• [212] 1. On 28 August 2014, the Government of 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.

• 2. In accordance with Article 40, paragraph 2, of the Statute, the Registrar immediately communicated the Application to the Government of Kenya. He also notified the Secretary-General of the United Nations of the filing of the Application by Somalia.

• 3. By a letter dated 14 November 2014, the Registrar informed all Member States of the United Nations of the filing of the Application.

• 4. In conformity with Article 40, paragraph 3, of the Statute, the Registrar later notified the Member States of the United Nations, through the Secretary-General, of the filing of the Application, by transmission of the printed bilingual text.

• 5. Since the Court included upon the Bench no judge of Kenyan nationality, Kenya proceeded to exercise its right conferred by Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case; it chose Mr Gilbert Guillaume.

• [Page 10] 6. By an Order of 16 October 2014, the President of the Court fixed 13 July 2015 as the time-limit for the filing of the Memorial of Somalia and 27 May 2016 for the filing of the Counter-Memorial of Kenya. Somalia filed its Memorial within the time-limit so prescribed.

• 7. On 7 October 2015, within the time-limit set by Article 79, paragraph 1, of the Rules of Court of 14 April 1978 (as amended on 1 February 2001), Kenya raised preliminary objections to the jurisdiction of the Court and to the admissibility of the Application. In an Order of 9 October 2015, the Court noted that, by virtue of Article 79, paragraph 5, of the Rules of Court of 14 April 1978 (as amended on 1 February 2001), the proceedings on the merits were suspended. Consequently, taking account of Practice Direction V, it fixed, by the same Order, 5 February 2016 as the time-limit for the presentation by Somalia of a written statement of its observations and submissions on the preliminary objections raised by Kenya. Somalia filed such a statement within the time-limit so prescribed, and the case became ready for hearing in respect of the preliminary objections.

• 8. Pursuant to the instructions of the Court under Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States parties to the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS” or the “Convention”) the notifications provided for in Article 63, paragraph 1, of the Statute. In addition, the Registrar addressed to the European Union, which is also party to that Convention, the notification provided for in Article 43, paragraph 2, of the Rules of Court, and asked that organization whether or not it intended to furnish observations under that provision. In response, the Director-General of the Legal Service of the European Commission indicated that the European Commission, acting on behalf of the European Union, did not intend to submit observations in the case.

• [213] 9. By a communication dated 21 January 2016, the Government of the Republic of Colombia, referring to Article 53, paragraph 1, of the Rules of Court, asked to be furnished with copies of the pleadings and documents annexed in the case. Having ascertained the views of the Parties in accordance with that same provision, and having taken into account the objection raised by one Party, the Court decided that it would not be appropriate to grant that request. By a letter dated 17 March 2016, the Registrar duly communicated that decision to the Government of Colombia and to the Parties.

• 10. Public hearings on the preliminary objections raised by Kenya were held from 19 to 23 September 2016. By its Judgment of [Page 11] 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 on 28 August 2014 and that the Application was admissible.

• 11. By an Order of 2 February 2017, the Court fixed 18 December 2017 as the time-limit for the filing of the Counter-Memorial of Kenya. That pleading was filed within the time-limit thus prescribed.

• 12. By an Order of 2 February 2018, the Court authorized the submission of a Reply by Somalia and a Rejoinder by Kenya, and fixed 18 June 2018 and 18 December 2018 as the respective time-limits for the filing of those pleadings. The Reply and Rejoinder were filed within the time-limits thus prescribed.

• 13. By letters dated 26 February 2019, the Parties were informed that the hearings on the merits would take place from 9 to 13 September 2019. By a letter dated 2 September 2019, received under cover of a Note Verbale dated 3 September 2019, Kenya requested the Court to postpone the hearings by twelve months. By a letter dated 4 September 2019, Somalia responded that it considered the request “manifestly unjustified, harmful to the judicial process and the peaceful resolution of a longstanding dispute, and highly prejudicial to [it]”. By letters dated 5 September 2019, the Parties were notified that the Court had decided to postpone the opening of the hearings to 4 November 2019.

  By a letter dated 16 September 2019, Kenya requested the Court to reconsider its decision of 5 September 2019 and postpone the oral proceedings until September 2020. By a letter dated 19 September 2019, Somalia argued that there was no basis for the Court to reconsider its decision. By a letter dated 23 September 2019, Kenya reiterated its request. On 3 October 2019, the Vice-President of the Court, Acting President in the case, met the representatives of the Parties in order to ascertain their views with regard to the question of the postponement of the oral proceedings. By letters dated 16 October 2019, the Parties were informed that the Court had decided to postpone the opening of the hearings to 8 June 2020.

• 14. By a letter dated 23 April 2020, Kenya requested an indefinite postponement of the oral proceedings in light of the COVID-19 pandemic. By a letter dated 1 May 2020, Somalia opposed the further postponement of the oral proceedings. By letters dated 19 May 2020, the Parties were informed that the Court had decided to postpone the hearings to the week of 15 March 2021, and a detailed schedule for the hearings was provided to them.

• [Page 12] 15. By letters dated 23 December 2020, the Parties were informed that, in light of the restrictions in place across the globe as a result of the COVID-19 pandemic, the hearings due to open on 15 March 2021 would be held by video link. A modified detailed schedule was transmitted to them at the same time.

• [214] 16. By a letter dated 28 January 2021, Kenya, referring to “serious difficulties in preparing for the hearing due to the ongoing global COVID-19 pandemic” and expressing concerns about proceeding with hearings by video link, requested “that the hearing be postponed until such a time as the pandemic conditions would have subsided”. By a letter dated 3 February 2021, Somalia objected to this request. Further communications on the subject were exchanged between the Parties. By letters dated 12 February 2021, the Parties were informed that the Court had decided to maintain the hearings as scheduled, starting on 15 March 2021, in a hybrid format, with some judges attending the oral proceedings in person in the Great Hall of Justice and others participating remotely by video link, and with the representatives of the Parties to the case participating either in person or by video link.

• 17. On 5 March 2021, Kenya presented a request to produce “new documentation and evidence”. Enclosed with Kenya’s letter were Appendix 1, accompanied by two annexes, and Appendix 2, consisting of eight volumes with annexes. Kenya’s letter stated that Volume I of Appendix 2 explained “the nature and relevance of the new and additional evidence”. By a letter dated 9 March 2021, Somalia informed the Court that it did not object to the production of the materials that Kenya wished to submit, except for Volume I of Appendix 2. With respect to Volume I of Appendix 2, Somalia indicated, however, that it would withdraw its objection if it were given the opportunity to respond to it.

• 18. By letters dated 11 March 2021, the Parties were informed that, in light of the absence of an objection on the part of Somalia and pursuant to Article 56, paragraph 1, of the Rules of Court, the documents contained in Appendix 1 and in Volumes II to VIII of Appendix 2 could be produced and would form part of the case file. Having considered the views of the Parties and the particular circumstances of the case, the Court decided to authorize the production of Volume I of Appendix 2 (hereinafter “Appendix 2”) by Kenya, on the understanding that Somalia would have the opportunity to comment thereon during the hearings. In addition, the Court decided that if Somalia wished to comment in writing on the materials that were [Page 13] produced by Kenya and to submit documents in support of its comments, it should do so no later than 22 March 2021. Somalia commented on these materials during the hearings and filed written comments on 22 March 2021.

• 19. By a letter dated 11 March 2021 and received in the Registry on 12 March 2021, the Agent of Kenya informed the Court that his Government would not be participating in the hearings in the case and indicated the reasons for that decision. The Agent requested the opportunity to address the Court orally before the commencement of the hearings and to submit a “position paper”, a copy of which was enclosed with his letter. By a letter dated 12 March 2021, Somalia objected to the two requests made by the Agent of Kenya. By letters dated 15 March 2021, the Parties were informed that the Court had decided not to grant either of the two requests made by Kenya.

• 20. By a letter dated 15 March 2021, the Co-Agent of Kenya stated that “while affirming that it [would] not participate in the hearings on the merits, Kenya wishe[d] to inform the Court that it nevertheless intend[ed] to utilize thirty minutes out of the time allocated to it on the 18th March, 2021, to orally address the Court”. Somalia responded by a letter of the same date, stating that it welcomed Kenya’s decision to participate in the hearings. By letters dated 16 March 2021, the Parties were informed that the Court was prepared to give Kenya the opportunity to address it on 18 March 2021 (during the session originally scheduled for Kenya’s oral pleadings), for the purpose of Kenya’s [215] participation in the oral proceedings and the presentation of its contentions on the merits of the case. By a letter dated 17 March 2021, Kenya indicated that it would “not utilize the opportunity provided by the Court” to participate in the oral proceedings on 18 March 2021.

• 21. By a letter dated 18 March 2021, Kenya submitted four new documents “for the Court’s information and consideration”. By a letter dated 22 March 2021, Somalia argued that these documents were neither new nor critical and were of no probative value in support of Kenya’s arguments. By letters dated 23 March 2021, the Parties were informed that the Court had decided that these four new documents and Somalia’s observations thereon would be included in the case file.

• 22. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public on [Page 14] the opening of the oral proceedings. It also decided that the additional materials submitted by Kenya prior to and during the hearings and the written comments of Somalia thereon (see paragraphs 17, 18 and 21 above) would be made public.

• 23. Public hearings were held from 15 to 18 March 2021, at which the Court heard the oral arguments of:

  For Somalia: H.E. Mr Mahdi Mohammed Gulaid,

  • Mr Alain Pellet,

  • Mr Philippe Sands,

  • Ms Alina Miron,

  • Mr Paul S. Reichler,

  • Mr Edward Craven,

  • Mr Mohamed Omar Ibrahim.

• 24. At the hearings, a Member of the Court put a question to Somalia, to which a reply was given in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to Article 72 of the Rules of Court, Kenya was invited to submit any comments that it might wish to make on Somalia’s reply, but no such comments were made.

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• 25. In the Application, the following claims were presented by Somalia:

  The Court 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].

  Somalia further requests the Court to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.

• 26. In the written proceedings, the following submissions were presented by the Parties:

  On behalf of the Government of Somalia,

  in the Memorial:

  On the basis of the facts and law set forth in this Memorial, Somalia respectfully requests the Court:

  • [216] 1. To determine the complete course of the maritime boundary between Somalia and Kenya in the Indian Ocean, including in the continental shelf beyond 200 [nautical miles], on the basis of international law.

  • [Page 15] 2. To determine the maritime boundary between Somalia and Kenya in the Indian Ocean on the basis of the following geographical coordinates:

    

  • 3. To adjudge and declare that Kenya, by its conduct in the disputed area, has violated its international obligations to respect the sovereignty, and sovereign rights and jurisdiction of Somalia, and is responsible under international law to make full reparation to Somalia, including inter alia by making available to Somalia all seismic data acquired in areas that are determined by the Court to be subject to the sovereignty and/or sovereign rights and jurisdiction of Somalia, and to repair in full all damage that has been suffered by Somalia by the payment of appropriate compensation.

  (All points referenced are referred to WGS 84.)

  in the Reply:

  On the basis of the facts and law set forth in its Memorial and this Reply, Somalia respectfully requests the Court:

  • 1. To reject Submissions 1 and 2 of Kenya’s Counter-Memorial.

  • [217] 2. To determine the complete course of the maritime boundary between Somalia and Kenya in the Indian Ocean, including in the continental shelf beyond 200 [nautical miles], on the basis of international law.

  • 3. To determine the maritime boundary between Somalia and Kenya in the Indian Ocean on the basis of the following geographical coordinates:

    

  • [Page 16] 4. To adjudge and declare that Kenya, by its conduct in the disputed area, has violated its international obligations and is responsible under international law to make full reparation to Somalia, including inter alia by making available to Somalia all seismic, geologic, bathymetric and other technical data acquired in areas that are determined by the Court to be subject to the sovereignty and/or sovereign rights and jurisdiction of Somalia, and to repair in full all damage that has been suffered by Somalia by the payment of appropriate compensation.

  (All points referenced are referred to WGS 84.)

  On behalf of the Government of Kenya,

  in the Counter-Memorial:

  On the basis of the facts and law set forth in this Counter-Memorial, Kenya respectfully requests the Court to:

  • 1. Dismiss the requests in paragraphs 2 and 3 of the Submissions at pages 147 and 148 of Somalia’s Memorial dated 13 July 2015.

  • [218] 2. Adjudge and declare that the maritime boundary between Somalia and Kenya in the Indian Ocean shall follow the parallel of latitude at 1° 39′ 43.2″ S, extending from Primary Beacon 29 (1° 39′ 43.2″ S) to the outer limit of the continental shelf.

  in the Rejoinder:

  On the basis of the facts and law set forth in this Rejoinder, Kenya respectfully requests the Court to:

  • [Page 17] 1. Dismiss the requests in paragraphs 1, 3 and 4 of [the Submissions in] the Reply of Somalia.

  • 2. Adjudge and declare that the maritime boundary between Somalia and Kenya in the Indian Ocean shall follow the parallel of latitude at 1° 39′ 43.2″ S, extending from Primary Beacon 29 (1° 39′ 43.2″ S) to the outer limit of the continental shelf.

• 27. At the oral proceedings, the following submissions were presented on behalf of the Government of Somalia at the hearing of 18 March 2021:

  On the basis of its Memorial of 7 July 2015, its Reply of 18 June 2018, and its oral pleadings, Somalia respectfully requests the Court:

  • 1. To reject Submissions 1 and 2 of Kenya’s Rejoinder of 18 December 2018.

  • 2. To determine the complete course of the maritime boundary between Somalia and Kenya in the Indian Ocean, including in the continental shelf beyond 200 [nautical miles], on the basis of international law.

  • 3. To determine the maritime boundary between Somalia and Kenya in the Indian Ocean on the basis of the following geographical coordinates (all points referenced are referred to WGS 84):

    

  • [219] 4. To adjudge and declare that Kenya, by its conduct in the disputed area, has violated its international obligations and is responsible under international law to make full reparation to Somalia, including inter alia by making available to Somalia all seismic, geologic, bathymetric and other technical data acquired in areas that are determined by the Court to be subject to the sovereignty and/or sovereign rights and jurisdiction of Somalia.

