Somalia says an agreement it signed with Kenya in 2009 was not specific on how to resolve the maritime boundary dispute between the two countries.
In its submissions before the International Court of Justice, Mogadishu argued that the memorandum of understanding (MoU) only dealt with the outer limits of the continental shelf, but did not prevent the two countries from using alternative methods to determine their borderlines.
Somalia’s legal team, led by American lawyer Paul Reichler and his French counterpart Allain Pellet, told the court the agreement did not stop Somalia from suing Kenya.
“Kenya’s bid to re-characterise the MoU is an invention, and it is an invention that is bound to fail,” Somalia argued.
“Even if Somalia was in breach of the MoU, which it is not, this will not preclude it from coming to the court.”
The reference to the agreement was a response to Kenya’s claim on Monday that the case Somalia has brought to the court should be dropped because it violates an existing method to resolve the matter.
Mogadishu has sued Nairobi, asking the court to determine the line of sea boundary between the two countries, and argues diplomatic negotiations had failed to resolve the matter.
Kenya’s Attorney-General Githu Muigai had told the court on Monday that it had no jurisdiction to hear the case because both countries had signed an agreement to resolve the matter through negotiations.
“Kenya has not consented to the court’s jurisdiction over disputes in regard to which it has agreed to another method of settlement.
“In this instance, it is the Memorandum of Understanding (“MOU”) of 7 April 2009 that sets out the agreed procedure for settlement of the dispute that Somalia has brought before the court.”
On Tuesday, the court heard that the MoU was in fact drafted for both countries by Norwegian diplomat Hans Wilhelm Longva, as part of Norway’s wider legal assistance to African countries to meet the deadline set by the UN on resolving the continental shelves.
The Somali legal team presented cuttings of Mr Longva’s interview with Grid Arendal, a centre that works with the United Nations Environmental Programme.
The Norwegian diplomat, then director of Norway’s foreign ministry legal department, declared that his efforts were to help countries in Africa draft submissions to the UN Commission on the Limits of Continental Shelf (UNCLOS).
The countries, Mr Longva added in the interview, were also to declare that they will not oppose each other’s submissions to the commission, although they were not about how to resolve specific maritime boundaries.
“Norway made no reference to the settlement of that dispute. Norway was not addressing nor attempting to [resolve] the maritime boundary dispute,” Reichler told the judges.
“At the time the MoU was discussed and signed, not Norway, not Somalia nor Kenya indicated that it intended for the MoU to be an agreement on the resolution of the maritime dispute.”
While Kenya says the MoU was a binding agreement, Somalia says it did not specifically mention that parties were not allowed to sue.
In fact, Mogadishu says the document was only meant to allow both sides time to present their maps to the commission to enable it to determine the sea area under each party’s control.
Kenya will continue with its arguments on Wednesday.