In the claims presented by Somalia ICJ is asked to determine, on the basis of international
law, the complete course of the single maritime boundary dividing all the maritime areas
appertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf
beyond 200 [nautical miles].
Procedural backdrop (paras. 1-28)
The Court begins by recalling that, on 28 August 2014, the Federal Republic of Somalia
(hereinafter “Somalia”) filed in the Registry of the Court an Application instituting
proceedings against the Republic of Kenya (hereinafter “Kenya”) concerning a dispute in
relation to “the establishment of the single maritime boundary between Somalia and Kenya in
the Indian Ocean delimiting the territorial sea, exclusive economic zone . . . and continental
shelf, including the continental shelf beyond 200 nautical miles”. In its Application, Somalia
sought to found the jurisdiction of the Court on the declarations made, pursuant to Article 36,
paragraph 2, of the Statute of the Court, by Somalia on 11 April 1963 and by Kenya on 19
April 1965. On 7 October 2015, Kenya raised preliminary objections to the jurisdiction of the
Court and to the admissibility of the Application. By its Judgment of 2 February 2017
(hereinafter the “2017 Judgment”), the Court rejected the preliminary objections raised by
Kenya, and found that it had jurisdiction to entertain the Application filed by Somalia and that
the Application was admissible. Following the filing of the Parties’ written pleadings, public
hearings on the merits were held from 15 to 18 March 2021. Kenya did not participate in
those hearings.
I. GEOGRAPHICAL AND HISTORICAL BACKGROUND (PARAS. 31-34)
The Court first recalls the Parties’ geographical situation, before noting the following facts.
On 15 July 1924, Italy and the United Kingdom concluded a treaty regulating certain
questions concerning the boundaries of their respective territories in East Africa, including
what Somalia describes as “the Italian colony of Jubaland”, located in present-day Somalia,
and the British colony of Kenya. By an Exchange of Notes dated 16 and 26 June 1925, the
boundary between the Italian and British colonial territories was redefined in its southernmost
section. Between 1925 and 1927, a joint British-Italian commission surveyed and demarcated
the boundary. Following the completion of this exercise, the commission recorded its
decisions in an Agreement signed on 17 December 1927 (hereinafter the “1927 Agreement”),
which was subsequently formally confirmed by an Exchange of Notes of 22 November 1933
between the British and Italian Governments (the 1927 Agreement and this Exchange of
Notes hereinafter collectively being referred to as the “1927/1933 treaty arrangement”).
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Somalia and Kenya gained their independence in 1960 and 1963, respectively. Both Parties
signed the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS” or the
“Convention”) on 10 December 1982. They ratified it on 2 March 1989 and 24 July 1989,
respectively, and the Convention entered into force for them on 16 November 1994.
Both Somalia and Kenya have filed submissions with the Commission on the Limits of the
Continental Shelf (hereinafter the “CLCS” or the “Commission”) in order to obtain its
recommendations on the establishment of the outer limits of their continental shelves beyond
200 nautical miles, in accordance with Article 76, paragraph 8, of UNCLOS. While they
previously objected to the consideration by the Commission of each other’s submissions,
these objections were subsequently withdrawn. As of the date of the Judgment, the
Commission has yet to issue its recommendations in respect of the Parties’ submissions.
II. OVERVIEW OF THE POSITIONS OF THE PARTIES (PARA. 35)
The Court notes that the Parties have adopted fundamentally different approaches to the
delimitation of the maritime areas. Somalia argues that no maritime boundary exists between
the two States and asks the Court to plot a boundary line using the equidistance/special
circumstances method (for the delimitation of the territorial sea) and the equidistance/relevant
circumstances method (for the maritime areas beyond the territorial sea). In its view, an
unadjusted equidistance line throughout all maritime areas achieves the equitable result
required by international law. Kenya, for its part, contends that there is already an agreed
maritime boundary between the Parties, because Somalia has acquiesced to a boundary that
follows the parallel of latitude at 1° 39′ 43.2″ S (hereinafter “the parallel of latitude”). Kenya
further contends that the Parties have considered this to be an equitable delimitation, in light
of both the geographical context and regional practice. Kenya submits that, even if the Court
were to conclude that there is no maritime boundary in place, it should delimit the maritime
areas following the parallel of latitude, and that, even if the Court were to employ the
delimitation methodology suggested by Somalia, the outcome, following adjustment to reach
an equitable result, would be a delimitation that follows the parallel of latitude.
III. WHETHER SOMALIA HAS ACQUIESCED TO A MARITIME BOUNDARY
FOLLOWING THE PARALLEL OF LATITUDE (PARAS. 36-89)
The Court first ascertains whether there is an agreed maritime boundary between the Parties
on the basis of acquiescence by Somalia.
