SOMALIA V. KENYA)

INTERNATIONAL COURT OF JUSTICE MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA v. KENYA) APPENDIX 2 TO THE REPUBLIC OF KENYA’S APPLICATION TO SUBMIT NEW EVIDENCE AND WRITTEN SUBMISSIONS VOLUME I 22nd February 2021 TABLE OF CONTENTS INTRODUCTION ............................................................................................................. 1 CHAPTER I: THIS APPENDIX EXPLAINS THE SIGNIFICANT AND RELEVANT NEW EVIDENCE THAT WAS NOT PREVIOUSLY BEFORE THE COURT ............................................................................................................................ 15 CHAPTER II: THE EVIDENCE CONFIRMS THAT SOMALIA ACQUIESCED IN KENYA’S CLAIM TO A MARITIME BOUNDARY ALONG THE PARALLEL OF LATITUDE BEFORE THE CRYSTALLISATION OF THE PRESENT DISPUTE ...................................................................................................... 27 Somalia acquiesced in Kenya’s claim when it benefited its beleaguered people; it is now seeking to retract that acquiescence to benefit private interests ........................................................................ 30 1. 1970s to 1991: Somalia acquiesced in Kenya’s claim in the context of an improvement of its bilateral relations with Kenya ......................................................................................... 30 2. 1991 to 2012: Somalia continued to acquiesce in Kenya’s claim while it benefited from Kenya’s support ...................... 47 3. 2012 to 2013: Kenya’s discovery of offshore oil triggered interest in Somalia by the private entity Soma Oil & Gas .... 73 4. February 2014 to August 2014: Somalia protested against Kenya’s claim, as it engaged in a six-month flurry of activity to benefit private interests ....................................................... 96 5. Conclusion ............................................................................... 103 Maritime boundaries can and do form through acquiescence ........ 104 The evidence confirms that the Parties’ conduct between 1979 and 2014 plainly satisfies the three requirements for acquiescence ....... 109 1. Since 1979, Kenya’s acts and course of conduct have clearly indicated that Kenya claims a maritime boundary along the Parallel of Latitude ................................................................. 110 2. Somalia had both full knowledge of Kenya’s claim and a duty to protest against it if it wished to prevent acquiescence ............................................................................ 131 i 3. Somalia failed to protest against Kenya’s claim within a reasonable time ....................................................................... 139 Somalia benefited from and Kenya relied on Somalia’s acquiescence ......................................................................................... 157 CHAPTER III: INDEPENDENTLY OF SOMALIA’S ACQUIESCENCE, THE EVIDENCE CONFIRMS THAT AN EQUITABLE SOLUTION REQUIRES THE APPLICATION OF THE LATITUDINAL DELIMITATION METHOD............. 162 CHAPTER IV: THE NEW EVIDENCE CONFIRMS THAT, CORRECTLY APPLIED, THE THREE-STEP DELIMITATION METHOD ALSO WOULD REQUIRE THE PARTIES’ MARITIME BOUNDARY TO FOLLOW THE PARALLEL OF LATITUDE ...................................................................................... 183 Deficiencies in the charted data from which Somalia calculates its proposed basepoints require the provisional equidistance line proposed by Somalia to be reconstructed anew ............................... 184 The evidence confirms that there are multiple relevant circumstances that require the provisional equidistance line to be adjusted to follow the Parallel of Latitude ........................................ 190 1. The severe cut-off effect that the provisional equidistance line produces on Kenya’s maritime areas requires that line to be adjusted to the Parallel of Latitude ................................. 195 2. The regional context requires the adjustment of the provisional equidistance line to the Parallel of Latitude ..... 206 3. Vital security interests concerning both the Parties and the international community at large require the provisional equidistance line to be adjusted to the Parallel of Latitude 212 4. The evidence of the Parties’ conduct reflects a de facto boundary line that requires the adjustment of the provisional equidistance line to the Parallel of Latitude ......................... 238 5. The evidence confirms that Kenya’s fisherfolk currently and historically have critically relied for their livelihoods upon the fisheries just to the south of the Parallel of Latitude; their equitable access to those natural resources requires the adjustment of the provisional equidistance line to the Parallel of Latitude ............................................................................... 