International Court of Justice in The Hague is scheduled to start hearing the case between the neighbours on Monday.
Kenya has refused to participate in hearings at the World Court about a maritime boundary dispute with Somalia over contested parts of the Indian Ocean, in a dispute that has strained the neighbours’ diplomatic relations.
The case was filed in 2014 by Somalia at the International Court of Justice (ICJ) – the United Nation’s highest court for disputes between states – and a decision could determine rights to exploit oil and gas in the deep waters off the East African coastline.
Hearings, when both sides were due to present arguments, were scheduled for this week, but Kenya was not present in the first day on Monday in court or via video link.
“Kenya informed the court by letter, dated March 11 received March 12, that they would not participate,” presiding Judge Joan Donoghue said.
But the court in The Hague would go ahead with hearing Somalia’s case, and would use written evidence provided by Kenya instead, Donoghue said.
On Sunday, Kenyan newspapers reported that the government in Nairobi had decided not to take part, citing “perceived bias and unwillingness” of the ICJ “to accommodate requests for the delaying the hearings” as a result of the pandemic.
The Somali side on Monday criticised Kenya’s move.
“We are deeply concerned that Kenya has decided not to appear at these hearings,” said Mahdi Mohammed Gulaid, opening Somalia’s case. He said it was “inconsistent with the rule of law” and Kenya’s commitment to the court.
Kenya “has no grounds to complain about its treatment by the court” after the ICJ granted three previous requests for delays that held up the case by 18 months, he said.
In its letter, Kenya also reportedly argued that holding the ICJ hearings virtually did not allow it to present its case in the most effective way.
The ICJ on Monday, however, dismissed Kenya’s request for a “30-minute opportunity to orally address the court before the commencement of the actual hearings”.
The case is supposed to adjudicate a maritime boundary dispute about more than 100,000sq km (nearly 40,000sq miles) of seafloor claimed by both countries.
The spat began after Somalia accused Kenya of illegally awarding exploration rights in the waters to multinationals Total and Eni.
The extent of the hydrocarbon reserves in the disputed waters is unknown, but Kenya awarded the licences at a time when the East African coast was emerging as one of the world’s hottest oil exploration prospects.
Somalia, which lies northeast of Kenya, wants to extend its maritime frontier with Kenya along the line of the land border, in a southeasterly direction. In contrast, Kenya claims the border should take a roughly 45-degree turn at the shoreline and run in a latitudinal line, giving it more territory.
“Roughly, what Somalia is saying is that the law provides for an equidistant line from the two shores (equal distance from both shores) for the territorial sea and that should be projected further for the other zones, so it should follow the course of the land boundary,” Antonios Tzanakopoulos, associate professor of public international law at the University of Oxford, told Al Jazeera.
“Whereas Kenya is basically saying, ‘Look, that might have been the initial position but in our case, we believe that it runs parallel to the latitude (45-degree angle) and that has been our position since 1979 and it has been respected by Somalia since 1979 until 2014,” he said, referring to the year 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.
“To put it simply,” Tzanakopoulos said, “Kenya’s argument roughly could be, ‘If you haven’t disputed something for 35 years, then it becomes some sort of agreement between the two.
“So the court will have to decide, ‘Do we delimit the boundary on the basis of the Somali claim that we should just apply the relevant provisions of the law … or do we accept the Kenyan position that some sort of tacit agreement has been [reached] between the two states because of the long non-protest over the boundary running another course?'”
Relations between the two neighbours have taken a turn for the worse during the last 10 years.
Kenya recalled its ambassador to Somalia in February 2019 after accusing the government in Mogadishu of selling oil and gas blocks at a London auction despite the pending delineation case before the ICJ.
Kenya also contested the ICJ’s authority to rule in the case, but the court dismissed its objections in 2017.
Al Jazeera’s Catherine Wambua-Soi, reporting from Nairobi, said the lawyers representing Somalia at the ICJ argued that the country “never agreed to any boundary line, demarcation by Kenya as the country is suggesting.
“They said there’s no treaty, no regional agreement and that Kenya has been taking advantage of the political situation in Somalia to use that disputed territory, which Somali lawyers say Kenya is already exploring … [in violation of] international law,” Wambua-Soi said.
Rulings by the ICJ are final. However, the court has no direct means of enforcement and some states have ignored its decisions in the past.
“Non-appearance before the International Court of Justice does happen, on occasion, but it does not affect the power of the court to hear the case, nor does it affect the power of the court to issue a binding judgement,” Tzanakopoulos explained.