It recalls that both Kenya and Somalia are parties to UNCLOS. For the delimitation of the
territorial sea, Article 15 of the Convention provides for the use of a median line “failing
agreement between [the two States] to the contrary”, unless “it is necessary by reason of
historic title or other special circumstances to delimit the territorial seas of the two States in a
[different] way”. The delimitation of the exclusive economic zone and the continental shelf is
governed by Article 74, paragraph 1, and Article 83, paragraph 1, of the Convention,
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respectively. They establish that delimitation “shall be effected by agreement on the basis of
international law”.
The Court reiterates that maritime delimitation between States with opposite or adjacent
coasts must be effected by means of an agreement between them, and that, where such an
agreement has not been achieved, delimitation should be effected by recourse to a third party
possessing the necessary competence. Maritime delimitation cannot be effected unilaterally
by either of the States concerned.
An agreement establishing a maritime boundary is usually expressed in written form. The
Court considers, however, that the “agreement” referred to in Article 15, Article 74,
paragraph 1, and Article 83, paragraph 1, of the Convention may take other forms as well.
The essential question is whether there is a shared understanding between the States
concerned regarding their maritime boundaries.
The jurisprudence relating to acquiescence and tacit agreement may be of assistance when
examining whether there exists an agreement that is not in written form regarding the
maritime boundary between two States. In this regard, the Court recalls that acquiescence is
equivalent to tacit recognition manifested by unilateral conduct which the other party may
interpret as consent. If the circumstances are such that the conduct of the other State calls for
a response, within a reasonable period, the absence of a reaction may amount to acquiescence.
This is based on the principle qui tacet consentire videtur si loqui debuisset ac potuisset. In
determining whether a State’s conduct calls for a response from another State, it is important
to consider whether the State has consistently maintained that conduct. In evaluating the
absence of a reaction, duration may be a significant factor.
The Court observes that it has set a high threshold for proof that a maritime boundary has
been established by acquiescence or tacit agreement. It has thus emphasized that since the
establishment of a permanent maritime boundary is a matter of grave importance, evidence of
a tacit legal agreement must be compelling. Acquiescence presupposes clear and consistent
acceptance of another State’s position. To date, the Court has recognized the existence of a
tacit agreement delimiting a maritime boundary in only one case, in which the parties had
acknowledged in a binding international agreement that a maritime boundary already existed.
In the present case, the Court uses the criteria it has identified in earlier cases and examines
whether there is compelling evidence that Kenya’s claim to a maritime boundary at the
parallel of latitude was maintained consistently and, consequently, called for a response from
Somalia. It then considers whether there is compelling evidence that Somalia clearly and
consistently accepted the boundary claimed by Kenya.
In this respect, the Court notes that Somalia and Kenya present arguments regarding the
Proclamations by the President of the Republic of Kenya dated 28 February 1979 and 9 June
2005 (hereinafter the “1979 Proclamation” and the “2005 Proclamation”), Kenya’s 2009
Submission to the CLCS and their respective domestic laws. They also refer to other conduct
of the Parties in the period between 1979 and 2014. The Court examines these arguments in
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turn.
The Court observes that the 1979 and 2005 Proclamations both claim a boundary at the
parallel of latitude, but Kenya’s legislation refers to a boundary along a median or
equidistance line. Moreover, in Notes Verbales of 26 September 2007 and 4 July 2008, Kenya
requested Somalia to confirm its agreement to a boundary along the parallel of latitude, but it
has not been shown that Somalia provided such confirmation. Furthermore, Kenya’s 2009
Submission to the CLCS and a Memorandum of Understanding (hereinafter the “MOU”)
signed by the two States that same year recognize the existence of a maritime boundary
dispute between the Parties. Finally, the negotiations held between the Parties in 2014 and
Notes Verbales of Kenya in 2014 and 2015 also indicate a lack of agreement between the
Parties on their maritime boundaries. In light of the foregoing, the Court considers that Kenya
has not consistently maintained its claim that the parallel of latitude constitutes the single
maritime boundary with Somalia. It thus concludes that there is no compelling evidence that
Kenya’s claim and related conduct were consistently maintained and, consequently, called for
a response from Somalia.
The Court also considers that Somalia’s conduct between 1979 and 2014 in relation to its
maritime boundary with Kenya, in particular its alleged absence of protest against Kenya’s
claim, does not establish Somalia’s clear and consistent acceptance of a maritime boundary at
the parallel of latitude. In this regard, the Court is of the view that, contrary to what is claimed
by Kenya, it cannot be inferred from the Parties’ positions during the Third United Nations
Conference on the Law of the Sea that Somalia rejected equidistance as a possible method of
achieving an equitable solution. Moreover, there is no indication that Somalia accepted the
boundary claimed by Kenya during the bilateral negotiations held in 1980 and 1981.
