Somalia will tomorrow know if it will proceed with its maritime case against Kenya as the International Court of Justice delivers its verdict on preliminary objections by Kenya challenging the merit of the case and the jurisdiction of the global court.
While Somalia is banking on a favourable ruling to proceed with the case which it seeks the Court’s intervention to ‘determine the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles, Kenya will be hoping for a thrashing of the prayers.
In its submission August 28, 2014 Somalia is also seeking the Court’s decision to ‘determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.’
But its neighbor Kenya in its counter memorial October 2015 asked the Court to quash Somalia’s requests noting the two countries had developed a diplomatic option through a 2009 Memorandum of Understanding which it said is a binding international agreement on the method of settlement of the maritime dispute.
Kenya also argued the case by Somalia was outside the jurisdiction of the Court and otherwise inadmissible. Further, it advanced its case of inadmissibility on grounds Somalia breached its obligations under the MoU.
According to the rules of procedures, the Court can take three and only three directions in its verdict.
First, the Court upholds at least one of the preliminary objections and the case will then come to an end, leaving open the possibility that it may be resumed one day if the ground on which the preliminary objection was upheld no longer applies (e.g., domestic remedies are finally exhausted).
In this instance, should the Court rule in favour of Kenya, the two countries will have to resort to other means for instance diplomatic negotiations but with the possibility of returning to the Court if the negotiations do not provide a resolution of the dispute.
Alternatively, the Court can reject all the preliminary objections and the proceedings on the merits will resume at the point at which they were suspended; the respondent will then be called upon to deliver its Counter-Memorial within a certain time. In this instance, Somalia will have had a positive outcome and pursue the case to its logical conclusion.
Finally, the Court can declare that the objections do not possess an exclusively preliminary character and the proceedings will be resumed in order to enable the Court to rule on all the issues put before it.