Somalia v. Kenya: the sea border case at the International Court of Justice

What was the case about?

Somalia and Kenya disagreed about where their border runs out to sea, starting from the coast near Ras Kamboni. The area both countries claimed was about 160,580 square kilometres of ocean (Anadolu Agency, 19 Mar 2021). It includes blocks Kenya had offered for oil and gas exploration.

• Somalia's claim: a line running south-east, roughly continuing the direction of the land border (the equidistance method).
• Kenya's claim: a line running straight east, along the parallel of latitude. Kenya said Somalia had accepted this line for more than 35 years (Anadolu Agency, 19 Mar 2021).

How did the case unfold?

From the ICJ case record (ICJ, case 161):

• 28 August 2014: Somalia files its application against Kenya.
• 7 October 2015: Kenya objects that the Court has no jurisdiction and that the two countries had agreed to negotiate.
• 2 February 2017: the Court rejects Kenya's objections and decides to hear the case (ICJ, Judgment on preliminary objections).
• 2019 to 2021: hearings set for September 2019 are postponed to November 2019, June 2020 and March 2021, at Kenya's request and then because of COVID-19.
• 15 to 18 March 2021: hearings held in hybrid form. Kenya does not take part. It told the Court three days before that it would stay away, because its request for another delay was refused (ASIL Insights, vol. 25, issue 25).
• 24 September 2021: Kenya withdraws its declaration accepting the Court's compulsory jurisdiction (International Legal Materials, Cambridge).
• 12 October 2021: the Court gives judgment on the merits (ICJ, Judgment of 12 Oct 2021).

What did the Court decide?

From the judgment and the ASIL summary (ICJ judgment; ASIL Insights):

1. No agreed border. The Court found that Somalia had not accepted Kenya's line along the parallel of latitude. So it had to draw the border itself.
2. Territorial sea (to 12 nautical miles). A median line, using points on the two mainland coasts and leaving out small islets.
3. Economic zone and continental shelf (to 200 nautical miles). The Court drew an equidistance line, then moved it north to a bearing of 114 degrees from a point called Point A. It said the straight line would cut off Kenya's maritime area because of the inward curve of the coast from Somalia to Tanzania, an effect made stronger by Tanzania's Pemba Island. The line ends where it meets Kenya's 200-mile limit, at Point B, 3° 4′ 21.3″ S, 44° 35′ 30.7″ E (ICJ judgment). The vote was 10 to 4. Judges Abraham, Yusuf, Bhandari and Salam voted against (same source).
4. Beyond 200 nautical miles. The same line continues to the outer edge of the continental shelf. The vote was 9 to 5. Judge Robinson joined the four judges named above in voting against this part only (same source).
5. Somalia's claim against Kenya. Somalia complained of surveying and drilling that Kenya carried out or authorised in the Lamu Basin, including offshore oil concession blocks L-5, L-13, L-21, L-22, L-23, L-24 and L-26. The Court unanimously rejected Somalia's claim that Kenya's activities in the disputed area broke international law and that Kenya owed reparation (ICJ, Judgment, operative clause).

Who gained what?

The ASIL authors, three maritime boundary specialists, estimate (ASIL Insights):

• The area both sides claimed was split about 77 to 23 in Somalia's favour.
• Kenya still kept about 64 percent of the jurisdiction it had claimed.
• About 75 percent of Kenya's three offshore oil and gas blocks in the area fall on the Somali side.

The same authors argue the territorial sea line runs nearly 13 nautical miles, past the 12-mile limit. They also note the ruling is final and cannot be appealed (same source).

How did each country respond?

• Kenya: President Uhuru Kenyatta rejected the ruling "in totality" and said Kenya did not recognise its findings, arguing that international courts have jurisdiction only as far as a state consents (Garowe Online, Oct 2021). He called the decision "zero-sum" and said the matter must be negotiated (Nation, Oct 2021). Kenya's foreign ministry also said it did not recognise the judgment (BBC News, 12 Oct 2021).
• Somalia: President Mohamed Abdullahi Farmaajo welcomed the ruling, thanked the Court for upholding the rule of law and asked Kenya to respect it (VOA, Oct 2021; The Star, 13 Oct 2021).

Two legal scholars later studied how Kenya's withdrawal from the Court's compulsory jurisdiction affects future cases (Benatar and Schatz, Portuguese Yearbook of the Law of the Sea, 2024). A technical study rebuilt the line point by point (Bekker, Schofield and van de Poll, International Journal of Marine and Coastal Law, 2022).

Related pages

• Kenya and Somalia: Somalis in Kenya
• Fishing and the sea
• Oil and gas