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A further souring of relations between Nairobi and Mogadishu could damage regional stability
Relations between Mogadishu and Nairobi are set to plunge still lower in the wake of the ruling by the International Court of Justice (ICJ) on 12 October which agreed with most of Somalia's claims on the disputed maritime border with Kenya.
At stake in the ruling are rich fisheries as well as oil and gas reserves in a 100,000 square kilometre maritime zone to which Kenya had laid claim. Now the zone is going to be divided between the two states.
There are also political stakes. Somalia's President Mohamed Abdullah Mohamed 'Farmajo', who is facing elections this year after unsuccessfully trying to extend his first term, heralded the ruling as a triumph for his government.
It also complicates the plans of Kenya's outgoing President Uhuru Kenyatta, who met United States President Joe Biden in Washington DC on the day after the ruling. President Kenyatta wants his ally, Raila Odinga, to win next year's presidential elections.
And Washington is advising Kenya to tamp down a nationalist response to the dispute and consider a mediation initiative. That could involve the joint exploitation of the resources, as tried in some maritime disputes in West Africa.
But the political sentiment on the border row is hardening. All the contenders for the presidency in Kenya are demanding that the government should not give an inch to Somalia on the border.
Nairobi set out its position well in advance. After seven years of talks with Mogadishu, it had tried to stall the ruling by the ICJ. Then it pre-emptively rejected the ruling (AC Vol 61 No 6, Frontier fracas).
The ICJ drew a new border closest to one claimed by Somalia, attributing to it several offshore oil blocks claimed by Kenya.
Central to the dispute is the direction that the joint maritime boundary should take from the point where the two countries' land frontiers meet on the coast. Somalia insists the boundary should extend at 90 degrees from the coast while Kenya says it should follow the lines of latitude.
ICJ President Judge Joan Donoghue ruled that 'the revised maritime border along the exclusive economic zones for the continental shelves of Somalia and Kenya achieves an equitable solution'.
The 14-judge panel rejected Somalia's claim that Kenya had violated its sovereignty by operating in its territorial waters. It added that there was no proof to back Kenya's claim that Somalia had previously agreed to its claimed boundary.
President Kenyatta accused the court of failing to permit the use of regional dispute resolution mechanisms, 'despite the existence of a robust African Union legal framework on border issues and dispute settlement.'
This suggests that Nairobi sees a benefit in bringing in the AU, whose chairman Félix Tshisekedi has offered to mediate in the dispute. Somalia's President Farmajo rejects any such initiative.
Nairobi's line follows its successful use of support in the AU against the International Criminal Court when Kenyatta, his erstwhile ally William Ruto, and four others were facing charges there for organising political violence after the disputed 2007 elections.
'As a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent,' said Kenyatta.
His statement also questioned the ICJ Bench's objectivity, adding that 'there has been a substantive and persistent procedural unfairness from a biased bench, and the denial of the right to fair hearing, in the maritime dispute with Somalia.'
The ICJ's record on resolving disputes is weak. Its lack of enforcement powers to apply its legally binding orders have seen other countries ignore its verdicts in the past. Given the finality of the judgement and Kenya's limited options within the court process, Nairobi could lodge a protest with the UN Security Council where it took over a non-permanent seat in January (AC Vol 62 No 7, How not to win friends).
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