• [Page 18] 28. Since Kenya did not participate in the oral proceedings, no formal submissions were presented on behalf of its Government at the hearings.

*

* *

• 29. The Court regrets Kenya’s decision not to participate in the oral proceedings held in March 2021. Nevertheless, the Court had extensive information about Kenya’s views, having received its Counter-Memorial and Rejoinder, as well as numerous volumes containing additional evidence and arguments it submitted to the Court in March 2021 (see paragraphs 17, 18 and 21 above).

• 30. The Court recalls that the oral proceedings were conducted in a hybrid format, in accordance with Article 59, paragraph 2, of the Rules of Court and on the basis of the Court’s Guidelines for the parties on the organization of hearings by video link, adopted on 13 July 2020 and communicated to the Parties on 12 February 2021. Prior to the opening of the hybrid hearings, the Parties were invited to participate in comprehensive technical tests, and Somalia did so. During the oral proceedings, a number of judges were present in the Great Hall of Justice, while others joined the proceedings via video link, allowing them to view and hear the speaker and see any demonstrative exhibits displayed. Each Party was permitted to have up to four representatives present in the Great Hall of Justice at any one time and was offered the use of an additional room in the Peace Palace from which members of the delegation were able to participate via video link. Members of the delegations were also given the opportunity to participate via video link from other locations of their choice.

*

* *

I. GEOGRAPHICAL AND HISTORICAL BACKGROUND

• 31. Somalia and Kenya are adjacent States on the coast of East Africa. Somalia is located in the Horn of Africa. It borders Kenya to the south-west, Ethiopia to the west and Djibouti to the north-west. Somalia’s coastline faces the Gulf of Aden to the north and the Indian Ocean to the east. Kenya, for its part, shares a land boundary with Somalia to the north-east, Ethiopia to the north, South Sudan to the north-west, [220] Uganda to the west and Tanzania to the south. Its coastline faces the Indian Ocean (see sketch-map No 1 below, p. 20).

• 32. 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 [Page 19] “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 by British and Italian representatives on 17 December 1927 (hereinafter the “1927 Agreement”). That Agreement was formally confirmed by an Exchange of Notes of 22 November 1933 between the British and Italian Governments. The Court will collectively refer to the 1927 Agreement and this Exchange of Notes as the “1927/1933 treaty arrangement”. Somalia and Kenya gained their independence in 1960 and 1963, respectively.

• 33. Both Parties signed UNCLOS on 10 December 1982. Kenya and Somalia ratified it on 2 March 1989 and 24 July 1989, respectively, and the Convention entered into force for them on 16 November 1994.

• 34. 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 matters related to 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 present Judgment, the Commission has yet to issue its recommendations in respect of the Parties’ submissions.

II. OVERVIEW OF THE POSITIONS OF THE PARTIES

• 35. 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 [222] an equitable delimitation, in light of [Page 20]

  
  [Page 21] 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 (see sketch-map No 2 below, p. 22, depicting the maritime boundaries claimed by the Parties).

III. WHETHER SOMALIA HAS ACQUIESCED TO A MARITIME BOUNDARY FOLLOWING THE PARALLEL OF LATITUDE

• 36. The Court will first ascertain whether there is an agreed maritime boundary between the Parties on the basis of acquiescence by Somalia.

* *

• 37. Kenya maintains that Somalia has acquiesced to its claim that the maritime boundary between the Parties follows the parallel of latitude and that there is thus an agreed boundary between them. According to Kenya, acquiescence requires three elements: first, a course of conduct or omission by one State indicative of its view regarding the content of the applicable legal rule; secondly, another State’s knowledge (actual or constructive) of such conduct or omission; and, thirdly, a failure by the latter State, when a reaction is called for, to reject or dissociate itself within a reasonable time from the position taken by the first State. Thus, the Respondent’s argument is not that a maritime boundary can result from unilateral acts, but that it can be established by consent resulting from the prolonged absence of protest against a claim. Kenya regards acquiescence as a form of consent that can be equated to tacit agreement. In support of its claim, it invokes decisions by international courts and tribunals referring to acquiescence and tacit agreement.

• 38. Kenya contends that by failing to respond to the Proclamation by the President of the Republic of Kenya of 28 February 1979 (hereinafter the “1979 Proclamation”; see paragraph 54 below), to the Proclamation by the President of the Republic of Kenya of 9 June 2005 (hereinafter the “2005 Proclamation”; see paragraph 61 below) and to Kenya’s Submission on the Continental Shelf beyond 200 nautical miles deposited with the CLCS on 6 May 2009 (hereinafter the “2009 Submission to the CLCS”; see paragraph 65 below), Somalia has acquiesced to Kenya’s claim that the maritime boundary between the Parties follows the parallel of latitude. In Kenya’s view, a reaction is called for where there has been [Page 22]

  
  [Page 23] [224] an express, official and public notification, through formal United Nations procedures, of a State’s position concerning maritime delimitation and the sovereign rights of adjacent coastal States. It argues that the absence of protest in such circumstances constitutes acquiescence under international law. The Respondent asserts that if Somalia disagreed with Kenya’s claim, it should have protested promptly, since circumstances such as the proximity of the States concerned and the giving of formal notice call for a quick and, in some cases, immediate response to a maritime or territorial claim. According to Kenya, Somalia continued to play an active role in international relations during its civil war; it was represented at the United Nations throughout this period and has had an internationally recognized government since 2000. Kenya argues that Somalia was thus in a position to protest against Kenya’s claim.

• 39. Kenya states that the Applicant’s failure to react immediately to the 1979 Proclamation or the 2005 Proclamation was particularly significant given that, pursuant to the 1972 Law on the Somali Territorial Sea and Ports, Somalia claimed a territorial sea extending to 200 nautical miles and, therefore, its claim of sovereignty in that area was at stake. In Kenya’s view, Somalia’s acquiescence was made clear by its agreement to the principle of equitable delimitation during the negotiations held at the Third United Nations Conference on the Law of the Sea and by its insistence on deleting any reference to equidistance in Articles 74 and 83 of UNCLOS, a position that was shared by other African States. Kenya considers it significant that Somalia initiated a rapprochement with Kenya in 1978 and points out that Somalia did not raise the issue of the 1979 Proclamation during bilateral meetings held between the Parties in 1980 and 1981.

• 40. Kenya also argues that Somalia’s Maritime Law of 1988, which mentions a “straight line” in respect of the territorial sea boundary, refers to the parallel of latitude rather than an equidistance line. In addition, Kenya highlights Somalia’s lack of reaction or protest when, in 2007 and 2008, Kenya sent two Notes Verbales in which it stated that it had drawn the boundaries with Somalia “using the parallel of latitude” and requested that Somalia confirm its agreement to such boundaries.

• 41. Kenya considers that the terms of the “Memorandum of Understanding between the Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to grant to each other no-objection in respect of submissions on the outer limits of the continental shelf beyond 200 nautical miles to the [Page 24] Commission on the Limits of the Continental Shelf” (hereinafter the “MOU”), signed by the Parties in 2009, are consistent with Somalia’s acquiescence. In Kenya’s view, the Court has already found that the MOU does not concern the delimitation of the maritime boundary between the Parties and was [225] intended merely to allow them to make their CLCS submissions before the relevant deadline. It adds that the reference in the MOU to an unsettled maritime boundary “dispute” concerns only the delimitation of the outer continental shelf and simply recognizes that the Parties have not yet negotiated a formal agreement.

• 42. Kenya contends that a letter sent by the Prime Minister of Somalia to the Secretary-General of the United Nations on 19 August 2009 did not contain a claim to an “equidistant maritime boundary” or a protest against Kenya’s maritime boundary claim. It asserts that Somalia’s first objection to Kenya’s claim was expressed in a letter sent by the Minister for Foreign Affairs and International Cooperation of Somalia to the Secretary-General on 4 February 2014. Kenya argues that its consent to negotiate a formal delimitation agreement does not imply that Somalia has not acquiesced to its claim.

• 43. Furthermore, Kenya refers to “additional evidence” concerning other conduct of the Parties between 1979 and 2014, which, in its view, “confirms” Somalia’s acceptance of the parallel of latitude as the maritime boundary. Kenya asserts that its naval patrols and interceptions, as well as both Parties’ conduct concerning fisheries, marine scientific research and offshore oil exploration blocks, have all been consistent with Kenya’s claim. The Respondent maintains that its conduct would have called for a reaction from the Applicant, if Somalia had considered that Kenya had encroached on its maritime areas. In this regard, Kenya has submitted a number of maps, reports and other documents issued by various entities. It contends that the maps submitted by Somalia are irrelevant, either because they do not purport to show the official position of the Parties or because they are speculative or of unknown provenance.

*

• 44. Somalia notes that Article 15, Article 74 and Article 83 of UNCLOS make clear that delimitation is to be effected by agreement. It recognizes that a maritime boundary may be established by an agreement that is not in written form, but contends that a maritime boundary cannot be established by unilateral acts. In this regard, Somalia maintains that Kenya has not explained how acquiescence differs from tacit agreement. According to Somalia, even if acquiescence could be invoked as a principle of delimitation, Kenya would [Page 25] have to prove a prolonged and consistent course of conduct indicating its own view on the location of the maritime boundary, as well as a very definite course of conduct by Somalia showing its intention clearly and consistently to accept Kenya’s claim. Somalia argues that lack of protest against a notification of a claim cannot automatically amount to an acceptance of that claim.

• [226] 45. Somalia maintains that Kenya’s own public statements and positions directly contradict its contention that the Parties have already delimited their maritime boundary along the parallel of latitude. In this regard, Somalia refers to Kenya’s 2009 Submission to the CLCS, Kenyan domestic law, Kenya’s statements to the United Nations, official Kenyan reports and presentations, the terms of the 2009 MOU, the record of the bilateral negotiations between the Parties and Kenya’s pleadings before the Court in support of its preliminary objections. The Applicant adds that other States and international organizations have recognized that the maritime boundary between the Parties remains to be delimited.

• 46. Somalia further maintains that, in any event, it did not wait until 2014 before protesting against Kenya’s claim. It contends that it articulated its claim to an equidistance line in 1974 during the Third United Nations Conference on the Law of the Sea and that this claim was embodied in its Maritime Law of 1988. Somalia asserts that “[t]he Somali language does not contain a word precisely equivalent to ‘equidistance line’ in English” and that the phrase “a straight line toward the sea from the land” in Article 4, paragraph 6, of the 1988 Law “was intended to be equivalent to an equidistance line”. The Applicant also contends that it is unreasonable and unrealistic to expect a State that was ravaged by civil war and had no functioning government to have lodged formal diplomatic protests against a purported claim to a boundary line, stressing that it protested against Kenya’s claim “once it resumed having a functioning government after the long civil war”. In this regard, it draws attention to the letter sent by its Prime Minister to the Secretary-General of the United Nations on 19 August 2009, which stated, inter alia, that the continental shelf between Somalia and Kenya had not yet been delimited. Somalia adds that its opposition to a maritime boundary at the parallel of latitude, as well as its protests against Kenya’s award of offshore concessions for maritime areas north of the equidistance line, were reflected in news reports published in 2012 and in a 2013 report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2060 (2012).

• 47. With respect to other conduct of the Parties referred to by Kenya, Somalia argues that “maritime effectivités” cannot be invoked [Page 26] in themselves to support the existence of a maritime boundary. In Somalia’s view, Kenya’s purported displays of authority in the disputed area were in any event sporadic, infrequent and recent, and were undertaken at a time when, on account of civil war, there was no functioning Somali government able to monitor such activities or exercise effective control over them. Somalia considers that the maps, reports and documents adduced by the Respondent provide no support for the existence of a maritime boundary as claimed by Kenya. It refers to other maps, asserting that they either depict an equidistant maritime boundary or show Kenya’s [227] northernmost concession blocks following a course that closely resembles an equidistance line. The Applicant contends that, in any event, even the consistent conduct of two States over a long period of time is not sufficient evidence of an agreement.

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• 48. The Court 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, respectively. The Court has noted that “[t]he texts of these provisions are identical, the only difference being that Article 74 refers to the exclusive economic zone and Article 83 to the continental shelf” (Maritime Dispute (Peru v. Chile), Judgment, ICJ Reports 2014, p. 65, para. 179). They establish that delimitation “shall be effected by agreement on the basis of international law”.

• 49. 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 (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Reports 1984, p. 299, para. 112(1)). Maritime delimitation cannot be effected unilaterally by either of the States concerned (ibid.; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 66, para. 87; Fisheries (United Kingdom v. Norway), Judgment, ICJ Reports 1951, p. 132).

• 50. An agreement establishing a maritime boundary is usually expressed in written form. The Court considers, however, that the [Page 27] “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 (see Maritime Dispute (Peru v. Chile), Judgment, ICJ Reports 2014, p. 23, para. 43, and p. 31, para. 69). The Court notes that both Parties recognize that the delimitation of maritime boundaries requires such a shared understanding.

• 51. 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 [228] interpret as consent” (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Reports 1984, p. 305, para. 130; see also Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, ICJ Reports 1992, p. 577, para. 364). 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 (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, ICJ Reports 2008, pp. 50-1, para. 121; Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, ICJ Reports 1962, p. 23). This is based on the principle “[q]ui tacet consentire videtur si loqui debuisset ac potuisset” (ibid.). 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 (Fisheries (United Kingdom v. Norway), Judgment, ICJ Reports 1951, pp. 138-9). In evaluating the absence of a reaction, duration may be a significant factor (see e.g. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, ICJ Reports 2008, pp. 95-6, paras. 274-6; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, ICJ Reports 1992, pp. 408-9, para. 80; Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, ICJ Reports 1962, p. 32).

• 52. The Court has set a high threshold for proof that a maritime boundary has been established by acquiescence or tacit agreement. It has emphasized that since “[t]he establishment of a permanent maritime boundary is a matter of grave importance”, “[e]vidence of a tacit legal agreement must be compelling” (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea [Page 28] (Nicaragua v. Honduras), Judgment, ICJ Reports 2007 (II), p. 735, para. 253; see also Maritime Dispute (Peru v. Chile), Judgment, ICJ Reports 2014, pp. 38-9, para. 91; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 70, para. 212). Acquiescence “presupposes clear and consistent acceptance” of another State’s position (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Reports 1984, p. 309, para. 145). 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 “acknowledge[d] in a binding international agreement that a maritime boundary already exist[ed]” (Maritime Dispute (Peru v. Chile), Judgment, ICJ Reports 2014, p. 38, para. 90). In the present case, the Court will use the criteria it has identified in earlier cases and examine 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 will then consider whether there is compelling evidence that Somalia clearly and consistently accepted the boundary claimed by Kenya.

