute between the Parties has been established since 2009. Accordingly, the
Court will only examine whether the activities conducted by Kenya after 2009 jeopardized or
hampered the reaching of a final agreement on the delimitation of the maritime boundary.
207. The Court observes that Somalia complains of certain activities, including the award of
oil concession blocks to private operators and the performance of seismic and other surveys in those
blocks, which are of a “transitory character” (see Aegean Sea Continental Shelf (Greece v. Turkey),
Interim Protection, Order of 11 September 1976, I.C.J. Reports 1976, p. 10, para. 30). These
activities are not of the kind that could lead to permanent physical change in the marine environment,
and it has not been established that they had the effect of jeopardizing or hampering the reaching of
a final agreement on the delimitation of the maritime boundary (see Arbitration regarding the
Delimitation of the Maritime Boundary between Guyana and Suriname, Award of 17 September
2007, RIAA, Vol. XXX, pp. 132-133, paras. 466-467 and 470).
208. Somalia also complains of certain drilling activities, which are of the kind that could lead
to permanent physical change in the marine environment. Such activities may alter the status quo
between the parties to a maritime dispute and could jeopardize or hamper the reaching of a final
agreement (see ibid., p. 137, para. 480). Somalia refers, in particular, to four wells drilled in the
offshore Lamu Basin as of 2011, to “sea core” and “seabed core” drilling operations carried out in
Block L-22 in 2013 and 2014, and to exploratory drilling in Block L-5 which was “scheduled in
2015”. Kenya does not deny having authorized drilling operations in the Lamu Basin, but states that
“there was no drilling of seabed core” in Block L-22 in 2014 and that the drilling scheduled in
Block L-5 “never took place”.
209. The Court notes that a presentation made in 2011 by a commissioner from Kenya’s
Ministry of Energy refers to offshore drilling operations in the Lamu Basin but only lists wells drilled
until 2007. A map included in the Final Report of the Strategic Environmental and Social Assessment
of the Petroleum Sector in Kenya, issued in December 2016 by the Ministry of Energy and Petroleum
of Kenya, identifies four wells drilled in the Lamu Basin after 2009, but all of them are located south
of and at a great distance from the equidistance line claimed by Somalia as the maritime boundary.
The map does not show any wells drilled after 2009 in the oil concession blocks referred to by
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Somalia. With respect to the alleged drilling in Block L-22, two documents issued by a private
operator state that “sea core drilling operations [were] in progress on the L22 offshore license”
in 2013 and that “[o]n the offshore L22 license, seabed core drilling operations were carried out in
early 2014”. However, these documents do not specify the precise location of those operations.
As for the alleged drilling in Block L-5, Somalia has not provided the Court with evidence
demonstrating that any such drilling operation ever took place. Thus, on the basis of the evidence
before it, the Court is not in a position to determine with sufficient certainty that drilling operations
that could have led to permanent physical change in the disputed area took place after 2009.
210. The Court further notes that, in 2014, the Parties engaged in negotiations on maritime
delimitation (see paragraph 69 above) and that, in 2016, Kenya suspended its activities in the
disputed area and offered to enter into provisional arrangements with Somalia.
211. In light of these circumstances, the Court cannot conclude that the activities carried out
by Kenya in the disputed area jeopardized or hampered the reaching of a final agreement on the
delimitation of the maritime boundary, in violation of Article 74, paragraph 3, or Article 83,
paragraph 3, of UNCLOS.
212. For the reasons set out above, the Court finds that Kenya has not violated its international
obligations through its maritime activities in the disputed area. Since Kenya’s international
responsibility is not engaged, the Court need not examine Somalia’s request for reparation. Somalia’s
submission must therefore be rejected.
213. The maritime boundary between the Parties having been determined, the Court expects
that each Party will fully respect the sovereignty, sovereign rights and jurisdiction of the other in
accordance with international law.
*
* *
214. For these reasons,
THE COURT,
(1) Unanimously,
Finds that there is no agreed maritime boundary between the Federal Republic of Somalia and
the Republic of Kenya that follows the parallel of latitude described in paragraph 35 above;
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(2) Unanimously,
Decides that the starting-point of the single maritime boundary delimiting the respective
maritime areas between the Federal Republic of Somalia and the Republic of Kenya is the
intersection of the straight line extending from the final permanent boundary beacon (PB 29) at right
angles to the general direction of the coast with the low-water line, at the point with co-ordinates
1° 39' 44.0" S and 41° 33' 34.4" E (WGS 84);
(3) Unanimously,
Decides that, from the starting-point, the maritime boundary in the territorial sea follows the
median line described at paragraph 117 above until it reaches the 12-nautical-mile limit at the point
with co-ordinates 1° 47' 39.1" S and 41° 43' 46.8" E (WGS 84) (Point A);
(4) By ten votes to four,
Decides that, from the end of the boundary in the territorial sea (Point A), the single maritime
boundary delimiting the exclusive economic zone and the continental shelf up to 200 nautical miles
between the Federal Republic of Somalia and the Republic of Kenya follows the geodetic line starting
with azimuth 114° until it reaches the 200-nautical-mile limit measured from the baselines from
which the breadth of the territorial sea of the Republic of Kenya is measured, at the point with
co-ordinates 3° 4' 21.3" S and 44° 35' 30.7" E (WGS 84) (Point B);
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Bennouna, Xue,
Sebutinde, Robinson, Iwasawa, Nolte; Judge ad hoc Guillaume;
AGAINST: Judges Abraham, Yusuf, Bhandari, Salam;
(5) By nine votes to five,
Decides that, from Point B, the maritime boundary delimiting the continental shelf continues
along the same geodetic line until it reaches the outer limits of the continental shelf or the area where
the rights of third States may be affected;
IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Bennouna, Xue,
Sebutinde, Iwasawa, Nolte; Judge ad hoc Guillaume;
AGAINST: Judges Abraham, Yusuf, Bhandari, Robinson, Salam;
(6) Unanimously,
Rejects the claim made by the Federal Republic of Somalia in its final submission number 4.
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Done in English and in French, the English text being authoritative, at the Peace Palace,
The Hague, this twelfth day of October, two thousand and twenty-one, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the Government of the Federal
Republic of Somalia and the Government of the Republic of Kenya, respectively.
(Signed) Joan E. DONOGHUE,
President.
(Signed) Philippe GAUTIER,
Registrar.
President DONOGHUE appends a separate opinion to the Judgment of the Court;
Judges ABRAHAM and YUSUF append separate opinions to the Judgment of the Court; Judge XUE
appends a declaration to the Judgment of the Court; Judge ROBINSON appends an individual, partly
concurring and partly dissenting, opinion to the Judgment of the Court; Judge ad hoc GUILLAUME
appends a separate opinion to the Judgment of the Court.
(Initialled) J.E.D.
(Initialled) Ph.G.
___________