Delimitation of the Extended Continental Shelf in Somalia v. Kenya in the ICJ: A Critique

Abstract

Somalia v. Kenya is the first case where the ICJ delimited the boundary line of the continental shelf beyond 200 nautical miles (the so-called “extended continental shelf”) between the Parties. Compared with the previous cases decided by other international tribunals on the same issue, the present case shows some differences. Particularly, the ICJ did not mention the three-stage methodology or other delimitation methods in the delimitation of the extended continental shelf, nor did it identify the relevant area or apply the disproportionality test. The ICJ in this case did not have any reliable evidence to ascertain the Parties’ entitlements to the extended continental shelf, and it did not make a clear determination on the issue of entitlements accordingly. The ICJ delimited the extended continental shelf by extending the boundary line within 200 nautical miles in the same direction, but its reasoning is not sufficient to support the decision. Besides, the Court did not pronounce that the delimitation line achieves an equitable solution. Indeed, in light of the relationship between entitlement and delimitation as well as the circumstances of the present case, the ICJ should have declined to delimit the extended continental shelf.