somalia v kenya case summary

Although the issue was not dealt with in detail by the Court, its significance cannot be underestimated: as the Permanent Court of International Justice once stated in the Chorzów Factory case, the Court: ‘…cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice’.71. … J’ai les plus grands doutes à cet égard’); see also the dissenting opinion of Judge Mohamed Bennouna, at 3. Marco Benatar and Erik Franckx, ‘The ICJ’s Preliminary Objections Judgment in Somalia v. Kenya’ European Journal of International Law Analysis (22 February 2017) accessed 21 September 2017. Suggested Citation: Suggested Citation Chan, Kai-chieh, The ICJ's Judgement in Somalia v. Zdanoka v Latvia App no 58278/00 (ECtHR, 16 March 2006) High Court of England Hackney case, Gill v Reed and Holms [1874] 2 O M & H 77 E.L.R 263 Kensington North Parliamentary Election [1960] 1 W.L.R 762, [1960] 2 ALL E.R 150 Morgan & Others v Simpsons [1974] 3 ALL E.R 722, [1975] QB 151 It is preceded by a short historical overview of the U.S. involvement in Somalia written by Dr. Richard W. Stewart, a histo- - Donors remain committed and enhance their support for Somalia recovery. See also para 49: ‘[Somalia] must by reason of its conduct be considered as having acquiesced in the validity of that treaty’. Priority was given to the context of the MOU but not without some sacrifice to the plain meaning of the word ‘shall’. A list of cases in which the parties have agreed to release public information about the case is included below. Or should the context only be used to provide assistance in clarifying the ordinary meaning?44 While the majority in Somalia v. Kenya appears to embrace the former approach, the dissenting judges clearly favour the latter approach. 2018;34(2):195-204. 47Dissenting opinion of Judge ad hoc Gilbert Guillaume, para 9 (stating that ‘l’utilisation du mot "shall" marque qu’il s’agit là d’une obligation’). Nsereko t/a Kaburu Okelo & Partners v Stella Karimi Kobia & 2 others [2012] eKLR; and Bank Of Baroda (Kenya) Limited v Timwood Products Ltd-Civil Appeal . The first and a more philosophical problem with this principle thus concerns the hierarchy of Art. To fully appreciate the Court’s response to this argument, one needs to first distinguish between delineation and delimitation of the continental shelf beyond 200 nautical miles: although both acts are essentially coastal States drawing lines on their territories, their respective subject matter and the procedure are distinct. On the other hand, concerning the jurisdiction of dispute resolution mechanisms, as observed by Prof. Treves, the vast majority of the parties to UNCLOS have not chosen any forum under Art. A suspected suicide bomber has been arrested in Uganda for planning to blow up mourners at the funeral of an army commander known as "the Lion of Mogadishu". Major religion Islam. 34, no. the Somali conflict or Kenya's foreign policy as key informants. Last but not least, one can readily discern the extensive reliance on travaux préparatoires to interpret the intention of the drafters in Somalia v. Kenya. 45Dissenting opinion of Judge Bennouna, at 2. ): Smt. There have Suicide attack in Somali capital kills at least 2. On 7th April 2009 Somalia and Kenya signed an agreement bound by international law. It once held sway over the capital of Mogadishu and large portions of the Somali countryside, but in recent years an . Kenya's indigenous Endorois Centre for Minority Rights Development & Minority Rights Group International (MRG) on behalf of the Endorois Community v The Republic of Kenya By Lucy Claridge The Endorois indigenous community in Kenya has successfully contested their eviction from their ancestral land by the Kenyan government. By its judgement of 2 February 2017, the International Court of Justice took up jurisdiction to adjudicate the maritime dispute between Somalia and Kenya. Put otherwise, the Annex VII Arbitration and other mechanisms under Art. By doing so, the Court further established itself as the default adjudicator in law of the sea disputes unless the reservation to its jurisdiction is sufficiently precise. 