UNIVERSITY OF NAIROBI
THE STATUS OF MARITIME BOUNDARIES
IN KENYA
RATENG’ JACKLINE
F19/2548/2008
A project report submitted to the Department of Geospatial and Space Technology in partial
fulfillment of the requirements for the award of the degree of:
Bachelor of Science in Geospatial Engineering
APRIL 2013.
Abstract
This project is a report on the status of maritime delimitation process in Kenya. It involves the
detailed definition of maritime boundaries, the methods used in establishing these boundaries and
the steps accomplished so far in this process. The project also includes a number of relevant case
laws that have been used in the explanation of the methods used in the establishment of maritime
boundaries.
From the study, we are able to understand the Law of the Sea, its real life application and the
factors that influence the delimitation of maritime boundaries. The project also brings out frequent
maritime boundary issues that come up and possible approaches for resolving these issues.
In addition, this project has concisely presented the current status of the Kenyan maritime
boundary. The Kenya Tanzania maritime boundary has been described in detail and an in-depth
discussion follows the description. Similarly, the Kenya Somalia maritime boundary has also been
discussedand the issues affecting this boundary have been clearly brought out alongside possible
solutions.
It can be concluded that Kenya has reasonably mapped its maritime boundaries and talks are
underway to resolve the boundary with disputes.
ii
Dedication
To my late mother Phoebe and father Arthur, for their unwavering support in all my pursuits.
iii
Acknowledgements
The author would liketo thank the Division for Ocean Affairs and the Law of the Sea of theUnited
Nations, the Survey ofKenya andMr. Mugambi and Mr. Rotich from the commission on
delimitation of Kenya’s continental Shelf for providing the background for carrying out this
research.
Special thanks go to Mr. Nyadimo, of Oakar services for his kind support and suggestions during
the research.
Sincere gratitude goes to my supervisors Mr. D.K Macoco, and Mr. B.M. Okumu for their
professional assistance. Without their assistance it would not have been possible to accomplish this
research. The author also thanks Dr. Musyoka for sharing his experience and giving guidelines in
the process of drafting the research theme. Also, the author thanks the Technicalstaff, all from the
Department of Geospatial and Space Technology.
Finally, the author wishes to thank, her family, friends and colleagues from the department of
Geospatial and space technology, for their input and moral support.
iv
List of Abbreviations & Acronyms
CS
Continental Self
CZ
Contiguous Zone
EEZ
Exclusive Economic Zone
HS
High Seas
ICJ
International Court of Justice
LOS
The Law of the Sea
Km
Kilometer
nm
nautical mile(s)
TS
Territorial Sea
UN
United Nations
UNCOLOS
United Nations Convention on the Law of the Sea
CLCS
Commission on the Limits of the continental Shelf
v
TABLE OF CONTENTS
Abstract .............................................................................................................................................. ii
Dedication ......................................................................................................................................... iii
Acknowledgements ........................................................................................................................... iv
List of Abbreviations & Acronyms.................................................................................................... v
List of Figures ................................................................................................................................. viii
CHAPTER ONE: INTRODUCTION ................................................................................................ 1
1.1
Backgroundto the Study ...................................................................................................... 1
1.2
Statement of the Problem .................................................................................................... 3
1.3
Objectives ............................................................................................................................ 5
1.4
Scopeof the Study................................................................................................................ 6
1.5
Organization of the Report. ................................................................................................. 6
CHAPTER TWO: LITERATURE REVIEW .................................................................................... 8
2.1
Kenyan Maritime Geographic Context ............................................................................... 8
2.2.1
Delimited Maritime Boundaries .................................................................................. 9
CHAPTER THREE: METHODOLOGY ........................................................................................ 12
3.1
Determination of the Maritime Zones ............................................................................... 12
3.1.1
The Establishment of Baselines ................................................................................. 12
3.1.2
Territorial Sea ............................................................................................................ 14
3.1.3
Contiguous zone......................................................................................................... 15
3.1.4
Exclusive Economic Zone ......................................................................................... 15
3.1.5
Continental Shelf ....................................................................................................... 16
3.2
The Main Methods and Principles of Delimitation ........................................................... 18
3.2.1
Equidistance ............................................................................................................... 18
3.2.2
Equity and the Equitable Principle ............................................................................ 22
3.2.3
Single Maritime Boundary ......................................................................................... 25
3.2.4
Proportionality ........................................................................................................... 28
3.2.5
Perpendicular Method ................................................................................................ 31
3.2.6
Latitude and Longitude Method................................................................................. 32
3.3
Relevant Circumstances .................................................................................................... 34
3.3.1
Geographical Circumstances ..................................................................................... 35
3.3.2
Non -geographical Circumstances ............................................................................. 39
3.4
Kenyan Maritime Boundaries. .......................................................................................... 45
vi
3.4.1
Kenya – Tanzania Maritime Boundary ...................................................................... 45
3.4.2
Kenya-Somalia maritime boundary ........................................................................... 47
CHAPTER FOUR: DISCUSSION .................................................................................................. 49
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS .............................................. 52
5.1
Conclusions ....................................................................................................................... 52
5.2
Recommendations ............................................................................................................. 53
Appendix 1 ....................................................................................................................................... 57
vii
List of Figures
Figure 1.1: Showing Maritime Zones……………………………………………………………….7
Figure 2.1: Map of East Africa Showing Kenya and its Neighbours……………………………….8
Figure 2.2: Showing the Extents of 200nm of the Coastal States of the Indian Ocean Region…...11
Figure 3.1: Showing the 2002 Cameroon/Nigeria Case…………………………...………………21
Figure 3.2: Showing the 1984 Gulf of Maine Case…………………………………….…….……24
Figure 3.3: Showing the 1982 Tunisia/Libya Case………………………………………...………26
Figure 3.4: Showing the 1969 North Sea Case….………………………………………………....29
Figure 3.5: Zoomed in Nautical Chart of the Kenya.-Tanzania Territorial Sea…………………...45
Figure 3.6: Nautical chart showing the Kenya - Tanzania Maritime Boundary…………………...46
Figure 3.7: Showing the disputed Kenya-Somalia Oil and Gas Exploration Blocks………...…....48
viii
CHAPTER ONE: INTRODUCTION
1.1
Backgroundto the Study
A maritime boundary is a conceptual division of the Earth's water surface areas using
physiographic and/or geopolitical criteria. As such, it usually includes areas of exclusive national
rights over mineral and biological resources encompassing maritime features, limits and zones.
Generally, a maritime boundary is delineated through a particular measure from a jurisdiction's
coastline also known as baseline and this must be confined to the requirements of the Law of the
Sea (LOS).
Every coastal state has jurisdiction over the oceans and seas, the limits of which are defined by
international conventions and national regulations must confirm to international law. The Law of
the Sea, in its essence, divides the seas into zones and specifies the rights and duties of states and
ships flying their flags in those zones (Henkin, 1979)
Maritime boundaries exist in the context of internal waters, territorial, contiguous zones, and
exclusive economic zones; however, the terminology does not encompass lake or river boundaries,
which are considered within the context of land boundaries. The zones of maritime boundaries are
expressed in concentric limits surrounding coastal and feature baselines. These are:

Coastal waters/Internal waters—the zone extending 3 nm from the baseline.

Territorial sea—the zone extending 12 nm from the baseline.

Contiguous zone—the area extending 24 nm from the baseline.

Exclusive Economic Zone—the area extending 200 nm from the baseline except when the
space between two countries is less than 400 nm.

Continental Shelf.
Maritime boundaries are sometimes controversial, thus countries have to enlist help from the
United Nations to solve such disputes. Controversies about territorial waters tend to encompass
two dimensions: (a) territorial sovereignty, which are a legacy of history; and (b) relevant
jurisdictional rights and interests in maritime boundaries, which are mainly due to differing
1
interpretations of the Law of the Sea. An example of this may be reviewed in the context of the
ongoing Kuwait-Iraq maritime dispute over the KhawrAbd Allah waterway. Closer home,
however, is the Kenya-Somalia dispute over the oil blocks lying in their Indian Ocean boundary.
Historically, customary international law has established the law that governed the ocean, as well
as maritime zone delimitation. The first sporadic attempts to codify the LOS were undertaken by
the then League of Nations. The 1930 conference convened in the Hague Haia attempted to deal
with the Territorial Sea (TS), but an agreement could not be reached. Following the Hague Haia
Conference, there were three decisive moments in the process of codification of the LOSnamely,
the first, second, and third United Nations Conferences on the Law of the Sea (UNCLOS I, II and
III: 1958, 1960 and 1973-82, respectively). UNCLOS I, which was held in Geneva in 1958, led to
the codification of four conventions that dealt with some areas of the LOS such as Convention on
the Territorial Sea and the Contiguous Zone, Convention on the Continental Shelf, Convention on
the High Seas, and Convention on the Fishing and Conservation of the Living Resources of the
High Seas. The four conventions adopted by UNCLOS I in Geneva, reflected the sectoral, limited
approach to international law still in vague at that time. UNCLOS I documented much of
international customary law; however, an agreement could not be reached on a number of issues.
One such fundamental issue was the breadth of the TS. They were negotiated and ratified by a
small number of maritime states, without participation of most of the newly emerging developing
states. UNCLOS II later convened in 1960 to solve the problems left open by the first conference,
yet ended without results.UNCLOS III convened from 1973 to 1982, and during a period of ten
years held eleven sessions. By the end of the conference, 164 states had participated, as well as
102 observers composed of International Organizations (IOs), National Liberation Movements and
territories.
The negotiation of the UNCLOS that codified the LOS can be considered one of the greatest
diplomatic events of humanity and in the history of International Relations (IR) due to the different
interests involved and the difficulties experienced over ten years of complex negotiations. In the
end, on 30 April, 1982, the UNCLOS was adopted as a “package” due to the close interrelationship of many issues before the conference and the conflicting interests involved.
Nonetheless, some maritime powers with an important role in the implementation of UNCLOS,
such as the United States of America (USA), are not yet party to it.
2
With its new provisions, UNCLOS expanded the coastal state’s resources and economic rights in a
vastly expanded Exclusive Economic Zone(EEZ) and Continental Shelf (CS), while also fully
protecting sovereign rights in navigational freedom. UNCLOS established the maritime spaces
subject to jurisdiction of coastal states and principles governing the delimitation of maritime
boundaries. In particular, the maritime spaces which would be most often subject to boundary
delimitation between two or more states are the TS (Article 15), the EEZ (Article 74) and the CS
(Article 83). There is a difference in treatment to be found between Article 15, which gives
prominence to a median line, and two other Articles 74 and 83, which stress the need to reach an
equitable solution. The delimitation of maritime boundaries between two or more states occurs in a
situation of overlapping maritime claims between those states.
From the history of the Law of the Sea discussed above, it is clear that the Law of the Sea is an old
and yet difficult and multiform branch of law that is made up of norms regulating activities in the
coastal area.
1.2
Statement of the Problem
Maritime delimitation remains an important topic where boundary-making, sensitive questions of
state sovereignty, sovereign rights, jurisdiction and title to valuable natural resources are all put
into question(Anderson, 2003).
Nowadays, the potential political and security risks of boundary disputes are high, and unresolved
maritime boundaries between states may easily affect bilateral relations or even international peace
and security. Such disputes may also hamper economic activitiessuch as exploitation of fishing
sites due to fear of action by the other states. Furthermore, unresolved maritime boundaries may
also cause disputes over certain areas of jurisdiction between states if oil and/or gas discoveries are
made in overlapping claimed areas. In the case of Kenya, which has two maritime boundaries, only
the boundary with Tanzania has been settled, the Kenya-Somalia boundary is still pending.
The focus on the Kenyan maritime boundaries was motivated by the recent disagreement between
Kenya and Somalia over exploration oil blocks. Somalia’s government accused the Kenyan
governmentof illegally awarding off-shore oil and gas exploration blocks to multinationals Total
and Eni because the concessions lie in waters claimed by Somalia. Another disagreement that
3
Kenya has had with neighboring Uganda, that is not as recent and not a maritime dispute, was
whether the Migingo Island in Lake Victoria lies in Kenya or Uganda.
The issues mentioned above have brought about the need for Kenya to have clearly
delineatedborders and a well-documented report on the status of these boundaries in order to avoid
unnecessary conflict and to ensure a peaceful enjoyment of the Oceans resources. The delineation
is also important for security reasons.
4
1.3
Objectives
The main objective of this project is to carry out a study on the progress of the process of
delimitation of maritime boundaries in Kenya.
Specific objectives are:

