As the two countries take their maritime border dispute over resource-rich waters to the International Court of Justice, Kenya is trying to force and out-of-court settlement.

History has a strange habit of reversing roles. It was only yesterday when Somalia’s irredentist quest of pan-Somali unification strategy cast an overarching shadow on the Horn of Africa; pressuring Kenya to relinquish the Somali-inhabited part of northeastern Kenya. The roles today are ironically reversed, with Somalia now on the receiving end of Kenya’s intensifying diplomatic pressure to resolve its maritime boundary dispute out of court rather than through the International Court of Justice (ICJ).

The maritime boundary dispute is primarily fuelled by the claims on natural resources such as marine fish, oil and gas made by both countries. Interest in Kenya (and later on Somalia) for oil and gas exploration has seen a sharp increase in recent years. The ICJ at The Hague is set to convene on September 9 to listen to testimony by both parties in their maritime delimitation dispute.

The Kenya-Somalia legal tussle started in August 2014 when Somalia filed a case before the ICJ. At the heart of the dispute are Kenya and Somalia’s claims to an overlapping area of continental shelf. Oil deposits are found in the disputed 42,000 square kilometres in the Indian Ocean between the line of parallel latitude and the equidistance line, the latter of which lies in Somalia. This creates a disputed triangle of more than 100,000 square kilometres – roughly the same size as the Jubbaland region of Somalia – of oil and gas-rich waters.

Somalia wants the maritime border to run along the line of the land border to the south-east whilst Kenya wants it determined by a parallel line of latitude to the east.

Why Kenya wants to settle out of court

In 2009, Kenya and Somalia signed a memorandum of understanding (MoU), and in 2011 they brought it to the UN. Both countries have put forward conflicting interpretations of the MoU. Kenya asserts that it contains a method for an out-of-court settlement of the maritime dispute. On the other hand, Somalia had as early as 2010 declared the MoU as "non-actionable" after it gave rise to controversy in Somalia.

Somalia quickly engaged the ICJ as a recourse to negotiation, fearing that Kenya would make a new reservation by altering its Optional Clause acceptance to exclude the World Court's jurisdiction over maritime boundary disputes. As expected, Kenya confirmed those suspicions on January 24 2017 when it lodged a new reservation opting out of the compulsory dispute settlement procedure concerning maritime delimitations.

Since then, Kenya has been actively pushing for an out-of-court settlement, chiefly because it believes that it has a slim chance of actually winning the dispute. There is some truth to this concern as it’s most likely that the court will favour Somalia (entirely or partly). This is due to Somalia's boundary claim which is rested on the ‘three-stage’ delimitation approach that is systematically followed in the jurisprudence of the ICJ. It is the standard practice for maritime delimitation disputes.

What’s more, Kenya is fully aware of its somewhat limited options. Any sign of recalcitrance over formally recognising and complying with the outcome will inevitably invite strong regional and international consequences. Indeed, following Nigeria's disapproval of the ICJ’s judgement in the land and maritime boundary dispute between itself and Cameroon, the United States, United Kingdom and France exerted substantial diplomatic pressure on Nigeria to ensure full compliance with the decision. This troubling fact has been picked up by ordinary Kenyans, where on June 28, a group of private lawyers filed a petition with the court arguing that the case contravenes Kenya’s constitution.

Borrowing a page from China’s playbook

Kenya’s approach to this issue resembles one pursued by a larger country thousands of miles away. Presently, China is involved in territorial disputes with Southeast Asian nations over maritime delimitations and the sovereignty of offshore islands in the South China Sea.

China has strategically pursued negotiation through the so-called ‘dual-track’ approach to find solutions to the South China Sea issue. It believes that the only way these disputes can be resolved is through direct negotiations and dialogue with the parties concerned, with joint development as the most likely outcome.

Similarly, Kenya argues that the disputed sea-shelf area can be settled through direct negotiations with the hope that the eventual outcome will be a joint development zone between both countries. In reality, China’s ‘dual-track’ approach is centred around a dual-strategy that employs the subliminal carrot (trade and investment) and stick (diplomatic pressure) approach.

Kenya is aware of this and has thus far exerted considerable effort in replicating China’s tested approach by deploying both carrots and sticks. For example, in September 2016, Kenya ostensibly lifted a decade-old travel ban by agreement. For the first time since 2006, direct flights from Mogadishu to Nairobi were launched, thus deploying the attractive carrot. However, in May 2019, Kenya re-introduced the ban and further banned unaccompanied luggage on aircraft from Somalia – hammering Somalia with the proverbial stick.

In a similar move, in March 2017, Kenya presented Somalia with an enticing promise of visa-waivers for Somali diplomatic and service passport holders – only for that policy to be unexpectedly rescinded in May 2019 when Kenya deliberately barred three Somali officials over their failure to obtain visas from the Kenyan embassy in Mogadishu.

Exacerbating the diplomatic row between the countries, Kenya tweeted in June about a meeting with the president of the breakaway northern territory of Somaliland, suggesting that it is an independent country.

However, Kenya’s dual strategy of diplomatic pressure and inducement have so far failed to convince Somalia to discontinue the court case and settle it through direct negotiations. As Kenya ramps up its punitive diplomatic measures against its neighbour; Somalia continues to adopt a measured tone. Perhaps this assured entrenchment is rooted in Somalia’s strong legal claim and defence, and as such, Somalia doesn’t feel the need to escalate the tit-for-tat diplomatic war and, in the process, shoot itself in the foot.

Kenya, by now, is aware that its attempted arm-twisting tactics against Somalia seem to be counterproductive. There appears to be no sign of climbdown from Somalia in withdrawing from litigation. Moreover, Kenya’s campaign of diplomatic pressure poses a real threat to the peace, prosperity and cooperation that both countries have enjoyed over the years. It’s important for both countries to wait for the verdict of the ICJ without worsening the already complicated situation with diplomatic sabre-rattling.

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