• [229] 53. In this respect, the Parties present arguments regarding Kenya’s 1979 Proclamation, 2005 Proclamation, 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 will examine these arguments in turn.

*

• 54. In the 1979 Proclamation, the President of Kenya declared:

  • 1. That notwithstanding any rule of law or any practice which may hitherto have been observed in relation to Kenya or the waters beyond or adjacent to the territorial Sea of Kenya, the exclusive economic zone of the Republic of Kenya extend[s] across the sea to a distance of two hundred nautical miles measured from the appropriate baseline from where the territorial sea is measured as indicated in the Map annexed to this Proclamation. Without prejudice to the foregoing, the exclusive economic zone of Kenya shall:

    • (a) in respect of its southern territorial waters boundary with the United Republic of Tanzania be an eastern latitude north of Pemba Island to start at a point obtained by the northern intersection of two arcs one from the Kenya Lighthouse at Mpunguti ya Juu, and the other from Pemba Island Lighthouse at Ras Kigomasha.

    • (b) in respect of its northern territorial waters boundary with [the] Somali Republic be on eastern latitude South of Diua Damasciaca Island being latitude 1° 38′ South.

  • [Page 29] 2. That this Proclamation shall not affect or be in derogation of the vested rights of the Republic of Kenya over the Continental Shelf as defined in the Continental Shelf Act 197[5].

  • 3. All States shall, subject to the applicable laws and regulations of Kenya, enjoy in the exclusive economic zone the freedom of navigation and overflight and of the laying of sub-marine cables and pipelines and other internationally lawful recognized uses of the sea related to navigation and communication.

  • 4. That the scope and regime of the exclusive economic zone shall be as defined in the schedule attached to this Proclamation.

• 55. This Proclamation was transmitted by the Secretary-General to the Permanent Missions of the Member States of the United Nations on 19 July 1979.

• 56. The 1979 Proclamation was concerned with Kenya’s exclusive economic zone. It stated that “the exclusive economic zone of Kenya shall … in respect of its northern territorial waters boundary with [Somalia] be on … latitude 1° 38′ South”.

• [230] 57. The Court notes that Kenya’s Territorial Waters Act of 1972 had established in its Section 2, subsection 1, that “[e]xcept as provided in subsection (4) of this section the breadth of the territorial waters of the Republic of Kenya shall be twelve nautical miles”. Subsection 4 had stated that “[o]n the coastline adjacent to neighbouring States the breadth of the territorial sea shall extend to a Median Line”. The Territorial Waters Act was revised in 1977, but the text of Section 2, subsection 4, remained the same. The Act remained in force when the 1979 Proclamation was issued. The Court thus observes that Kenya was not consistently claiming a maritime boundary with Somalia at a parallel of latitude in all maritime areas.

• 58. On 25 August 1989, shortly after ratifying UNCLOS, Kenya adopted the Maritime Zones Act (hereinafter the “1989 Maritime Zones Act”), which is still in force. In respect of the delimitation of the territorial sea, that Act employs similar terms to Kenya’s Territorial Waters Act of 1972. Section 3, subsection 4, of the 1989 Maritime Zones Act provides:

  On the coastline adjacent to neighbouring states, the breadth of the territorial waters shall extend to [a line] every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial waters of each of [the] respective states is measured.

  As regards the delimitation of the exclusive economic zone, Section 4, subsection 4, of the Act provides that “[t]he northern boundary of the exclusive economic zone with Somalia shall be delimited by notice in [Page 30] the Gazette by the Minister pursuant to an agreement between Kenya and Somalia on the basis of international law”.

• 59. Kenya contends that Section 3, subsection 4, of the 1989 Maritime Zones Act merely reflects the terms of Article 15 of UNCLOS, which, it explains, applies “the median line in the territorial sea as a provisional method ‘failing agreement’ on delimitation”. It considers that the provision is without prejudice to the parallel of latitude boundary adopted in the 1979 Proclamation and maintains that Kenyan legislation neither asserts nor requires territorial sea delimitation based on a median line. Kenya further argues that Section 4, subsection 4, of the 1989 Maritime Zones Act simply recognizes that, notwithstanding the 1979 Proclamation, a formal agreement has not been concluded with Somalia in respect of the boundary of the exclusive economic zone.

• 60. The Court considers that Kenya’s position is at odds with the text of the 1989 Maritime Zones Act, which refers neither to the 1979 Proclamation nor to a boundary at the parallel of latitude, for either the territorial sea or the exclusive economic zone. In respect of the exclusive economic zone, the text of Section 4, subsection 4, of the 1989 Maritime Zones Act provides that the northern boundary of the exclusive economic [231] zone with Somalia shall be delimited pursuant to “an agreement between Kenya and Somalia”. These words stand in contrast to the text of Section 4, subsection 3, which provides that the southern boundary with Tanzania shall be “on an easterly latitude”, employing similar terms to those found in the 1979 Proclamation. Section 4, subsection 4, thus implies that, unlike the situation of the boundary between Kenya and Tanzania, Kenya considered in 1989 that there was no agreement with Somalia on their maritime boundary. The Act refers instead to an agreement to be concluded and published in the future. It was therefore reasonable for Somalia to understand Kenya’s position to be that an agreement was to be negotiated and concluded at a later date.

• 61. Kenya’s 2005 Proclamation replaced the 1979 Proclamation, while generally reaffirming its terms. With regard to the exclusive economic zone, the 2005 Proclamation modified the parallel of latitude claimed as the boundary with Somalia. Paragraph 1 of the 2005 Proclamation, in its relevant part, reads as follows:

  Without prejudice to the foregoing, the exclusive economic zone of Kenya shall:

  • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • (b) In respect of its northern territorial waters boundary with [the] Somali Republic be on eastern latitude South of Diua Damascia[ca] Island being latitude 1° 39′ 34″ degrees south.

  [Page 31] The Proclamation included two schedules, which contained co-ordinates defining the “area of the territorial waters” and the “exclusive economic zone” of Kenya. In the first schedule, the northernmost point of the outer limit of Kenya’s territorial sea is on the parallel of latitude. This implied that, for Kenya, the boundary of its territorial sea with Somalia also followed the same parallel of latitude. According to Kenya, the parallel of latitude was adjusted from the one in the 1979 Proclamation for greater accuracy, so that it coincided with the tangent to the southernmost islet of Diua Damasciaca.

• 62. On 25 April 2006, the Secretary-General notified the Member States of the United Nations and the States parties to UNCLOS that, in accordance with Article 16, paragraph 2, and Article 75, paragraph 2, of the Convention, Kenya had deposited two lists of geographical co-ordinates of points, as contained in the 2005 Proclamation. The 2005 Proclamation was subsequently published in the Law of the Sea Bulletin No 61.

• 63. Kenya has also drawn the Court’s attention to two Notes Verbales from the Ministry of Foreign Affairs of Kenya to the Ministry of Foreign Affairs of the Transitional Federal Government of Somalia, dated 26 September 2007 and 4 July 2008. In the Note Verbale of 26 September 2007, which concerned the process of delineation of the outer limits of its continental shelf, Kenya claimed that the maritime boundaries between the two countries “have been drawn using the parallel of latitude[], in accordance with Articles 74, 83 of the UNCLOS” and requested Somalia to [232] confirm “that the Transitional Federal Government agrees with the way the maritime boundaries between the two countries are drawn … as deposited with the United Nations by the Government of the Republic of Kenya”. The aide-memoire attached to the Note Verbale stated that “the boundaries between our two countries have not been defined”. In the Note Verbale of 4 July 2008, Kenya asked the Government of Somalia “to state its position to the Government of the Republic of Kenya that the Transitional Federal Government of Somalia agrees with the maritime boundaries between the two countries as drawn and deposited with the United Nations by the Government of the Republic of Kenya”.

• 64. The Court observes that the Notes Verbales did not characterize the maritime boundary claimed by Kenya as an agreed boundary, but rather invited Somalia to confirm its agreement. It has not been shown that Somalia provided such confirmation.

• 65. In its 2009 Submission to the CLCS, Kenya states that the maritime space over which it exercises sovereignty, sovereign rights and [Page 32] jurisdiction was determined on the basis of the provisions of UNCLOS, “as implemented by the following legislation and proclamations: the Territorial Waters Act, 1972; the Maritime Zones Act, 1989, Cap. 371; and, the Presidential Proclamation of 9 June 2005 … in respect of Kenya’s territorial sea and exclusive economic zone”. It also states that “the outer edge of the continental margin appurtenant to Kenya’s land territory extends beyond 200 [nautical miles] measured from the territorial sea baseline”. The lists of co-ordinates and the maps included by Kenya in its submission show a single maritime boundary with Somalia at a parallel of latitude, extending beyond 200 nautical miles to the claimed outer limit of its continental shelf.

• 66. The Court notes that Kenya’s 2009 Submission to the CLCS was made for the purpose of delineating the outer limits of its continental shelf, which is a process distinct from the delimitation of the continental shelf (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012 (II), p. 668, para. 125). In this regard, Kenya’s submission indicates that “Kenya has overlapping maritime claims with the adjacent coastal States of Somalia to the north and with the United Republic of Tanzania to the south” and mentions that Kenya and Somalia had signed the 2009 MOU agreeing that they would not object to each other’s submissions to the CLCS. The MOU provides that

  [t]he submissions made before the Commission and the recommendations approved by the Commission thereon shall not prejudice the positions of the two coastal States with respect to the maritime dispute between them and shall be without prejudice to the future delimitation of maritime boundaries in the area under dispute.

• 67. As previously noted by the Court in the 2017 Judgment, the terms of the MOU suggest “that the two States recognize that they have a [233] ‘maritime dispute’ that is ‘unresolved’” (ICJ Reports 2017, p. 32, para. 72) and identify the “area under dispute” as that “in which the claims of the two Parties to the continental shelf overlap, without differentiating between the shelf within and beyond 200 nautical miles” (ibid., p. 35, para. 84). They also suggest that “the Parties intended to acknowledge the usual course that delimitation would take … namely engaging in negotiations with a view to reaching agreement” (ibid., p. 40, para. 97). In this connection, the MOU provides that “[t]he delimitation of maritime boundaries in the areas under dispute … shall be agreed between the two coastal States on the basis of international law”.

• [Page 33] 68. The Court observes that Kenya’s 2009 Submission to the CLCS also alludes to the lack of agreement between the Parties on the maritime boundary in the exclusive economic zone. In respect of the boundary with Tanzania, the submission explains that “[a]n agreement is in place between Kenya and Tanzania concerning the delimitation of maritime boundaries”. However, in respect of the boundary with Somalia, the submission states that the exclusive economic zone boundary “shall be delimited by notice in the Gazette by the Minister pursuant to an agreement between Kenya and Somalia on the basis of international law”, thus employing the same terms as Section 4, subsection 4, of the 1989 Maritime Zones Act. The submission also notes the existence of an “unsettled boundary line between Kenya and Somalia”. From these terms, it was reasonable for Somalia to maintain its understanding that an agreement had yet to be negotiated and concluded.

• 69. On 26 and 27 March 2014, at the request of the Kenyan Government, the Parties met in Nairobi to engage in negotiations on maritime delimitation. The mere fact that these negotiations took place suggests that the Parties recognized the need to delimit the maritime boundary between them (see Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 73, paras. 221-2, and p. 78, para. 243). This is confirmed by the Parties’ joint report on the negotiations, which states that they considered “several options and methods including bisector, perpendicular, median and parallel of latitude”, but that they “could not reach a consensus on the potential maritime boundary line acceptable to both countries to be adopted”. Nowhere does the report imply that there already was an agreed maritime boundary between the Parties.

• 70. Finally, the Court observes that Kenya’s recognition that no agreement on the maritime boundary with Somalia has been reached was also reflected in its two Notes Verbales to the Secretary-General from the Permanent Mission of Kenya to the United Nations, dated 24 October 2014 and 4 May 2015, and in its statements made to the Court during the preliminary objections phase of the case.

• 71. In light of the foregoing, the Court concludes that Kenya has not consistently maintained its claim that the parallel of latitude constitutes the single maritime boundary with Somalia. Kenya’s claim was [234] contradicted by its Territorial Waters Act of 1972, which remained in force in 1979, its 1989 Maritime Zones Act and its 2009 Submission to the CLCS. Under these circumstances, it was reasonable for Somalia to understand that its maritime boundary with Kenya in the territorial sea, in the exclusive economic zone and on the [Page 34] continental shelf would be established by an agreement to be negotiated and concluded in the future. The Court 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.

*

• 72. The Court recalls that Kenya’s claim of acquiescence is based on Somalia’s alleged acceptance of a maritime boundary at the parallel of latitude, in particular through its prolonged absence of protest. The Court will address this argument of Kenya, bearing in mind the conclusion drawn above (see paragraph 71).

• 73. Kenya has emphasized that it issued the 1979 Proclamation while the Parties were actively participating in the negotiations held at the Third United Nations Conference on the Law of the Sea and that Somalia’s lack of reaction should be assessed in light of the positions it took in that context. Discussions during the Conference on the question of the delimitation of maritime areas resulted in the adoption of Article 15, Article 74, paragraph 1, and Article 83, paragraph 1, of UNCLOS. The Court notes that the latter two provisions reflect the view held by both Kenya and Somalia during the negotiations that the delimitation of the exclusive economic zone and the continental shelf between States with adjacent or opposite coasts should be effected by agreement “in order to achieve an equitable solution”. These provisions, however, do not set forth a specific method of delimitation and it cannot be inferred from the Parties’ positions during the Conference that Somalia rejected equidistance as a possible method of achieving an equitable solution.