To identifythe existing maritime boundaries in Kenya including the processes that were used in
the establishment of these boundaries.

To document the Law of the Seathat maximizes the benefits of these boundaries to Kenya.

To use the information obtained to create awareness of the need for accurate and timely
maritime boundaries.
The main objectives of delimiting maritime boundaries are:

To regulate the rights and obligations of states in the marine area thus dividing the seas into
zones and specifies the rights and duties of states and ships flying their flags in those zones.

To secure a country’s resources by clearly identifying the resources that lie under each
country’s jurisdiction.1

To ensure peaceful management2 and utilization of these resources.
1
This is useful for commercial exploitation of resources both living and non-living. Forexample, exploitation of
carbon, oil and gas deposits began in the 1940s and has become significant since the late 1950s with the rapid
development of deep water recovery technology.
2
The peaceful management of the oceans and seas is another key role played by establishment of maritime boundaries.
This is especially with regard to countries with overlapping boundaries. This could prove crucial to the well-being and
political stability of coastal states; extensive overlapping claims forestall development while maritime boundaries
remain unsettled.
5
1.4
Scope of the Study
This study is limited to Kenya and more precisely the maritime zones in the Indian Ocean. The
study starts with the definition of terms used with regard to maritime boundaries, and an
introduction of the same. This is followed by a study of maritime boundaries in the Indian Ocean
and separates those that have been delimited from those that have not. This is followed by a map
showing all the actual and hypothetical maritime boundaries of the Indian Ocean.
It then proceeds to give an explanation of methods and principles used in maritime delimitation,
using case laws, followed by the factors that affect maritime delimitation of these boundaries,
geographic and non- geographic. What follows are in-depth explanations of the Kenya -Tanzania
and Kenya-Somalia maritime boundaries, followed discussions.
1.5
Organization of the Report.
This report has been organized into five chapters. Chapter one is the Introduction, this explains the
origin of maritime boundaries and what they are. Chapter two is the literature review which
explains the delimited and undelimited maritime boundaries of the Indian Ocean. In chapter three
the report covers the methods and principles of establishing maritime boundaries as well as an indepth explanation of the rights of a state within these boundaries, according to the UNCLOS It also
covers an explanation of the current status of Kenyan maritime boundaries. Chapter four is a
discussion of the Kenyan maritime boundaries. Chapter five gives the conclusions and
recommendations.
6
Figure1.1: Figure showing the maritime zones
Source: http//www.icefloe.net/reports/healy.html
7
CHAPTER TWO: LITERATURE REVIEW
2.1
Kenyan Maritime Geographic Context
The Republic of Kenya is a sovereign state in East Africa. It lies on the equator with the Indian
Ocean to the south-east, between latitudes 5°N and 5°S, and longitudes 34° and 42°E.
The country covers a total area of 580,367 square kilometers (sq. km) including 13,370 km2 of
internal waters. Kenya is bordered by Tanzania to the south, Uganda to the west, South Sudan to
the north-west, Ethiopia to the north and Somalia to the north-east and the Indian Ocean to the
South East.
Kenya has a coastline of approximately 1,420km and its coastline has generally a regular
configuration.
Legend
LB
Source:
Map
prepared
by
N
Land Boundary
author(LB)
N
Fig 2.1: Map of East Africa showing Kenya and its neighbours
Source: Map prepared by Author
8
2.2
Maritime Boundaries of the Indian Ocean
2.2.1 Delimited Maritime Boundaries
The majority of maritime boundaries in the Indian Ocean were delimited in the period 1971-1989
and were lines of equidistance. These boundaries were delimited in the Timor Sea between
Australia and Indonesia, in the Andaman Sea, between Indonesia, Thailand, India and Burma and
in the seas surrounding southern India, the Maldives and Sri - Lanka. The other scattered
boundaries delimited in the period involved France and Mauritius dealing with Reunion. Australia
and France concerned with Kerguelon and Heard and McDonald Islands and Tanzania and its
continental neighbours.
In the 1990’s Burma, India and Thailand completed their boundary delimitations by defining their
tri – junction. Australia and Indonesia completed a comprehensive maritime boundary agreement
in the Timor Sea. This agreement is now moot, however, following the emergence of East Timor
as an independent state.
During this century, Seychelles has delimited its boundaries with France, involving the territory of
Mayotte, and its boundaries with Tanzania. Oman and Yemen have delimited their territorial sea
and exclusive economic zone boundary. Australia has settled joint arrangements for a Joint
Petroleum Development Area (JPDA) first with the United Nations transitional administration in
East Timor and then with East Timor in 2000 – 2002 respectively.
2.2.2 Undelimited Maritime Boundaries of the Indian Ocean
This review of the potential maritime boundaries remaining to be delimited starts with
Mozambique – South Africa then proceeds north and east around continental perimeter to the
potential boundary between Bangladesh and Burma. Then the boundary between islands and
continental states and between islands and islands will be considered.
The land boundary between Mozambique and South Africa reaches the coast near Punta do Oura
in a slight embayment about 12 nm in width. The rounded headlands of the embayment carry an
equidistance of 140 nm seawards upon a course just south of east. At that distance the marked
eastwards bulge of the Mozambique coast takes effect and pushes the line of equidistance
southwards.
9
The land boundary between Kenya and Somalia terminates on a smooth coastline. Indeed these
base points that define line equidistance between the two countries are all found within 30 nm of
the terminus. The equidistance line reaches the interaction of the EEZ near 3°30´ south and 44°19´
east. Because the continental coastline in this sector is aligned southwest – northeast, the
equidistance line follows a southeasterly course. Since Kenya and Tanzania delimited their
maritime boundary north of Pemba Island by a parallel of latitude, an equidistance line between
Kenya and Somalia would mean that Kenya’s EEZ would narrow as it proceeds seawards. While
this might be argued as being disadvantageous, due to the presence of Yemeni’s Socotra Island and
appendages, 55 nm off RasCaseyr, the north – east tip of Africa, which restricts the maritime zone
Somalia, can claim.
A potential maritime boundary between Somalia and Yemen commences about 8.5 nm east of the
Strait and Bab el Mandeh at the western end of the Gulf of Aden, at a point near 11°50´ north and
44°10´ east. An equidistant line proceeds northeasterly, between the opposing continental coasts of
Yemen and Somalia, which have a similar configuration, for about 420 nm through the Gulf of
Aden to the Arabian Sea near 13°32´ north and 51°06´ east. At this point, Abd al Kuni the most
westerly island in the Socotra group comes into consideration. The line of equidistance turns
abruptly southeast and terminates at point 9° N and 54°30´ E, that is 200 nm from RasXaafuun on
the Somali coast and JazaritDarsa off the south coast of Socotra.(Forbes,1992)
Finally as Glassner(1986:6-8) maintains, the study of the geography of the sea space is one of the
most difficult and challenging problems the political geographer(Surveyors, geographers and
geologists) faces. This fact is further emphasized by Alexander (1986:19-24) who stresses that “the
study of maritime boundaries requires more attention from political geographers for if they fail to
act, the lawyers surely will.”
10
Figure 2.2: showing the Extent of 200nm Limit of the Coastal States of the Indian Ocean Region.
Source: Vivian Loius Forbes, Maritime Boundaries of the Indian Ocean Region, volume 3.
11
CHAPTER THREE: METHODOLOGY
This project is basically a research paper. It involves finding and collecting materials that will
provide the relevant information to be used in compiling the report. These materials includebooks,
journals, articles, the UNCLOS hand book as well as the internetsearch which proved to be an
invaluable source of information.
It comprises a study of the Law of the Sea also known as the International Maritime Law, a step by
step review of various case laws so as to understand the workings of the International Court of
Justice (ICJ) and to use the case laws to explain the methods that have been used in maritime
delimitation. The review of the case laws also bring to one’s attention the geographical and nongeographical circumstances that are considered during maritime delimitation and the criteria used
to determine the relevant ones in each case.
The project then zeros in on the Kenyan situation and covers in detail the Kenya-Tanzania
boundary and the Kenya-Somalia boundary, the agreements made, the issues arising and the
current prevailing situation.
3.1
Determination of the Maritime Zones
3.1.1 The Establishment of Baselines
The first step in determining the outer limits of any area of jurisdiction adjacent to a coastline is
the establishment of a starting point from which all measurements will be made namely, the
baselines. The convention specifies the rules for drawing baselines. These rules distinguish
between normal baselines (following the low water line along the coast) and straight baselines
(which can be employed only in specified geographical situations).
Article 5 of LOSC deals with the normal baseline, stating that the normal baseline for the
measurement of maritime spaces is the low water line along the coast, which is marked on largescale charts officially recognized by the coastal state. It appears that the provisions of this article
are identical to those made by Article 3 of the 1958 Geneva Convention on TS and CZ. The low
water line is an identifiable feature shown on a nautical chart at medium or large scales. The
depiction of the low water line as a distinct feature depends largely upon the nature and seaward
12
extent of the inter-tidal area. Where the tidal range is appreciable, the inter-tidal zone may extend
for a considerable distance to the limit of the low water line and be exposed at low water.
The other rule of establishment the baselines is the straight baselines system. First legitimized by
the International Court of Justice (ICJ), in 1951 through the Anglo/Norwegian Fisheries Case, it
was codified and developed in the 1958 Conventions. The straight baseline method has been
adopted by many coastal states, often incorrectly. Article 7 of the LOSC allows states to draw
straight baselines in the following situations:
a. In the locations where the coastline is deeply indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, the method of straight baselines joining
appropriate points may be employed in drawing the baseline from which the breadth of
territory sea is measured.
b. Where because of the presence of deltas and other natural conditions the coastline is highly
unstable, the appropriate points may be selected along the furthest seaward extent of the
low water line and, notwithstanding subsequent regression of the low water line; the
straight baselines shall remain effective until changed by the coastal state in accordance
with UNCLOS.
c. The drawing of straight baselines must not depart to any appreciable extent from the
general direction of the coast, and the sea areas lying within the lines must be sufficiently
closely linked to the land domain to be subject to the regime of internal waters.
d. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or
similar installations, which are permanently above sea level, have been built on them,
except in instances where the drawing of baselines to and from such elevations has
received general international recognition.
e. Where the method of straight baselines is applicable under paragraph 1 of Article 7,
account may be taken, in determining particular baselines, of economic interests peculiar to
a region concerned, be the reality and the importance of which are clearly evidenced by
long usage.
f. The system of straight baselines may not be applied by the state in such a manner as to cutoff the territorial sea of another state from the HS or an EEZ.
13
Thus, normally, baselines may consist either of the low water line along the mainland and island
coasts (the “normal baseline”), or of straight baselines (including across the mouth of rivers, delta
and bay “closing lines”). The determination of baselines will immediately fix the outer edge of the
State’s internal waters, and then permit the mechanical determination of the outer edge of the TS,
the CZ, the EEZ and the CS, since each is measured, at their respective uniform distance, seawards
from the baselines.
3.1.2 Territorial Sea
The sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the
case of an archipelagic state, its archipelagic waters to an adjacent belt of sea, described as the
territorial sea.
This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
The sovereignty over the territorial sea is exercised subject to the UNCLOS and to other rules of
international law.
Every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines determined in accordance with the UNCLOS.
The outer limit of the territorial sea is the line every point of which is at a distance from the nearest
point of the baseline equal to the breadth of the territorial sea.
Normal baseline is used in the establishment of the territorial zone except where otherwise
provided in the UNCOLOS, the normal baseline for measuring the breadth of the territorial sea is
the low-water line along the coast as marked on large-scale charts officially recognized by the
coastal state.
In the case of islands situated on atolls or of islands having fringing reefs, the baseline for
measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by
the appropriate symbol on charts officially recognized by the coastal state.
Kenya has proclaimed its territorial sea boundary. This is about 12 nautical miles from the baseline
(Article 3-6, UNCLOSIII).
14
3.1.3 Contiguous zone
Contiguous zone3is a region neighboring the territorial sea, here; the coastal state may exercise the
control necessary to:

Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;

Punish infringement of the above laws and regulations committed within its territory or
territorial sea.
Kenya has already established its contiguous zone. This boundary lies at about 24 nautical miles
from the baseline. This comprised computing and listing of the coordinates of the outer limit and
creation of charts showing the outer limit (Article 33, UNCLOS III).
3.1.4 Exclusive Economic Zone
The Exclusive Economic Zone 4(EEZ) emerged in the 1960’s as a result of efforts of Coastal states
to acquire exclusive rights to manage and exploit living resources. They had noticed that as result
of improved technology, most fish stocks in the sea ,that were concentrated around the continental
shelf were being intensively exploited by distant water fishing fleet. The Coastal states were not
benefiting from resources that were ideally meant to benefit them (Collins, 1982).
The emergence of this new maritime zone significantly increased the importance of maritime
boundary delimitation in contemporary international law. The most notable feature of this new
zone was its great distance from the coast. International law permits a state to extend its EEZ
seaward to a distance of 200 nautical miles(370 km) from its baseline, as defined by article 57 of
the 1982 LOS Convention:
The rights and freedom of the coastal state within this region include:

Sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of
3
The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the
territorial sea is measured.
4
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured.
15
the seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;

Jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i)
the establishment and use of artificial islands, installations and structures
(ii)
marine scientific research;
(iii)
the protection and preservation of the marine environment;
In exercising its rights and performing its duties under this Convention in the exclusive economic
zone, the coastal state shall have due regard to the rights and duties of other states and shall act in a
manner compatible with the provisions of this Convention. The rights set out in this article with
respect to the seabed and subsoil shall be exercised in accordance with Part VI(Article
58,UNCLOS111).
Kenya has already proclaimed its Exclusive Economic Zone, which is the area extending 200
nautical miles from the baseline.
3.1.5 Continental Shelf
Prior to 1945, there was variety in state’s practice with respect to claiming maritime zones in
which they could exercise full sovereignty over the seabed and subsoil, the water column, and the
airspace. But, after World War II, this situation was soon changed. The scarcity of land-based
natural resources forced states to concentrate on the exploitation opportunities of offshore
resources. Scientific and technological progress had shown the potential importance in this respect
of the natural resources of the continental shelf. Furthermore, states began to realize the growing
importance of the non-living resources of the high seas as being vital to their economic
development. These factors resulted in the emergence of the new concept, the continental shelf
(CS)(Collins, 1982).
The substantial role for the emergence of CS, and the establishment of national jurisdiction on it,
was played by the 1945 Truman proclamation. President Truman of the United States proclaimed
that the Government of the United States regarded the natural resources of the subsoil and the
seabed of the CS beneath the high seas, and contiguous to the cost of the United States, as
appertaining to the United States, subject to its jurisdiction and control(Truman,1945).
16
The majority of States in a short period of time, made the similar declarations and the CS soon
became accepted as customary international law.
Article 76, part 1 of the UNCLOS defines the continental shelf as follows :
The continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas
that extend beyond its territorial sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of the continental margin
does not extend up to that distance.
Similar to the EEZ ,also, the Continental Shelf seaward extension is at least 200 nautical miles
from the baseline, and perhaps considerably farther when international law so permits. Part5 of
Article 76 of the UNCLOS states that:
The fixed points comprising the line of the outer limit of the continental shelf on the
seabed,[…] either shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the
2,500 metreisobath, which is a line connecting the depth of 2,500 metres.
A state may exercise the following rights within its continental shelf:
The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring
it and exploiting its natural resources.
The rights referred to in paragraph 1 are exclusive in the sense that if the coastal state does not
explore the continental shelf or exploit its natural resources, no one may undertake these activities
without the express consent of the coastal state.
The rights of the coastal state over the continental shelf do not depend on occupation, effective or
notional, or on any express proclamation.
The natural resources referred to in this Part consist of the mineral and other non-living resources
of the seabed and subsoil together with living organisms belonging to sedentary species, that is to
say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are
unable to move except in constant physical contact with the seabed or the subsoil (Article 77,
UNCLOSIII).
17
Kenya has already delineated its continental shelf and has made a submission to the CLCS
(Commission on the Limits of the continental Shelf) which is a sub UN body (Article 76,
UNCLOS).
3.2
The Main Methods and Principles of Delimitation
Below are some of the most common delimitation methods that have been used in establishing
maritime boundaries.
3.2.1 Equidistance
The 1958 Territorial Sea Convention defines equidistance as “the line every point of which is
equidistant from the nearest points of the baselines from which the breadth of the territorial sea of
each of the two states is measured.” The 1958 Continental Shelf Convention contains a similar
definition. This Convention employs the term “median line” for an equidistant line between
opposite states and refers only to a boundary determined by application of the principle of
equidistance in the case of adjacent states. The use of equidistance methods depends on the
baselines along the coasts of the respective states whose offshore areas are to be separated by the
boundary. There may be difficulties here if one state utilizes normal baselines, following the
sinuosities of the coasts, and the other employs a straight baseline system connecting the outermost
islands, promontories and rocks.
The use of the equidistance method was obligatory in the absence of an agreement, historical titles
or special circumstances. This was called the combined equidistance/special circumstances rule.
18
In the absence of agreement, and unless another boundary line is
justified by special circumstances, the boundary shall be determined by
application of the principle of equidistance/median line from the
nearest points of the baselines from which the breadth of the territorial
sea of each state is measured.(Article 6, Apri1958.)
Advantages of the equidistance principle
a. It emerged in early treaty law, such as in the 1958 Conventions, because of the fact that it
strikes a balance between predictability and flexibility, objectivity and discretion.
b. The combined rule generally respects the principle of equal division of the area of Converging
or overlapping claims, in the absence of inequities resulting from aberrant coastal features or
major differences in coastal lengths.
Finally, it takes account of adjacency or proximity to the coast as the legal basis of title for the
territorial sea and as an integral part of the basis of title for the CS. Later, with the appearance of
the EEZ doctrine, the factor of adjacency was dubbed the distance principle and assumed even
greater theoretical importance for delimitation purposes as it became the single common element
in the basis of title to all offshore zones within the 200 nautical mile limit (Legault et al, 1993).
The privileged status of equidistance method was diminished by the ICJ and arbitral tribunals, it
was considered as a method which in some cases may lead to inequitable and unreasonable results.
The demolishing and toning down of equidistance went so far that the terms “equidistance” and
“median line” have disappeared from the text of Article 74 and 83 of the 1982 LOS Convention. It
remains only in Article 15 of the 1982 LOS Convention.
In spite of the diminishing role of equidistance, it found its way into state practice. The majority of
bilateral treaties on maritime delimitation still use a line based on simplified or modified
equidistance. In many cases, governments begin the negotiations by considering an equidistance
line, while subsequently at liberty to modify it.
Even in most ICJ cases and arbitral awards, judges found it convenient to use the equidistance line
as the starting point in the delimitation process. As Judge Jimenes De Arechaga declared (Nelson,
1990) “naturally, in all cases the decision-maker looks at the line of equidistance, even if none of
the parties has invoked it.”
19
In 2002, the ICJ gave judgment on the maritime boundary between two adjacent states of
Cameroon and Nigeria. The states asked the Court to draw a single maritime boundary for each
respective zone. The parties also agreed upon the method of delimitation: to draw an equidistance
line and then consider whether there are factors calling for adjustment of that line to achieve an
equitable result( Cameroon / Nigeria Case, 2002).
But the states disagreed about the existence of special circumstances necessary for the shifting of
equidistance line. In its judgment, the Court relied on previous cases that “made it clear what are
the applicable criteria, principles and rules of delimitation” for a single maritime boundary which
“are expressed in the equitable principle/relevant circumstances method […] which is very similar
to the equidistance/special circumstances method applicable in delimitation of the territorial sea”
(Cameroon/Nigeria case, 2002).
Beyond the territorial sea, the Court referred to the case between Qatar and Bahrain, where it had
stated that:
[…] for the delimitation of maritime zones beyond the 12 mile zone it would first
provisionally draw an equidistance line and then consider whether there were
circumstances which must lead to an adjustment of that line(Qatar and Bahrain, 2001).
The Court found it convenient to apply the same method in the present case. For the delimitation
of the territorial sea Court considered that there existed a valid international agreement between
the states, thus leaving it with the delimitation of the EEZ and CS of the respective
states.(Cameroon/Nigeria case, 2002)
Before drawing the equidistance line, the Court found it necessary to define the relevant coastlines
and the location of the base points for the construction of that line. Once the relevant coasts and
base points had been established, the Court begun to look for relevant circumstances necessary for
the adjustment of the equidistance line.
The Court looked first for the existence of geographical circumstances. It rejected the argument of
Cameroon regarding the concavity of its coastline as a special circumstance for the modification of
the equidistance line. The relevant coastlines for the delimitation area were already determined by
the Court and according to this “the Court noted that the sectors of coastline relevant to the present
delimitation exhibit no particular concavity”, as the concave sector of Cameroon’s coast was
outside the delimitation area(Cameroon/Nigeria, 2002).
20
For the same reason the Court did not regard the presence of the Bioko islands as a circumstance
justifying the shifting of the equidistance line. Also, this island did not belong to either of the
States party to the dispute.
Another argument presented by Cameroon for the shifting of the equidistance line was the
disparity between the length of its coastline and that of Nigeria. The Court noted “that in the
present case, whichever coastline of Nigeria is regarded as relevant, the relevant coastline of
Cameroon is no longer than that of Nigeria. There is therefore no reason to shift the equidistance
line in favour of Cameroon on this ground”(Cameroon/Nigeria case, 2002).
Figure 3.1: Showing 2002 Cameroon/Nigeria case
Source: ICJ judgment on 2002 Cameroon/Nigeria case. Online at: <http://www.icjcij.org/icjwww/idocket/icn/icnjudgment/icn_ijudgment_20021010_sk12.jpg>.
A final argument for the shifting of the equidistance line invoked by Nigeria was with respect to
the oil practices of the two parties, but the Court was of the opinion that the oil practice was not a
factor to been taken into account in the present case.
21
Finally, the Court found no other reason and circumstances necessary for the adjustment of the
equidistance line and decided “that the equidistance line represents an equitable result for the
delimitation of the area in respect of which it has jurisdiction to give a ruling.”
The 2002 Cameroon/Nigeria case was the first case between adjacent States in which the ICJ
applied the equidistance line without modification.
3.2.2 Equity and the Equitable Principle
The notion of equity is at the heart of the delimitation of the CS and entered into the delimitation
process with the 1945 proclamation of US President Truman, concerning the delimitation of the
CS between the United States and adjacent states.
Equity as a legal concept is a direct emanation of the idea of Justice. The Court is bound to apply
equity that is equitable as a part of general international law. When applying positive international
law, a court may choose among several possible interpretations of the law the one which appears,
in the light of the circumstances of the case, to be closest to the requirements of justice.
It is important to note that equity is not a method of delimitation, but solely an aim that should be
borne in mind in effecting the delimitation (Cameroon/Nigeria, 2002).
The problem with the idea of equity is that it does not provide any precise principle or criteria for
the achievement of an equitable result. With respect to the delimitation of EEZ and CS 1982 LOS
Convention sets only a goal which must be achieved and stipulates nothing on how to achieve the
result.
This vagueness gives some scholars the possibility to assert that there is a loss of
normativity in the idea of equity and this idea allows the level of normativity to rise and fall (Kolb,
2003).
Equitable principles bring about the idea of unicum which means that geographical features of
each delimitation case varied so greatly that it is difficult, if not impossible, to posit any fixed
principles applicable for the establishment of maritime boundaries between states. The idea of the
uniqueness of each boundary finds significant support in the jurisprudence of the ICJ and arbitral
tribunals (Kolb, 2003).
22
For example in the 1982 Tunisia/Libya case. Par. 70 and 72, the court declared that:
It is the result, which is predominant; the principles are subordinate the goal. The
equitableness of a principle must be assessed in the light of its usefulness for the purpose of
arriving at an equitable result. Each continental shelf case […] should be considered and
judged on its own merits […] no attempts should be made here to over conceptualize the
application of the principles (Tunisia/Libya Case, 1982).
This idea that it is difficult to define an equitable principle applicable for all maritime delimitation
cases raises suspicions about the wide power and judicial discretion of the Courts. But it is not the
fault of the Court or judge, it was the international community that opted the judges this wide
power because it found it difficult, even impossible, to define a universally applicable principle.
Even the Court and tribunal found it difficult to elaborate such a principle. This situation increases
the responsibility of the Court in dealing with disputes concerning the delimitation of maritime
boundaries, as the line of delimitation produced by a judicial organ must constitute an equitable
result not only in the view of the Court, but also must appear equitable in the eyes of the
litigants(Dundua,2007).
Finally, concerning the equity and equitable principles, one may conclude that at present it is not
possible to produce a structured system of equity and a clear body of equitable principles. The
choice of, and weight to be attributed to, any equitable principle are too dependent upon the
vagaries of geography to allow any systematic body of such principles to develop. It is more
prudent to rely on the idea expressed by the Chamber in the 1984 Gulf of Maine case with respect
to the role equitable criteria (principle) that “their equitableness can only be assessed in relation to
the circumstances of each case, and for one and the same criterion it is quite possible to arrive at
different, or even opposite, conclusions in different cases”(Gulf of Maine case,1984).The idea of
unicum and that it is not possible to define equitable principle for all maritime boundary
delimitation cases was reiterated and expressed more clearly in subsequent ICJ cases an arbitral
awards. In the 1984 Gulf of Maine case, the Chamber stated:
[…] that each specific case, in the final analysis, different from all the others, that it is
monotypic […] most appropriate criteria (principle) can only be determined in relation to
each particular case(Gulf of Main Case,1984).
23
Figure 3.2:Showing 1984 Gulf Maine Case-Delimitation Line Drawn by the Chamber
Source:ICJjudgement1984 Gulf of Maine case. Online at:
<http://www.icjcij.org/icjwww/icases/icigm/icigm_ijudgment/icigm_ijudgment_19841012.pdf>.
24
It should be noted that the sudden change in the direction of the coastline in the north-eastern part
of the Gulf of Maine transformed the initial lateral adjacency situation into an opposite relation. In
such a situation, the Chamber noted that since the geographical relationship was that of opposite
states, only an equidistance/median line could have the appropriate result.
Consequently location of the equidistance line was adjusted taking into account the proportionality
of the length of the coasts of the respective states, and by correcting this line so as to give halfeffect to two tiny islands in front of the Canadian coast.
3.2.3 Single Maritime Boundary
Following the emergence of the doctrine of the EEZ, there has been an increasing trend among
states to adopt, in the interest of simplicity, certainty and convenience, a single maritime boundary
to divide their maritime zones beyond the territorial sea. In the case of adjacent coasts, a line
drawn seaward from the coast will usually separate only the territorial waters of the two states for
the first twelve nautical miles. Beyond that, if states agree, the same may separate the two
maritime zones between them (Sharma, 1987).
The alternative of the single maritime limit is supported by the parallelism and similar
characteristics of the EEZ and the CS up to 200 nautical miles. According to the 1982 LOS
Convention the 200 nautical mile distance criterion governs the ascription of legal title to both the
EEZ and the CS in cases where the continental margin extends up to 200 nautical miles. Also, the
notion of the EEZ comprises both the sea-bed and water column and the legal regime of the CS is
virtually identical to the corresponding rights and duties of states in their EEZ (with regard to the
sea-bed resources, artificial islands, scientific research) (UNCLOS, Articles 57 and 76).
We most certainly also observe that Articles 74 and 83 concerning the delimitation of the EEZ and
the continental shelf respectively are identical. To convert one into the other, we just need to
substitute the word continental shelf with EEZ.

The delimitation of the continental shelf between states with opposite or adjacent coasts
shall be effected by agreement on the basis of international law, as referred to in Article 38
of the Statute of the International Court of Justice, in order to achieve an equitable solution.

If no agreement can be reached within a reasonable period of time, the states concerned
shall resort to the procedures provided for in Part XV.
25

Pending agreement as provided for in paragraph 1, the states concerned, in a spirit of
understanding and cooperation shall make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period, not to jeopardize or
hamper the reaching of the final agreement. Such arrangements shall be without prejudice
to the final delimitation.

