Good day everyone! Here is my follow-up post to the last case I discussed.
The earlier judgment, in this case, had an interesting ruling that is worth discussion.
There was a Memoranda of Understanding (MOU) between the countries, which had provisions that the delimitation of the maritime boundary would take place after the outer limits of the continental shelf of both nations were decided. The Court dismissed this. But the more interesting question of law regards the settlement of disputes found under Part XV of UNCLOS. Both Somalia and Kenya are state parties to the ICJ and UNCLOS.
Kenya argued that based on article 287(5), the ICJ does not have jurisdiction, and the dispute must be handled by Annex VII arbitration. However, under article 36(2) of the ICJ Statute, there is a compulsory component.
UNCLOS article 287(5) – If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.
ICJ article 36(2) – The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
Therefore, any state party to the ICJ statute has agreed by default to the jurisdiction of the ICJ. This has the effect of making it rare for an Annex VII arbitration to be triggered since most of the state parties of UNCLOS are also state parties to the ICJ statute. However, Kenya made a reservation to article 36(2), which can be found here. As a Canadian, I found Kenya’s reservation to be of particular interest since it is very similar to Canada’s reservation, found here, starting on page 9.
The ICJ dismissed Kenya’s arguments regarding paragraph 1 of their reservation. Neither article 287(5) of UNCLOS nor the supposed MOU count as an agreement or a potential agreement (“shall agree”) that would bypass ICJ compulsory jurisdiction. Therefore, the reservation was not sufficient, and there must be evidence of an agreement or a likely agreement of another dispute resolution method, apart from the wording of UNCLOS.
Kenya raised two principles of law to support their claim that was also dismissed that is worth mentioning for educational purposes.
Lex posterior (derogat priori) – The principle that a later statute negates the effect of a prior one if the later statute expressly repeals, or is obviously repugnant to, the earlier law.[i]
Lex specialis (derogat legi generali) – The more specific rules will prevail over the more general rules.[ii]
I did not cite paragraphs of the judgment or go into the other aspects of it too heavily, but I think this judgment is worth reading if you are interested in jurisdiction issues. All countries with similar reservations, such as Canada, need to revisit them with the understanding of this ruling.
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[i] Bryan A Garner and Henry Campbell Black (eds), Black’s Law Dictionary (Eleventh edition, Thomson Reuters 2019) 1095.
[ii] ‘Lex Specialis | How Does Law Protect in War? – Online Casebook’ <https://casebook.icrc.org/glossary/lex-specialis> accessed 8 November 2021.
