The Kenyan government’s decision to engage in a diplomatic escalation against Somalia is likely to backfire.
On Monday, the United Nations’s highest court is due to begin hearings on a maritime boundary dispute between Somalia and Kenya, after years of delays in a case that has strained the neighbours’ diplomatic relations.
Scheduled to run until March 24, the public hearings at the International Court of Justice (ICJ) in The Hague will be held in a “hybrid format” due to the coronavirus pandemic, with some members of the court attending the proceedings in person while others participating remotely via a video link.
On Sunday, Kenyan newspapers reported that the government in Nairobi had decided on the 11th hour not to take part in Monday’s proceedings, citing “perceived bias and unwillingness” of the ICJ “to accommodate requests for the delaying the hearings” as a result of the pandemic.
At the time of publication, no official announcement had yet been made.
What is the issue?
The dispute between the two East African countries stems from a disagreement over which direction their border extends into the Indian Ocean.
Somalia argues its maritime boundary should run in the same direction as the southeasterly path of the country’s land border. In contrast, Kenya claims the border should take a roughly 45-degree turn at the shoreline and run in a latitudinal line. This gives Kenya access to a larger share of the maritime area.
Apart from fishing, the disputed area – about 100,000 square kilometres – is thought to be rich in oil and gas, with both countries accusing each other of auctioning off blocks before a ruling by the court.
In 2014, Somalia asked the ICJ to rule on the case after out-of-court negotiations between the two countries aimed at settling the dispute broke down.
In February 2017, the court ruled it had the right to adjudicate on the case as judges rejected Kenya’s claim that a 2009 agreement between the neighbours amounted to a commitment to settle the matter out of court, stripping the ICJ of jurisdiction.
In June 2019, the ICJ said public hearings would take place between September 9 and September 14 of that year, before pushing the start date to November 4 after granting a request by Kenya that said it needed time to recruit a new legal team.
The Kenyan side appealed the November dates, saying it needed up to a year. The ICJ then moved the hearings to June 2020, but Kenya then requested another postponement, this time citing the pandemic. The UN delayed the hearing till March 2021.
In January, Kenya wrote to the ICJ requesting the hearing be delayed for a fourth time, claiming a map with crucial information that was set to be presented as evidence in the case has disappeared. Somalia protested against such a move, and the ICJ said earlier this month that the hearings would commence on March 15.
Cases at the ICJ, which rules on disputes between states over international treaties, can last many years.
Its rulings are binding, though the court has no enforcement powers and countries have been known to ignore its verdicts.
Relations between the two neighbours have taken a turn for the worse over the last 10 years.
In May 2019, Somalia criticised Kenya for deporting two Somali legislators and a minister after authorities in Nairobi blocked them from entering the country following their arrival at Jomo Kenyatta International Airport.
In March last year, Somalia banned the import of khat, a popular mild stimulant plant, from Kenya. Somalia said the ban was to contain the spread of coronavirus but khat imports from Ethiopia were not stopped.
In March last year, Kenya accused Somalia of an “unwarranted attack” on the Kenyan town of Mandera during heavy fighting over the border between the Somali government and regional forces. Somalia denied the claim.
The situation escalated further in December after Somalia cut diplomatic ties with Kenya, accusing it of meddling in its internal affairs. Kenya rejected the allegations.
Somalia ordered all its diplomats in Nairobi to return home and ordered Kenyan diplomats to leave within seven days.
The move came as Kenyan President Uhuru Kenyatta hosted in Nairobi Musa Bihi Abdi, the leader of Somaliland, the northwestern region that declared independence from Somalia in 1991.