Where there is an agreement in force between the states concerned, questions relating to the
delimitation of the continental shelf shall be determined in accordance with the provisions
of that agreement83 concerning the delimitation of the EEZ and CS are identical.
The ICJ in the 1985 Libya/Malta case established the distance criteria as the sole basis of title to
the sea-bed and subsoil within 200 nautical miles in favor of the single maritime boundary between
the two zones.
Figure3.3: Figure Showing 1982 Tunisia /Libya Continental Shelf Judgment
Source: ICJ judgment on 1982 Tunisia/Libya case. Online at: <http://www.icj
cij.org/icjwww/icases/itl/itl_ijudgment/itl_ijudgment_19820224.pdf>.
26
The court proceeded as follows:
I.
The court first considered roles of the new accepted trends of the UNCLOS
III(Tunisia/Libya ,1982).
Having considered that there was only one continental shelf shared between the two states, the
Court focused on whether the natural prolongation of each of the two states could be determined
on the basis of physical criteria, it concluded that the continental shelf appertaining to each could
not be ascertained from the criteria of natural prolongation.
Where the situation of adjacency between the coast of Libya and Tunisia has been modified to that
of opposite states by the geographical configuration of the Tunisian coast, and where the Court
decided to give a half-effect to the Kerkennah Islands of Tunisia. The line of delimitation of the
two continental shelves is to veer to the East. The bearing of the delimitation line parallel to each
bisector being 52 degrees to the meridian (Tunisia/Libya case, 1982).
Also the single maritime boundary was mentioned in the previous Gulf of Maine case where a
single maritime boundary was to be established for both the continental shelf and the fisheries zone
(Gulf of Maine Case, 1984).Where:
The Chamber drew a single maritime boundary for three sectors, as was indicated by the parties in
their special agreement. For the first sector, the Chamber did not favour the equidistance method
which, apart from not being a mandatory rule for a single delimitation, would give undue
importance to islands, uninhabited rocks or low-tide elevations as base points for the drawing of a
line intended to equally divide a given area (Jagota, 1985).
In the second sector, the sudden change in the direction of the coastline in the north-eastern part of
the Gulf of Maine transformed the initial lateral adjacency situation into an opposite relation. In
such a situation, the Chamber noted that since the geographical relationship was that of opposite
states, only an equidistance/median line could have the appropriate result. Consequently location
of the equidistance line was adjusted taking into account the proportionality of the length of the
coasts of the respective states, and by correcting this line so as to give half-effect to two tiny
islands in front of the Canadian coast (Gulf of Maine case, 1984).
For the third sector, the ICJ also did not favour the equidistance line. Instead, it found it equitable
to draw a perpendicular line because this line reflected to a certain extent the general direction of
27
the United States coast and the perpendicular line was, in practice, a true equidistance line(Gerard,
1990).
3.2.4 Proportionality
Ideally, proportionality in the real sense is not really a method but more like a check.
Proportionality is taken into account in the process of delimitation, or at the end of the process to
test that the result is equitable. It will not be an exaggeration to say that proportionality is
incorporated in maritime delimitation and it is an applicable criterion for both the adjacent and
opposite states in maritime delimitation process.
According to the proportionality concept, maritime delimitation should be effected by taking into
account the ratio between the water and CS areas attributed to each party and the length of their
respective coastlines. Thus, the Court and tribunals have to estimate roughly, or calculate exactly,
the lengths of the relevant coastlines and compare that ratio to the ratio of the provisionally
delimited relevant water and CS areas. If the proportion of the relevant maritime zones does not
roughly coincide with the relative length of the coastlines, further analyses or adjustment would be
considered.
The 1969 North Sea Case is the first of the maritime delimitation cases between adjacent states to
apply the concept of proportionality. The then Federal Republic of Germany (FRG) formulated
this concept in the case by contending that each state concerned should have a “just and equitable
share” of the available CS, proportionate to the length of its coastline or sea frontage.
The ICJ rejected FRG’s argument of a “just and equitable share.” It did accept the concept of
proportionality as a final factor to be taken into account and introduced the idea of proportionality
between the CS attributed to each of the states and the length of respective coast following the
general direction of the coast
The Court suggested three geographical features which justified the recourse to proportionality: 1)
the coasts of the states concerned are adjacent to each other; 2) the coastlines of the FRG are
concave; and 3) the coastline of the states abutting on the North Sea are comparable in length.
The idea of proportionality was to use it as a corrective element for inequitable results in order to
avoid an unreasonably inequitable result deriving from geographical particularities of the coasts.
Also, it should be noted that the Court regarded proportionality not as a distinct principle of
28
delimitation, but as one of the factors ensuring delimitation in accordance with equitable
principles, in other words: proportionality is a test of the equity (North Sea case, 1969).
Figure 3.4:Figure Showing the 1969 North Sea Case
Source: Nuno Marques Antunes. Towards the conceptualisation of maritime delimitation.
Other cases that dealt with proportionality
In the Tunisia/Libya Case, first, while reaffirming that the CS in the legal sense did not comprise
the sea-bed areas under the internal and territorial waters, the Court considered these zones as parts
of the CS for the purpose of calculating proportionality. According to the Court, the question is not
one of definition, but of proportionality as a function of equity, and the only absolute requirement
of equity is that one should compare comparable things. Thus, in the Court’s view, if the CS areas
below the low-water mark of the Libyan coast are compared to the areas around the Tunisian coast,
this requirement is fulfilled. Nevertheless, it may appear more appropriate to compare the parties’
29
CS in the legal sense (Tunisia/Libya Case, 1982).Also, when one measurement is done from the
Low water mark and the other is done from a straight baseline; errors are introduced, though small.
Secondly, it is unclear how the coastal lengths and relevant areas are calculated. On this point, the
Court stated in a general way that only the coasts of overlapping maritime areas were deemed
relevant(Tunisia/Libya case, 1982).
For the Gulf of Maine Case, in the second sector, the chamber only used the length of the coastline
and not the extent of the area as a basis of comparison. This was a pure and simple application of
proportionality. It is not used as a test of equity, but as a criterion of equity, even of decisive value
for drawing the delimitation line and verifying the latter’s equitableness.
In the Guinea/Guinea Bissau case, The Tribunal clearly pointed out that the proportionality rule
was not a mechanical rule based only on the figures transcribing the lengths of the coasts, and
noted that proportionality should play its role in a reasonable degree, taking into account other
relevant circumstances. In fact, the Tribunal compared solely the coastal lengths of the parties
taking into account costal islands and the Bijagos islands, without calculating the maritime surface.
Then, it merely stated that the coastlines of the two states were of the same length and that neither
party could claim any advantage
It is noteworthy that in this judgment, the Tribunal rejected the idea that proportionality should be
considered in relation to the landmasses behind the relevant coast (Guinea/Guinea Bissau, 1986).
On the whole, it is possible to say that the concept of proportionality is a sound test to ensure that
the delimitation results are equitable. One can thus conclude that for the use of proportionality it is
reasonable to define the relevant coasts of states and it is not necessary to take into account the
totality of the coast. It seems better to exclude from the evaluation of proportionality those
segments of the coastline which are not within the overlapping maritime areas. In respect to those
areas, it would be reasonable to exclude the internal waters and territorial seas from the calculation
of proportionality for the purpose of the delimitation of CS and single maritime boundaries, since
the CS and EEZ are areas that extend beyond territorial waters. It would not meet the requirements
of equity to shift the delimitation line and give more maritime areas to the state with a longer
coastline without calculating and comparing the ratio of the attributed areas to the relevant coasts.
It is true that a state with a long coast will normally have an area of maritime jurisdiction greater
than if it had a short coastline.
30
3.2.5 Perpendicular Method
The perpendicular line to the general direction of the coast is also one of the methods used for
drawing the maritime boundary between adjacent coasts. This method was used by the ICJ in some
cases and has also found its place in state practice. The use of the perpendicular line is more
frequent in the case of adjacent states which present coasts that are more or less straight. A lateral
delimitation based on a perpendicular line, however, will only lead to a mutually acceptable result
when the coast at the point of termination of the land frontier is relatively straight and the general
direction of the coastline rather easy to determine. For such delimitation, the locations of the
baselines are important in determining the general direction (Alexander, 1983).
Unless the use of a straight baseline system is accepted by the two adjacent states, application of a
perpendicular line rule will be difficult to conceive when concave or convex coastlines are at issue,
or when various islands are situated in front of the coast of the states. The use of the perpendicular
method is debatable in the case of a coast which is not altogether straight, for it presupposes a
preliminary decision on the general direction of the coast between two points which have to be
chosen. This is a difficult issue, and it is easy to understand why the Committee of Experts
consulted by the International Law Commission preferred the equidistance method to the
perpendicular one (Weil, 1989).
The earliest case in which the perpendicular line was used is the Grisbadarna case between
Sweden and Norway on the delimitation of the territorial sea in 1909. The Permanent Court of
International Arbitration was asked to decide whether the maritime boundary was fixed, in whole
or in part, by the boundary treaty concluded between the two states in 1661; and if not, to
determine the correct boundary in accordance with circumstances of fact and the principles of
international law. After rejecting the equidistance method, which had not achieved sufficient
standing in international law at that time and thus could not have been in the mind of the
negotiators of the 1661 treaty, the tribunal decided that the line should be drawn perpendicular to
the general direction of the coast. Furthermore, drawing of the perpendicular line was not based on
the coastal direction; the more decisive fact was the historical use and fishing interests of the
parties in the Grisbadarna banks (Collins et al, 1982).
The perpendicular line method for the delimitation of the CS was used by ICJ for the first time in
the 1982 Tunisia/Libya case. For the determination line in the first sector, closest to the coast, the
Court was conscious that the CS should start from the outer limits of territorial sea.
31
For this segment, the Court found that, in principle, a line perpendicular to the coast could serve as
an equitable boundary taking into account the rather uniform conduct of the parties in the past and
the line established by this conduct was also roughly perpendicular to the coast (Tunisia/Libya
case, 1982).
In the 1984 Gulf of Maine case, the Chamber noted that “the method of the perpendicular was
probably the oldest method to come to mind when problems arose in the delimitation by adjacent
state for their territorial sea.”
In this case the Chamber drew the delimitation line for three sectors. In the first sector, closest to
the coast, the Chamber decided to adopt the method of a bisector of the reflex angle formed by
perpendiculars drawn from a point already determined by states to the long and short sides to the
rectangle. This method would be more suited to the production of the equal division of the area of
overlap.
For the delimitation of the third and final sector, which was situated in the open ocean and against
