ICJ starts hearing Kenya-Somalia maritime row case despite protests

The International Court of Justice (ICJ) started hearing the maritime dispute between Somalia and Kenya after judges turned down the Kenyan government’s request to address it.

The hearing kicked off Monday at 3pm The Hague time (6pm local time) with Somalia government's legal team starting its two days of oral arguments, demonstrating why the disputed area measuring about 100,000 square kilometres belongs to Mogadishu.

It is not yet adequately clear whether Kenya will make its oral arguments scheduled for Thursday and Friday with the court, which is a principal judicial organ of the United Nations, having denied Attorney-General Kihara Kariuki an opportunity to speak before start of the case.

The AG was to express Kenya’s displeasure with the court’s conduct.

It also emerged that Kenya filed its evidence 10 days ago.

Mr Kariuki wanted to make a 30-minute address explaining why Kenya may not participate in the hearings of the case that started in 2014.

Somalia’s submissions

Somalia's legal team started by telling court that by laying claim of the maritime area, Kenya is attempting to rewrite history.

The court heard that Somalia lodged the case in 2014 after turning down attempts to negotiate about the dispute and that Kenya believed Somalia was under obligation to delimite the Indian Ocean area.

"Kenya's Attorney-General had earlier said the delimitation of boundary required time. In 2016 the AG said the issue need sensitive bilateral negotiations. Kenya is now saying the exact opposite," Somalia submitted.

The two countries have been at odds for over the delineation of their maritime border, which is said to have be rich in fish and potential hydrocarbons.

The court was told that Kenya in its preliminary objection against the case stated that there was a common ground that the maritime boundary had not been delimitated.

Further, that in 1990s Somalia was involved in civil war and therefore it had no ability to monitor its maritime space.

The lawyers added that a Kenyan official addressed ICJ in 2014 and did not make reference or communication of a secret naval boundary.

Kenya’s arguments

In a letter on March 11 communicating Kenya’s decision not to participate in today’s hearings, the government cited judges’ disregard of all its applications, including the recent to postpone proceedings as Covid-19 pandemic had disrupted preparations by its newly appointed legal team and the shortcomings of presenting its complex case virtually.

“Kenya regrets that it has been compelled to take this step- unprecedented in its history in relation to any international adjudication mechanism- because of the unwillingness of the court to afford it a fair opportunity to prepare for and to present its case,” the AG wrote in the letter addressed to the court’s registrar Philippe Gautier.

“Since the case herein is not urgent for any reason, Kenya least expected the court would make this into the first case to be heard on the merits via video link, despite one party’s sustained and well-grounded objections,” the letter adds.

Kenya argued online proceedings favour Somalia whose case is not dependent on complex demonstrations and that Kenya has more than four critical members- above the number each party is allowed into the courtroom- who are all in the age bracket at greater risk of Covid-19 hence unable to travel to The Hague.

The disregard of these concerns, alongside previous “inexplicable” rejections of its preliminary objections to the court’s jurisdiction and the dismissal of the request for the recusal of Judge Ahmed Yusuf, a Somali national, have fueled Kenya’s perception of “unfairness and injustice in this matter.”

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