Navigating the way of alternative dispute resolution through rough seas

October 1st, 2021

Picture source: Gallo Images/Getty

In its essence, the law of the sea divides the sea into zones and specifies the rights and duties of countries in the use and conservation of the ocean environment and its natural resources. Every coastal country has jurisdiction over maritime space by international conventions. The ‘maritime zones of two States frequently meet and overlap, and the line of separation has to be drawn to distinguish the rights and obligations between the States, which is what maritime delimitation is about’ (Nugzar Dundua ‘Delimitation of the Maritime Delimitation of the Maritime Boundaries between the adjacent Boundaries between the adjacent States’, accessed 8-9-2021). After the establishment of the United Nations and the International Law Commission under its auspices, the third United Nations Convention on the Law of the Sea (UNCLOS) led to the adoption of the most comprehensive conventions on the law of the sea.

In 2009, the International Court of Justice (ICJ) had occasion to set out a proper interpretation of the law regarding maritime delimitation programmatically and with long-term effect in the 2009 Black Sea case of Romania v Ukraine (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61 (, accessed 6-9-2021). This article, however, is based on a 2017 judgment (on preliminary objections) of the ICJ in the Indian Ocean case of Somalia v Kenya (Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 3, accessed 6-9-2021)). A ‘public hearing sitting’ on the merits of the dispute was scheduled to be held from 15 March 2021 to 24 March 2021. Oral arguments were presented by Somalia on 15 and 16 March 2021. Kenya did not participate in the hearings and deliberations by the court are underway.

Somalia and Kenya are adjacent countries on the coast of East Africa. Both countries signed the UNCLOS on 10 December 1982 and ratified UNCLOS on 2 March and 24 July 1989, respectively, and the Convention entered into force for the parties on 16 November 1994. ‘Under Article 76, paragraph 8, of UNCLOS, a State party to the Convention intending to establish the outer limits of its continental shelf beyond 200 nautical miles shall submit information on such limits to the Commission on the Limits of the Continental Shelf ( … CLCS … ). The role of the [CLCS] is to make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf beyond 200 nautical miles … . Pursuant to Article 4 of Annexure II to UNCLOS, a State party intending to establish such limits shall submit the required information to the [CLCS] “as soon as possible but in any case within [ten] years of the entry into force of [the] Convention for that State”.

In May 2001, bearing in mind the difficulties encountered by some developing States in meeting the requirements of Article 4 … , the eleventh Meeting of States Parties to UNCLOS decided that the ten-year period … would be deemed to have commenced on 13 May 1999 for those States parties to the Convention for which UNCLOS had entered into force before 13 May 1999 … . Consequently, the ten-year time-limit for such States to make their respective submissions to the CLCS was due to expire on 13 May 2009. Kenya and Somalia were among those States to which this time-limit applied.

In June 2008, at the eighteenth Meeting of States Parties to UNCLOS, it was decided that the ten-year time-limit could be satisfied by the submission to the Secretary-General of the United Nations [SG] of preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles … .

On 7 April 2009, the Kenyan Minister for Foreign Affairs and the Somali Minister for National Planning and International Cooperation signed a “Memorandum of Understanding [MOU] … 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” … . On 14 April 2009, Somalia submitted … preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles, enclosing a copy of the MOU. On 6 May 2009, Kenya deposited with the CLCS its submission with respect to the continental shelf beyond 200 nautical miles. On 3 September 2009, …  Kenya made an oral presentation of its submission’ (Somalia v Kenya (op cit)).

The MOU was registered by the Secretariat of the United Nations on 11 June 2009 at Kenya’s request. However, by a letter dated 2 March 2010 Somalia informed the SG that the MOU had been rejected and requested that it be treated ‘as non-actionable’. The parties to the agreement subsequently engaged in negotiations on the various questions of the delimitation.

On 21 July 2014, Somalia deposited with the CLCS its submission with respect to the outer limits of the continental shelf beyond 200 nautical miles. On 28 August 2014, Somalia filed in the Registry of the Court, an application instituting proceedings against Kenya concerning, inter alia, a dispute in relation to the establishment of a 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 the ICJ, Somalia invoked, as the basis for the jurisdiction of the court, the declarations which Somalia and Kenya have made under art 36, para 2, of the Statute of the Court. In the view of Somalia, no condition or reservation to either declaration applies. Kenya, however, raised two preliminary objections. One concerns the jurisdiction of the court. This article is based on this preliminary objection.

The preliminary objection by Kenya on jurisdiction

In this preliminary objection, Kenya asserted that one of the reservations in its declaration accepting the compulsory jurisdiction of the court applies in this case for two reasons. ‘First, Kenya contended … in the MOU the parties agreed on a method of settlement of their maritime boundary dispute other than having recourse to the court … . Secondly, Kenya argued that Part XV of the [UNCLOS] makes provision for methods of settlement of disputes concerning the interpretation or application of UNCLOS … . As neither party has made a declaration regarding the choice of one or more means of dispute settlement pursuant to article 287, paragraph 1, of UNCLOS, Kenya submitted that the parties were deemed, under paragraph 3 … , to have accepted arbitration in accordance with Annex VII to UNCLOS for the settlement of disputes concerning the interpretation or application of the Convention. According to Kenya, the relevant provisions of UNCLOS on dispute settlement, therefore, amount to an agreement “to have recourse to some other method or methods of settlement” …’ (Ousa Okello ‘An Analysis of the Decision of the International Court of Justice in the Maritime Delimitation case between Somalia and Kenya with Regard to Preliminary Objections Raised by Kenya’, accessed 8-9-2021).