Furthermore, although Somalia’s Maritime Law of 1988 refers to a boundary for the
territorial sea which follows “a straight line toward the sea from the land as indicated on the
enclosed charts”, this phrase is unclear and, without the charts mentioned, its meaning cannot
be determined. The Court also notes that the 2009 MOU, Somalia’s 2009 submission of
preliminary information to the CLCS, a letter from Somalia dated 19 August 2009 and
addressed to the Secretary-General of the United Nations, and Somalia’s 2014 objection to
the consideration by the CLCS of Kenya’s submission all mention the existence of a maritime
boundary dispute between the Parties. Finally, the Court adds that the context of the civil war
that afflicted Somalia, depriving it of a fully operational government and administration
between 1991 and 2005, must be taken into account in evaluating the extent to which it was in
a position to react to Kenya’s claim during this period.
In addition, the Court examines other conduct of the Parties between 1979 and 2014
concerning naval patrols, fisheries, marine scientific research and oil concessions, and
considers that it does not confirm that Somalia has clearly and consistently accepted a
boundary at the parallel of latitude.
In conclusion on this question, the Court finds that there is no compelling evidence that
Somalia has acquiesced to the maritime boundary claimed by Kenya and that, consequently,
there is no agreed maritime boundary between the Parties at the parallel of latitude. It
therefore rejects Kenya’s claim in this respect.
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IV. MARITIME DELIMITATION (PARAS. 90-197)
In view of this conclusion, the Court turns to the delimitation of the maritime areas
appertaining to Somalia and Kenya.
A. Applicable law (para. 92)
The Court first recalls that both Somalia and Kenya are parties to UNCLOS, and the
provisions of the Convention must therefore be applied in determining the course of the
maritime boundary between the two States.
B. Starting-point of the maritime boundary (paras. 93-98)
The Court notes that although the Parties initially proffered divergent views on the
appropriate approach to defining the starting-point of the maritime boundary, those views
evolved in the course of the proceedings and are now by and large concordant. Taking into
account the views of the Parties, the Court considers that the starting-point of the maritime
boundary is to be determined by connecting the final permanent boundary beacon, known as
Primary Beacon No. 29, or “PB 29”, to a point on the low-water line by a straight line that
runs in a south-easterly direction and that is perpendicular to “the general trend of the
coastline at Dar Es Salam” in accordance with the terms of the 1927/1933 treaty arrangement.
C. Delimitation of the territorial sea (paras. 99-118)
The Court then turns to the delimitation of the territorial sea. It notes that Somalia submits
that this delimitation is to be effected pursuant to Article 15 of the Convention, whereas
Kenya maintains that the maritime boundary in the territorial sea already exists at the parallel
of latitude. The Court recalls that it has already concluded that no such boundary was agreed
between the Parties. It also observes that Kenya, in its Counter-Memorial, referred to the
1927/1933 treaty arrangement and stated that it “provided for the establishment of [a]
boundary of the territorial sea”. The Court notes, however, that neither Party asks it to
confirm the existence of any segment of a maritime boundary or to delimit the boundary in
the territorial sea on the basis of the 1927/1933 treaty arrangement. It recalls that in their
legislation concerning the territorial sea neither Party has referred to the terms of the
1927/1933 treaty arrangement to indicate the extent of the territorial sea in relation to its
adjacent neighbour.
The Court further notes that the agenda of the meeting between Somalia and Kenya, held on
26 and 27 March 2014, to discuss the maritime boundary between the two countries, covered
all maritime zones, including the territorial sea, and that, in a presentation attached to the
report on that meeting, Kenya referred to Articles 15, 74 and 83 of the Convention as relevant
to maritime delimitation, emphasizing that Article 15 provides for delimitation through a
“[m]edian line for [the] territorial sea unless there is an agreement to the contrary based on [a]
claim by historical title and or special circumstances”. In light of the above, the Court
considers it unnecessary to decide whether the 1927/1933 treaty arrangement had as an
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objective the delimitation of the boundary in the territorial sea.
The Court recalls that the delimitation methodology is based on the geography of the coasts of
the two States concerned, and that a median or equidistance line is constructed using base
points appropriate to that geography. It explains that, although in the identification of base
points the Court will have regard to the proposals of the parties, it need not select a particular
base point, even if the parties are in agreement in that respect, if it does not consider that base
point to be appropriate. It may select a base point that neither party has proposed. The Court
further recalls that it has sometimes been led to eliminate the disproportionate effect of small
islands by not selecting a base point on such small maritime features. As the Court has stated
in the past, there may be situations in which the equitableness of an equidistance line depends
on the precaution taken to eliminate the disproportionate effect of certain islets, rocks and
minor coastal projections.