• 74. In the years immediately following Kenya’s 1979 Proclamation, the Parties engaged in discussions on a variety of issues regarding their bilateral relations, such as trade and exploitation of marine resources. However, there is no indication that Somalia accepted Kenya’s claim to a boundary along a parallel of latitude during that period. In this regard, Kenya has submitted minutes of a meeting held between the Vice-Presidents of the two States on 6 May 1980, but these minutes make no mention of any discussion of the Parties’ maritime boundaries or the 1979 Proclamation. The same is true of other evidence submitted by Kenya in relation to meetings held between the Parties in 1981.

• [235] 75. Until 1989, Somalia did not claim an exclusive economic zone or define its continental shelf. Article 1, paragraph 1, of the 1972 Law on the Somali Territorial Sea and Ports defined Somalia’s territorial sea as extending to 200 nautical miles, without including any [Page 35] provision pertaining to its delimitation. Shortly before ratifying UNCLOS, Somalia adopted the Maritime Law of 1988, approved by Law No 5 on 26 January 1989. Article 7 of the Maritime Law provides that Somalia’s exclusive economic zone shall extend to 200 nautical miles, and Article 8 defines its continental shelf both within and beyond 200 nautical miles. The Maritime Law does not refer to the delimitation of either of these areas. Article 4 defines Somalia’s territorial sea as extending to 12 nautical miles and addresses the issue of its delimitation with Kenya, providing in the relevant part of paragraph 6:

  If there is no multilateral treaty, the Somali Democratic Republic shall consider that the border between the Somali Democratic Republic and the Republic of Djibouti and the Republic of Kenya is a straight line toward the sea from the land as indicated on the enclosed charts.

• 76. Somalia has not produced the charts mentioned in the provision, explaining that they may have been lost or destroyed during the civil war. It maintains that “the phrase ‘straight line toward the sea’ was intended to be equivalent to an equidistance line”. Kenya contends that, although the meaning of this phrase is unclear, taking Somalia’s contemporary practice into account, it should be interpreted as a reference to the parallel of latitude.

• 77. The Court notes that Article 4, paragraph 6, of the Maritime Law also refers to the delimitation of maritime areas in relation to the Republic of Yemen, employing the phrase “a median line”. The phrase “a straight line toward the sea from the land” is not clear and, without the charts mentioned, its meaning cannot be determined. Kenya submits a number of documents, including the Mining Code of the Somali Democratic Republic of 1984 and several maps, which, in its view, support its interpretation of this phrase. The text of the Mining Code, adopted prior to the Maritime Law of 1988, does not serve to clarify the meaning given by the latter to the phrase “a straight line toward the sea from the land”. Article 58 of the Mining Code concerns only the establishment of concession blocks in Somali territory. The Mining Code did not itself regulate Somalia’s maritime boundaries. Similarly, the maps submitted by Kenya depict only oil concession blocks. As the Court will further explain below (see paragraphs 86 and 87), such blocks, in and of themselves, cannot be taken to indicate the existence of a maritime boundary.

• 78. Somalia did not react immediately to the 2005 Proclamation. However, its view was made clear on several occasions in 2009. As noted above (see paragraph 67), the MOU concluded that year between the [236] Parties refers to an unsettled maritime dispute. [Page 36] Somalia’s 2009 submission of preliminary information to the CLCS reproduces the text of the MOU and indicates that “[u]nresolved questions remain in relation to [the] bilateral delimitation of the continental shelf with neighbouring States”. In addition, in a letter dated 19 August 2009 and addressed to the Secretary-General of the United Nations, the Prime Minister of Somalia maintained that “[t]he delimitation of the continental shelf … has not yet been settled”, further stating that

  [i]t would appear that Kenya claims an area extending up to the latitude of the point where the land border reaches the coast, while, instead, in accordance with the international law of the sea, an equidistance line normally constitutes the point of departure for the delimitation of the continental shelf between two States with adjacent coasts. Somalia bases itself on the latter view.

  Furthermore, as noted by the Court in the 2017 Judgment, in 2014 Somalia “objected to the consideration by the CLCS of Kenya’s submission on the ground that there existed a maritime boundary dispute between itself and Kenya” (ICJ Reports 2017, p. 14, para. 19). Somalia withdrew its objection in 2015, noting that the dispute had been submitted to the Court.

• 79. Finally, the Court cannot ignore the context of the civil war that afflicted Somalia, depriving it of a fully operational government and administration between 1991 and 2005. These circumstances were public and notorious (see e.g. Security Council, Report of the Secretary-General on the protection of Somali natural resources and waters, UN doc. S/2011/661, 25 October 2011, para. 22), and they were also recognized by Kenya in the previous phase of the proceedings. This context needs to be taken into account in evaluating the extent to which Somalia was in a position to react to Kenya’s claim during this period.

• 80. For the foregoing reasons, the Court considers that the conduct of Somalia between 1979 and 2014 in relation to its maritime boundary with Kenya, as examined above, 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.

*

• 81. Kenya also argues that other conduct of the Parties between 1979 and 2014 confirms Somalia’s acceptance of a maritime boundary at the parallel of latitude. Kenya refers, in particular, to the Parties’ practice concerning naval patrols, fisheries, marine scientific research and oil concessions (see paragraph 43 above). The Court will now consider this argument of Kenya.

• [Page 37] [237] 82. The Court recalls that, in the context of a maritime delimitation dispute, as for territorial disputes, the date on which the dispute crystallized is of significance. Acts occurring after such date are in principle irrelevant to the determination of a maritime boundary and cannot be taken into consideration, “having been carried out by a State which, already having claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing those claims” (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007 (II), pp. 697-8, para. 117; see also Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, ICJ Reports 2008, pp. 27-8, para. 32; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, ICJ Reports 2002, p. 682, para. 135).

• 83. Kenya argues that there was no dispute between the Parties until 2014. However, when it submitted its preliminary objections in 2015, it stated that “[i]t was only in 2009 that Somalia first disputed Kenya’s 1979 EEZ maritime boundary”. Somalia, for its part, argues that the Parties have been engaged in a maritime boundary dispute since the 1970s. The Court recalls that the MOU concluded by the Parties in 2009 and Kenya’s 2009 Submission to the CLCS indicate that a maritime dispute existed between them as of 2009 (see paragraphs 66-8 above). Somalia has not provided the Court with sufficient evidence to conclude that the dispute emerged before 2009. Accordingly, the Court considers that the Parties’ activities after 2009 cannot be taken into consideration for the purpose of determining the maritime boundary.

• 84. In light of the foregoing, the Court will examine the conduct of the Parties referred to by Kenya. The Court begins by considering the evidence of naval patrols. Maps depicting and logs recording Kenya’s naval patrols and interceptions in the territorial sea show that some law enforcement activities were conducted by Kenya north of the equidistance line claimed by Somalia. Occasionally, however, they were also conducted north of the parallel of latitude that it claims as the maritime boundary. Kenya’s naval patrols and interceptions were thus not necessarily consistent with its maritime boundary claim. Moreover, one of the maps submitted by Kenya is marked “secret” and the remaining evidence does not establish that Somalia had knowledge of these activities.

• 85. The evidence on fisheries and marine scientific research activities also does not support Kenya’s claim. Kenya submitted a fishing licence it had granted to a French vessel on 20 June 2011 for the period [Page 38] between July 2011 and June 2012, which included co-ordinates for fishing areas north of the equidistance line. There is no evidence, however, that Somalia had knowledge of these activities, which, in any event, took place [238] after 2009. Kenya also submitted a report issued by the Ministry of Fisheries and Marine Transport of Somalia for the period 1987-1988, which referred to the positions studied in a survey conducted by the Intergovernmental Oceanographic Commission (hereinafter the “IOC”) of UNESCO. However, this report includes no indication of any maritime boundary. Similarly, a map published by the Ministry of Fisheries of Somalia and reproduced in a 1987 report of the United Nations Environment Programme does not depict the boundary of Somalia’s southernmost fishery region or its maritime boundary with Kenya. It therefore cannot be concluded from this map that Somalia considered the maritime boundary to be established at the parallel of latitude. Other documents submitted by Kenya as evidence—including a map produced by the IOC, an offshore trawling survey of Kenya conducted by the Food and Agriculture Organization of the United Nations and the United Nations Development Programme, and a technical paper reflecting the results of a survey programme conducted in co-operation with Norwegian agencies—were not produced by the Parties and thus cannot be taken to reflect their official positions.

• 86. As regards oil concessions, the Parties have referred to a number of maps produced by third parties, as well as by Kenyan and Somali institutions. Kenya has also referred to the terms of Somalia’s Mining Code (see paragraph 77 above) and Petroleum Law. The Court notes that the Parties have established offshore oil concession blocks employing different lines since the 1970s. However, the Parties have referred only to limited practice that took place before 2009, such as a series of contracts concluded since 2000 in relation to the oil concession block identified by Kenya as Block L-5 and the drilling of the first exploratory well slightly north of the equidistance line claimed by Somalia, between December 2006 and January 2007. For the most part, the Parties have referred to practice after 2009, which, for the reasons previously explained (see paragraphs 82 and 83 above), is irrelevant to the determination of the maritime boundary.

• 87. The Court notes Kenya’s argument that the conduct of the Parties, including with respect to oil concessions, reflects the existence of a de facto maritime boundary. Even assuming that the limited evidence of practice before 2009 could be taken to suggest that a de facto line along the parallel of latitude may have been used by the Parties for the location of oil concession blocks, at least for some time, [Page 39] the Court observes that this may have been “simply the manifestation of the caution exercised by the Parties in granting their concessions” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, ICJ Reports 2002, p. 664, para. 79). The Court also recalls that a de facto line “might in certain circumstances correspond to the existence of an agreed legal boundary or might be more in the nature of a provisional line or of a line for a specific, limited purpose, such as sharing a scarce resource” [239] (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007 (II), p. 735, para. 253). The Court considers that “proof of the existence of a maritime boundary requires more than the demonstration of longstanding oil practice or adjoining oil concession limits” (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 71, para. 215).

• 88. For the reasons set out above, the Court considers that other conduct of the Parties between 1979 and 2014 does not confirm that Somalia has clearly and consistently accepted a maritime boundary at the parallel of latitude.

*

• 89. In conclusion, 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. Kenya’s claim in this respect must therefore be rejected.

IV. MARITIME DELIMITATION

• 90. In view of the conclusion just reached, the Court will now turn to the delimitation of the maritime areas appertaining to Somalia and Kenya.

• 91. In its Application, Somalia requested the Court 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 the continental shelf beyond 200 nautical miles (see paragraph 25 above).

V. ALLEGED VIOLATIONS BY KENYA OF ITS INTERNATIONAL OBLIGATIONS

• 198. In its final submissions, Somalia requests the Court to “adjudge and declare that Kenya, by its conduct in the disputed area, has violated its international obligations and is responsible under international law to make full reparation to Somalia”. Somalia, however, stated during the oral proceedings that it does not insist on compensation for past violations. It asks the Court to order Kenya to cease its wrongful acts and to make available to Somalia the technical data acquired in areas that are determined by the Court to be subject to the sovereignty or sovereign rights and jurisdiction of Somalia.

• 199. Somalia argues 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, as well as the principles enshrined in UNCLOS. Recalling Article 77 of UNCLOS, Somalia maintains that economic activities in a disputed maritime area, including exploration and exploitation, constitute a violation of the exclusive rights of the State whose jurisdiction over that area is recognized following delimitation. It adds that [280] when it was informed of such activities and was in a position to react, it protested against them. In the Applicant’s view, Kenya’s argument that there was no area in dispute before 2014 is not persuasive, because an area of overlapping claims had emerged by the end of the 1970s and has remained in dispute ever since. [Page 82]

  
  [Page 83]
  

• [Page 84] 200. Somalia also argues that irrespective of where in the disputed area Kenya’s activities took place, they were in violation of Kenya’s obligation, under Article 74, paragraph 3, and Article 83, paragraph 3, of UNCLOS, not to jeopardize or hamper the reaching of a final agreement concerning the delimitation of the exclusive economic zone and continental shelf. In Somalia’s view, violations of these provisions arise not only from unilateral activities that physically affect the marine environment, but, in some cases, from non-invasive acts as well, such as seismic surveys, which States can consider as a violation of their sovereign rights. The Applicant asserts that Kenya’s unilateral activities in the disputed maritime area “have generated mistrust and animosity in relations between the Parties”, jeopardizing and hampering the possibility of reaching a final agreement between them.

*

• 201. Kenya argues that there was no dispute over the maritime boundary until 2014, when Somalia formally asserted an equidistance line. Thus, it maintains that it had the right to engage freely in activities consistent with its sovereign rights in areas where it had claimed and exercised uncontested jurisdiction. In its view, such activities cannot be said to be unlawful, even if the areas concerned had been in dispute and are now attributed by the Court to Somalia. The Respondent adds that Somalia wrongly conflates the sovereignty that coastal States enjoy in the territorial sea with the more limited sovereign rights exercised in the exclusive economic zone and on the continental shelf.

• 202. As regards Article 74, paragraph 3, and Article 83, paragraph 3, of UNCLOS, Kenya argues that the obligation, during the transitional period, not to jeopardize or hamper the reaching of a final agreement, does not preclude all activities in the disputed area. Kenya maintains that this obligation is concerned only with activities that lead to permanent physical change in the disputed area, and that it does not apply to activities commenced prior to a dispute. The Respondent contends that the expansive interpretation of this obligation proposed by Somalia is contrary to the jurisprudence of the Court and that of international tribunals. Kenya adds that Somalia has not provided evidence that either its Government or its population ever perceived Kenya’s alleged activities as an attempt to deprive Somalia of its rights under international law. Kenya points out that most of the activities referred to by Somalia predate the [281] emergence of the dispute in 2014 and that they were transitory in nature. Thus, it argues that Somalia has failed to establish that Kenya authorized any unlawful activities in the disputed area.

[Page 85]

* *

• 203. The Court will first examine 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 “is made in the context of proceedings regarding a maritime boundary which had not been settled prior to the decision of the Court. The consequence of the Court’s Judgment is that the maritime boundary … has now been delimited as between the Parties” (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012 (II), p. 718, para. 250). 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” (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 159, para. 592).

