Kenya says the ICJ has no jurisdiction in Somalia sea dispute case

Kenya says the ICJ has no jurisdiction in Somalia sea dispute case

Geza Ulole

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Kenya says the ICJ has no jurisdiction in Somalia sea dispute case


In a case filed by Somalia over the contended potentially oil-rich seabed off the country and neighbour, Kenya’s Indian Ocean coasts, the latter has dismissed the role of the International Court of Justice in deciding the case.

Somalia launched a case with the United Nations’ highest judicial organ in 2014 asking it to rule on the maritime border between the east African states, saying that diplomatic efforts to resolve the disputed boundary had failed.

Somalia wants the court to demarcate the maritime boundary, and to determine the exact geographical coordinates as an extension of its southeastern land borders. Kenya, on the other hand, wants the border to run in parallel along the line of latitude on its eastern border.

Kenya says Somalia jumped the gun when it filed a case before the International Court of Justice though it had signed an agreement to resolve the matter through diplomatic channels.

During the preliminary hearing on Monday, Kenya argued that the world court has no jurisdiction because there are two other methods for resolving the dispute — a 2009 memorandum of understanding between the two countries and a United Nations maritime treaty. Lawyer Payam Akhavan, representing Kenya, told the court that “basic principles of treaty interpretation” mean that “this dispute falls outside its jurisdiction.”

In 2009, Kenya and Somalia reached the deal, which was then deposited to the UN in 2011.

The agreement had stated that the border would run east along the line of latitude although further negotiations were to be held through the UN Commission on the Limits of Continental Shelf (CLCS).

This hearing in The Hague will either result in dismissal of the case or a resolution.

The court’s decision will be final, and both countries will be expected to adhere to the verdict. If dismissed, the original 2009 agreement holds, and the two nations will have to resolve the issue through regional diplomatic means.

Kenya says the ICJ has no jurisdiction in Somalia sea dispute case


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MY TAKE
Hapa vipi? wale wa kudai Mt Kilimanjaro? If Somalia is to win this case Kenya has to forget about the Chinese silk road passing through Mombasa or Lamu! meaning LAPSSET is official dead before even kicking off! Just saying...!🙁


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If Somalia is to win the Kenyan maritime economic zone will look this way, cha ajabu mmeanza kukimbia huko ICJ!

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Meaning over 38000 sq km will be under Somalia mandate

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Somalia has this map to back up their claims
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And this map
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Meanwhile in Tanzania the exploration oil and gas blocks map looks this way

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While those that claim Mt Kilimanjaro exploration oil and gas maps will look this way
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Kenya wakishinda, Tz itabidi nasi tudai wakenya kipande cha bahari kama vile wao wamechukua from Somalia. I think it'll be fair.
 
Following the same logic Pemba siyo Tanzania. Afadhali " wakorofi" hawa hawatufai. Pemba oyee.
 
Kama Somalia wanataka mpaka unyooshwe, kwanini wasipiganie kunyooshwa kwa mpaka tangu ulipoanzia Kule Mandera ili mikoa/majimbo ya Bardere, Jumaame na Kismayo iwe upandw Wa Kenya.
Maana kama ni kupinda, huo mpaka umeanzia huko.
Au wapo kimya kwa kuwa inawanufaisha wao?
 
The thing most of you including geza dont understand is that if the outcome favours somalia other similar cases will be opened africa wide and tanzania will suffer too

http://m.dw.com/en/kenya-or-somalia...h+africa&client=ms-opera-mini-android&tbm=nws

View attachment 404144View attachment 404145

A waapi endeleeni kujidanganya! The basis of argument is how Kenya was created is different from how Tanzania came to existence from Tanganyika! Aside Unguja and Pemba Islands that were under Sultanate government and joined Tanganyika, Rwanda and Burundi were curved out from Deutsch Ostafrika therefore there is no basis whatsoever for Kenya to claim the maritime boundary between her and Tanzania! BTW it shocks me to see how Kenya deceivingly changed the Somalia map that at independence in 1960 the border went straight and that is actually what Somalian government is fighting for they have valid argument.