the Gulf, the Chamber preferred a line perpendicular to the closing line of the Gulf which was in
conformity with the general direction of the two coasts. The starting point of the perpendicular line
was determined to coincide with the point where the corrected median line in the second sector
meets the Gulf’s closing line: “it would be unthinkable that the dividing line should not follow or
continue the line drawn within the gulf by reference to the particular characteristics of its coast”
(Gulf of Maine Case, 1984).
Finally, it is possible to observe that the perpendicular line can also, in certain cases, be useful for
the delimitation of maritime zones between adjacent states. This line seems to be close to the
equidistance line. A line of equidistance between two points is, by definition, the perpendicular
bisecting the straight line between those two points. Thus the line of equidistance method is simply
a series of perpendiculars. It would scarcely be an exaggeration to say that the equidistance method
is the scientific development of the perpendicular line (Weil, 1989).
3.2.6 Latitude and Longitude Method
Latin American agreements present another method for the drawing of maritime boundaries which
is notable. On 28 August 1962, Chile, Peru and Ecuador signed the Santiago Declaration on the
Maritime Zone claiming as a principle of their international maritime policy sole sovereignty and
jurisdiction over at least a 200 nautical mile area, including the sea-bed and subsoil. The maritime
32
boundary between the parties to this Declaration was to follow the parallel of latitude drawn from
the point where the land frontier between them reached the sea. This principle and practice were
followed in South America in the maritime boundary agreements between Chile and Peru (1954),
Peru and Ecuador (1954), and Colombia and Ecuador (1975). A combination of latitude and
longitude was also followed for setting the boundary in the agreement between Colombia and
Panama (1976) (Jagota, 1985).
33
3.3
Relevant Circumstances
The International Law Commission envisaged special circumstances while drafting the 1958
Geneva Convention, which was a reasonably small and well-defined body of exceptions to a rule
of equidistance/median line. One function of relevant circumstances is to shift a provisionally
drawn equidistance/median line when it leads to inequitable result (Evans, 1991).
The study of relevant circumstances has been dominated by perceptions of the role that they play
within the delimitation process. The subject is dominated by the view that relevant circumstances
have an effect upon delimitation and that “it is virtually impossible to achieve an equitable solution
in any delimitation without taking into account the particular relevant circumstances of the area”
(Tunisia/Libya case, 1982).
Relevant circumstances never have been the sole disseminator and self-sufficient factor in
delimitation. They often appeared to operate only within a framework of equitable principles or
equidistance. It is accepted that the maritime delimitation process in most cases may begin with a
line of equidistance, but it does not necessarily end with one. Equidistance line drawn at the
starting phase may become inequitable in light of particular circumstances of the case in question
(Evans, 1991).
Also, equitable principles acquire substance only by reference to relevant circumstances in the
case, and the relevant circumstances in the case operate only with the help and in the context of
equitable principles. In practice, however, relevant circumstances and the equitable principle go
hand in hand. Without the help of equitable principles, relevant circumstances would be powerless
to produce any assessment of the equity of a situation (Weil, 1989).
As Judge Jimenez de Arechaga indicated: Equity is nothing other than the taking into account of a
complex of historical and geographical circumstances the consideration of which does not
diminish justice but, on the contrary, enriches it (Tunisia/Libya case, 1982).
For a delimitation to be equitable, account must be taken of all the relevant circumstances of the
case. It is however important to note that the notion of relevant circumstances does not feature in
Articles 74 and 83 of the 1982 UNCOLOS convention. Nevertheless, its relevance in the
delimitation of maritime boundaries cannot be under estimated. Right from the 1969 North Sea
case, where it was first used, the concept of relevant circumstances has elicited so much validity
that it has become an integral part of the language of the court. Article 15 of the 1982 UNCOLOS
34
for the delimitation of the territorial sea includes the term “historic titles”, which is different from
relevant circumstances.
From the cases heard by the ICJ, it’s possible to divide relevant circumstances into geographical
and non-geographical circumstances. The more dominant of the two are those that are geographic
in nature. Of the geographical circumstances, the most relevant seems to be the coastal
configuration and the consideration of islands, as well as the length of the coast. All the three
factors were taken into account by Judges in all cases. The length of coast was also seen to be
closely related to the concept of proportionality as discussed previously.
3.3.1 Geographical Circumstances
3.3.1.1
Configuration of the coast
A coastline also known as a sea shore refers to the area where the land meets the sea/ocean. A
precise line cannot, however, be determined due to the dynamic nature of tides. The configuration
of the coastline is therefore the pattern of the coast along the ocean. The configuration of the
coastline is an important matter when it comes to the determination of maritime boundaries.
Depending on whether the coast is concave or convex, the construction of the baseline hence the
distance of Coastal waters a county can claim varies. The importance of the configuration of the
coastline will be discussed using previously mentioned case laws as follows:
In the 1969 North Sea case, the Court took into consideration the general configuration of the
coasts of the parties .It found that the coasts of Denmark and the Netherlands were convex, while
that of the Federal Republic of Germany was concave. In such a case, the use of equidistance left
Germany an exceptionally small part of the North Sea CS and the goal of the delimitation process,
to achieve an equitable result, would not be satisfied. The Court observed that:
It is necessary to examine closely the geographical configuration of the coastline of the
countries […] since the land is the legal source of power which may exercise over
territorial extensions to seaward, it must first be clearly established what features do in fact
constitute such extension(North Sea case,1969).
In the 1984 Gulf of Maine case, geography and geographical circumstances were undoubtedly
considered and were implicitly regarded as having a superior status. The Court considered
geographical criteria as excellent example of impartial circumstances, suitable for a multi-purpose
35
delimitation. It mentioned first the geographical configuration of the area and then other relevant
circumstance(Gulf of Maine Case, 1984).
In this case, the United States based an important part of its criticism on the equidistance line
advocated by Canada on the concavity of the Gulf as a whole. The Chamber, however did not
endorse this view. It was not this concavity of the gulf which caught its attention, but rather its
more or less rectangular appearance.
Another factor that got the Courts attention was the sudden change of the costal configuration in
the second sector, when the initial lateral adjacency situation transformed into an opposite relation,
was taken into account by the Chamber as a relevant circumstance (Gulf of Maine Case, 1984).
In the 2002 Cameroon/Nigeria case, the Court noted that the geographical configuration of the area
was “not an element open to modification by the Court but a fact on the basis of which the Court
must effect the delimitation.”
In this case, Cameroon contended that the concavity of the Gulf of Guinea in general and of
Cameroon’s coastline in particular, created a virtual enclavement of Cameroon. This factor, in the
view of Cameroon, constituted a special circumstance which needed to be taken into account in the
delimitation process. The Court relied on previous cases and did not deny that the concavity and
special coastal configurationmay be a circumstance relevant to the delimitation.
The Court determined that the coastlines relevant to the delimitation between Cameroon and
Nigeria did not include all of the coastlines of the two states within the Gulf of Guinea. The Court
also noted that the sectors of coastline relevant to the present delimitation exhibited no particular
concavity. Consequently, the Court did not consider that the configuration of the coastlines
relevant to the delimitation represented a circumstance that would justify shifting the equidistance
line (Cameroon/Nigeria case, 2002).
In the 1982 Tunisia/Libya case, the general configuration of the parties’ coasts was also considered
a relevant circumstance .The ICJ found that the marked change in the direction of the Tunisian
coastline modified the lateral relationship of the two states and should be taken into account in the
balancing-up process and was justified and legally sound (Tunisia/Libya case, 1982).
The most profound examples of treaties, however, where coastal configuration was taken into
account remain the 1971 agreements concluded between the Federal Republic of Germany and
36
Denmark, and between the Federal Republic of Germany and the Netherlands following the 1969
Judgment of the ICJ.
3.3.1.2
Islands
Article 121 of the 1982 LOS Convention defines an island as follows:
An island is a naturally formed area of land, surrounded by water, which is above water at
high tide [and it enjoys its territorial sea, EEZ and continental shelf]. Rocks which cannot
sustain human habitation or economic life of their own shall have no exclusive economic
zone or continental shelf.
The present discussion only focuses on dependent islands, i.e. islands under sovereignty of one or
the other states. The problem is essentially different when it comes to island states. In such a
situation, the delimitation process will be held between opposite states and whether it is a large
continental state or a small independent island, in every case its statehood gives it the same
potential for generating maritime projection under the condition laid down by international law.
The existence of an island or islands in the delimitation area may have a distortion effect on the
delimitation line. Its presence constitutes a relevant circumstance, and needs to be taken into
account fully, partly or be ignored by states or the Court.
In state practice, as in legal theory, the effect given to islands for delimitation purposes differs
from one island to another. Depending on circumstances, the island may be given full or partial
effect. In certain cases, it may even be ignored. In others, it may be enclaved, which means that the
delimitation may be carried out between the mainlands as if the island did not exist, and the island
may then be given its own maritime space around its coasts(Weil,1989).
The Courts apply the theory of special geographical features to islands. If the island appears as an
integral part of the general coastal configuration, it is treated for the purpose of delimitation on the
same footing as the mainland and given full effect. If, on the other hand, it seems to be an aberrant
geographical feature in relation to the general configuration, or an insignificant feature, it is given
partial effect or ignored.
Also, the size, population and economy of island are important factors in the delimitation process,
as well as its position relative to the equidistance/median line. In the 1982 Tunisia/Libya case, the
Court attributed a half-effect to the Kerkennah Islands because of their size and position. Despiteits
37
size and population, the island of Jerba, in contrast, had no influence on the delimitation line
because the Court did not consider its geographic position as relevant to the case (Tunisia/Libya
Case, 1982). In this case, the island of Jerba was not taken into account in establishing the general
direction by reference to which was drawn the perpendicular which was to constitute the line of
delimitation, but it was taken into account when the Court came to calculate the length of coastal
fronts. As to the Kerkennah Islands, although they were given half-effect for drawing the line, they
were ignored in one of the calculations of proportionality.
In the 1984 Gulf of Maine case, the Chamber decided to discount certain minor geographical
features, in particular “tiny island, uninhabited rocks or law-tide elevations, sometimes lying at a
considerable distance from terra firma.” On the other hand, it considered that it could not discount
Seal Island “by reason both of its dimensions and, more particularly, of its geographical position”,
as well as the fact that it is “inhabited all the year round.” It was therefore given half-effect (Gulf
of Maine Case, 1984).