• 204. Somalia complains of surveying and drilling activities conducted or authorized by Kenya in the Lamu Basin, referring in particular to the offshore oil concession blocks identified by Kenya as Blocks L-5, L-13, L-21, L-22, L-23, L-24 and L-26. The Court notes that these concession blocks are 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 area 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.

• 205. The Court now 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. These paragraphs, which refer to the exclusive economic zone and the continental shelf respectively, read as follows:

  Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

• [Page 86] [282] 206. Under these provisions, States with opposite or adjacent coasts that have not reached an agreement on the delimitation 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 after the maritime delimitation dispute has been established until a final delimitation by agreement or adjudication has been achieved” (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 168, para. 630). As previously noted (see paragraph 83 above), the Court is of the view that a maritime delimitation dispute between the Parties has been established since 2009. Accordingly, the Court will only examine whether the activities conducted by Kenya after 2009 jeopardized or hampered the reaching of a final agreement on the delimitation of the maritime boundary.

• 207. 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” (see Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 10, para. 30). 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 (see Arbitration regarding the Delimitation of the Maritime Boundary between Guyana and Suriname, Award of 17 September 2007, RIAA, Vol. XXX, pp. 132-3, paras. 466-7 and 470).

• 208. 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 (see ibid., p. 137, para. 480). Somalia refers, in particular, to four wells drilled in the offshore Lamu Basin as of 2011, to “sea core” and “seabed core” drilling operations carried out in Block L-22 in 2013 and 2014, and to exploratory drilling in Block L-5 which was “scheduled in 2015”. Kenya does not deny having authorized drilling operations in the Lamu Basin, but states that “there was no drilling of seabed core” in Block L-22 in 2014 and that the drilling scheduled in Block L-5 “never took place”.

• [Page 87] 209. The Court notes that a presentation made in 2011 by a commissioner from Kenya’s Ministry of Energy refers to offshore drilling operations in the Lamu Basin but only lists wells drilled until 2007. A map included in the Final Report of the Strategic Environmental and Social Assessment of the Petroleum Sector in Kenya, issued in December 2016 by the Ministry of Energy and Petroleum of Kenya, identifies four wells [283] drilled in the Lamu Basin after 2009, but all of them are located south of and at a great distance from the equidistance line claimed by Somalia as the maritime boundary. The map does not show any wells drilled after 2009 in the oil concession blocks referred to by Somalia. With respect to the alleged drilling in Block L-22, two documents issued by a private operator state that “sea core drilling operations [were] in progress on the L22 offshore license” in 2013 and that “[o]n the offshore L22 license, seabed core drilling operations were carried out in early 2014”. However, these documents do not specify the precise location of those operations. As for the alleged drilling in Block L-5, Somalia has not provided the Court with evidence demonstrating that any such drilling operation ever took place. Thus, on the basis of the evidence before it, the Court 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.

• 210. The Court further notes that, in 2014, the Parties engaged in negotiations on maritime delimitation (see paragraph 69 above) and that, in 2016, Kenya suspended its activities in the disputed area and offered to enter into provisional arrangements with Somalia.

• 211. 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.

• 212. For the reasons set out above, 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.

• 213. The maritime boundary between the Parties having been determined, the Court expects that each Party will fully respect the sovereignty, sovereign rights and jurisdiction of the other in accordance with international law.

*

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• [Page 88] 214. For these reasons,

  The Court,

  (1) Unanimously,

  Finds that there is no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya that follows the parallel of latitude described in paragraph 35 above;

• [284] (2) Unanimously,

  Decides that the starting point of the single maritime boundary delimiting the respective maritime areas between the Federal Republic of Somalia and the Republic of Kenya is the intersection of the straight line extending from the final permanent boundary beacon (PB 29) at right angles to the general direction of the coast with the low-water line, at the point with co-ordinates 1° 39′ 44.0″ S and 41° 33′ 34.4″ E (WGS 84);

• (3) Unanimously,

  Decides that, from the starting point, the maritime boundary in the territorial sea follows the median line described at paragraph 117 above until it reaches the 12-nautical-mile limit at the point with co-ordinates 1° 47′ 39.1″ S and 41° 43′ 46.8″ E (WGS 84) (Point A);

• (4) By ten votes to four,

  Decides that, from the end of the boundary in the territorial sea (Point A), the single maritime boundary delimiting the exclusive economic zone and the continental shelf up to 200 nautical miles between the Federal Republic of Somalia and the Republic of Kenya follows the geodetic line starting with azimuth 114° until it reaches the 200-nautical-mile limit measured from the baselines from which the breadth of the territorial sea of the Republic of Kenya is measured, at the point with co-ordinates 3° 4′ 21.3″ S and 44° 35′ 30.7″ E (WGS 84) (Point B);

  in favour: President Donoghue; Vice-President Gevorgian; Judges Tomka, Bennouna, Xue, Sebutinde, Robinson, Iwasawa, Nolte; Judge ad hoc Guillaume;

  against: Judges Abraham, Yusuf, Bhandari, Salam;

• (5) By nine votes to five,

  Decides that, from Point B, the maritime boundary delimiting the continental shelf continues along the same geodetic line until it reaches the outer limits of the continental shelf or the area where the rights of third States may be affected;

  [Page 89] in favour: President Donoghue; Vice-President Gevorgian; Judges Tomka, Bennouna, Xue, Sebutinde, Iwasawa, Nolte; Judge ad hoc Guillaume;

  against: Judges Abraham, Yusuf, Bhandari, Robinson, Salam;

• (6) Unanimously,

  Rejects the claim made by the Federal Republic of Somalia in its final submission number 4.

• [285] President Donoghue appends a separate opinion to the Judgment of the Court; Judges Abraham and Yusuf append separate opinions to the Judgment of the Court; Judge Xue appends a declaration to the Judgment of the Court; Judge Robinson appends an individual, partly concurring and partly dissenting, opinion to the Judgment of the Court; Judge ad hoc Guillaume appends a separate opinion to the Judgment of the Court.

[286] SEPARATE OPINION OF PRESIDENT DONOGHUE

• 1. I have voted in favour of subparagraph (5) of the dispositive paragraph of the Judgment, pursuant to which the maritime boundary continues beyond 200 nautical miles until it reaches the outer limits of the continental shelf or the area where the rights of third States may be affected. I submit this opinion in order to indicate the reasons why I have cast this vote and why I do so with reluctance.

• 2. As the Court notes, both Parties have asked the Court to delimit the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured (the “outer continental shelf”). Each Party has proposed that the Court do so by extending the boundary line that it proposes—an equidistance line on the part of Somalia and the parallel of latitude on the part of Kenya. The Court can reasonably assume that each Party has called upon the Court to delimit the outer continental shelf in full awareness of the fact that a maritime boundary established by the Court need not follow the course proposed by a party.

• 3. Each Party also has a comprehensive appreciation of the strength, and potential weaknesses, of its own submission to the Commission on the Limits of the Continental Shelf (the “CLCS” or “the Commission”). Neither Party has questioned the other Party’s entitlement to outer continental shelf or the other Party’s claim that, in certain parts of the area in which the Parties’ claims overlap, such [Page 90] entitlement extends to the 350-nautical-mile constraint set out in Article 76, paragraph 5, of the United Nations Convention on the Law of the Sea (“UNCLOS”). All indications, therefore, are that both Parties consider that the Court has sufficient information to arrive at an equitable delimitation of the outer continental shelf. It is on this basis that I have reached the conclusion that the Court should delimit the outer continental shelf in this case.

• 4. My hesitancy about the Court’s decision to delimit the outer continental shelf in this case stems from the fact that the Court has scant evidence regarding the existence, shape, extent and continuity of any outer continental shelf that might appertain to the Parties. The Court is not [287] well positioned to identify, even approximately, any area of overlapping entitlement and thus to arrive at an equitable delimitation of any area of overlap.

• 5. For avoidance of doubt, I note that my misgivings about the Court’s decision to delimit the outer continental shelf are not animated by procedural concerns. The fact that the CLCS has not yet made a recommendation relating to the outer limits of the continental shelf of either State is not in itself an obstacle to equitable delimitation of the outer continental shelf.

• 6. This case is entirely different from other cases in which a tribunal has delimited the outer continental shelf of two States. In Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), the International Tribunal for the Law of the Sea (“ITLOS”) noted that there was “uncontested scientific evidence” that “practically the entire floor of the Bay of Bengal, including areas appertaining to [both Parties]”, was covered with a “thick layer of sedimentary rocks” (Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 115, paras. 445-6). The Annex VII Tribunal in the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India took note of the reasoning of ITLOS and of the maritime delimitation between Bangladesh and Myanmar and concluded that both Bangladesh and India had entitlements to outer continental shelf (Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, Reports of International Arbitral Awards, Vol. XXXII, p. 138, paras. 457-8).

• 7. In Ghana/Côte d’Ivoire, the Special Chamber of ITLOS had the benefit of an affirmative CLCS recommendation in relation to Ghana. It observed that the geological situation of Côte d’Ivoire was “identical” to that of Ghana (Delimitation of the Maritime Boundary in the Atlantic [Page 91] Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 136, para. 491).

• 8. In the present case, the Court has no comparable evidence regarding the existence, extent, shape or continuity of any outer continental shelf appertaining to either Party. The Parties submitted to the Court the executive summaries of their submissions to the Commission (although not the submissions themselves). Submissions by States to the CLCS are unilateral assertions made with a view towards maximizing the area of continental shelf that the State can claim. It cannot be assumed that the Commission will adopt any State’s submission.

• 9. My doubts about the Court’s decision to delimit the outer continental shelf do not result from the particular course of the boundary that the Court has established. The lack of information about any area of overlapping entitlement would be of concern whether that delimitation had proceeded along the parallel of latitude, as Kenya proposed, along an [288] equidistance line, as Somalia proposed, or along the adjusted equidistance line established in the Judgment.

• 10. I also offer a brief observation about the methodology that is appropriate to the delimitation of the outer continental shelf.

• 11. In relation to delimitation of the 200-nautical-mile zones, the key determinant of an equitable delimitation is normally the coastal configuration of the two States (represented by base points when an equidistance methodology is applied). The area of overlapping entitlement is identified on the basis of the projection in the seaward direction of each party’s relevant coast, i.e. “the coast [of each Party] … [that] generate[s] projections which overlap with projections from the coast of the other Party” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, p. 97, para. 99). An equidistance line, constructed using base points on the parties’ coasts, provides an initial indication of an equitable apportionment of the area of overlap, to be adjusted if special and/or relevant circumstances so warrant.

• 12. Beyond 200 nautical miles from the coasts of two adjacent States, on the other hand, any area of overlapping entitlement is not determined by the configuration of the coasts of the two States, but rather by application of the geomorphological and geological criteria set out in Article 76 of UNCLOS. Coastal configuration only becomes relevant to a State’s entitlement to outer continental shelf if it has been established (on the basis of the criteria set out in Article 76, paragraph 4, of UNCLOS) that the outer edge of a State’s continental margin extends so far as to reach a distance of 350 nautical miles from the [Page 92] baselines from which the breadth of its territorial sea is measured, where the State’s entitlement is limited by the 350-nautical-mile constraint contained in Article 76, paragraph 5, of UNCLOS.

• 13. In delimitation between two adjacent States, it is simple (and therefore inviting) to continue a delimitation line past the 200-nautical-mile limit, using a directional arrow. However, because the juridical basis for entitlement to outer continental shelf is entirely different from the basis for entitlement within 200 nautical miles, it cannot be presumed that a line that achieves an equitable delimitation of the 200-nautical-mile zones will also result in equitable delimitation of overlapping areas of two States’ outer continental shelf.

[289] SEPARATE OPINION OF JUDGE ABRAHAM

[Translation]

• 1. I agree with most of the conclusions reached by the Court in the present Judgment.

• 2. I am of the opinion that, as the Court notes in paragraph 89 of the Judgment, Somalia has not acquiesced to the maritime boundary claimed by Kenya along the parallel of latitude and that, consequently, there is no boundary that has already been agreed between the Parties. I therefore voted in favour of subparagraph 1 of the operative clause, which states that there is no tacit agreement between the Parties in this regard.

• 3. Since it was thus for the Court itself to delimit the maritime areas belonging respectively to Somalia and Kenya, it proceeded to do so, in my view correctly on the majority of points.

• 4. I have no objection to the manner in which the Court fixed the starting point of the maritime boundary (in paragraphs 93 to 98). Nor do I disagree with the section of the Judgment concerning the delimitation of the territorial sea (paras. 99-118). I agree with the course of the median line, whose co-ordinates are given in paragraph 117 and which is depicted in sketch-map No 5 (p. 51). I therefore voted in favour of subparagraphs 2 and 3 of the operative clause.

• 5. As regards the delimitation of the exclusive economic zone and the continental shelf within 200 nautical miles, I fully agree with the Court applying the “three-stage” methodology which is now well established in the jurisprudence, reaffirming on this occasion that while this method is not mandatory, it is nonetheless applied as a rule unless there are specific factors rendering it inappropriate in a given case—there being no such factors in this instance.

• [Page 93] 6. As for the manner in which the Court applies the three-stage methodology in this case, I have no criticism to make with regard to the first and third stages. The construction of the provisional equidistance line (paras. 142-6) is beyond reproach in my view, and I agree with the co-ordinates of that line as indicated in paragraph 146 and its course as depicted in sketch-map No 9 (p. 64). I also accept that the delimitation line adopted by the Court, after adjustment of the provisional equidistance line, is not invalidated by the final disproportionality test, since it does not lead to any “significant disproportionality” between the ratio of the lengths of the Parties’ respective relevant coasts and the ratio of the relevant areas attributed to each of them.

• 7. Where I disagree is on the second stage of the process, the purpose of which is to ascertain whether there are factors requiring an adjustment [290] of the provisional equidistance line and, if so, to make an appropriate adjustment taking account of the relevant circumstances (paras. 147-74). It is because I disagree with the choice, as the maritime boundary, of the “adjusted line” depicted in sketch-map No 11 (p. 75) that I regretfully had to vote against subparagraph 4 of the operative clause, which determines the course of the single maritime boundary within 200 nautical miles, and, consequently, against subparagraph 5, which extends that boundary beyond 200 nautical miles, along the same geodetic line, in order to delimit the continental shelf.