The truth remains the North Eastern province did a referendum just before Kenya Independence and voted to join Somalia and Jomo Kenyatta used force to incorporate them in Kenya! The reason u had Shifta war! Only mjinga wa Kikenya anaweza kudhani her Southern boundary with Tanzania can change just because Somalia won the case! I am pretty much against any territorial theft and for this case i believe Somalia has a valid argument!


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Kama Somalia wanataka mpaka unyooshwe, kwanini wasipiganie kunyooshwa kwa mpaka tangu ulipoanzia Kule Mandera ili mikoa/majimbo ya Bardere, Jumaame na Kismayo iwe upandw Wa Kenya.
Maana kama ni kupinda, huo mpaka umeanzia huko.
Au wapo kimya kwa kuwa inawanufaisha wao?
The thing is the African map of today is derived from the maps we inherited during the Indeopendence. And ukweli (brutal truth) is that boundary did not look the way it looks today! Kenya stole over 38,000 sq km!
 
it is untrue that ICJ decision is final... it is only final and binding if both parties agree and sign..... ICJ is just like ICC , it does not have power to enforce anything.....
if one party does not agree then their decision is just a document..... it cannot impact its will on a sovereign nation just like that, if ICJ had that kind of power, western countries would have been all over it trying to influence how countries are shaped...... problems with ukraine,palestine, india/pakistan, south china sea expantion would have been dealth with long time ago
 
if the northern border seawise goes according to the land border it goes without saying that the next case will be filed by Kenya asking for the same treatment on the southern border.
 
if the northern border seawise goes according to the land border it goes without saying that the next case will be filed by Kenya asking for the same treatment on the southern border.
hahah toa ramani inayoonyesha Kenya's southern border has ever been straight! Somalia have this map! Sorry majirani ile project ya LAPSSET is no more loan worthy!

kharidad3.jpg
 
The ICJ and the Security Council
The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992, in the Pan Am case. The Court had to consider an application from Libya for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the UK and United States. The problem was that these sanctions had been authorised by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, could no longer be upheld since the action was justified by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations.
There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case (Jurisdiction) that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favour of the Security Council.
Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the security council deems such actions necessary. In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to enforce consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal," and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party".
For example, in Nicaragua v. United States the
United States of America had previously accepted the Court's compulsory jurisdiction upon its creation in 1946 but withdrew its acceptance following the Court's judgment in 1984 that called on the United States to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua. In a split decision, the majority of the Court ruled the United States was "in breach of its obligation under customary international law not to use force against another state" and ordered the US pay reparations (see note 2), although it never did.
Exam
 

Morris K.

I am Nature's Husband. I write and I eat bananas. www.owaahh.com
Apr 15, 201511 min read


From the Shifta War to Al Shabaab: Why Kenya is its own worst enemy

www.owaahh.com

When Kenya faced an insurgency problem in the 1960s, it tormented a people into submission. When it faced another in the 21st century, it secretly recruited their children to fight its war. The plan failed miserably, bringing Kenya to war with itself.

As the flowers begin to wilt on the graves of the (more than) 147 people who were killed in the Garissa University attack, it is essential for Kenyans to reflect on the journey that brought us here. The journey has been one of many mistakes, most of which could have been avoided. In fact, one might argue that each mistake we have made in the state relationship to Kenyan Somalis has lead us to where we are today.

The story of how the Northern Frontier District came to be a part of colonial Kenya, and independent Kenya, is intriguing, if not sadistic. Borders were arbitrarily drawn on the map of Eastern Africa, cutting through communities and clans. Boardroom deals with Ethiopia and Italy further divided the Somali people, with the British governing their part from Kenya.

A few years before independence, the British canvassed the NFD in an informal referendum. The question was simple yet powerful, as it would chart the destiny of the Somali people on the Kenyan side of the border. An overwhelming majority rightly knew they were doomed if they stayed in Kenya, and they voted to join the Greater Somali Republic. Somalia would be a large state incorporating all areas that had a majority Somali population, including Djibouti and Ogaden in Ethiopia.

