Top judge Abdulqawi dissented ICJ judgement on maritime dispute with Kenya

Abdulqawi delivers the verdict in the Kulbhushan Jadhav case [Photo: ICJ website]

THE HAGUE - Contrary to the expectations of many, a top judge sitting at the International Court of Justice [ICJ] dissented the judgment issued on Tuesday, which saw his own motherland win a case that has dragged in court for the last seven years.

In his lengthy judgment, Justice Abdulqawi Ahmed Yusuf, a Somali national, disputed most of the decisions made by the court on the delimitation of the maritime border between Kenya and Somalia, with the majority of the judges agreeing to adjust the equidistance line in favor of Somalia.

But Justice Abdulqawi Ahmed Yusuf rejected the construction of the median line, delimitation of Economic Zone, and continental shelf. He described its departure from the Court’s settled jurisprudence and “judicial refashioning of geography”.

The judge said he disagreed with the manner in which delimitation was implemented by the ICJ, which saw Kenya lose most of the sea in favor of Somalia. He has been serving in the Hague for a number of years according to his profile.

"I agree that the court should proceed with the delimitation of the continental shelf beyond 200 nautical miles are requested by both parties. I disagree, however, with the manner in which delimitation has been implemented," reads part of his judgment.

The judge said the ICJ did not site the fact that the delimitation as argued by Kenya was based on an initial agreement between Nairobi and Dar es Salaam, which preferred parallel delimitation straight from the land to sea, and was not cited anywhere in the judgment.

"The court should simply assert that the delimitation of a certain like should take a certain course without justifying it or giving a convincing reason," he argued. "The narrowing of coastal projections of Kenya is pronounced after 200 nautical miles due to maritime delimitation agreement between Kenya and Tanzania in 2009. This is not specifically mentioned in the judgment."

While patriotism may not be a factor in courts, the position of the judge may be criticized by his countrymen and may be celebrated by Kenya, which has since disowned the maritime judgment which sent mixed signals from residents of both countries.

President Uhuru Kenyatta of Kenya said he won't allow Nairobi to lose " even an inch" and vowed to protect the " territorial integrity of my country". Uhuru, who is in America for an official function, did not preempt how Kenya will be handling the matter.

On his part, outgoing Somali President Mohamed Abdullahi Farmaajo hailed the ruling and urged Kenya to " accept the decision" and " use it to develop a mutual relationship with us". He accused authorities in Kenya of " destabilizing Somalia since I took over".


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