02 Dec Delimiting the Extended Continental Shelf Between Somalia and Kenya: The ICJ’s Debut or a Hostage to Fortune?
[Zhang Kaiqiang is a third-year Master of Laws student at the School of Law, Tsinghua University.]
On 12 October 2021, the ICJ delivered its judgment on the merits of the maritime delimitation in the Indian Ocean between Somalia and Kenya. For the first time ever, the ICJ stands a chance of dividing the extended continental shelf between two (adjacent) States beyond their 200 nautical mile limit (the ‘extended continental shelf boundary’). However, Somalia was not the first party to request this of the ICJ. The ICJ dealt with this issue in Nicaragua v. Colombia (2012 and 2016). In the current case, the ICJ held by nine votes to five that the outer maritime boundary ‘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’ (at ).
Unlike the precise 200 nautical miles that was previously stated by the ICJ, the extended continental shelf boundary is just a general course without a precise measurement or endpoint – the outer limits of the continental shelf must be determined by coastal States based on the recommendations of the Commission on the Limits of the Continental Shelf (the ‘CLCS’). The CLCS has submissions from both Somalia and Kenya, but has neither considered the submissions nor made any recommendations to the parties at the time of judgment (at ). This blog post demonstrates that: in the absence of a recommendation by the CLCS, the ICJ, at least in this case, should not delimit the extended continental shelf; the ICJ’s decision has raised several problems; and, the ICJ’s decision may lead the court astray in the future, especially when 2016 Nicaragua v. Colombia is waiting on the docket.
Rethinking the Jurisdiction Obstacle
Since the International Tribunal for the Law of the Sea (the ‘ITLOS’) took a lead in Bangladesh v. Myanmar, it now seems undisputed that the CLCS’s recommendation concerning delineation under Art. 76 of the UN Convention on the Law of the Sea (the ‘UNCLOS’) does not preclude international courts and tribunals from establishing jurisdiction and admissibility concerning delimitation under Art. 83 of the UNCLOS. As repeatedly confirmed by the ICJ, ‘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’ (at ). However, two observations still need to be stressed.
First, the present case is unique since Somalia and Kenya entered into a Memorandum of Understanding (the ‘MOU’) in 2009 in which they arranged a timeline of dispute settlement. Paragraph 6 of the MOU provides:
‘The delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law after the Commission has concluded its examination of the separate submissions made by each of the two coastal states and made its recommendations…’
However, by way of contextual and teleological interpretation, the Court in its 2017 Judgment held that the MOU did not create additional dispute settlement methods, and that paragraph 6 cannot be interpreted as “precluding the Parties…from resorting to dispute settlement procedures regarding their maritime boundary dispute, before receipt of the CLCS’s recommendations” (at ).
Four out of five dissenting and separating opinions disagree with the ICJ’s interpretation of paragraph 6 of the MOU. As argued by Judge Bennouna, the ICJ cannot disregard general rule of interpretation in Art. 31 of the Vienna Convention on the Law of Treaties and jump to the MOU’s “object and purpose” without first examining the ordinary meaning of the text, which “clearly and unambiguously” gives “priority to the work of the CLCS” (at p. 62). Other dissenting judgments supported similar arguments. Judges Gaja and Crawford proposed that the use of the word “after” sets a time limit for negotiation and the word ‘shall’ connotes an obligation to respect that time limit (pp. 64-65). Thus, neither party was free to take unilateral action to resort to courts and tribunals “before the CLCS had made recommendations”(p. 64). The ad hoc Judge Guillaume upheld that delineation is not a step in the process of delimitation, but concluded that paragraph 6 of the MOU confirmed that the parties had agreed that delimitation took place after delineation (p 82). The rationales given in dissenting opinions are persuasive, but the Court seemed eager to establish jurisdiction disregarding the explicit bilateral agreement written in black and white.