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Kenya’s founding fathers, however, made it clear that they would not cede an inch of soil to anyone. Anecdotal evidence suggests the British prevailed upon Kenyatta to consider the idea but he rubbished it, to them and to the government of Somalia. Instead of a peaceful transition for Somalia and Kenya, Britain’s ignorance on the impact of its lethargy was the start of a decade of mayhem.

Contrary to common history, the Shifta War was a term only right in one aspect, that it was a war. There were no ‘shiftas’ which means bandit, but revolutions. The Somali people of the NFD united behind a group called the Northern Province Progressive People’s Party (NPPPP). The ragtag militia eventually grew into a full revolution, calling for unity with the Somali republic.

The Somali people had been marginalized by the colonial government, especially after World War II.

The NPPPP received military and financial assistance from the Somali government, who were in turned trained and funded by the Soviet Union. Winning the war thus became paramount for Kenya as a capitalist state and a friend of Western powers.

The NPPPP’s military wing was known as the Northern Frontier District Liberation Army (NFDLA). It had battalions of 1, 000 armed men deployed in smaller units of about 30 soldiers. Until 1965, their armory mostly featured old European arms such as rifles and grenade launchers. With Somalia’s support, the strategy changed to employing mine warfare. The shift allowed the NFDLA to extend beyond Wajir, Mandera and Garissa.

If the idea of annexing Northern Kenya was an embarrassment for KANU, the idea that the revolutionary war would ever be branded as such was even worse. The government immediately launched a military and a propaganda campaign.

KANU drew its lessons from how the British had handled the Mau Mau insurgency. They had everything, including genocides and concentration camps, down to an art. Where the British branded the Kenya Land and Freedom Army (KLFA) the less-nationalistic sounding ‘Mau Mau’, the independence Kenya government branded the NPPPP the ‘Shiftas.’ Where the colonialists herded the Kikuyu into concentration camps and reserve areas, the Kenyatta government perfected the model and made the NFD a controlled zone. The atrocities were even embedded in the constitution, allowing the president a direct authority and oversight over the troublesome region.

The Kenya military was allowed a free hand in Northern Kenya. In the course of battling the secessionist body, it also encountered real bandits who would often be found with bows and poison arrows. The shiftas actually existed, but they were only a sentence or two in the whole story, had it been told truthfully.

Security personnel were allowed to confiscate and kill animals, and detention camps with kangaroo courts and dubious legal processes were founded in the region. The NFD became the baptism of fire for Kenyan forces, an expansive shooting range where the only illegal thing was to be ethnically Somali.

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Part of the systematic goal of the war was to curb pastoralism to make the Somali people easier to govern. Innocent civilians were herded into concentration camps branded as villages. Inside such camps, in places such as Garbatulla, the torture and massacres continued unabated.

The previously oppressed had turned oppressor.

The agreement to end hostilities between Nairobi and Mogadishu effectively cut off the lifeline for the NPPPP and allowed the Kenyan military to vanquish its central structure. Kenyans of Somali ethnicity who escaped the fighting by crossing into Somalia found it impossible to get back in. This created secondary and tertiary problems for Kenya that would eventually bubble into an insecure border.

The counter-insurgency efforts effectively decimated the informal Somali economy. An unknown number of heads of cattle were killed or confiscated by the Kenya military. From Isiolo alone, it is estimated that more than 15, 000 heads of cattle were confiscated or killed. Such devastation made an entire population desperate, and most of them shifted to other economic activities such as business.

But the attempt to ‘create Kenyans’ failed miserably. Although the experiment reduced the population of pastoralists and established the authority of the Kenya government in the district, it spelled doom for the son of the man who led Kenya during the ‘Shifta War.’ It also meant that Kenyans of Somali origin would never feel as patriotic or enthusiastic about their country as their neighbors. That the NFD always voted for the government of the day was wrongly read as their acceptance of the political powers in Nairobi, and not as an indication of the collective trauma that ruled the region.

The State collapse of the Somalia government also meant that there was little hope for an option for the Somali people. Even with that, however, the Kenyan state that had been fighting to keep them within its borders continued killing them.