In the 1985 Guinea/Guinea-Bissau case, the Court made a distinction between three categories of
islands: a) The coastal islands, which are separated from the continent by narrow sea channels or
narrow watercourses and are often joined to it at low tide; b) The Bijagos islands; and c) The more
southerly islands scattered over shallow areas. The court observed that the first category of islands
should be considered as forming an integral part of the continent. The second group, the Bijagos
archipelago, was taken into account when determining the coastal configuration. For example, the
coast of Guinea-Bissau could only be described by the Tribunal as convex because the Bijagos
islands were included. The third group of islands scattered further to the south were simply ignored
when it was a question of determining the shape of the shore line and measuring its length, but one
of them, the island of Alcatraz, played a more important role in defining the line than the larger
Bijagos islands most of which were inhabited (Guinea/Guinea-Bissau case, 1985).
The question of taking islands or not into account arises from the determination of the delimitation
line, the general configuration of the shore line, and calculating the coastal length. Thus, from the
case laws, it can be concluded that the effect granted to islands depends on whether they have a
distorting effect on delimitation line and whether they can help to achieve an equitable result. This
observation is noted by the Court in the 1969 North Sea case:
It is therefore not a question of totally refashioning geography whatever the facts of
the situation but, given a geographical situation of quasi-equality as between a number
38
of states, of abating the effects of an incidental special feature from which an
unjustifiable difference of treatment could result.
3.3.2 Non -geographical Circumstances
3.3.2.1
Geology and Geomorphology
Geological factors are those that result in the formation of geological structures (structures that
result from the powerful tectonic forces that occur within the earth e.g. faults, mountains) and how
these structures affect rocks. Geomorphology refers to the study of the physical features of the
surface of the earth and its relation to their geological structures.
From the definitions above it is apparent that geology and geomorphology are somewhat
interrelated.As such, these factors may constitute relevant circumstance in CS delimitation. These
factors are closely related to the concept of natural prolongation, which played an important role in
the 1969 North Sea case as the basis for the entitlement for CS. The fact that during this time, the
notion of the EEZ had not emerged is noteworthy. The Court stated that one of the factors needed
to be taken into account by states in their negotiation process is the “physical and geological
structure of the continental shelf areas involved” (North Sea Case, 1969).
In the 1982 Tunisia/Libya case, both parties invoked the factor of natural prolongation in their
submissions as the basis for entitlement to the CS, and accordingly geological and
geomorphological circumstances as relevant factors for the delimitation of their CS(Tunisia/Libya
Case, 1982).
The Court found that the relevant area of delimitation constituted the common CS of both parties
and stated that “no criterion for delimitation of shelf areas can be derived from the principle of
natural prolongation as such” (Tunisia /Libya Case, 1982).
In the Courts view, the principle that the natural prolongation of the coastal state was a basis of its
legal title to the CS did not necessarily provide “criteria applicable to the delimitation of the areas
appertaining to adjacent states.”(Ibid par 48). The Court was unwilling to regard a determination of
the limits of natural prolongation as constituting per se an equitable delimitation. It ruled that “the
satisfying of equitable principles and identification of the natural prolongation are not to be placed
on a plane of equality” (Tunisia /Libya Case, 1982).
39
The Court further ruled that the argument of geology as well as geomorphology were unhelpful in
enabling it to identify the division between the continental shelves of the two states. While
rejecting the contentions of the states concerning the geological factors, the Court concluded as
follows:
Despite the confident assertion of the geologists on both sides that a given area is “an
evident prolongation” or “the real prolongation” or the one or the other state, for legal
purposes it is not possible to define the areas of continental shelf appertaining to Tunisia
and to Libya by reference solely or mainly to geological considerations.
The Court also added that in the Libya/Tunisia case the geographical configuration had to be
considered. In the 1984 Gulf of Maine case, the parties agreed in principle that the Georges Bank
formed part of the geology of the North American CS. This unity of the seabed area in question is,
furthermore, demonstrated by geomorphologic evidence. In the words of the Chamber:
According to generally accepted scientific findings, this shelf is a single continuous,
uniform and uninterrupted physiographical structure, even if here and there it features some
secondary characteristics resulting mainly from glacial and fluvial action.
Nevertheless, the United States had to convince the Chamber that the Northeast Channel
constituted a geomorphological fault which should be taken into consideration because it formed a
natural boundary in the seabed. The Chamber refused to accept such an extension of the operation
of a geological circumstance. If to take into account the limited importance, the Chamber evidently
attributed to circumstances in this case which only addresses one aspect of single maritime
boundary delimitation, it seems proper to conclude that geology and geomorphological
peculiarities became even less important for a single maritime boundary.
The following observation of the Chamber clearly evidences this approach:
In a concrete situation where distinctive geological characteristics can be observed in the
continental shelf, such as might have special effect in determining the division of that shelf
and the resources of its subsoil, there would in all likelihood be no reason to extend the
effect of those characteristics to the division of the superjacent volume of water, in respect
to which they would not be relevant.
40
When considering the geological factors and natural prolongation, it is important to note the 1985
Libya/Malta case. In this case, the Court finally refused, and downplayed, the concept of the
natural prolongation for the entitlement of CS within 200 nautical miles and the geology and
geomorphology as relevant circumstances in the maritime delimitation.
The Court established the distance criterion as the sole basis of title to the seabed and its subsoil
within the 200 nautical mile limit.
The Court recognized the validity of the 200 nautical mile limit in Article 76 of the 1982 LOS
Convention as a basis for a legal title to the CS rights and indicated in a rather absolute
terminology that geological and geomorphological circumstances will no longer play any role in
CS delimitation:
The dissenting opinion of Judge Shigeru Oda regarding the above seems interesting and useful.
Judge Oda reviews the evolution of the Law of the Sea during the UNCLOS III negotiations,
including references to the travaux preparatories, and concludes accurately that the language of
Article 76 (1) of the 1982 LOS Convention was intended to provide all coastal states an
entitlement to a CS of 200 nautical miles regardless of the geology and geomorphology of the seabed and subsoil.
In all subsequent cases, the Court and arbitral tribunal never regarded the geological and
geomorphological factors as relevant circumstances for maritime delimitation. However, the states
may claim a CS beyond the 200 nautical miles on the basis of natural prolongation within the
parameters provided for in the article 76 of the 1982 LOS Convention. In a situation when two
adjacent states are going to delimit the CS beyond the 200 nautical miles, they may use the
existence of geological factors, such as gap or trough, as the natural boundary of the CS between
them.
State practice shows the same situation concerning the geological and geomorphological factors
for maritime delimitation.
3.3.2.2
Socio -Economic Factors
Social and Economic factors play an important role in maritime negotiation between states,
however, the Court considers such factors irrelevant in the delimitation of maritime boundaries.
41
The Court argues that its mandate is to provide for equitable delimitation of maritime boundaries
within the confines of international law and not to ensure distributive justice.
In most cases, there was no reason for adjusting the delimitation line simply because an oil deposit
or a fishery resource straddled the line, or because all the resources were to be found on one side.
If the provisional line cuts across a resource, dividing it in two, this is not the circumstance which
reasonable to take into consideration. There are, suggested by the Court, possible ways of solving
the problem of the “unity of any deposits” (North Sea Cases, 1969).
They consist, in implementing the principle of cooperation. In any case, products much in demand
today may tomorrow fall into disrepute because of economic, technological and market changes.
To draw a boundary on this basis would imply that if these circumstances changed the boundary
would need to be reconsidered, which, quite apart from good sense, would be at odds with the
principle of the permanence and stability of boundaries, maritime as much as land(Dundua,2007).
It is understandable why the Court should have excluded from the category of relevant
circumstances, and thus of equitable principles, anything which might seem to relate to an
apportionment of resources, a division of wealth, an allocation of share (Weil, 1985).
The Court’s reluctance to consider socio-economic factors is also due to the fact that Courts are
not concerned with distributive justice or the task of establishing a regime of equitable allocation
of resources, for that is a legislative rather than a judicial task (Nelson, 1990).
In the 1982 Tunisia/Libya case the issue of economic factors was brought out. Tunisia raised the
fact that they have higher poverty levels as compared to Libya and their “absence of natural
resources” and pointed out that fishing resources “must necessarily be taken into account as
supplementing its nationaleconomy in eking out its survival as a country”(Tunisia/Libya Case,
1982).
The Court refused to take into account the relative poverty of Tunisia stating that:
They are virtually extraneous factors, since they are variables which unpredictable national
fortune or calamity, as the case may be, might at any time cause to tilt the scale one way or
the other. A country might be poor today and become rich tomorrow as the as the result of
an event such as the discovery of a valuable economic resource(Tunisia /Libya Case,
1982).
42
In the 1984 Gulf of Maine case, the judgment noted that the “real subject of the dispute” was
Georges Bank, because of the potential resources of its subsoil and, even more, its enormous
fishery resources (Gulf of Maine Case, 1984).
The United States stressed that consideration had to be given to the continuous human presence
which took the form of harvesting, conservation and management of fisheries and thus sought to
avoid any division of this bank, which it claimed in its totality. Canada, more that the UnitedStates,
claimed that the loss of the bank, especially the richer part, would ruin the economy of a region
which depended on the line which the boundary took(Gulf of Maine Case, 1984).
The chamber however decided the case without taking into account of any of the evidence
presented by the parties. The chamber also indicated that socio-economic factors could only be
taken into account if the delimitation methods would “be revealed as radically inequitable, that is
to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of
the population of the countries concerned” (Gulf of Maine Case, 1984).
This was not the case with either of the two parties involved.
In the 1985 Guinea/Guinea-Bissau case, the Tribunal did not regarded economic factors as relevant
circumstances because delimitation cannot be based on the “evaluation of data which changes in
relation to factors that are sometimes uncertain” (Guinea/Guinea-Bissau Case, 1985).
The Tribunal noted that it […] does not have a power to compensate for the economic inequalities
of the states concerned by modifying a delimitation which it considers is called for by objective
and certain considerations(Guinea/Guinea-Bissau Case, 1985).
The Tribunal reaffirmed the traditional doctrine of case law, but it seems perhaps to reduce its
scope when it stated that:
[…] can nevertheless not completely lose sight of the legitimate claims by virtue of which
economic circumstances are invoked, nor contest the right of the peoples concerned to a
level of economic and social developments which fully preserves their dignity
(Guinea/Guinea-Bissau Case, 1985).
43
The significance of this qualification should not, however, be exaggerated, since although it may