31(3)(c) VCLT. The Court’s reasoning is that if paragraph 6 had the function of dispute resolution claimed by Kenya, this would have been highlighted by the Norwegian Ambassador.14 But since the Ambassador’s previous talks about the MOU contained nothing about paragraph 6, the Court came to the conclusion that the MOU was insignificant. Somalia's semiautonomous Jubbaland region has become a proxy battleground in a Kenya-Somalia maritime dispute that is rooted in a disagreement over which direction the border between the two countries extends into the Indian Ocean. Prudence is also required in the process of reservations to the Court’s jurisdiction, which must be unequivocal as to which kinds of dispute are to be excluded. MRG became involved in the case in April 2010 and, after an extensive fact finding mission and community consultations, drafted and filed . ICJ's president Justice Joan E Donoghue expressed the court's regret that Kenya had opted to walk out of the case even as Somalia claimed that her neighbour had been given "abundant chances" to argue its case. The ICJ’s Judgement in Somalia v. Kenya and Its Implications for the Law of the Sea. A high number of deaths and abortions among . I n t e r n a l D i s p l a c e m e n t i n S o m a l i a THE AUTHOR Jeff Drumtra is an independent expert on global internal displacement issues and the international system of humanitarian response. detailed assessment findings 18 v. conclusions and recommendations 31 annex i: consultative workshops summary 35 6ibid. This is why the Tribunal denied Japan’s argument in the Southern Bluefin Tuna cases, confirming that a simple commitment to settle the dispute by peaceful and diplomatic means would not amount to such an alternative.27 Second, the alternative dispute resolution mechanism must be shown to be sufficiently general to cover the issues of the law of the sea. 71PCIJ, Factory at Chorzów, Judgment on Jurisdiction, 26 July 1927, Series A, No. 83(1) of UNCLOS, the latter of which does not prescribe a method of dispute settlement.55 In the eyes of dissenting judges, this method is unprecedented and highly unsatisfactory: the wording of the two texts is not exactly the same and their objects, as well as their contexts, are arguably different. 250 (C.A. Capital: Mogadishu. The author, Maurice Odhiambo Makoloo, calls for immediate action to address the inequalities and marginalization of communities, as a way of ensuring that Kenya remains free of major conflict. Found insideThis is done in the context of recommended global TB strategies and targets endorsed by WHO?s Member States and broader development goals set by the United Nations (UN). Cases. - 2 - 5. Court: High Court of South Africa, Gauteng Local Division. See the dissenting opinion of Judge ad hoc Gilbert Guillaume, at para 27 (stating: ‘Cette acceptation de la négociation frontalière peut-elle aujourd’hui être opposée au Kenya? 4ibid. DOI: http://doi.org/10.5334/ujiel.450, Chan K-chieh. Somalia where they were at risk of persecution. DOI: http://doi.org/10.5334/ujiel.450, Chan, K.-. It then proceeds to country case studies of Djibouti, Ethiopia, Eritrea, Sudan, Somalia, Kenya, Tanzania and Uganda, providing a brief overview of the history of religion and confl ict and an assessment of the present situation and the prospects for the future. 72CIJ, Fisheries Jurisdiction Case (Spain v. Canada), Judgment of 4 December 1998 para 44. Found insideThe second edition of the Impact Evaluation in Practice handbook is a comprehensive and accessible introduction to impact evaluation for policy makers and development practitioners. In reading paragraph 6 of the MOU in light of Art. 35See e.g. But it raises a more basic issue: whether victims of the world's worst atrocities, who are denied justice at home, can turn to U.S. courts as their last resort. On the one hand, by rejecting Kenya’s argument that a State must first delineate the outer continental shelf before delimitation, the Court’s conclusion on the delimitation of the continental shelf beyond the 200 nautical miles confirms the approach taken by ITLOS (International Tribunal for the Law of the Sea). written by leading topic experts. Five years after the first edition was published, the second edition of the Commentary embraces current events before the International Court of Justice as well as before other courts and tribunals relevant for the interpretation and ... 31(3)(c) VCLT, which allows interpretation of treaties in light of ‘relevant rules of international law applicable in the relations between the parties’. 1996).Nevertheless, in the case of Somalia, there was an apparent conflict between the two principles: self-determination of the people and the territorial integrity of other states. The MOU confirmed that both parties will make submissions to the UN agency charged with settling maritime border disputes, Commission on the Limits of the Continental Shelf (CLCS). 