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Maritime Delimitation in the Indian Ocean

  • Beatrice I. Bonafé (a1)
Extract

On February 2, 2017, the International Court of Justice (ICJ or Court) delivered a judgment rejecting preliminary objections to its jurisdiction in Maritime Delimitation in the Indian Ocean. The underlying contentious case between Somalia and Kenya concerns the establishment of a single maritime boundary between the two states. The decision on preliminary objections provides important insights on the Court's interpretation of optional clause declarations that include a reservation for alternative methods of dispute settlement.

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1 Maritime Delimitation in the Indian Ocean (Som. v. Kenya), Preliminary Objections (Int'l Ct. Just. Feb. 2, 2017) [hereinafter Judgment]. The International Court of Justice (ICJ) documents cited herein are available on the Court's website at http://www.icj-cij.org.

2 The text of the declaration recognizing jurisdiction of the Court as compulsory deposited by Kenya on April 19, 1965 is available at http://www.icj-cij.org/en/declarations/ke.

3 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, para. 6, entered into force April 7, 2009 [hereinafter Kenya/Somalia MOU].

4 Id.

5 See United Nations Convention on the Law of the Sea, Art. 76, para. 8, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter UNCLOS]. Under Article 8 of UNCLOS Annex II, “[i[n the case of disagreement by the coastal State with the recommendations of the Commission, the coastal State shall, within a reasonable time, make a revised or new submission to the Commission.”

6 See Commission on the Limits of the Continental Shelf Article Rules of Procedure, Annex I, Rule 5(a).

7 Kenya/Somalia MOU, supra note 3, para. 6.

8 UNCLOS Article 282 reads: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”

9 See The Electricity Company of Sofia and Bulgaria, Preliminary Objections, 1939 PCIJ Series A/B N. 77, at 76 (Apr. 4); Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 ICJ Rep. 53, paras. 24–25 (Nov. 12); Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Rep. 240, para. 11 (June 26).

10 Fisheries Jurisdiction (Spain v. Can.), Jurisdiction of the Court, 1998 ICJ Rep. 432, paras. 48–49 (Dec. 4).

11 The Dissenting Opinion of Judge Robinson criticized the outcome of the Court's reasoning, especially the interpretation given to Article 282 in light of the travaux préparatoires of UNCLOS (Robinson, J., diss. op., para. 11), and the Dissenting Opinion of Judge Bennouna criticized the order in which the Court decided to take the relevant elements into account in the interpretation of the Kenya/Somalia MOU (Bennouna, J., diss. op., at 2), but the fact that the Court decided to interpret the Kenya/Somalia MOU and Article 282 instead of Kenya's reservation was not put into question.

12 In their Joint Declaration, Judges Gaja and Crawford stated that, “in the context of a declaration concerned with the compulsory jurisdiction of the Court and with alternatives to it, a reservation as to another method of settlement should be construed as referring to a method that will actually settle the dispute when it is resorted to, not to one that is equally consistent with the dispute remaining unsettled in perpetuity” (Gaja & Crawford, JJ., joint dec., para. 4).

13 The interpretation of the Kenya/Somalia MOU in the first part of the Judgment is subject to the same criticism. Assuming that two parties bring a case before the Court concerning the delimitation of the continental shelf, that a reservation such as that of Kenya can be invoked, and that there is an agreement between them according to which the delimitation “shall be agreed between the coastal states on the basis of international law,” the Court would arguably conclude that the reservation does not apply because the agreement has to be interpreted in light of Article 83 of UNCLOS. Clearly, what might differ is the subsequent practice of the parties.

14 See the new declaration deposited by the United Kingdom on February 22, 2017, including a new reservation that further limits the jurisdiction of the Court by requiring the applicant to notify the future respondent of the existence of a dispute between the parties. The new declaration appears to be a response to the Court's requirement that the parties be aware of a dispute in order for the Court to have jurisdiction. See Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. U.K.), Preliminary Objections, paras. 46–57 (Int'l Ct. Just. Oct. 5, 2016).

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
  • URL: /core/journals/american-journal-of-international-law
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