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  • Nairobi has appointed foreigners to handle the case at the expense of our qualified and competent professors of the law of the sea and maritime law.
  • Interdependence between Somalia and Kenya calls for diplomatic resolution of the dispute.
  • Military action will only aggravate the situation and invite intervention that could lead to proxy wars on our territorial waters.
  • Kenya should approach a third party state, a mutual friend to it and Somalia, to initiate negotiations aimed at exploring possibilities of an out-of-court settlement.

On the claim that Kenya delimited the maritime border unilaterally, it is a general rule evident in Articles 15, 74 and 83 of the UNCLOS and case law — such as the Malta/Libya case in the ICJ and the Gulf of Maine case between Canada and the United States — that maritime delimitation should be done by way of agreement. Kenya, through the Presidential Proclamation of 2005, delimited its coastal border with Somalia using the parallel of latitude method, without involving Somalia.

Doing so could contravene the Maritime Zones Act and the repealed Territorial Waters Act, which stipulate that the coastal border would be delimited by a gazette notice, following an agreement by the two states.

And then, there lacks the face of Kenya in the proceedings at the ICJ. Nairobi has appointed foreigners — such as British lawyers Karim Khan and A.V. Lowe, QC — to handle the case at the expense of our qualified and competent professors of the law of the sea and maritime law. More surprising, the ad hoc judge appointed by Kenya to sit at the ICJ is a Frenchman and former ICJ judge.

It is worth noting that the alleged auctioning of the oil blocks in Somalia was done in Britain. I believe the element of patriotism, crucial to such a case on the national interest, is lacking.

Further, the current president of the ICJ is Somali. The ICJ’s rules of operation dictate that, in case of an impasse, the president breaks the tie. It is pointless to debate on which side he would take.

There is a misconception that if the ICJ decides in favour of Somalia and uses the equidistance method of delimitation the ruling would have a ripple effect on the borders between Kenya and its neighbours in the south. It would not.

The Kenya-Tanzania border was delimited by agreement in 1976. As a result, the Tanzania, Mozambique and Madagascar border would not be affected. Again, in case of such a judgment, Kenya would not be landlocked — though the extent of its Exclusive Economic Zone (EEZ) would be substantially reduced, and so will the continental shelf.

Interdependence between Somalia and Kenya calls for diplomatic resolution of the dispute. Military action will only aggravate the situation and invite intervention that could lead to proxy wars on our territorial waters.

Kenya should approach a third party state, a mutual friend to it and Somalia, to initiate negotiations aimed at exploring possibilities of an out-of-court settlement before the ICJ judgment since the rules allow that.

Ms Sambu, an advocate-trainee at the Kenya School of Law, is a specialist in public international law, the law of the sea and maritime law. [email protected]

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