In the circumstances of the present case, the Court considers it appropriate to place base
points for the construction of the median line solely on solid land on the mainland coasts of
the Parties. It does not consider it appropriate to place base points on the tiny arid Diua
Damasciaca islets, which would have a disproportionate impact on the course of the median
line in comparison to the size of these features. For similar reasons, nor does the Court
consider it appropriate to select a base point on a low-tide elevation off the southern tip of Ras
Kaambooni, which is a minor protuberance in Somalia’s otherwise relatively straight
coastline in the vicinity of the land boundary terminus, which constitutes the starting-point for
the maritime delimitation.
The Court then gives the geographic co-ordinates of the base points that it places on the
Parties’ coasts for the construction of the median line. The resulting line starts from the land
boundary terminus and continues out to the point (Point A) at a distance of 12 nautical miles
from the coast. That median line is depicted on sketch-map No. 5 (reproduced in Annex 2).
The Court observes that the course of the median line corresponds closely to that of a line “at
right angles to the general trend of the coastline”, assuming that the 1927/1933 treaty
arrangement, in using this phrase, had as an objective to draw a line that continues into the
territorial sea, a question that the Court need not decide.
D. Delimitation of the exclusive economic zone and the continental shelf within 200
nautical miles (paras. 119-177)
1. Delimitation methodology (paras. 119-131)
The Court then proceeds to the delimitation of the exclusive economic zone and the
continental shelf within 200 nautical miles from the coasts of the Parties, noting that the
relevant provisions of the Convention for this exercise are contained in Article 74 of
UNCLOS for the delimitation of the exclusive economic zone and Article 83 for the
delimitation of the continental shelf. It observes that those provisions are of a very general
nature and do not provide much by way of guidance for those involved in the maritime
delimitation exercise. The goal of that exercise is to achieve an equitable solution. If two
States have freely agreed on a maritime boundary, they are deemed to have achieved such an
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equitable solution. However, if they fail to reach an agreement on their maritime boundary
and the matter is submitted to the Court, it is the task of the Court to find an equitable solution
in the maritime delimitation it has been requested to effect.
The Court recalls that, since the adoption of the Convention, it has gradually developed a
maritime delimitation methodology to assist it in carrying out its task. In determining the
maritime delimitation line, the Court proceeds in three stages, which it described in the case
concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine). In the first stage,
the Court will establish the provisional equidistance line from the most appropriate base
points on the parties’ coasts. In the second, the Court will consider whether there are factors
calling for the adjustment or shifting of the provisional equidistance line in order to achieve
an equitable result. In the third and final stage, the Court will subject the envisaged
delimitation line, either the equidistance line or the adjusted line, to the disproportionality
test. The purpose of this test is to assure the Court that there is no marked disproportion
between the ratio of the lengths of the parties’ relevant coasts and the ratio of the parties’
respective shares in the relevant area to be delimited by the envisaged line, and thus to
confirm that the delimitation achieves an equitable solution as required by the Convention.
The Court observes that the three-stage methodology is not prescribed by UNCLOS and
therefore is not mandatory. It has been developed by the Court in its jurisprudence on
maritime delimitation as part of its effort to arrive at an equitable solution, as required by
Articles 74 and 83 of the Convention. The methodology is based on objective, geographical
criteria, while at the same time taking into account any relevant circumstances bearing on the
equitableness of the maritime boundary. It has brought predictability to the process of
maritime delimitation and has been applied by the Court in a number of past cases. The threestage methodology for maritime delimitation has also been used by international tribunals.
The Court will nonetheless abstain from using the three-stage methodology if there are factors
which make the application of the equidistance method inappropriate, for instance if the
construction of an equidistance line from the coasts is not feasible. This is not the case in the
present circumstances, however, where such a line can be constructed.
Moreover, the Court does not consider that the use of the parallel of latitude is the appropriate
methodology to achieve an equitable solution, as suggested by Kenya. A boundary along the
parallel of latitude would produce a severe cut-off effect on the maritime projections of the
southernmost coast of Somalia.
The Court therefore sees no reason in the present case to depart from its usual practice of
using the three-stage methodology to establish the maritime boundary between Somalia and
Kenya in the exclusive economic zone and on the continental shelf.
2. Relevant coasts and relevant area (paras. 132-141)
(a) Relevant coasts (paras. 132-137)
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The Court begins by identifying the relevant coasts of the Parties, namely those coasts whose
projections overlap. It states that, using radial projections which overlap within 200 nautical
miles, it has identified that the relevant coast of Somalia extends for approximately 733 km
and that of Kenya for approximately 511 km.
