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Massimo Fabio Lando

13 Oct, 25 tweets, 16 min read

@CIJ_ICJ

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Yesterday, @CIJ_ICJ handed down its judgment on the #maritimeboundary between #Somalia and #Kenya. This was the first judgment since the Court’s renewal in February 2021 and Judge Donoghue’s election as President (source of all images: @CIJ_ICJ). 👩🏻‍⚖️

Kenya did not appear at the oral proceedings before the ICJ after appearing at the preliminary objections phase (link to preliminary objections judgment below). However, the ICJ could rely on its written submissions, filed before deciding not to appear.

icj-cij.org/public/files/c…

Somalia and Kenya had very different views on their maritime boundary. Somalia argued that there was no agreed boundary, so that the ICJ had to delimit a boundary by the 3-stage approach in use since the 2009 #BlackSea case (link below, [115]-[122]). 👩🏽‍💼

icj-cij.org/public/files/c…

Kenya stated that there was a tacitly agreed maritime boundary along a parallel of latitude evidenced by domestic legislation, conduct in 1979-2014 and the parties’ submissions to the Commission on the Limits of the Continental Shelf (#CLCS).

Kenya’s position was affected by the existence of a delimitation treaty (link below) with #Tanzania, which had drawn a boundary along a parallel of latitude. If the ICJ agreed with Somalia, Kenya could be boxed in with narrower access to the high seas. 🌊

treaties.un.org/doc/Publicatio…

The ICJ found no “compelling evidence” of a tacitly agreed maritime boundary ([36]-[89]). Hard to think that this result was not influenced by the harsh criticism against the strange outcome in the 2014 #Peru v. #Chile case (link below).

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After identifying the boundary’s starting point ([93]-[98]), the ICJ found that the 1927/1933 #Italy-#UK treaties (ex-colonial powers) did not delimit the #territorialsea boundary. 🇮🇹🇬🇧 Judge ad hoc Guillaume disagreed (Sep Op [10]-[18], link below).

icj-cij.org/public/files/c…

The ICJ delimited the territorial sea using a strict median line, because there were no special circumstances justifying a different solution under Article 15 of the UN Convention on the Law of the Sea (#UNCLOS).

The ICJ stated that it could delimit the #ExclusiveEconomicZone (#EEZ) boundary by its 3-stage approach ([119]-[131]). Preliminarily, it identified the relevant coast and area (I argued that this should be its own stage in delimitation, link below).

cambridge.org/core/books/abs…

Notably, the ICJ expressly endorsed radial projections as a way to identify the relevant coast and area ([137] and [141]). Judge Xue disagreed, arguing that frontal projections would have been more appropriate (Decl [12], link below). 📐📏

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The equidistance line (first stage) seems unproblematic ([142-[146], figure below). Crucial is the adjustment based on relevant circumstances (second stage). Kenya argued that adjustment was required as an equidistance boundary was inequitable ([149]-[152]).

The ICJ confirmed its position that relevant circumstances are generally geographical in character (w/ exception of #JanMayen case, link below). It dismissed Kenya’s claim to adjustment based on security, fishing and oil-related bases ([158-[160]). 🛢

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This is where it gets more interesting. The ICJ accepted Kenya’s claim that an equidistance line cut off its coastal projections BUT did so by considering the coast of Tanzania too, not just the coasts of Somalia and Kenya ([162]-[174]). 😱

This decision is at odds with the case law of the ICJ and other int’l tribunals. Never since #Guinea v. #GuineaBissau (1985, link below) did a tribunal consider the coast of non-parties. Judges Abraham, Yusuf and Robinson voted against operative paragraph 4 on this basis.

These judges’ opinions seem persuasive (links below). The Court awarded itself wider discretion to decide when cut-off is “serious” (although in this case it doubtful at best that it was so). Moreover, …

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… this decision is wholly inconsistent with earlier decisions, where int’l tribunals limited their analyses to the parties’ coasts. The Court justified its decision referring to #NorthSeaContinentalShelf and the #BayofBengal cases ([165]-[166]). But…

… in the former, the three States whose coats determined cut-off were all before the ICJ. In the latter, when the #ITLOS made its decision, #Bangladesh had already started an #arbitration against #India (links below).

itlos.org/index.php?id=1…

pca-cpa.org/en/cases/18/

One can sympathise with the ICJ. Cut-off was presumably the only somewhat convincing reason to adjust the equidistance line. But the reasoning does not persuade. The ICJ could have said that cut-off made the equidistance line inequitable …

… without considering Tanzania’s coast, although perhaps this view would have rested on thin evidence. The ICJ’s chosen approach looks like taking steps back to a less predictable (and more discretionary) maritime delimitation.

Not shockingly, the ICJ easily found that there was no gross disproportionality to require further adjustment (third stage, [175]-[177]). The final boundary created a “grey area” (see below). But the ICJ did not comment on it, as its existence was “only a possibility” ([197]).

The “grey area” will exist only if Kenya’s CLCS submission succees. But one can expect that it will, at least as far as the “grey area” zone is concerned. The ICJ created a problem (as I argued “grey areas” are, link below) only to wash its hands of it.

cambridge.org/core/books/abs…

The ICJ also delimited the #continentalshelf beyond 200nm. Although there was no CLCS recommendations to either Somalia or Kenya, the ICJ did not find it to be an obstacle ([189]). The ICJ admitted that there was no evidence that the parties were entitled to …

… a continental shelf beyond 200nm BUT found that the parties’ non-objection that each other were so entitled was enough to delimit beyond 200nm! 🤔 This over-relies on the views of self-interested States and is unconvincing (as I argued elsewhere).

academic.oup.com/chinesejil/art…

The final boundary looks something like this. Equitable, perhaps. But the ICJ could have followed the minority’s convincing view and its own earlier decisions instead of opening the door to less certainty in future delimitation cases. /end