83(1) and requires the parties to resort to Annex II arbitration instead of the ICJ.56 Interpretation of treaties based on similar terms, or provisions in other treaties applicable between the parties, is not unheard of: in the WTO US-Shrimp case, the Appellate Body has famously read that the term ‘exhaustible natural resources’ in light of similar provisions within UNCLOS.57 While assuming that similar terms imply similar intentions across different treaties, however, one is well advised to take into consideration the differences in context, object, purposes, subsequent practices, and even travaux among them. Maj-Gen Paul Lokech earned his . 3, 9 & 10 that "the evidence in a criminal case against an accused must be conclusive, and if it be circumstantial it should be so . 282 of the UNCLOS constitutes alternative dispute resolution mechanisms that fall under Kenya’s reservation to the Court’s jurisdiction. Cardiomyopathy refers to diseases of the heart muscle. In some cases there was a reluctance to accept that the protection of refugee women and girls was UNHCR's priority concern in dealing with the Somali refugee population in Kenya. Had Kenya truly believed that delimitation could only come after delineation, reasoned the Court, it would not have commenced those negotiations.13 Lastly, the Court assessed the travaux préparatoires of the MOU: interestingly, the text of the MOU was drafted by neither party but by the Norwegian Ambassador as part of Norway’s assistance to African countries’ legal development. 13 votes to 3 the Court rejects Kenya’s argument that the Court has no jurisdiction for proceeding in this case. This is 32 deaths per one million population. Since both Kenya and Somalia are parties to the UNCLOS, the Court observed that there is a level of similarity between paragraph 6 and Art. 2 (2018): 195–204. First, in the present case the Court considered the relevant travaux préparatoires not for what it revealed, but instead for its silence on a particular matter. Context, from the other articles in the same treaty to similarly articulated paragraphs in other treaties, may be just as important or even more important than the plain meaning of the text. On this point, the Court’s view is consistent, that although these general provisions do not themselves constitute legal obligations that could be independently violated, they do have ‘a certain bearing on the interpretation and application’ of the treaty at hand.54 The Court’s approach to Art. Found inside – Page 385Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Preliminary Objections) ... Case of the Free Zones of Upper Savoy and the District of Gex ... Forces in Somalia, provides an excellent summary of the series of events that drew us deeper and deeper into Somali internal affairs. To prevent coastal States from over-claiming a continental shelf by delineation, Art. This case note summarises the facts and analyses the potential ramifications of this judgement on international dispute resolution. ... enter your email address then choose one of the three options below. 59Dissenting Opinion of Judge Bennouna 4. 44Gardiner (n 32) 210 seems to support the latter view. Get the Maritime Zones poster here! ABOUT THE AUTHOR. The judgment has its most immediate influence on the law of the sea. 8Somalia v. Kenya (n 2) para 69. Contagion of Violence: Workshop Summary covers the major topics that arose during the 2-day workshop. Notwithstanding surrounding controversies, the Court set out important rules concerning the law of treaties. Options for Kenya and the Horn THE EGYPT-ETHIOPIA NILE CONFLICT EXECUTIVE SUMMARY Introduction The current Egypt-Ethiopia conflict over the River Nile is a result of politicization and securitization of the Grand Ethiopian Renaissance Dam (GERD) on the Blue Nile, and Egypt's opposition to the project over its water security. This case concerns the involvement of multinational corporations in overseas human rights crimes. UNCLOS came about from preventing possible conflict over states engaging in any threatening or exploitative activities. Judgment by the International Court of Justice on February 2017. 