(b) Relevant area (paras. 138-141)
The Court notes that the Parties disagree as to the identification of the relevant area. It recalls
that it has explained on a number of occasions that the relevant area comprises that part of the
maritime space in which the potential entitlements of the parties overlap. The Court also
recalls its observation that the relevant area cannot extend beyond the area in which the
entitlements of both parties overlap. In the present case, the Court is of the view that, in the
north, the relevant area extends as far as the overlap of the maritime projections of the coast
of Kenya and the coast of Somalia. The Court considers it appropriate to use the overlap of
the 200-nautical-mile radial projections from the land boundary terminus. As far as the
southern limit of the relevant area is concerned, the Court notes that the Parties agree that the
maritime space south of the boundary between Kenya and Tanzania is not part of the relevant
area. The relevant area, as identified by the Court for the purpose of delimiting the exclusive
economic zone and the continental shelf up to 200 nautical miles from the coasts, measures
approximately 212,844 sq km.
3. Provisional equidistance line (paras. 142-146)
The Court next constructs the provisional equidistance line. It identifies the appropriate base
points for the construction of this line within 200 nautical miles of the coasts. The provisional
equidistance line constructed on the basis of these base points begins from the endpoint of the
maritime boundary in the territorial sea (Point A) and continues until it reaches 200 nautical
miles from the starting-point of the maritime boundary, at a point (Point 10′) the co-ordinates
of which are given in the Judgment. The line thus obtained is depicted on sketch-map No. 9
(reproduced in Annex 2).
4. Whether there is a need to adjust the provisional equidistance line (paras. 147-174)
The Court considers whether there are factors requiring the adjustment or shifting of the
provisional equidistance line in order to achieve an equitable solution. It recalls that Kenya
perceives the provisional equidistance line as inequitable while Somalia sees no plausible
reason for adjusting the line and believes that it would constitute an equitable boundary.
The Court notes that Kenya, by invoking various factors which it considers relevant
circumstances in the context of this case, has consistently sought a maritime boundary that
would follow the parallel of latitude. The Court has already concluded that no maritime
boundary between Somalia and Kenya following the parallel of latitude was established in the
past. Nor has the Court accepted the methodology based on the parallel of latitude for
establishing the maritime boundary between the Parties as advocated by Kenya. Kenya would
now like to achieve the same result by a major shifting of the provisional equidistance line,
changing its south-easterly direction to an exclusively easterly direction. The Court considers
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that such a shifting of the provisional equidistance line, as argued for by Kenya, would
represent a radical adjustment while clearly not achieving an equitable solution. It would
severely curtail Somalia’s entitlements to the continental shelf and the exclusive economic
zone generated by its coast adjacent to that of Kenya. A line thus adjusted would not allow
the Parties’ coasts to produce their effects in terms of maritime entitlements in a reasonable
and mutually balanced way.
The Court begins by considering those factors, relied on by Kenya, which are nongeographical in nature. First, as far as Kenya’s security interests are concerned, the Court
observes that boundaries between States, including maritime boundaries, are aimed at
providing permanency and stability. This being so, the Court believes that the current security
situation in Somalia and in the maritime spaces adjacent to its coast is not of a permanent
nature. The Court is therefore of the view that the current security situation does not justify
the adjustment of the provisional equidistance line. Moreover, the Court recalls its statement
in a previous case that legitimate security considerations may be a relevant circumstance if a
maritime delimitation was effected particularly near to the coast of a State. This is not the
case here, as the provisional equidistance line does not pass near the coast of Kenya.
The Court also recalls that control over the exclusive economic zone and the continental shelf
is not normally associated with security considerations and does not affect rights of
navigation.
Access for Kenya’s fisherfolk to natural resources is another factor which Kenya brought to
the attention of the Court when arguing for the adjustment of the line. The Court explains that
such a factor can be taken into account as a relevant circumstance in exceptional cases, in
particular if the line would likely entail catastrophic repercussions for the livelihood and
economic well-being of the population of the countries concerned. On the basis of the
evidence before it, the Court is not convinced that the provisional equidistance line would
entail such harsh consequences for the population of Kenya in the present case. Moreover, the
Court has to consider the well-being of the populations on both sides of the delimitation line.
In light of the foregoing, the Court cannot accept Kenya’s argument that the provisional
equidistance line would deny Kenya equitable access to fisheries resources that are vital to its
population.