While the rest of the country moved on, the NFD became stuck in time.

Although the guns of the NFDLA died out in the 1970s, the instances of state-sponsored violence continued. There was a shoot-to-kill policy in the region in the 1980s, the same period when Wagalla and the Garissa massacres occurred. The 1980 massacre started as an effort to flush out a local criminal called Abdi Madobe, and ended with the deaths of hundreds of ethnic Somalis. In 1989, there was a nationwide screening of Somalis living within Kenya.

The period of relative peace in the late 1990s and early 2000s coincides with the time when Mohammoud Saleh was the provincial commissioner of the NFD. A Kenyan-Somali himself, Saleh tried to refocus the fractured relationship between the Kenyan government and the inhabitants of the NFD. He was said to have zero tolerance towards abuse by security forces, although anecdotal evidence suggests he suffered stigma under unknowing security forces who frequently stopped him when he was in plain clothes.

Somalia’s Turmoil

In 1991, the Somali government effectively collapsed, leaving social units with the mandate of finding ways to govern themselves. A system of Islamic courts filled the judicial gap and grew to other roles such as policing, healthcare and education. In the first decade, most of them worked alone with no system of collaboration. This changed in 1999 when they decided to work together. They formed an armed militia that immediately started fighting for control of Mogadishu. The ICU was funded by the Eritrean government and Ethiopian insurgency groups, making it an enemy of Ethiopia. In the next half a decade, the ICU grew I power and control, especially in areas around Mogadishu. Its military wing decimated warlords who had previously controlled the country.

It was a time of peace and prosperity in Somalia, albeit short-lived. The Mogadishu airport and the seaport were reopened and the economy began to recover. Having a Sharia-based largely informal government in Eastern Africa made Kenya and Ethiopia jittery.

At the end of 2006, Ethiopia-funded transitional government forces began attacking the ICU. By the end of 2007, the courts union was no more, mainly due to infighting and resignations that weakened its response to the concerted effort to remove it from power.

It’s military wing, Al Shabaab, whose full name is Harakat al-Shabaab al-Mujahidin, did not die off with the death of the ICU. Instead, it moved in fast to fill in the gap, transforming itself to one of the most formidable powers in Somalia. It eventually controlled a significant part of inhabited Somalia, and it tried to transform itself into a national power. Uganda intervened, as did Kenya, uprooting Shabaab from all its lifelines. The group fled to the background and became an insurgency. It would export terror once Kenya and Uganda established themselves as invading armies in Somalia.

Kenya’s Foolhardy Reactions to Somalia’s Situation

According to this article Kenya’s actual reaction to the Somali situation began years before the 2011 invasion. It was a foolhardy plan, and it would eventually bring a war that was not Kenya’s right into its borders.

In an attempt to shield her borders from attacks, Kenya turned to what looked like a brilliant plan by a former Al Shaabab leader, Ras Kamboni warlord Sheikh Ahmed Madobe. The plan was to form an autonomous Jubaland on the Somalia side of the border to act as a buffer zone for Kenya. A small force of Somalis would be trained by Kenyan forces to help the transitional government bolster its position. It was a terrible plan, and Kenya’s security partners told its official as much.

Kenya went ahead to recruit and train 4, 000 Kenyans of Somali origin, contrary to reports that they were Somali nationals. Half of the recruits were sent to camps at Archers Post and Manyani. They were promised jobs and money, and a destiny in Jubaland. They were then transferred to Somalia and as the clan infighting killed off the plan, most disappeared with their weapons and training. Many of them ended up in Al Shabaab.

During the April 2nd 2015 dawn attack, the attackers used what they called ‘Kenyan weaponry.’ One was revealed to have been a Kenyan-Somali from Mandera, one of the areas where the Kibaki government had recruited young men for its secret mission in Somalia. Although it is unlikely he was one of those trained at Archers Post or Manyani, it is likely he has links to those who were.

