Compulsory Adjudication of International Court of Justice and Pacific Settlement of Kenya-Somalia Maritime Dispute

Abstract

Kenya and Somalia are among states that have accented to compulsory jurisdiction of the International Court of Justice on peaceful settlement of disputes. However, these two states are at odd over the verdict on international boundary delimitation passed by this court in regards to the Kenya- Somalia Maritime dispute. This study examined compulsory adjudication, carried out by the International Court of Justice, as means of resolving the Kenya Somalia maritime dispute. The specific objectives were: to explore the genesis of the maritime dispute between Kenya and Somalia, to analyse international legal framework on peacefully settlement of maritime disputes and to evaluate the state reservation towards compulsory adjudication as an approach for pacific settlement of maritime disputes. The study reviewed relevant literature and analysed case studies of maritime disputes that have been resolved or pending to ascertain the suitability of compulsory adjudication, arbitration or other alternative mechanisms in resolving the Kenya-Somalia maritime disputes. This study was anchored on the theories of institutional liberalism and realism. Institutional liberalism recognises international law as a regime that governs states hence the states accentuation to international arbitration by the International Court of Justice. Realism is about state centrism, national interest and that preserving their autonomy is crucial hence states remain the main actors in decision making processes and there is no authority to challenge anarchy of states in either abiding or otherwise with the compulsory adjudication. This study utilized the mixed research design and relied mostly on the historical and explorative designs. The research was primarily qualitative and explored both primary and secondary sources. Primary data was sourced through both archival data retrieval, and field research. Archival data was collected in the Kenya National Archives. Field data was gathered through key informant interviews and Focused Group Discussions. The target population from which samples was drawn from includes members of the diplomatic community of the two countries, peace and security experts, politicians, legal experts and employees of the International Court of Justice. Secondary data was sourced from conference papers, books and journals. The data collected was grouped, corroborated, analysed through contents analysis and presented using the qualitative research techniques and using themes that are comparable to the research objectives. The major proposition of the study was that maritime disputes may be resolved either through compulsory adjudication and that the international law through it elaborate legal frameworks also anticipates the maritime disputes may be resolved through or diplomatic and bilateral engagements between the two conflicting states. However, states have reservation in submitting their conflicts for compulsory adjudication by the International Court of Justice. For such, both Somalia and Kenya were willing and unwilling to comply with international arbitration for a number of reasons including: third party bias among judges, salience of territorial issues under contestation, uncertainty over the outcomes of the process, the bargaining power of the competing states and the likelihood of armed confrontation between the belligerent states. Information gathered in this study was not only beneficial in providing a body of knowledge on understanding the role of compulsory adjudication in pacific settlement of the disputes, but also added to existential knowledge on international legal framework on maritime disputes and state reservation in judicial settlement of territorial and maritime disputes.