The Court then turns to another argument put forward by Kenya. It contends that the evidence
of the Parties’ long-standing and consistent conduct in relation to oil concessions, naval
patrols, fishing and other activities reflects the existence of “a de facto maritime boundary”
along the parallel of latitude which calls for the adjustment of the provisional equidistance
line. However, the Court recalls that it has already concluded that no maritime boundary
along the parallel of latitude has been agreed by the Parties. There is no de facto maritime
boundary between Somalia and Kenya. The Court therefore cannot accept Kenya’s argument
that, on the basis of the conduct of the Parties, the provisional equidistance line has to be
adjusted so that it coincides with the alleged de facto maritime boundary.
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Finally, the Court considers the two remaining arguments which, according to Kenya, call for
the adjustment of the provisional equidistance line. Kenya submits that the application of an
equidistance line would produce a significant cut-off effect with respect to its maritime areas,
and that the regional context and practice require the provisional equidistance line to be
adjusted.
The Court recalls that both the ICJ itself and international tribunals have acknowledged that
the use of an equidistance line can produce a cut-off effect, particularly where the coastline is
characterized by concavity, and that an adjustment of that line might be necessary in order to
reach an equitable solution. Nevertheless, it considers that any cut-off effect as a result of the
Kenya-Tanzania maritime boundary is not a relevant circumstance. The agreements between
Kenya and Tanzania are res inter alios acta and cannot per se affect the maritime boundary
between Kenya and Somalia. However, the issue to be considered in the present case is
whether the use of an equidistance line produces a cut-off effect for Kenya, not as a result of
the agreed boundary between Kenya and Tanzania, but as a result of the configuration of the
coastline.
The Court observes that if the examination of the coastline is limited only to the coasts of
Kenya and Somalia, any concavity is not conspicuous. However, examining only the
coastlines of the two States concerned to assess the extent of any cut-off effect resulting from
the geographical configuration of the coastline may be an overly narrow approach. Examining
the concavity of the coastline in a broader geographical configuration is consistent with the
approach taken by this Court and international tribunals. In this regard, the Court refers, in
particular, to the two North Sea Continental Shelf cases and the Bangladesh/Myanmar and
Bangladesh v. India cases, before stating that, in the present case, the potential cut-off of
Kenya’s maritime entitlements should be assessed in a broader geographical configuration. In
the Court’s view, the potential cut-off of Kenya’s maritime entitlements cannot be properly
observed by examining the coasts of Kenya and Somalia in isolation. When the mainland
coasts of Somalia, Kenya and Tanzania are observed together, as a whole, the coastline is
undoubtedly concave. Kenya faces a cut-off of its maritime entitlements as the middle State
located between Somalia and Tanzania. The presence of Pemba Island, a large and populated
island that appertains to Tanzania, accentuates this cut-off effect because of its influence on
the course of a hypothetical equidistance line between Kenya and Tanzania. The provisional
equidistance line between Somalia and Kenya progressively narrows the coastal projection of
Kenya, substantially reducing its maritime entitlements within 200 nautical miles. This cut-off
effect occurs as a result of the configuration of the coastline extending from Somalia to
Tanzania, independently of the boundary line agreed between Kenya and Tanzania, which in
fact mitigates that effect in the south, in the exclusive economic zone and on the continental
shelf up to 200 nautical miles.
The Court recalls its jurisprudence and that of international tribunals according to which an
adjustment of the provisional equidistance line is warranted if the cut-off effect is “serious” or
“significant”. In the Court’s view, even though the cut-off effect in the present case is less
pronounced than in some other cases, it is nonetheless still serious enough to warrant some
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adjustment to address the substantial narrowing of Kenya’s potential entitlements. In order to
attenuate this cut-off effect, the Court considers it reasonable to adjust the provisional
equidistance line. In view of these considerations, the Court believes that it is necessary to
shift the line to the north so that, from Point A, it follows a geodetic line with an initial
azimuth of 114o. This line would attenuate in a reasonable and mutually balanced way the
cut-off effect produced by the unadjusted equidistance line due to the geographical
configuration of the coasts of Somalia, Kenya and Tanzania. The resulting line would end at
its intersection with the 200-nautical-mile limit from the coast of Kenya, at a point (Point B)
the co-ordinates of which are given in the Judgment. The line thus adjusted is depicted on
sketch-map No. 11 (reproduced in Annex 2).