• 8. Before explaining why I disagree, I will state briefly that I have no objection to the way in which the Judgment deals with the specific questions of law and fact relating to the determination of the boundary between the Parties on the continental shelf beyond 200 nautical miles, and that I also support the Court’s rejection (and the reasoning underpinning that rejection) of Somalia’s submissions requesting the Court to declare Kenya’s international responsibility engaged on account of that State’s violation of certain international obligations (which is why I voted in favour of subparagraph 6 of the operative clause).

• 9. Thus, my sole point of disagreement with the Judgment—though it relates to a matter of substance—concerns the Court’s examination of the circumstances warranting—or not—an adjustment of the provisional equidistance line, an examination that is described in paragraphs 147 to 174 and constitutes the second stage of the traditional method.

• 10. The Court considered that an adjustment of the provisional equidistance line by shifting it to the north—thus to the benefit of Kenya—was justified by the concavity of the East African coastline [Page 94] as a whole, from Somalia to Tanzania. It is argued that, owing to this concavity, Kenya, as a middle State, would be disadvantaged if a strict equidistance line were to be used to establish the maritime boundaries. More specifically, if equidistance lines were adopted as the maritime boundaries between both Kenya and Somalia and Kenya and Tanzania, it would result in a cut-off effect for Kenya. Sketch-map No 10 (p. 72) is intended to illustrate this situation by showing that “[t]he provisional equidistance line between Somalia and Kenya progressively narrows the coastal projection of Kenya, substantially reducing its maritime entitlements within 200 nautical miles” (para. 169), even if no account is taken of the boundary line agreed by means of a treaty between Kenya and Tanzania along the parallel of latitude.

• 11. I am not convinced.

  I would first observe that, in order to detect a concavity that produces a cut-off effect justifying an adjustment of the equidistance line, the Court is obliged to move a considerable distance away from the relevant coasts, adopting what could be termed a “macro-geographical” approach, i.e. by considering the concavity of the coastline “in a broader geographical configuration” than that of the States concerned (para. 164). Yet, in the case [291] concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), the Court made the following statement, which in my view could not be clearer:

  The Court does not deny that the concavity of the coastline may be a circumstance relevant to delimitation, as it was held to be by the Court in the North Sea Continental Shelf cases and as was also so held by the Arbitral Tribunal in the case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea–Bissau, decisions on which Cameroon relies. Nevertheless the Court stresses that this can only be the case when such concavity lies within the area to be delimited.

  (Judgment, ICJ Reports 2002, p. 445, para. 297.)

  It is difficult, in the present case, to claim that the concavity of the coastline lies “within the area to be delimited”. An examination of the relevant coasts of Somalia and Kenya—as depicted, for example, in sketch-map No 8 (p. 58) which precedes paragraph 141 of the Judgment—reveals no particular concavity, which, moreover, the Judgment acknowledges.

  In an attempt to counter the objection resulting from the Cameroon v. Nigeria precedent, which is referred to (although only partially quoted), the Judgment underlines “the specific context of that case” [Page 95] (para. 164), but the explanation it offers in this regard is hardly convincing.

• 12. I accept that it is reasonable, in some cases, to take account not only of the coastal configuration of the two States parties to the proceedings, but also that of a third State (or several third States), when it is clear that those coasts may, by the projections they generate, have significant effects on the equity of the delimitation to be made between the two States directly concerned. This is the case when there are three adjacent States along a concave coastline, and the middle State, hemmed in by the two other States, finds itself deprived of a large part of its maritime areas by the strict application of the equidistance method. In such a situation, even if the case submitted for judicial or arbitral decision is between only two of the three States concerned, it would be difficult for the court or arbitration body not to take account of the configuration of the third State’s coastline. The Court is right, in this regard, to refer to the precedents of the Bangladesh/Myanmar and Bangladesh v. India cases, decided respectively by the International Tribunal for the Law of the Sea and an arbitral tribunal (paragraph 166 of the Judgment).

• 13. But even if we agree to move away from the directly relevant coasts in order to take a general view of the region, by looking at the coastline as a whole from Somalia, in the north, to Tanzania, or even Mozambique, in the south, it is plain to see that the situation of Kenya, which is located more or less in the middle of this group, is in no way analogous to that of Bangladesh, which is enclaved between India and Myanmar within a deep concave bay, or to that of the German coastline between the Danish and Dutch coasts, such that the Court considered them together in the North Sea Continental Shelf case.

• [292] In the present case, there is no conspicuous concavity in the configuration of Somalia’s coast to the north of Kenya, or in the way in which the Somalian and Kenyan coastlines extend in broadly the same general direction. It is the coast of Tanzania to the south, and this coast alone, which is somewhat concave.

• 14. It is true that it is not the concavity of the coasts in itself that motivates the adjustment of the equidistance line carried out by the Court, but the “cut-off” effect it would produce for Kenya. However, the jurisprudence clearly and consistently states that a cut-off effect is not in itself sufficient to justify the shifting of the provisional equidistance line; this is understandable, since any delimitation between two States whose maritime projections overlap inevitably creates a cut-off effect for one of them or, more often than not, both.

  [Page 96] It is only when the cut-off effect is “serious” or “significant” that there is cause to correct—or mitigate—it by adjusting the equidistance line, as shown by the jurisprudence rightly cited by the Court in paragraph 170 of the Judgment.

• 15. I very much doubt that the “serious” criterion is met in this case. Sketch-map No 10 (p. 72), which shows the maritime areas that would appertain to Kenya if both its northern and southern maritime boundaries were fixed using the equidistance method, does not in my view show a sufficiently serious cut-off to justify an adjustment on the scale of that adopted by the Court, which shifts the equidistance line between Somalia and Kenya northwards by approximately a third of the distance between that line and the parallel of latitude claimed by Kenya, without any valid legal basis, as the agreed boundary. Furthermore, it is patently clear that the cut-off effect for Kenya results mainly from the configuration of its coast in relation to that of Tanzania to the south, and in particular from the presence of the Tanzanian island of Pemba, which the Court mentions in paragraph 168 of the Judgment. Somalia thus finds itself deprived of part of its maritime rights for a cause that should normally be relevant only in the context of the delimitation of a maritime boundary between two other States.

  The circumstances of the case did not, in my view, justify the adjustment made by the Court, if indeed any shift in the equidistance line were warranted, and I cannot support the solution that it adopted.

[293] SEPARATE OPINION OF JUDGE YUSUF

[312] DECLARATION OF JUDGE XUE

• 1. In the present case, the Court has used the three-stage approach to establish the maritime boundary between Somalia and Kenya in the exclusive economic zone and on the continental shelf within 200 nautical miles. Although this methodology has been applied in a number of cases since the Black Sea Judgment (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, p. 61), as this case demonstrates, the question whether its methodological approaches are suitable for all types of maritime delimitation cases requires review.

• 2. The relevant provisions of the 1982 United Nations Convention on the Law of the Sea (hereinafter “UNCLOS” or the “Convention”) [Page 116] on the maritime delimitation of the exclusive economic zone and the continental shelf are contained in Articles 74 and 83. As the Court points out in the Judgment, they are of “a very general nature and do not provide much by way of guidance for those involved in the maritime delimitation exercise” (Judgment, para. 121). In such an exercise, all that is required to do under these provisions is to achieve an equitable solution, either through negotiations or by a third-party settlement. In other words, there is no mandatory methodology provided for under the Convention. This is certainly not an omission, but a deliberate and well-considered choice on the part of the States parties.

• 3. Historically, there were two main schools of thought among States on the principles for the maritime delimitation of continental shelf: one is the principle of equidistance as expressed in Article 6, paragraph 2, of the 1958 Geneva Convention on the Continental Shelf, the other the equitable principles. Positions taken by States on these two schools varied greatly, given the geographical circumstances of the maritime area in which States find themselves; the equidistance method worked well in some cases, producing an equitable solution, while in others it did not. Therefore, it came as no surprise that the equidistance method was never accepted as a rule in international law that applies to maritime delimitations.

• 4. In the North Sea Continental Shelf cases, the Court, for the first time, was requested to pronounce on the applicable principles and rules of international law for the delimitation of continental shelf. The Court rejected the claims of Denmark and the Netherlands to apply the equidistance method (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, pp. 45-6, para. 82) and stated that delimitation was to be [313] effected in accordance with equitable principles (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, pp. 46-7, para. 85). Among the three parties concerned in the joint cases, their coastlines were comparable in length and equally treated by nature, but they were not straight lines. If the equidistance method were adopted to draw the boundary lines, it would not produce an equitable result. The Court considered that, in doing so, one of the States should enjoy continental shelf rights considerably different from those of its neighbours merely because in the one case the coastline was roughly convex in form and in the other it was markedly concave, although those coastlines were comparable in length (ibid., p. 50, para. 91). To overcome the distorting effect caused by such irregular situations, the Court considered that a balancing was called for in the delimitation. It stated that

  [Page 117] the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines—these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions

  (ibid., p. 52, para. 98).

• 5. The equitable principles enunciated by the Court in the North Sea Continental Shelf Judgment thus became the guiding principles for maritime delimitation. Subsequently, these principles were reflected in Articles 74 and 83 of UNCLOS, according to which the exercise of delimitation must achieve an equitable solution. A maritime boundary that is established by bilateral negotiations is deemed equitable, as the States concerned agree to accept it as such. In the third-party settlement, how to achieve an equitable solution very much depends on the methodology used. In the ensuing years, the Court through judicial practice has gradually formulated some methodological approaches in the maritime delimitation, taking into account various geographical circumstances. In the Romania v. Ukraine case, these approaches were synthesized into a general delimitation methodology, which is conveniently called “the three-stage approach” (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, pp. 101-3, paras. 115-22). By going through three stages, the Court will first construct a provisional equidistance line on the base points that are selected on strictly geometrical criteria on the basis of objective data. It will then “consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result” (ibid., p. 101, para. 120, referring to Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 441, para. 288). Such factors, referred to as [314] “relevant circumstances”, are left to the Court to determine, although those accepted so far are mostly geographical circumstances. Finally, the Court will subject the depicted line, adjusted or otherwise, to a disproportionality test to check whether there is any marked disproportion between the ratio of the length of the relevant coasts of the parties and the ratio of the respective shares of the relevant area apportioned by the depicted line to the parties. This test is designed to ensure the equitableness of the outcome of the delimitation.

• 6. The three-stage approach, notwithstanding its methodological certainty and objectivity, is a practice-based method. At each stage, geographical circumstances of each case are determinative for the [Page 118] purpose of delimitation. For example, what base points should be chosen, and what factors constitute relevant circumstances, must be “case specific”, to be determined by the Court in the context of each case (Arbitration between Barbados and the Republic of Trinidad and Tobago, Award of 11 April 2006, Reports of International Arbitral Awards (RIAA), Vol. XXVII, p. 215, para. 242). The three-stage approach is intended to develop objective criteria and standard techniques for the maritime delimitation, but in practice, such criteria and techniques should not be applied mechanically.

• 7. In the first stage, in order to construct the provisional equidistance line, the first and essential step is to identify the parties’ coasts whose seaward projections overlap (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, pp. 96-7, para. 99). By the Court’s jurisprudence, the coast that generates projections overlapping with projections from the coast of the other party is considered as relevant (ibid.; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 61, para. 75). In the present case, the coastline of the Parties in the area is simply straight, without any particular maritime features or indentations. Being adjacent to each other, the coasts of the Parties are both seaward, abutting the same maritime area and the same continental shelf. In identifying the relevant coasts, the Court, using radial projection, measures that the relevant coast of Somalia extends for approximately 733 km and that of Kenya extends for approximately 511 km. As sketch-map No 8 in the Judgment (p. 58) illustrates, a substantial portion of the relevant coast of Somalia does not generate entitlements that actually overlap with those from the Kenyan coast. Although radial projection is normally used to identify the relevant coasts, it is questionable to use it under the present circumstances. It overstretches the length of the relevant coasts, particularly that on the Somali side. In the Costa Rica v. Nicaragua case, some segments of the relevant coast on the Costa Rican side in the Pacific Ocean, namely, from Punta Herradura to Punta Salsipuedes, seem also left out of the identified relevant area (Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment, ICJ Reports 2018 (I), pp. 210-14, paras. 181, 184, 185). An examination of [315] the facts, however, tells a different story. Those segments, first of all, fall within approximately 200 nautical miles from the starting point of the boundary between the parties. The total length of the relevant coast of Costa Rica is measured as 416.4 km. That means there are genuine overlapping entitlements generated from that coast. Second, the reason why it does not abut [Page 119] the relevant area is due to the geographical circumstance of the Nicoya Peninsula. Given the geographical circumstances of that case, the radial projection is the most appropriate methodology to be used.

• 8. Under the circumstances of the present case, both Parties’ coasts are properly seaward, without geographical irregularities. There is no reason to leave out any segments of the coasts unless they do not produce any overlapping entitlements, in which case they should not be identified as the relevant coast in the first place. In the Ghana/Côte d’Ivoire case (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 4), the coastal situation between the parties for the maritime delimitation possesses many similarities with that in the present case. The coastline of Ghana and Côte d’Ivoire, two adjacent States, is almost as straight as that of Somalia and Kenya, extending a substantial distance on each side from the land boundary terminus. With regard to Côte d’Ivoire’s relevant coast, Côte d’Ivoire claimed that its entire coast was relevant, but Ghana contended that it should extend from the land boundary terminus until the vicinity of Sassandra, a point which is about 350 km west of the land boundary terminus. In explaining its position, Ghana stated:

  west of [Sassandra] point, the Ivorian coastline is almost entirely beyond 200 M from the maritime entitlements claimed by Ghana … there is no overlap with any Ghanaian entitlement with any projections emanating from the western segment of the Ivorian coast, and therefore that western part of Côte d’Ivoire’s coast cannot be relevant to the delimitation

  (ibid., p. 104, para. 365).

  According to Ghana, the relevant coast for Côte d’Ivoire is 308 km, and that for Ghana is 121 km.

• 9. The Special Chamber of the International Tribunal for the Law of the Sea (hereinafter the “ITLOS Chamber” or “Chamber”), using the equidistance/relevant circumstances methodology, found that

  [t]he Côte d’Ivoire coast from [the land boundary terminus] until Sassandra generate[d] … projections into the maritime area to be delimited. The projections of this part of the coast of Côte d’Ivoire overlap[ped] with projections of the Ghanaian coast and accordingly this part of the Ivorian coast [was] relevant

  (ibid., p. 106, para. 377).

