The dispute between Kenya and Somalia began in the late 2000s when Kenya tried to impose a shared maritime border on Somalia that was similar to its own southern border with Tanzania. Somalia was at war, so could not prevent Kenya from doing so. Since then, Kenya has used the maritime area for its own benefit, but also helped to monitor and secure the waters.
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Somalia argued that the maritime boundary should be consistent with standard practice in international law — and follow the direction of the land border, rather than extend out along the line of latitude. The U.N. high court’s ruling now gives Somalia more of this contested maritime zone, including oil blocks that Kenya claims.
Aren’t most borders well established?
Kenya and Somalia have shared a border for more than 50 years, so this might seem like a strange disagreement. How have the two not yet defined their territorial waters and associated boundaries?
In fact, borders are often a challenge throughout the world. According to the African Union Border Programme (AUBP), only about one-third of the borders among the continent’s 54 nations had been formally demarcated by 2011. Many countries still have outmoded borders relying on rivers, tree lines or paths that can change over time. And while the AUBP maintains that clear borders reduce conflicts, more porous and informal boundaries have arguably kept the peace in nomadic and migratory areas. Demarcated borders need not be strictly controlled, but often are in practice.
The U.N. Convention on the Law of the Sea (UNCLOS), an international law since 1994, provides the authoritative rules on territorial waters, exclusive economic zones (EEZs) and continental shelfs beyond the EEZ. Countries sometimes do reach agreements on their own, however, departing from the UNCLOS guidance. This was Kenya’s position — claiming that since 1979 Somalia had continuously “acquiesced” to Kenya’s preferred boundary, making this now legally the line.
Did Somalia agree to the boundary?
During many of those years, Somalia had no consistent decision-making authority. Beginning with the fall of President Mohammed Siad Barre’s military dictatorship in 1991, Somalia was a failed, contested state — only around 2012, arguably, did Somalia have a government capable of making such choices.
Somali authorities made this point at the ICJ and appealed along UNCLOS principles to dispute Kenya’s claim of acquiescence. Somali authorities at times formally relaxed sovereignty rules in order to permit other militaries to pursue pirates and terrorists. But there was no such agreement with Kenya. And Somalis have repeatedly complained about outsiders, including Kenyans, taking advantage of the political disarray to exploit Somalia’s waters by overfishing, dumping waste and stealing resources.
Kenya disagreed with the ruling
Somalia’s President Mohamed Abdullahi Farmaajo quickly declared the ICJ decision a victory. The court agreed that most of the area that Kenya claimed — and parceled out for oil and gas exploration — ought to be Somalia’s. The court apportioned a substantially smaller offshore area to Kenya, but did not agree to grant Somalia reparations for sovereignty violations for Kenya’s exploration rights moves.
Kenya rejected the decision, retroactively claiming that the ICJ did not have jurisdiction over a bilateral matter.
It’s not yet clear what the outcome means for relations between the two countries or their maritime border. The two have cooperated on security matters such as threats from the Islamist terrorist group Al Shabaab, but Somali-Kenyan relations have been poor lately. And research suggests about one-third of international maritime conflicts become militarized at some point.
It’s possible Kenya’s rejected claim could result in an escalating conflict — though at least for now, violence seems unlikely. Because the ICJ has ruled, the weight of international public opinion will align with its decision. As a United Nations entity, the ICJ does not have an army to enforce its decision. But the next step on the legal escalatory ladder is more powerful: the U.N. Security Council.
The Security Council is empowered to handle any international breach of the peace, up to and including using force, should Kenyan authorities not comply. But with Kenyan President Uhuru Kenyatta currently serving as the rotating president of the Security Council, it seems unlikely that any breach or U.N. action will occur in the near term.
In the best case, time and the international peer pressure that comes along with the ICJ’s recommendations may simply wear down President Kenyatta’s resistance. Given the Biden administration’s strong support for the rule of law in domestic and international politics, pressure may have even come from President Biden himself in the Oct. 14 White House meeting between the two. However, Biden also wants Kenya’s support for potentially more pressing issues like sanctions for humanitarian violations in Tigray. The Trump administration, eager to deepen bilateral economic ties, had previously supported Kenya’s maritime claim.
This maritime border case took several years — and delay tactics marked the Kenyan authorities’ approach. First, Kenya requested a year-long delay to assemble a legal team. Then another delay was requested for the pandemic. And when that request was denied, Kenya requested a further delay because a “critical map” had gone missing.
The “win” for the Somali government is only slightly less consequential than the real resources at stake. Somalia remains a very weak government without full control over its territory, but the outcome gives a boost to the international rule of law in the eyes of Somalis and to Somalia’s domestic institutions. After the ruling, Somalia’s president issued an appeal to his neighbor, urging Kenya to “treat the Court’s decision as an opportunity to strengthen relations between the two countries and enhance cooperation between the two peoples.” A better relationship between two stable, law-abiding neighbors would seem in everyone’s long-term interests.
Bridget Coggins is associate professor of political science at the University of California, Santa Barbara. Her current book project examines failed states and international security