‘For its part, Somalia [argued] that the MOU does not establish a method for resolving the delimitation dispute between the parties and that, consequently, Kenya’s reservation did not apply … . Moreover, it disagreed with Kenya’s assertion that Part XV of UNCLOS falls within the scope of Kenya’s reservation. In Somalia’s view, the agreement of the parties to the jurisdiction of the court – expressed through declarations under article 36 … – takes priority … over the procedures provided for in section 2 of Part XV’ (Somalia v Kenya (op cit)).


The MOU caused some domestic controversy in Somalia in the months after it was signed. It was debated and rejected on 1 August 2009. Several years later, in a letter to the SG dated 4 February 2014, Somalia maintained that ‘no [MOU] is in force’, highlighting that ratification thereof had been rejected by the Parliament of Somalia.

In this case, Somalia did not expressly invoke the alleged invalidity of the MOU as a reason for rejecting the preliminary objection raised by Kenya. It took the view that it is unnecessary to determine the legal validity vel non of the MOU on the basis that even if it were effective (quod non), it does not constitute an agreement on a method for settling the parties’ maritime boundary dispute, let alone one that could preclude this ICJ from resolving it.

‘For its part, Kenya [argued] that the MOU is an international treaty, duly registered pursuant to article 102 of the Charter of the United Nations, which is legally binding on the parties. In respect of Somalia’s earlier contentions regarding … ratification, Kenya [emphasised] that the MOU did not refer to a need for ratification, but instead provided “in categorical terms”’ for its entry into force “upon its signature”. In addition, it contended that there was “nothing in the exchanges leading to adoption of the MOU suggesting that the parties ever considered a requirement of ratification” and that there is no evidence that its representatives were ever told of such a requirement.

Kenya [argued] that the validity of the MOU was confirmed in Somalia’s April 2009 submission of preliminary information to the CLCS’ and ‘that any inconsistency with the internal law of Somalia did not affect the validity of the MOU under international law’ (Somalia v Kenya (op cit)).

Determination of the validity of the MOU

The court considered that in order to determine whether the MOU has any effect with respect to its jurisdiction, it was appropriate first to address the issue whether the MOU constituted a treaty in force between the parties.

‘Under the customary international law of treaties, which is applicable in this case since neither Somalia nor Kenya is a party to the Vienna Convention, an international agreement concluded between States in written form and governed by international law constitutes a treaty (see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 429, para. 264 … ). The MOU is a written document, in which Somalia and Kenya recorded their agreement on certain points governed by international law. The inclusion of a provision addressing the entry into force of the MOU is indicative of the instrument’s binding character. Kenya considered the MOU to be a treaty, having requested its registration … and Somalia did not protest that registration until almost five years thereafter … .

In respect of Somalia’s contentions regarding the ratification requirement under Somali law, the court recalled that, under the law of treaties, both signature and ratification are recognised means by which a State may consent to be bound by a treaty. As the court has previously outlined: “While in international practice a two-step procedure consisting of signature and ratification is frequently provided for in provisions regarding entry into force of a treaty, there are also cases where a treaty enters into force immediately upon signature. Both customary international law and the Vienna Convention on the Law of Treaties leave it completely up to States which procedure they want to follow” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 429, para. 264).

The court [noted] that the MOU provides, in its final paragraph, that “[t]his Memorandum of Understanding shall enter into force upon its signature” and that it does not contain a ratification requirement. Under customary international law as codified in article 12, paragraph 1(a), of the Vienna Convention, a State’s consent to be bound is expressed by signature where the treaty so provides’ (Somalia v Kenya (op cit)). Considering the express provision of the MOU that it shall enter into force upon signature, the court concluded that this signature expressed Somalia’s consent to be bound by the MOU under international law. The court concluded that the MOU is a valid treaty that entered into force upon signature and is binding on the Parties under international law.

Court’s finding on the preliminary objection jurisdiction

Kenya’s ‘acceptance of the court’s jurisdiction [in the declaration] extends to “all disputes” … except those for which the parties have agreed to resort to a method of settlement other than recourse to the court. … Part XV of UNCLOS does not provide for such other method of dispute settlement … . Accordingly, this dispute does not, by virtue of Part XV of UNCLOS, fall outside the scope of Kenya’s optional clause declaration.

A finding that the court has jurisdiction gives effect to the intent reflected in Kenya’s declaration, by ensuring that the dispute is subject to a method of dispute settlement. By contrast, because an agreed procedure within the scope of article 282 takes precedence over the procedures set out in section 2 of Part XV, there is no certainty that this intention would be fulfilled were this court to decline jurisdiction … ’ (Somalia v Kenya (op cit)). Considering all these considerations, the court concluded that ‘the force of the arguments militating in favour of jurisdiction is preponderant’, and that this case does not, by virtue of Part XV, fall outside the scope of the parties’ consent to the court’s jurisdiction.

Tshepo Mashile LLB (University of Limpopo) is a legal practitioner at Mkhonto and Ngwenya Inc in Pretoria.

This article was first published in De Rebus in 2021 (Oct) DR 22.

De Rebus