• [316] With regard to Côte d’Ivoire’s coast west of Sassandra, the Chamber was of the view that that part of the coast did not have a projection to the sea in a way that overlapped with the disputed area, and therefore did not constitute part of the relevant coast (see Ghana/Côte d’Ivoire case (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 107, sketch-map No 2, [Page 120] reproduced below, p. 121). It emphasized that “what the relevant coast is—or, in other words, which seaward projection of the coast creates an overlap—is determined by the geographic reality of that coast” (ibid., p. 106, para. 378; emphasis added). Accordingly, the Chamber decided that the length of the relevant Ghanaian coast was approximately 139 km and that of Côte d’Ivoire 352 km (ibid., para. 379). On the basis of this identification, the Chamber determined the relevant area (see ibid., p. 109, sketch-map No 3, reproduced below, p. 122). This finding of the Chamber, in my view, properly reflects the technical nexus between the relevant coasts and the relevant area for the purposes of the delimitation. It should be the geographic reality and genuine overlapping entitlements that determine which part of a coast is relevant.

• 10. The problem with the radial projection in this case also exists in the relevant area identified by the Court, which, in my view, does not encompass the entire potential overlapping entitlements of the Parties in this case. In their submissions to the Court, both Parties have requested the Court to determine the complete course of the maritime boundary between Somalia and Kenya in the Indian Ocean, including in the continental shelf beyond 200 nautical miles. Based on its finding that both Parties had made submissions on the limits of the continental shelf beyond 200 nautical miles to the Commission on the Limits of Continental Shelf (hereinafter the “CLCS”) in accordance with Article 76, paragraph 8, of UNCLOS, before the present proceedings and, as the matter stands, neither of them questions the existence of the other Party’s entitlement to a continental shelf beyond 200 nautical miles or the extent of that claim, the Court decides to proceed to the delimitation of the continental shelf beyond 200 nautical miles. With regard to the absence of the recommendations of the CLCS on the establishment of the outer limits of the continental shelves, 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” (Judgment, para. 189). However, this decision of the Court is not reflected in the relevant area identified by the Court, which does not comprise the potential overlapping entitlements of the Parties beyond 200 nautical miles.

• 11. Once the Court decides to go ahead with the delimitation of the boundary in the outer continental shelf, even with care, it means that the relevant area should include the continental shelf beyond 200 nautical miles. With the radial projection methodology, it is difficult to proceed to identifying the relevant coasts and the relevant area that [Page 121]

  
  [Page 122]
  
  [Page 123] includes the potential overlapping entitlements in the continental shelf beyond [319] 200 nautical miles, as its outer limits are not yet determined. On the identification of the relevant coasts for the outer continental shelf, there are two additional decisions for reference: one is the Judgment rendered by the ITLOS in Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) and the other is the award of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India). In the latter case, the parties requested the Arbitral Tribunal to delimit the full course of their maritime boundary, including the continental shelf beyond 200 nautical miles. With regard to the relationship between the relevant coasts of the continental shelf within 200 nautical miles and those of the continental shelf beyond 200 nautical miles, the Arbitral Tribunal observed that “the coast is relevant, irrespective of whether that overlap occurs within 200 nm of both coasts, beyond 200 nm of both coasts, or within 200 nm of one and beyond 200 nm of the other” (Award of 7 July 2014, RIAA, Vol. XXXII, p. 93, para. 299). That is to say, the relevant coasts for the delimitation within 200 nautical miles are the same as those for the delimitation beyond 200 nautical miles (ibid., p. 94, paras. 300-2; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, pp. 58-9, paras. 200-5). It follows that in the present case, the coasts identified are relevant irrespective of whether the continental shelf is within 200 nautical miles or beyond. Notwithstanding that identification, nevertheless it remains problematic to use radial projection to identify the relevant area.

• 12. In the present case, it is evident that all the overlapping entitlements of the Parties could be generated from the coasts of the Parties within 200 nautical miles. If frontal projections were used, the relevant coasts of the Parties would extend on each side of the land boundary terminus for a 200-nautical-mile distance and the relevant area would extend south-eastward perpendicular to the relevant coasts to the limit of 200 nautical miles, and further down to the limit of 350 nautical miles as claimed by Kenya. In the south, the relevant area is confined by the perpendicular line and the boundary agreed between Kenya and Tanzania, and extends along the boundary until the 350-nautical-mile limit as claimed by Kenya (see sketch-map below, p. 125). In my opinion, the area thus identified would better present the potential overlapping entitlements of the Parties. Regardless of the fact that the Court does not possess the necessary information of the continental shelf beyond 200 nautical miles, its decision to extend the adjusted [Page 124] equidistance line beyond 200 nautical miles could be sustained only if the outer continental shelf is presumed to exist. One may argue that this approach may deviate from the conventional practice of the Court, but the approach taken by the Court itself is not “conventional”. To omit the continental shelf beyond 200 nautical miles from the relevant area would not enable the Court to conduct a meaningful assessment of the proportion between the ratio of [320] the length of the relevant coasts of the Parties and the ratio of the shares of the relevant area apportioned to each of them. As is mentioned before, methodological approaches should only serve as a means to achieve an equitable solution, but not an end in itself. The paramount consideration should be given to the goal of achieving an equitable solution (Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 86, para. 281; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 67, para. 235). Of course, there should be no mistake that any delimitation in the outer continental shelf should only be taken as illustrative, conditional on the recommendations of the CLCS in accordance with Article 76, paragraphs 4 and 5, of UNCLOS.

• 13. The second important aspect that I would like to raise is the consideration of the relevant circumstances. As the Court states in the Judgment, the concept of relevant circumstances is not provided in the Convention but developed through judicial practice (Judgment, para. 124). The reason why, so far, there is no exhaustive list of relevant circumstances that have been developed by the Court in maritime delimitation is not difficult to explain. Geographical, economic and social situations of States differ greatly. There may be historic rights or special interests to be preserved or protected by international law. Maritime delimitation is not just about the sharing of a maritime area. The underlying interests often rest at the heart of the dispute between the parties. When the equidistance method alone cannot fulfil the objective of achieving an equitable solution in all circumstances, the equitable principles should come into play. In essence, the second stage is a crucial means to ensure the equitableness of the final result of the delimitation. If anything, this should be the strength of the three-stage approach.

• 14. The Court, as the adjudicator, is obliged to take all the relevant circumstances into consideration, on the basis of the evidence and documents adduced by the parties. What circumstance is relevant and what is not must be appreciated by the Court in the context of a specific case. They cannot be predetermined or preset by certain [Page 125] criteria. As Judge Weeramantry pointed out, “one can never foretell what circumstances may surface or achieve importance in the unknown disputes of the future” (Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, ICJ Reports 1993, separate opinion of Judge Weeramantry, p. 261, para. 182). The Court might be easily criticized for “excessive subjectivity” in its judgment of such circumstances, but there are good reasons for the Court to maintain its appreciation of the subject-matter. For judicial settlement, even if it cannot be precluded that there are situations where the parties may use the [321] open-endedness of the concept to make excessive claims, it is up to the Court to consider the circumstances and determine what factors to be taken into account in accordance with the equitable principles. So far, the Court has attached legal relevance primarily to geographical circumstances—such as cut-off effect, concavity and convexity, special insular features—which could produce distorting effects on the maritime delimitation. Non-geographical factors have seldom been accepted by the Court as relevant circumstances, although in principle

  

  Relevant coasts and relevant area

  [Page 126] they are not precluded in the jurisprudence of the Court. This tendency in practice, if continued, would likely render the second stage into a purely geometrical exercise, with a few fixed geophysical factors for the Court to consider, thus reducing the discretion of the Court in its appreciation of the situation. Eventually, the three-stage approach would in effect evolve into a substitute of the equidistance method and the equitable principles would vanish from the process of delimitation.

• [322] 15. The fear that the boundless proliferation of relevant circumstances would open up a risk of assimilating judgments based on law to those rendered ex aequo et bono, in my view, is unfounded, because the notion of relevant circumstances itself is judicially developed and applied. As the Court stated in the North Sea Continental Shelf cases, “when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules” ((Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, p. 48, para. 88). The margin of appreciation is to be exercised by the Court, not the parties. Coupled with that discretion, of course, is the responsibility of the adjudicating organ, court or arbitral tribunal, to act reasonably and fairly in the delimitation in accordance with the equitable principles.

• 16. In the present case, Kenya has raised five factors as the relevant circumstances for the adjustment of the equidistance line, including significant cut-off effect, regional practice of using parallels of latitude to delimit maritime boundaries, vital security interests, long-standing conduct of the Parties in relation to oil concessions, naval patrols and fishing activities, and the impact on the local fisherfolk. The Court rejects all the factors but cut-off effect. Here I fully concur with the reasoning of the Court with regard to the geographical circumstances in the region concerned and the cut-off effect produced by the equidistance line (Judgment, paras. 162-71). Sketch-map No 10 in the Judgment (p. 72) well illustrates the effect of the concavity of the coastline on the delimitation of the maritime boundaries among the three States—Somalia, Kenya and Tanzania. This is a textbook case where the equidistance method could not produce an equitable solution. The equidistance line between Kenya and Tanzania and the equidistance line between Kenya and Somalia both work to the disadvantage of Kenya and, as a result, the Kenyan coast could not produce its effect to a significant extent in terms of its maritime entitlements. As the narrowing effect on Kenya comes from both the [Page 127] northern and southern directions, it is reasonable to make an adjustment in both directions. Such adjustment of the equidistance lines does not give rise to the refashioning of geography. On the contrary, it will rectify the unreasonableness of the equidistance lines, ensuring a fair sharing of the disputed area, which serves the interests of the States concerned in the long run. The maritime boundary agreed between Kenya and Tanzania, as indicated on sketch-map No 10 of the Judgment (p. 72), has overcome the cut-off effect to the extent the parties deem reasonable and appropriate. With regard to the equidistance line between Somalia and Kenya, it is for the Court to determine to what extent the line should be adjusted.

• 17. Between Somalia and Kenya, if all the other factors presented by Kenya are dismissed as non-relevant, one may wonder, other than the proportionality consideration, on what basis the Court could rely to [323] adjust the provisional equidistance line. With the cut-off effect, I am quite persuaded by, and satisfied with, the reasoning of the Judgment for the necessity to adjust the equidistance line, but I am not contented with the way in which the adjustment is done, which brings me to the last point I wish to address.

• 18. In paragraph 174 of the Judgment, the Court decides to shift the line northwards to an initial azimuth of 114°, in the view that this line would offset the cut-off effect produced by the concavity of the coastal line. Without much explanation as to the reason for this adjustment, the Court moves on to the last stage to verify the result. According to the three-stage methodology, at the final stage, the Court will check whether the adjusted line leads to a significant disproportionality between the ratio of the lengths of the Parties’ respective relevant coasts and the ratio of the sizes of the relevant area apportioned by that line. According to the Court’s calculation, the ratio of the relevant coasts between Somalia and Kenya is 1:1.43 in favour of Somalia and the ratio of the apportioned spaces is 1:1.30 in favour of Kenya. The Court is of the view that [a] comparison of these two ratios does not reveal any significant or marked disproportionality” (Judgment, para. 176).

• 19. On the face of the figures, no one can seriously challenge the conclusion of the Court. However, if the identification of the relevant coasts, as has been pointed out before, follows a different method, the proportionality of the ratio of the coastal lengths of the Parties and the ratio of the maritime areas apportioned to the Parties, respectively, will be different. As the following sketch-maps (pp. 128-9) illustrate, the maritime areas apportioned to the Parties in the maritime area within 200 nautical miles are approximately equal, not so favourable to Kenya as stated by the Court. The difference in size between the [Page 128] Parties is getting bigger in the outer continental shelf, in favour of Somalia, provided the outer limits of the continental shelves beyond 200 nautical miles as claimed by the Parties are ultimately confirmed by the CLCS.

• 20. For years, international courts and tribunals did not reach agreement on the term “a significant disproportionality”, a criterion that assesses the equitableness of the outcome of maritime delimitation. Under the three-stage approach, the disproportionality test is designed to check, ex post facto, the final result. According to the Court, the disproportionality test is not in itself a method of delimitation; rather, it is a means of checking whether the delimitation line arrived at by other means needs adjustment because of a significant disproportionality in the ratios between the maritime areas which would fall to one party or other by virtue of the delimitation line arrived at by other means, and the lengths of their respective coasts (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, pp. 99-100, para. 110). This distinct status and role of the disproportionality test is sound in [325] theory, but in practice it may not play

  

  Apportionment of the maritime area within 200 nautical miles

  [Page 129]
  

  Apportionment of the relevant area including the continental shelf beyond 200 nautical miles

  that role. As is demonstrated in this case, when geographical factors are the only relevant circumstances that call for adjustment of the equidistance line, as in the North Sea Continental Shelf cases, proportionality between the two ratios would be the primary consideration for the Court to rely on. Once that is done, how much room is left for the disproportionality test to give its checking effect?

[326] INDIVIDUAL OPINION, PARTLY CONCURRING AND PARTLY DISSENTING, OF JUDGE ROBINSON

• 1. In this opinion, I explain the reasons for my disagreement with paragraph 214(5) of the Judgment and make observations on other parts.

• 2. Paragraph 214(5) of the Judgment reads as follows:

  [The Court] … [d]ecides that from Point B, the maritime boundary delimiting the continental shelf continues along the same geodetic line until it reaches the outer limits of the continental shelf or the area where the rights of third States may be affected[.]

• [Page 130] 3. Since Point B is the outer limit of the exclusive economic zone and continental shelf within 200 nautical miles, the formulation of this paragraph makes clear that the Court has delimited the continental shelf beyond 200 nautical miles. However, for the following reasons, the Court was not in a position to carry out such a delimitation.

