Very recently, the ICJ has delivered its Judgment in the long standing maritime border dispute between Kenya and Somalia, over the oil and gas rich triangular territory in the Indian Ocean. Largely, the ruling was delivered in favour of Somalia (Ref. ICJ MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA v. KENYA delivered October 12, 2021) It is interesting to note that in unfolding events, Kenya has refused to recognise the ICJ’s jurisdiction/Judgment and considering that the ICJ has no means to enforce its rulings, further dispute settlement processes may have to be explored to curtail rising frictions between the two States. Indeed, it is possible that the matter might be elevated to the level of the UN Security Council, as the rising of tensions could lead to possible warfare, as has been seen in other instances, with the example of the not too distant past United Kingdom – Argentina (Falklands) War.
In effect, the ICJ has not succeeded in its objective of resolving the Somalia-Kenya maritime dispute. Therefore, the question which comes to mind, is what next?
As already indicated, one option would be to elevate the dispute to the level of the Security Council, in order to pre-empt the two States from exercising their sovereignty rights to the extremes of war.
Another possible option could be mediation. In June 2012, the United Nations issued its ‘Guidance for Effective Mediation’, which was intended as an Annex to the Secretary-General’s Report entitled, Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution’. With the effluxion of time, these Guidelines may need to be updated. In this regard, it is worth noting that a number of international bodies, within the dispute resolution space, are working on proposals towards enhancing/improving resolution of State disputes by mediation. Some examples include the ongoing discussions by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III on strengthening the use of mediation in Investor State Dispute Settlement (ISDS) and also the International Council for State Investor Dispute (ICSID)’s Annual Report 2021, which makes a general note of “the focus placed by the international community on mediation as a tool to settle international disputes …”, (albeit within the specific realm of investor state disputes). Therefore, in a similar vein, state to state mediation processes also need to be enhanced by the international community, as a follow up action where difficult issues arise with the implementation of ICJ judgments.
It goes without saying that, with the ICJ being the apex court of dispute resolution in the international system, the rendering of the ICJ Judgment in the Somalia-Kenya maritime dispute may have concluded that process of dispute resolution but undoubtedly, it has not resolved the long standing 40-year maritime dispute. In this writer’s opinion, it is pertinent that state to state enhanced mediation processes are developed by the international community, as a plausible way forward.
© 27/9/2021 Ellen Bannerman-Quist FCIArb
This Blog is for general information only and not intended for the use of readers to rely upon as legal advice. Therefore, readers with specific issues relating to the subject matter are advised to contact Bannerman-Quist Legal Consult& Notary directly for any relevant legal advice.