287 only play a residual role compared to the general mechanism set out in Art. Chandler v Cape plc. The corollary of this requirement is that States are not encouraged to draft ambiguous reservations in the hope of escaping from the commitment to the compulsory jurisdiction of the World Court. Somalia based its claim on both parties’ acceptance of the Court’s compulsory jurisdiction under Art. Typically it is the first word of a corporate claimant's name, an abbreviation of the corporate claimant's name, or the last name of a natural-person claimant "v." the short version of the respondent State's name. While some consider that every agreement concluded between states is of a normative nature and is not made subject to domestic law is a treaty,33 others fervently argue that more emphasis should be put on the intention of the parties.34 It is possible to relate this academic dispute to the similar schism between subjective and objective theories of interpretation in domestic contract laws,35 or the opposing views on the ‘Lotus rule’ (what is not prohibited is allowed) in the theory of international law.36. This book provides a critical analysis of the approach to treaty interpretation by the International Court of Justice in Maritime Disputes. comprehensive analysis every weekday . In the MOX Plant case (Ireland v. United Kingdom), the United Kingdom raised the objection that the main elements of the dispute were governed by the compulsory dispute settlement procedures of, inter alia, the European Community treaties. In Somalia, it is not at all unusual for a poor and uneducated nomad to approach a high government official as an equal and engage him in a discussion about the affairs of state'. In June 2018, the Ministry of Health for Kenya confirmed an outbreak of RVF. See also para 95 (‘the fact that the Parties set an objective as to the time for concluding an agreement does not, given that this paragraph is not prescriptive of a method of settlement to be followed’). In the Iron Rhine Railway arbitration, the arbitral tribunal made it clear that an MOU is not binding ‘as a matter of international law’ but is ‘not regarded as being without legal relevance’.37 Tribunals also tended to favour the subjective theory: as the arbitrators in Salini v. Jordan put it, ‘agreements are only binding upon the parties if they intended to create legal relations between themselves’.38 Similarly, in the US-UK Heathrow Airport User Charges arbitration, the tribunal ruled that a 1983 US-UK MOU was not a treaty and, therefore, rejected it as an independent source of rights and duties, as the parties to the MOU did not intend ‘to create independent legally enforceable obligations’.39 The tribunal remarked, however, that the MOU is still a ‘potentially important aid to interpretation’ for it ‘constitutes consensual subsequent practice of the Parties’.40 In comparison, the Court’s reasoning in Somalia v. Kenya may be regarded as a deviation from the subjective approach. 63P-M. Dupuy and Yann Kerbrat, Droit international public (13th edn, Dalloz 2016) 357 para 315; Aust (n 32) 247 (stating ‘travaux must therefore always be approached with care. 25Alan E. Boyle, ‘Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks’ (1999) 14 International Journal of Marine and Coastal Law 7. Upon characterising the MOU as a treaty that legally bound the parties, the Court moved on to decide whether it constitutes an agreement to some other methods of dispute settlement. 31(3) (c) of the Vienna Convention on the Law of Treaties (VCLT), which allows it to consider ‘[a]ny relevant rules of international law applicable in the relations between the parties’. The Court’s interpretation as to the purpose and the parties’ intentions of the MOU is essentially three-fold. In a landmark decision But on the other hand, as Indonesia contended, ‘shall’ can also be understood as implying a future action, meaning that while a subsequent reply by the host State is required, that reply may not necessarily be a positive one.48 It was the exact same contrast between obligation and future action in the meaning of the word ‘shall’ that was at stake in Somalia v. Kenya. Found inside – Page 190Stolen property , habitually dealing in Summary case trial , record in 40 106 viii V 33 5 Table of cases cited reported Talibu bin Mwijaka v . Kenya raised two objections to this. While the Court resorted to context to solve the conundrum in Somalia v. Kenya, the tribunal in Churchill Mining went further to abandon Art. Smt. Young Kenyan men and women are lured to Somalia to join criminal and terrorist networks, sometimes with fraudulent promises of lucrative employment elsewhere. 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