The second observation is not limited to the present case. It should be noted that the courts and tribunals under Part XV of the UNCLOS do not agree about which stage of the proceedings the absence of the CLCS’s recommendations should be addressed. In practice, the lack of the CLCS’s recommendation has been discussed within establishing jurisdiction (Saint-Piere and Miquelon; Ghana/Côte d’Ivoire; 2012 Nicaragua v. Colombia), exercise of jurisdiction (Bangladesh v. Myanmar; Bangladesh v. India), admissibility (2016 Nicaragua v. Colombia; Ghana/Côte d’Ivoire) and even in the merits (mainly concerning the establish of entitlements, Ghana/Côte d’Ivoire; Nicaragua v. Honduras). In 2012 Nicaragua v. Colombia, the ICJ created an additional part, neither belonging to admissibility nor the merits, to address this issue. In Somalia and Kenya, the present case, the ICJ highlighted in the jurisdiction (at [90-97]), admissibility (at [137-142]) and merits (at ) stages that the absence of the CLCS’s recommendation did not preclude the delimitation task of the Court. Procedurally, such an inconsistent and fragmented arrangement does not have strict legal basis, and may not set an example for dispute settlement in the future.
An Extended Geodetic Line: Good! But any Evidence?
As for the jurisprudence of delimitation, the Court found that “an essential step in any delimitation is to determine whether there are entitlements and whether they overlap” (at ). With regard to the entitlement of a State to the continental shelf beyond 200 nautical miles, the Court argued that it depends on geological and geomorphological criteria (at ), not distance criterion, which supersedes the former in defining a coastal State’s entitlement to a continental shelf up to 200 nautical miles. Thus, according to Art. 76(4) and (5) of the UNCLOS, the Court tried to determine the entitlements by reference to the outer edge of the continental margin. The Court also referenced Bangladesh v. Myanmar, relied upon by Somalia, and stressed that “the situation in the present case is not the same” since the unique geological situation in the Bay of Bengal was “acknowledged in the course of negotiations” at the Third UN Conference on the Law of the Sea. Further, the Court acknowledged that the fact that “thick layer of sedimentary rocks covers practically the entire floor of the Bay of Bengal” was “sufficient to enable the Tribunal to proceed with the delimitation of the area beyond 200 nautical miles” (at [190-193]).
However, Judge Robinson in his Individual Opinion, partly concurring and party dissenting, noted that although the Court is aware that it must hold reliable information confirming the existence of a continental margin in the area beyond 200 nautical miles
‘nowhere in the Judgment refers 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.’ (at )
It is odd that the Court noted the present case against Bangladesh v. Myanmar, where the ITLOS found that “it would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental margin in the area in question” (at ), yet still established the existence of the entitlements because both parties, in their submissions to the CLCS, claimed evidence for the extended continental shelf and “neither Party question[ed] the existence of the other Party’s entitlement” (at ). Judge Robinson warned that the Court had “overvalued the volition of the Parties” (at ) and that the lack of any scientific data to substantiate the existence of a continental shelf undermined the validity of the Judgment. This argument is supported by President Donoghue in his Separate Opinion, when he states that “it cannot be assumed that the Commission will adopt any State’s submission” when the evidence regarding the “existence, extent, shape or continuity of any outer continental shelf” is still lacking (at )
Judges Robinson, Yusuf, Xue and Abraham disagree with the way the Court adjusted the provisional medial line within 200 nautical miles, and doubt whether a maritime boundary extending from an inequitable line could entail any equitable solution beyond 200 nautical, as required by Art. 83 of the UNCLOS. Moreover, the possible ‘gray area’ as an outcome of the Court’s delimitation also attracted the attention of the judges, which, as argued by the Judge Yusuf, “may also lead in the future to a “Court-created” new problem between the Parties”(at ), such as encroaching the sea-bed area (at [17-20]).
What if States Have Opposite Coasts?