The exact number of Kenyan-Somalis who underwent training and then ended up in Al Shabaab’s ranks is unknown, at least publicly, and the Kenya government is unlikely to reclassify the war against the terror group as an internal insurgency. If indeed they are now fighting clan wars in the North East, against other clans and other tribes/people, then Kenya is actually at war with itself. It is not fighting an outside enemy as we would like to believe, but one we created and armed. How genius that would be, a story come full circle.

While the government has continually portrayed the war as a war against illegal immigrants, and recently refugees, the real enemy are actually disillusioned Kenyans of Somali ethnicity. Born in a tormented land where their parents were traumatized and subdued, they were then given hope of finally doing something for the motherland. Whether Kenya’s officials actually knew the risks involved is another story, and one they are unlikely to be honest about because it would make them culpable.

The newest genius plan seems to be the construction of a border barrier on the border with Somalia. The border barrier, the government hopes, will solve the problem once and for all. The Daadab camp, the largest of its kind in the world, should be closed within the next year if the UN heeds Kenya’s demands. These efforts assume the enemy is a Somali national and not a person who has a valid Kenyan ID card. It is always easier to demonize outsiders than our own kin.

The level of ethnic profiling that goes on every time there is an attack, whether in Garissa or in South C or Eastleigh, is built on this security paradigm. It is a rather interesting way to look at it; that it is outsiders who spoil citizens. The success of the propaganda that branded the secession problem a mere ‘bandit problem’ lives on to this day, with many non-Somali Kenyans viewing their Somali neighbors as refugees, even when they have lived and worked with them for generations. Kenyans of Somali origin learnt to see themselves as third-class citizens, tucked right before their relatives across the border.

The truth is that Kenya will never know peace until the North Eastern region it annexed is peaceful and thriving socially and economically. That peace will not come from police crackdowns and ethnic profiling. Fighting the Al Shabaab should stop being about fighting the Somali people, because profiling is not the solution. Neither is a border barrier or a closed refugee camp. Both ideas are as terrible as the idea of training Kenyan-Somalis to fight in Somalia. It will only furnish Al Shabaab and ISIS with new recruits. Those recruits will help the two groups stay in the fight for longer, with the hope of eventually creating a caliphate that stretches from Eastern Europe to Kenya. Al Shabaab maybe an Al Qaeda affiliate for now, but it is only a matter of time before ISIS is rooted from the lands its holds and follows the Al Shabaab story of extremist government to terror group.

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ISIS has a five year plan to expand its borders.
Uganda was hit by a terror attack in July 2010 and since then, has implemented security strategies that kill off Al Shabaab’s plans before they are even complete. Perhaps it helps that Uganda’s history is bloody, and it has learnt the value of adapting to win during wartime. It also doesn’t have a Shifta War in its history, or an entire region that has systematically been tortured so much that it knows nothing but guns and war. The greatest lesson, however, seems to be that Uganda learns and protects its citizens. Kenya seems immune to such lessons. The paradigm seems to be “maybe it will work if we keep hammering at this one nail.”

The real battle is not in Kismayu or Mogadishu, it is right within Kenya’s borders, and it cannot be won with guns and armored tanks, or even random searches. Al Shabaab is rooting itself in Kenya not because it is a ruthlessly efficient terror group, but that Kenya as an ecosystem seems hell-bent on destroying itself.




nomasana, sam999, NairobiWalker, hbuyosh, msemakweli, simplemind, Kimweri, Bulldog, MK254, Kafrican, Ngongo, Ab_Titchaz, mtanganyika mpya, JokaKuu, Ngongo, Askari Kanzu, Dhuks, Yule-Msee, waltham, Mzee, mombasite gabriel, Juakali1980, Boda254, mwaswast, MwendaOmo, Iconoclastes, oneflash, Kambalanick, 1 Africa, saadeque, burukenge, nyangau mkenya, Teen-Upperhill Nairobi, kadoda11
 
hahah toa ramani inayoonyesha Kenya's southern border has ever been straight! Somalia have this map! Sorry majirani ile project ya LAPSSET is no more loan worthy!

kharidad3.jpg

show me a country where both sea and land borders are interpreted differently
 
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