• 4. First, the regime for a coastal State’s entitlement to a continental shelf within 200 nautical miles is different from the regime for its entitlement to a continental shelf beyond 200 nautical miles, and it is this difference that makes the Court’s finding in paragraph 214(5) questionable. Article 76(1) of the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS” or the “Convention”) provides as follows:

  The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

• 5. Although the Convention defines the continental shelf in geological and geomorphological terms as the seabed and subsoil of the submarine areas throughout the natural prolongation of its land territory to the outer edge of the continental margin, it also provides that, in cases where the outer edge of the continental margin does not extend to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, the continental shelf will extend to that distance. In effect, therefore, the distance criterion supersedes the geological and [327] geomorphological criteria in defining a coastal State’s entitlement to a continental shelf up to 200 nautical miles. However, where, as here, the question relates to a State’s entitlement to a continental shelf beyond 200 nautical miles, different considerations apply.

• 6. In order to determine a State’s entitlement to a continental shelf beyond 200 nautical miles there must be in existence a continental margin that extends beyond 200 nautical miles because, by virtue of Article 76(1) of the Convention, the continental shelf extends to the outer edge of the continental margin. Paragraph 3 of Article 76 of the Convention defines the margin as “compris[ing] the submerged prolongation of the land mass of the coastal State, and consist[ing] of the seabed and subsoil of the shelf, the slope and the rise”. Therefore, in order to delimit, the Court must have before it reliable evidence that there is in existence, in the area beyond 200 nautical miles, a [Page 131] “submerged prolongation of the land mass of the coastal State”. According to paragraph 6 of Article 76 of the Convention, the outer limit of the continental shelf “shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured”.

• 7. Thus, in relation to the delimitation of the continental shelf beyond 200 nautical miles, geological and geomorphological criteria supersede the distance criterion, because there can be no entitlement to a continental shelf in the area beyond 200 nautical miles and up to a distance of 350 nautical miles, unless there is certainty that there is in existence a continental margin in that area. Since under the Convention a coastal State’s entitlement to a continental shelf beyond 200 nautical miles is determined by geological and geomorphological factors, the Court must ensure that those factors exist before delimiting the continental shelf beyond 200 nautical miles.

• 8. The distinction between delineation of the outer limit of the continental shelf by the Commission on the Limits of the Continental Shelf (hereinafter the “CLCS” or “Commission”) and maritime delimitation by the Court is clear. It is equally clear that recommendations by the CLCS on the outer limit of the continental shelf do not constitute a necessary precondition for maritime delimitation by the Court. But in order to carry out such a delimitation, the Court must have reliable evidence confirming the existence of a continental shelf in the area beyond 200 nautical miles.

• 9. The Judgment reflects an awareness of the requirement that the Court must have at hand reliable information confirming the existence of a continental margin in the area beyond 200 nautical miles if it is to be in a position to carry out a delimitation in that area. However, as will be seen, the Court ignores this requirement.

• 10. After citing Article 76(4) of the Convention, the Judgment concludes that

  [t]he entitlement of a State to the continental shelf beyond 200 nautical miles thus depends on geological and geomorphological criteria. [328] An essential step in any delimitation is to determine whether there are entitlements, and whether they overlap.

  (Judgment, para. 193.)

  The Court noted that the Tribunal in Bangladesh/Myanmar was only able to carry out delimitation of the shelf beyond 200 nautical miles because of what the Tribunal described as the “unique situation in the Bay of the Bengal”, a feature which the Judgment states explicitly “is not the same as [the present case]”. The Special Chamber of the International Tribunal for the Law of the Sea (“ITLOS”) in Ghana/Côte d’Ivoire held that it “can delimit the continental shelf beyond [Page 132] 200 [nautical miles] only if such a continental shelf exists”,Footnote ¹ and that it had the benefit of the Commission’s affirmative recommendations in relation to Ghana; it also observed that the “geological situation [of Côte d’Ivoire was] identical to that of Ghana”.Footnote ² The Special Chamber emphasized that there is “no doubt that a continental shelf beyond 200 [nautical miles] exists in respect of the two Parties”.Footnote ³ The need for a court or tribunal to be certain about the existence of a continental shelf beyond 200 nautical miles if it is to carry out a delimitation in that area was also emphasized by the Tribunal in Bangladesh/Myanmar. The Tribunal stated that it would have been hesitant to proceed to delimit the area beyond 200 nautical miles if there was uncertainty about the existence of a shelf in that area.Footnote ⁴

• 11. As if to contradict the cautionary note it had sounded in relation to any reliance on the decisions in Bangladesh/Myanmar and Ghana/Côte d’Ivoire, the Court in paragraph 194 rather unexpectedly announced its decision to delimit the continental shelf boundaries up to the outer limit of the continental shelf.

• 12. It is ironical that, having taken the pains to isolate and identify the critically relevant information that ITLOS and its Special Chamber had in the Bangladesh/Myanmar and Ghana/Côte d’Ivoire cases, the Court proceeded to delimit the Parties’ continental shelf in the area beyond 200 nautical miles without any convincing evidence as to the existence of a shelf beyond 200 nautical miles. This contrasts with the decision of the Court in Nicaragua v. Colombia not to delimit the continental shelf beyond 200 nautical miles, because Nicaragua relied on information it had submitted to the CLCS that did not substantiate its claim to a continental shelf beyond 200 nautical miles.Footnote ⁵

• [329] 13. The Judgment is bereft of even a scintilla of reliable evidence that the geological and geomorphological criteria, which the Judgment itself refers to in paragraph 193 as being essential in the determination of State entitlements, have been met.

• 14. The Court comes closest to identifying evidence of the existence of a continental shelf beyond 200 nautical miles when it noted “that in their submissions to the Commission both Somalia and Kenya claim [Page 133] on the basis of scientific evidence a continental shelf beyond 200 nautical miles and that their claims overlap” (paragraph 194 of the Judgment). However, this observation does not provide a sufficient basis for the delimitation because nowhere in the Judgment is there any reference to the content of this scientific evidence and, more importantly, nowhere in the Judgment is there any analysis of that content to show that the Court is satisfied that the necessary geological and geomorphological criteria have been met for the existence of a continental shelf beyond 200 nautical miles. It must be made clear that in this case the Court was not asked to examine any scientific data that would establish the existence of a continental shelf beyond 200 nautical miles. It is, of course, perfectly proper to refer to the Parties’ submissions to the Commission. However, if it relies on these submissions, the Court must explain why it finds them persuasive. Such an explanation is the more necessary where, as in this case, the Commission has not yet made any recommendations on the submissions of the Parties. Thus, it appears that the principal factors that explain the Court’s decision to delimit the continental shelf beyond 200 nautical miles are the criterion of the 350-nautical-mile distance as the outer limit of the continental shelf and the volition of the Parties to have the Court effect a delimitation. But, in delimiting the continental shelf beyond 200 nautical miles, geological and geomorphological factors supersede distance as the criteria for determining a State’s entitlement to that shelf, thereby rendering less consequential the request of the Parties to have the Court effect a delimitation in that area.

• 15. The lack of any evidence of geological and geomorphological data to substantiate the existence of a continental shelf, and thus, of the entitlement of the Parties to a continental shelf beyond 200 nautical miles, undermines the validity of the finding in paragraph 214(5), which is the principal conclusion of the Court in the part of its Judgment devoted to the delimitation of the continental shelf beyond 200 nautical miles. Nonetheless, the present opinion will comment on other aspects of the Judgment relating to this finding.

• 16. Second, in the delimitation of the continental shelf in the area beyond 200 nautical miles the Court has overvalued the volition of the Parties and the fact 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” (paragraph 194 of the Judgment). In the delimitation of the continental shelf up to 200 nautical miles, it is [330] appropriate for the Court to act entirely on requests of the Parties for it to carry out such a delimitation, because in that area the distance criterion of 200 nautical miles prevails. However, where, as [Page 134] here, the Court is delimiting the continental shelf in the area beyond 200 nautical miles, the requests of the Parties, and the congruence of their views as to their respective entitlement to a shelf beyond 200 nautical miles and the extent of that entitlement, do not constitute a sufficient basis for delimitation in that area. By effecting a delimitation of a party’s continental shelf beyond 200 nautical miles without any reliable evidence of the existence of a shelf in that area, the Court has effectively eliminated the important difference drawn by the Convention between a coastal State’s entitlement to a shelf within and beyond 200 nautical miles. In the result, by delimiting on the presumption that the Parties are entitled to a shelf of up to 350 nautical miles, the Court has replaced the geological and geomorphological criteria required by the Convention for such an entitlement with a simple distance criterion of a maximum of 350 nautical miles. There is nothing in the Judgment that comes close to the categoric findings in the Bangladesh/Myanmar and Bangladesh v. India cases as to the existence of a continental shelf beyond 200 nautical miles.

• 17. Third, the Court has carried out a delimitation of the continental shelf beyond 200 nautical miles in an environment riddled with uncertainty. Although the use of a directional arrow, such as the one contained in sketch-map No 13 (p. 83), is not uncommon in delimitation of the continental shelf beyond 200 nautical miles, there must be some doubt as to whether this approach provides the level of certainty that one would expect in an exercise as consequential as the delimitation of a boundary between two States, which will have sovereign rights in the area attributed to them.

• 18. This uncertainty is even more evident in paragraph 197 of the Judgment, which reads:

  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”).

  (Emphasis mine.)

  This reasoning is a conjecture built on a surmise founded on a hypothesis—scarcely a basis for the construction of a legal regime. Regrettably, the grey area that it identifies is not of “limited size”, but in the circumstances of this case, may be seen as applying to the entire area beyond 200 nautical miles. It is noted, however, that the Court decided not to address the question of the legal regime that would be applicable to this grey area.

• [Page 135] [331] 19. Notwithstanding that delineation of the outer limits of the continental shelf is carried out by coastal States on the basis of the recommendations of the CLCS, and not by the Court, there must be a concern that delimitation and delineation exercises may impact adversely on the area, defined in Article 1(1) of the Convention as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. The area therefore begins where national jurisdiction ends. Article 136 provides that “[t]he Area and its resources are the common heritage of mankind”; Article 140(1) provides that “activities in the Area” are to be carried out “for the benefit of mankind as a whole … and taking into particular consideration the interests and needs of developing States”. During the UNCLOS negotiations, generally, developing countries attached the greatest importance to the establishment of a meaningful regime for the area in the expectation that its exploration and exploitation would contribute to their growth and development in the interest of the common heritage of mankind.

• 20. Concerns about the possible impact of delimitation on the regime for the area were expressed by the Arbitral Tribunal in the France–Canada Maritime Delimitation case (Saint Pierre and Miquelon), in which France had requested delimitation of the continental shelf beyond 200 nautical miles. The Commission stated:

  Any decision by this Court recognizing or rejecting any rights of the Parties over the continental shelf beyond 200 nautical miles, would constitute a pronouncement involving a delimitation, not “between the Parties” but between each one of them and the international community, represented by organs entrusted with the administration and protection of the international seabed Area (the seabed beyond national jurisdiction) that has been declared to be the common heritage of mankind.Footnote ⁶

  While this Award, made not very long after the adoption of the Convention, may be seen as going too far, its underlying concern should not be disregarded: where it is appropriate, the interests of the international community in exploring and exploiting the area is a factor that must be taken into account in maritime delimitation in the area beyond 200 nautical miles. Moreover, in the Bangladesh/Myanmar case the Tribunal expressly considered the possible impact of the delimitation of the shelf beyond 200 nautical miles on the interests of the international community in the area, and determined in the following finding that those interests were not affected:

  [Page 136] In addition, as far as the Area is concerned, the Tribunal wishes to observe that, as is evident from the Parties’ submissions to the [332] Commission, the continental shelf beyond 200 nm that is the subject of delimitation in the present case is situated far from the Area. Accordingly, the Tribunal, by drawing a line of delimitation, will not prejudice the rights of the international community.Footnote ⁷

  A fair inference from this finding is that the Tribunal would not have carried out the delimitation requested or, at any rate, would have given serious thought to declining that delimitation, had it found that this delimitation was to be carried out in an area that was near to the area in which the international community has an interest. It would seem that, in the instant case, a statement similar to that of the Tribunal in Bangladesh/Myanmar could not be made by the Court, because the continental shelf that is the subject of delimitation could possibly extend to the area. Nonetheless the Tribunal’s dictum is instructive in that it signifies an appropriate sensitivity to the interests of the international community in the area.

• 21. Fourth, Article 83(1) of the Convention requires that the delimitation of the continental shelf be effected by agreement on the basis of international law in order to achieve an equitable solution. In the delimitation of the continental shelf within 200 nautical miles, the Court quite properly spent much time considering whether its three-stage methodology produced an equitable solution. On the other hand, in the delimitation of the continental shelf beyond 200 nautical miles, the Judgment is silent on the question whether the methodology the Court has used produces an equitable solution. This is a significant omission in the Judgment and it raises serious questions as to whether the delimitation carried out has been effected in accordance with the Convention.

[352] SEPARATE OPINION OF JUDGE AD HOC GUILLAUME

[Translation]

• 1. The Court found that, contrary to Kenya’s claims, the maritime boundary between Kenya and Somalia does not follow a parallel of latitude. It fixed the starting point of the boundary in accordance with the agreements concluded between Italy and the United Kingdom in 1927 and 1933. It then delimited the territorial sea, in effect along the line at right angles to the general direction of the coast set out in those same agreements. As regards the exclusive economic zone (hereinafter the “EEZ”) and the continental shelf beyond 200 nautical miles, the Court did not adopt the equidistance line put forward by Somalia. With a view to achieving an equitable solution, it made a significant adjustment to this line in favour of Kenya. Finally, it rejected Somalia’s submission seeking a finding against Kenya on account of its unlawful activities in the disputed area. I support these decisions, but I disagree with some points of the reasoning adopted by the Court, and I consider it necessary to express my differences of opinion here.

• 2. Somalia requested the Court to delimit the maritime areas appertaining to it and to Kenya. Both States are parties to the United [Page 157] Nations Convention on the Law of the Sea (hereinafter “UNCLOS”). The delimitation must therefore be effected in accordance with Articles 15, 74 and 83 of that Convention. Failing agreement between the Parties, the rules set out in those articles, as interpreted in the jurisprudence, must be applied. Consequently, the Court had first to determine whether there were any agreements in existence between Kenya and Somalia concerning all or part of their maritime boundary.