5. Disproportionality test (paras. 175-177)
In the final stage, the Court checks whether the envisaged delimitation line leads to a
significant disproportionality between the ratio of the lengths of the Parties’ respective
relevant coasts and the ratio of the size of the relevant areas apportioned by that line. The
Court recalls that the relevant coast of Somalia is 733 km long, and that of Kenya, 511 km
long. The ratio of the relevant coasts is 1:1.43 in favour of Somalia. The maritime boundary
determined by the Court divides the relevant area within 200 nautical miles of the coast in
such a way that approximately 120,455 sqkm would appertain to Kenya and the remaining
part, measuring approximately 92,389 sq km, would appertain to Somalia. The ratio between
the maritime zones that would appertain respectively to Kenya and Somalia is 1:1.30 in
favour of Kenya. A comparison of these two ratios does not reveal any significant or marked
disproportionality. The Court is thus satisfied that the adjusted line that it has established as
the maritime boundary for the exclusive economic zones and the continental shelves of
Somalia and Kenya within 200 nautical miles in the Indian Ocean achieves an equitable
solution as required by Article 74, paragraph 1, and Article 83, paragraph 1, of the
Convention.
E. Question of the delimitation of the continental shelf beyond 200 nautical miles (paras.
178-197)
The Court turns finally to the question of the delimitation of the continental shelf beyond 200
nautical miles. It first recalls that both Parties have asked the Court to determine the complete
course of the maritime boundary between them, including the continental shelf beyond 200
nautical miles. The Court also recalls that any claim of continental shelf rights beyond 200
miles by a State party to UNCLOS must be in accordance with Article 76 of the Convention
and reviewed by the Commission on the Limits of the Continental Shelf established
thereunder.
The Court observes that both States have made submissions on the limits of the continental
shelf beyond 200 nautical miles to the Commission in accordance with Article 76, paragraph
8, of UNCLOS. The Court notes that both Somalia and Kenya have fulfilled their obligations
under Article 76 of the Convention. At the same time, the Commission has yet to consider
these submissions and make any recommendations to Somalia and to Kenya on matters
related to the establishment of the outer limits of their continental shelves. It is only after such
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recommendations are made that Somalia and Kenya can establish final and binding outer
limits of their continental shelves, in accordance with Article 76, paragraph 8, of UNCLOS.
The Court emphasizes that the lack of delineation of the outer limit of the continental shelf is
not, in and of itself, an impediment to its delimitation between two States with adjacent
coasts, as is the case here. The exercise by international courts and tribunals of their
jurisdiction regarding the delimitation of maritime boundaries, including that of the
continental shelf, is without prejudice to the exercise by the Commission of its functions on
matters related to the delineation of the outer limits of the continental shelf.
The Court observes that the Parties’ entitlements to the continental shelf beyond 200 nautical
miles are to be determined by reference to the outer edge of the continental margin, to be
ascertained in accordance with Article 76, paragraphs 4 and 5, of UNCLOS. The entitlement
of a State to the continental shelf beyond 200 nautical miles thus depends on geological and
geomorphological criteria, subject to the constraints set out in Article 76, paragraph 5. An
essential step in any delimitation is to determine whether there are entitlements, and whether
they overlap. The situation in the present case is not the same as that addressed by the
International Tribunal for the Law of the Sea in the Bangladesh/Myanmar case. In that case,
the unique situation in the Bay of Bengal and the negotiation record at the Third United
Nations Conference on the Law of the Sea, which threw a particular light upon the parties’
contentions on the subject, were sufficient to enable the Tribunal to proceed with the
delimitation of the area beyond 200 nautical miles.
The Court notes that in their submissions to the Commission both Somalia and Kenya claim
on the basis of scientific evidence a continental shelf beyond 200 nautical miles, and that their
claims overlap. In most of the area of overlapping claims beyond 200 nautical miles, both
Parties claim that their continental shelf extends to a maximum distance of 350 nautical miles.
The Court further notes that neither Party questions the existence of the other Party’s
entitlement to a continental shelf beyond 200 nautical miles or the extent of that claim. Their
dispute concerns the boundary delimiting that shelf between them. Both Parties in their
submissions — Somalia in those presented at the close of the hearings and Kenya in its
Rejoinder — request the Court to delimit the maritime boundary between them in the Indian
Ocean up to the outer limit of the continental shelf. For the reasons set out above, the Court
proceeds to do so.
As regards the relevant circumstances invoked by Kenya for the adjustment of the provisional
equidistance line, the Court observes that it has already considered them earlier and adjusted
the line accordingly in the exclusive economic zone and on the continental shelf up to 200
nautical miles. It recalls that both Somalia and Kenya have claimed a continental shelf
extending up to 350 nautical miles in the greater part of the area of overlapping claims. In
view of the foregoing, the Court considers it appropriate to extend the geodetic line used for
the delimitation of the exclusive economic zone and the continental shelf within 200 nautical
miles to delimit the continental shelf beyond 200 nautical miles.