Until now, all the decided cases concerning the delimitation of extended continental shelf where between States (for example, Bangladesh v. Myanmar; Bangladesh v. India; Ghana/Côte d’Ivoire; and, the present case) with adjacent coasts. Moreover, the ITLOS, ad hoc Arbitral Tribunal and the ICJ all determined the extended continental shelf boundary by extending the single maritime line within the 200 nautical mile area until it reached the area where the rights of the relevant States might be affected. While this delimitation method may not cause problems between adjacent states where there is available scientific evidence concerning the existence of the extended continental shelf and the overlap of the parties’ entitlements, the delimitation of the extended continental shelf between States with opposite coasts is more complicated.
First, as the Court declares that the delimitation should always take the overlap of entitlements as the premise, and that delimitation beyond 200 nautical miles is based on geological and geomorphological criteria, the outer limit of each party’s continental margin must be determined as a prerequisite for identifying the scope of the overlapping area, or the relevant area. To put it in another way, the outer limits of opposite States outline the overlapping area. As a result, the courts and tribunals should rely more on the geological and geomorphological evidence to not only decide the mere existence of the entitlements, but how much they extend. If data shows that there is no overlapping area or that no entitlement exists, the courts and tribunals cannot rule on the case.
However, delineation cannot be determined only on the arguments of parties, including their submissions to the CLCS (because they may be wrong). Delineation requires professional assessment and analysis based on geology, geophysics or hydrography. According to Art. 76 of the UNCLOS, the CLCS is tasked with delineation. Without definite recommendations from the CLCS, judges, who are trained in law but may have insufficient knowledge in science, do not have the capacity to determine the outer limits of the extended continental shelf, even if they have access to the necessary scientific data. As a result, the delineation and delimitation in this case is highly correlated, and the former is a necessary condition for the latter.
Second, as reflected in Nicaragua v. Colombia 2016 and Mauritius/Maldives (the two cases are pending on the docket of the ICJ and the ITLOS, respectively), delimitation between opposite States may encounter a scenario where one party’s (Nicaragua and Mauritius) claimed natural prolongation extends into the EEZ of another party (Colombia and Maldives). What will be the delimitation rule then? The first possible solution, as claimed by Nicaraguain its Reply, is that the natural prolongation should proceed the distance principle and that a median line should be drawn between the outer limits of Nicaragua’s extended continental shelf and the 200 nautical mile line of Colombia’s extended continental shelf (at [3.56]). By contrast, and this is the second possible solution, Colombia argues in its Rejoinder that it has an existing legal entitlement to a continental shelf and EEZ extending to 200 nautical miles, and within this distance, natural prolongation principles cannot take precedence over the 200 nautical mile entitlements (at [4.60]). In submissions to the CLCS, as illustrated by Colombia, several coastal states (such as Japan, France, New Zealand, Sri Lanka and Mexico) limit their extended continental shelf claims at 200 nautical miles from the nearest territory of another State. It seems that the natural prolongations principle and the distance principle will again fight in the arena of extended continental shelf delimitation. The Court avoided responding to those arguments in 2012 (at ), but since it re-opened the case in 2016, it will inevitably face this tough nut in the future.
Although the Court sails through the task of delimiting the extended continental shelf between Somalia and Kenya, two adjacent States, pitfalls still exist behind the extended maritime boundary line where there are no CLCS recommendations at hand, particularly when the Court is dealing with delimitation between opposite States such as in Nicaragua and Colombia. Indeed, it seems that there is no conventional law (Art. 83 of the UNCLOS only requires equitable solution), customary law or case law at hand. Nicaragua in its Reply even argued that there was no assumption that the provisions of Art. 76 were intended to cover this type of situation and “literature in general is silent on the problem” (at [3.54]). All in all, the delimitation of the extended continental shelf between Somalia and Kenya, as the ICJ’s debut, may not provide bright guidance for the Court’s future work. Worse, the Court may open Pandora’s Box when it decided to delimit the extended continental shelf before the CLCS made its recommendations.