Role of Arbitration in Resolution of Territorial Boundary Disputes in Africa: The Case Study of Kenya-Somalia Maritime Dispute

There has been increasing tension between the Somalia’s’ and Kenya’s government over the direction to pursue over the contested Indian Ocean extended border. However, the maritime dispute gained traction in 2014 when Somalia took Kenya to the International Court of Justice (ICJ), claiming that Kenya is trespassing on its sea territory. Initially, Somalia had made request to the ICJ to assist in solve the extended border conflict in line with the international law to avert the crisis between Somalia and Kenya on Indian Ocean border (AFP, 2014). Whereas Kenya has maintained that it would prefer to resolve the boundary issue out of court, Somalia insists on the case being handled by the ICJ. The two contesting states have gone to an extent of disintegrating their diplomatic ties in the Horn of Africa due to Somalia being accused of auctioning the gas, oil and gas blocks within the contested ocean border. The study examined the escalation and resolution of the dispute on the basis of three main objectives: The first objective is to determine the interface between boarders, state sovereignty, and conflict in the Horn of Africa, second is to assess the roles played by both governments in either contributing to or mitigating the Kenya-Somalia maritime dispute, and the third objective is to examine the role of ICJ as a conflict resolution mechanism in the dispute and how its efforts have pacified the situation. The research will employ the use of both the quantitative and qualitative research designs, through administering structured questionnaires, as well as reviewing and analyzing various existing literature to allow detailed exploration of the topic under study. The gathered data will be subjected to descriptive and inferential analysis. This will be followed with main findings of the study and the interpretation of the findings being presented in a summary. The study will establish that there is exists an interface between boarders, state sovereignty, and conflict in the Eastern Africa region. It first establishes that well-defined borders are a key characteristic in the definition of statehood. The arbitrary colonial origin of Eastern African borders, along with the fact that they have remained porous, undefended and even un-defendable pose a great threat, as in most cases, it has resulted in the amalgamation of differing social groups into single polities with tendencies of being highly unstable, and fluid. Secondly, the findings indicate that by taking up jurisdiction to adjudicate the maritime dispute between Somalia and Kenya, the ICJ, notwithstanding surrounding controversies, set out important rules concerning the Law of Sea. The main effect of the Courts’ judgement established itself as a default jury in law of the sea conflict, unless the reservation associated to the judgment is substantially precise. The International Court of Justice jurisdiction is not limited to cases associated with Law of the Sea but extents to make decision on both sovereignty and maritime issues. It is entitled to exercise its jurisdiction over any dispute concerning the interpretation or application of LOS Convention which is submitted to it under Article 287 and Article 288 (UNCLOS, 1982). The legal principles have been integrated in the cases of the International Court of Justice in dispute settlement include: Equidistance principle, Equity and the equitable principle, Single maritime boundary, Proportionality principle, Relevant circumstances, Geographical circumstances, Non-geographical circumstances, and Socio-economic circumstances. The findings of the study acknowledge that the border complexities changes with the functions (either used as territorial waters, Contiguous zone, Exclusive Economic Zone (EEZ) and Continental shelf) pegged on the borders and therefore conflict will always emerge as the state attempt to protect its borders, citizen and its sovereignty. This is the approach, which Somalia and Kenya’s conflict revolved around as Somalia lay claim on the Maritime border, gray area stretching about 100,000 square kilometers to the oceans while Kenya contested Somalia claim on the oil rich region. The argument presented respondents brings out Kenya to use its stability and hegemony in the region to attempt to secure the rich oil maritime border auctioned by Somalia to investors. The major approach in the Kenyan context is securing its borders and protecting its natural resources from being exploited by neighbors. Therefore, focusing on Kenya’s role in peaceful co-existence in the region it opted for a more out of court approach in order to sustain the spirit of unity within the region. However, this did not materialize due to Somalia’s claim on Kenya’s luck of cooperation referring the case to ICJ. The ICJ as an independent institutions acknowledged that the memorandum of understanding, that existed between the two contesting states, promoted resolution of conflict using unclear method was not binding and unreliable. However, Kenya argues that the United Nations Convention on the Law of the Sea (UNCLOS) should be applied by all members prior to taking the case to higher level. Therefore, the ICJ verdict to the case between Kenya and Somalia was informed by consent of the two parties, rule and regulation guiding its operations, and principle of impartiality that informed its operation that will likely be used in other cases especially by the signatories to the institution. However, absence of proper legal enforcement mechanism leads to states not conforming to the courts verdict an aspect which is reflected in the Kenya absence in the court.