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The Court therefore concludes that the maritime boundary beyond 200 nautical miles
continues along the same geodetic line as the adjusted line within 200 nautical miles until it
reaches the outer limits of the Parties’ continental shelves, which are to be delineated by
Somalia and Kenya, respectively, on the basis of the recommendations to be made by the
Commission, or until it reaches the area where the rights of third States may be affected. The
direction of that line is depicted on sketch-map No. 12 (reproduced in Annex 2).
The Court adds that, depending on the extent of Kenya’s entitlement to a continental shelf
beyond 200 nautical miles as it may be established in the future on the basis of the
Commission’s recommendation, the delimitation line might give rise to an area of limited size
located beyond 200 nautical miles from the coast of Kenya and within 200 nautical miles
from the coast of Somalia, but on the Kenyan side of the delimitation line (“grey area”). This
possible grey area is depicted on sketch-map No. 12. Since the existence of this “grey area” is
only a possibility, the Court does not consider it necessary, in the circumstances of the present
case, to pronounce itself on the legal régime that would be applicable in that area. The
complete course of the maritime boundary is depicted on sketch-map No. 13 (reproduced in
Annex 2).
V. ALLEGED VIOLATIONS BY KENYA OF ITS INTERNATIONAL
OBLIGATIONS (PARAS. 198-213)
The Court first examines the Applicant’s argument that, by its unilateral actions in the
disputed area, Kenya has violated Somalia’s sovereignty over the territorial sea and its
sovereign rights and jurisdiction in the exclusive economic zone and on the continental shelf.
The Court recalls that Somalia’s submission was made in the context of proceedings
regarding a maritime boundary which had never before been settled, and that the present
Judgment has the effect of fixing the maritime boundary between the Parties. The Court
considers that when maritime claims of States overlap, maritime activities undertaken by a
State in an area which is subsequently attributed to another State by a judgment cannot be
considered to be in violation of the sovereign rights of the latter if those activities were
carried out before the judgment was delivered and if the area concerned was the subject of
claims made in good faith by both States. Somalia complains of surveying and drilling
activities conducted or authorized by Kenya in areas located entirely or partially north of the
equidistance line claimed by Somalia as the maritime boundary.
There is no evidence that Kenya’s claims over the zone concerned were not made in good
faith. Under the circumstances, the Court concludes that it has not been established that
Kenya’s maritime activities, including those that may have been conducted in parts of the
disputed area that have now been attributed to Somalia, were in violation of Somalia’s
sovereignty or its sovereign rights and jurisdiction.
The Court then turns to the Applicant’s argument that Kenya’s activities were in violation of
Article 74, paragraph 3, and Article 83, paragraph 3, of UNCLOS. Under these provisions,
States with opposite or adjacent coasts that have not reached an agreement on the delimitation
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of the exclusive economic zone or continental shelf are under an obligation to “make every
effort . . . during this transitional period, not to jeopardize or hamper the reaching of the final
agreement”. The Court considers that the “transitional period” mentioned in these provisions
refers to the period from the moment the maritime delimitation dispute has been established
until a final delimitation by agreement or adjudication has been achieved. The Court recalls
that it is of the view that a maritime delimitation dispute between the Parties has been
established since 2009. Accordingly, the Court only examines whether the activities
conducted by Kenya after 2009 jeopardized or hampered the reaching of a final agreement on
the delimitation of the maritime boundary.
The Court observes that Somalia complains of certain activities, including the award of oil
concession blocks to private operators and the performance of seismic and other surveys in
those blocks, which are of a transitory character. In the Court’s view, these activities are not
of the kind that could lead to permanent physical change in the marine environment, and it
has not been established that they had the effect of jeopardizing or hampering the reaching of
a final agreement on the delimitation of the maritime boundary. Somalia also complains of
certain drilling activities which are of the kind that could lead to permanent physical change
in the marine environment. Such activities may alter the status quo between the parties to a
maritime dispute and could jeopardize or hamper the reaching of a final agreement. However,
the Court is of the opinion that, on the basis of the evidence before it, it is not in a position to
determine with sufficient certainty that drilling operations that could have led to permanent
physical change in the disputed area took place after 2009. The Court further notes that, in
2014, the Parties engaged in negotiations on maritime delimitation and that, in 2016, Kenya
suspended its activities in the disputed area and offered to enter into provisional arrangements
with Somalia. In light of these circumstances, the Court cannot conclude that the activities
carried out by Kenya in the disputed area jeopardized or hampered the reaching of a final
agreement on the delimitation of the maritime boundary, in violation of Article 74, paragraph
3, or Article 83, paragraph 3, of UNCLOS.
For these reasons, the Court finds that Kenya has not violated its international obligations
through its maritime activities in the disputed area. Since Kenya’s international responsibility
is not engaged, the Court need not examine Somalia’s request for reparation. Somalia’s
submission must therefore be rejected.