246 ii The Parallel of Latitude line leads to no significant disproportionality; the equidistance line leads to significant disproportionality ................................................................................ 265 1. Somalia’s calculations regarding the scope of the relevant maritime area are inconsistent with its own legal submissions.............................................................................. 267 2. Somalia’s calculations of the lengths of the relevant coasts are inconsistent with its own legal submissions ................... 275 3. The equidistance line creates a significant disproportionality both using Kenya’s correct methods and applying Somalia’s stated methods in a consistent manner ................................. 279 4. The Parallel of Latitude creates no significant disproportionality, regardless of whether the Court uses Kenya’s correct methods or Somalia’s stated methods in a consistent manner ................................................................... 282 CHAPTER V: THE EVIDENCE CONFIRMS THAT KENYA’S ACTIVITIES IN THE NOW-DISPUTED MARITIME AREA HAVE AT ALL TIMES COMPLIED WITH APPLICABLE INTERNATIONAL LAW NORMS ..................................... 284 Somalia misstates the legal standard for wrongfulness of activities in a disputed maritime area .................................................................... 287 1. Contrary to Somalia’s arguments, one State’s self-serving “perception” of the nature of a given activity does not determine whether that activity is wrongful ........................ 287 2. Contrary to Somalia’s arguments, the delimitation of a shared continental shelf does not establish retroactive liability ..................................................................................... 291 The evidence confirms the lawfulness of Kenya’s activities ............ 295 1. Somalia did not object to Kenya’s well-publicised activities in the now-disputed maritime area until 2014 ......................... 296 2. Somalia, not Kenya, is in breach of its obligation to make every effort to enter into provisional arrangements ............ 298 3. The new evidence is relevant in confirming that Somalia has failed to prove that any of Kenya’s actions have hampered or could hamper the reaching of a final agreement; even under its own standard, Somalia has shown no reasonable basis for iii its so-called “perception” of a de facto, irreversible regime ...................................................................................... 300 Somalia has failed to prove that it is entitled to any type of reparations ........................................................................................... 305 iv INTRODUCTION 1. The Republic of Kenya respectfully files this Appendix 2 (the “Appendix”) to its Application to submit new evidence in the case concerning the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (the “Application”), for the purpose of explaining the relevance of the new evidence. 1 2. As in any other proceeding before it, the Court must reach its decision in the present proceeding “on a fully informed basis”. 2 This basis “provides both the parties and the Court with the safeguards required for the sound administration of international justice”.3 Conscious of that, the Court has made clear that it will “employ whatever means and resources may enable it to satisfy itself whether the submissions of the applicant State are well-founded in fact and law, and simultaneously to safeguard the essential principles of the sound administration of justice.”4 3. In this proceeding, the Court would benefit from this additional information and evidence so as to make a “fully informed” decision. Kenya filed its Rejoinder more than two years ago, on 18 December 2018. Since Kenya filed that last written submission, Kenya has diligently and in good faith 1 Unless otherwise defined in this Appendix, capitalised terms shall have the meanings ascribed to them in the Rejoinder filed by Kenya on 18 December 2018. 2 International Court of Justice, Handbook, 31 December 2018, page 51. 3 International Court of Justice, Handbook, 31 December 2018, page 51. 4 International Court of Justice, Handbook, 31 December 2018, page 51. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, p. 14, paragraph 59. The Court made this statement in the context of a respondent State having failed to appear in proceedings before the Court. However, the statement applies with equal force in this case. 1 continued to look for relevant evidence to assist the Court. As part of those efforts, Kenya instructed a new team of researchers

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