have led the Tribunal to encourage the parties to a “mutually advantageous cooperation”
(Guinea/Guinea-Bissau Case, 1985).It does not seem to have had any influence on the delimitation
itself.
Nevertheless, the human and resource impacts of the maritime boundary delimitation cannot be
ignored. Coastal states that do enter into maritime boundary agreements may address these impacts
through separate agreements designed to complement the boundary settlement. The general
rejection of considerations other than coastal geography in maritime boundary delimitation cases is
the preferable course. Natural resources, environmental and similar concerns, may be best
addressed on their own merits, in light of, but apart from, the maritime boundary delimitation
(Charney, 1994).
44
3.4
Kenyan Maritime Boundaries.
3.4.1 Kenya – Tanzania Maritime Boundary
In the determination of this boundary, meetings were held in 1972 and 1975 in Mombasa, Kenya
and Arusha, Tanzania respectively; and the final meeting also held on 4th September 1975, in
Dodoma, Tanzania. The two countries agreed on the delimitation of boundaries of territorial
waters. The agreement proceeded as explained below:
On December 17, 1975, the Republic of Kenya sent a note to the United Republic of Tanzania
proposing the terms of an agreed delimitation of the boundary between their respective territorial
waters and other maritime jurisdictions of the two states. The United Republic of Tanzania replied
on July 9, 1976, accepting these terms. The exchange of notes constitutedan agreement on their
maritime boundary which entered into force on July 9, 1976. The full text of the agreement is
appendicized.
Figure 3.5: Zoomed in Nautical Chart Showing Kenya's Maritime Zones as Agreed with Tanzania.
Source: Kenya-Tanzania Maritime Boundary agreement.
45
1
2
3
4
Figure 3.6: Nautical Chart Showing Delimitation of Kenya -Tanzania Maritime Boundary.
Source: Kenya-Tanzania Maritime Boundary agreement.
46
3.4.2 Kenya-Somalia maritime boundary
Somalia borders Kenya to the north-east and has the longest coastline in Africa. The government
of Somalia collapsed in 1991 and the Somali civil war broke out. Due to lack of a proper
government, the people of Somalia resorted to local forms of conflict resolution including civil
laws, religious laws and customary laws.
A Transitional National Government (TNG) was established in the year 2000 which was later
succeeded by the Transition Federal Government (TFG) in 2004 which reestablished National
institutions. A new provisional constitution was established in August 2012, which designated
Somalia as a Federation. Following the end of the TFGs interim mandate which happened in the
same month, the Federal Government of Somalia was formed. The first permanent central
government in the country since the start of the Civil war
From the above explanation, it is clear why no maritime boundary agreement has been established
between Kenya and Somalia. Attempts to do the same were made in 2009 when Kenya and
Somalia signed a memorandum of understanding saying that the boundary would run East along
the line of latitude but Somalia which has lacked an effective government since 1991 later rejected
the agreement in parliament.
The spat between Kenya and Somalia over maritime boundaries began when Kenya awarded off
shore oil and gas exploration blocks to multinationals Total and Eni(www.reuters.com)Somalia
accused Kenya of illegally issuing these blocks as it claims that these concessions lie in its waters.
Somalia expressed its intention to take up the matter with the United Nations as four of the blocks
awarded in the deep waters are invalid. It was concerned about the lease of these blocks and
intended to lodge complaints.
The blocks are among seven awarded by Kenya, three of them to Italy's Eni and one to France's
Total.
Kenya rejected the accusation that ownership of the blocks was contested and stated there was no
need to hold up exploration.
47
Figure 3.7: Figure Showing Kenya –SomaliaOil ExplorationBlocks
Source: www.reuters com
Kenya says the maritime boundary, over which there is no formal agreement, should run due east
from the point at which the land border meets the coast, like the maritime boundaries of other
countries along the coast.
Somalia says the boundary should extend perpendicular to the coastline, giving it a big chunk of
the waters claimed by Kenya.
Joshua Brien, a legal adviser with the Commonwealth Secretariat who is advising Kenya on the
matter, said no legal boundary can be established until both governments sign a U.N.-approved
agreement or move the issue to an international court.
The direct implication of this disagreement to Kenya is that it cannot extend its claim to the
continental shelf beyond its 200 nautical miles (370 km) of territorial waters until the border spat is
resolved. That holds up the awarding of more exploration licenses.
48
CHAPTER FOUR: DISCUSSION
The Kenya-Tanzania maritime boundary is depicted in the previous figures. The boundary consists
of three turning points and an undefined seaward terminus. The turning points are located in the
Pemba Channel area and are all within 12 nautical miles of the coast; but, as Article 2 (d) of the
agreement states, the boundary shall follow the latitude of point C (4°40'52"S) "…extending
eastwards to a point where it intersects the outermost limits of territorial water boundary or areas
of national jurisdiction of [the] two states." Kenya currently claims a 12-nautical-mile territorial
sea, and Tanzania claims a 50-nautical-mile territorial sea.
Kenya makes use of straight baselines as per UNCLOS: In the locations where the
coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its
immediate vicinity, the method of straight baselines joining appropriate points may be employed in
drawing the baseline from which the breath of territory sea is measured.
The intersections of their claimed territorial seas with the boundary are depicted as points 1 and 2,
respectively, on the attached map. With reference to Article 2 (d), point 4 illustrates where Kenya's
claimed 200-nautical-mile economic zone intersects the 4°40'52" parallel of south latitude, and
point 3 identifies where a potential Tanzanian 200-nautical-mile claim would intersect this parallel
of latitude.
The salient coastal points affecting these outer limits are indicated on the attached map as the bases
from which the light-red construction lines are drawn. Both countries are able to extend their
maritime zones eastward to a full 200 nautical miles without overlapping an opposite state to the
east. For most of its length the boundary traverses waters deeper than 100 fathoms. From the land
boundary terminus to point A, the water depths are less than 100 fathoms. Boundary segments A-B
and B-C are situated in the Pemba Channel where depths range from 100 to 300 fathoms (200 to
600 metres). Seaward from point C the depths range from 250 fathoms to over 2,000 fathoms.
The interesting section of the boundary is situated near shore in the Pemba Channel area (see map
insert). Article 1 of the agreement establishes straight baselines for each country in the boundary
region, although some of these baselines do not seem to influence the course of the boundary.
The first boundary segment extends from the land boundary terminus at RasJimbo to point A,
which is 12 nautical miles seaward from RasJimbo. Point A, however, is only 6.8 nautical miles
from Kisite Island and the Tanzanian baseline.
49
This segment is equidistant between the two baselines described in Article 1 (a) and (b): i.e., lines
connecting RasJimbo to Kisite Island (Kenya) and RasJimbo to Mwamba-wamba beacon
(Tanzania). Turning points B and C have been situated in locations where the 12-nautical-mile arcs
as drawn from MpungutiyaJuu lighthouse (Kenya) and RasKigomasha lighthouse (Tanzania)
intersect. In order to establish boundary segment A-B, point X was created. Point X is the northern
intersection of 6-nautical-mile arcs drawn from points A and B. With point X as the center, a 6nautical-mile arc was drawn between points A and B to form that segment of the boundary. Points
B and C are connected by a straight line. The agreement, however, does not state what kind of
lines are to be employed, i.e., geodesics, great circles, or rhumb lines. From point C the boundary
continues eastward along the parallel of latitude of point C to, as previously noted, an undefined
terminal point. The course of the final boundary combines numerous delimitation methodologies.
The first boundary segment is equidistant between the two claimed straight baselines. Segment
A-B has been developed by drawing an arc from point X, an artificially established point. Segment
B-C is equidistant between selected coastal points one from each country. The seaward extension
of the boundary from point C is based on a parallel of latitude. Thus, the boundary represents an
agreement which has been established in accordance with equitable principles and which is
satisfactory to both countries.
For the Kenya –Somalia case, an agreement has not yet been established but taking into account
the prevailing situation in Somalia, speculation suggests that the result will be similar to the
Nigeria-Equatorial Guinea case but it is still too early to tell.
In this case, Nigeria and Equatorial Guinea signed a treaty known as the ‘Treaty between the
Federal Republic of Nigeria and the Republic of Equatorial Guinea concerning their maritime
boundary. ‘The two states agreed that rather than establishing an equidistant line between them,
the treaty should take account of both countries established economic interest, including existing
oil wells, oil drilling installations and existing resource consent licenses. This treaty however, only
delimits a portion of the maritime boundaries between the two countries (Charneyet al, 2005).
Only recently the president of Equatorial Guinea, Obiang Nguema Mbasogo expressed his
willingness to allocate oil blocks to Nigeria for exploration since they have been in the oil Industry
longer and that his country andwould like to rely on the vast experience of Nigerians in the oil
business to develop Equatorial Guinea’s oil and gas sector.
50
Kenya’s claim of the boundary being in the Eastward direction appears legitimate as this is what
we have done with Tanzania. If we are to follow Somalia’s line of thought then it means that about
half of the Pemba Island of Tanzania would be a part of Kenya. However according to the
hypothetical maritime boundaries shown by Vivian Forbes in the book Limits of the Sea, the
Kenyan maritime boundary is seen to continue South-Eastwards along the Land boundary.
51
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
5.1
Conclusions
The objectives of this study were met. Through conducting a study of the progress of the progress
of the delimitation of maritime boundaries in Kenyathe existing maritime boundaries were
established and so were the processes used in carrying out the exercise. Furthermore, an in-depth
understanding of the Law of the Sea was achieved as well as the ICJ’s stand on certain issues that
are related to maritime delimitation.
The Law of the Sea is a true “constitution of the sea”, establishing a coherent, uniform and global
rule of law governing the use of the oceans,
including the key principles governing the
establishment of maritime spaces and delimitation of maritime boundaries. As outlined in the
present study, the Territorial Sea should be delimited in accordance with Article 15, the Exclusive
Economic Zone in accordance with Article 74, and the Continental Shelf in accordance with
Articles 76 and 83. Apart from the legal dimension, it must recognize that LOSC is also an
important instrument of international relations as it promotes peace and security in the world’s
ocean.
However, from all the above considerations, it would be right to say that maritime delimitation is a
very complex and multidimensional subject. In spite of the Courts and the International
communities’ efforts, it has still proven difficult to produce a general principle applicable to all
maritime delimitation processes. The Law of the Sea is seen as only providing the goals of
maritime delimitation (according to equitable principles) but not providing any guidelines as to
how to go about this. Further, we have also noted that it is difficult, if not impossible to use only
one method to carry out the entire delimitation process, irrespective of geographic and other
relevant circumstances
Both conventional and customary law consider agreement as the most primary rule of maritime
delimitation Maritime boundaries between states, to be secure and stable, have to be settled by
agreement between them. The negotiation process between states is very important for the
achievement of positive results. The subject of maritime boundary, like the subject of land
boundary, is a sensitive one and should be handled carefully and with understanding of the
opposite viewpoints. Despite serious and meaningful negotiations if difficulties and disputes arise,
the parties may resort to the third-party settlement procedures.
52
5.2
Recommendations
From the study, the following recommendations can be drawn:

First and foremost the spat between Kenya and Somalia should be resolved as fast as
possible as this is slowing down the delimitation of the continental shelf, hence
explorations in this region. Geographers should participate more in matters involving
maritime delimitation so as to bring out a different perspective of maritime delimitation
other than the legal perspective that has been brought out by the lawyers.

More research should be carried out in this area, to cover certain grey areas that could not
be covered because they lay beyond the scope of this project. For example, what happens
when an Island Submerges or Emerges after the delimitation has been carried out? Is it
possible to claim Sea jurisdictions byAdverse possession or Estoppeland is the criteria
similar to that of land or is it different?
53
References
Books
Attard, D.J.and David, J. (1987).The exclusive economic zone in international law. Oxford:
Clarendon Press; New York: Oxford University Press.
Charney, J. I. Robert, W. andSmith, R. W.(2002).International maritime boundaries. The
Hague;Netherlands: Kluwer Law International, Vol. IV.
Charney, J. I. and Lewis, M. A. (1993).International maritime boundaries.Martinus Nijhoff
Publishers, Vol I.
Charney, J. I.(2002).International Maritime boundaries for the continental shelf: The relevance of
natural prolongation. The Hague; Netherlands: Kluwer Law International.
Collins, E. J. and Rogoff ,M. (1982).The international law of maritime boundary delimitation.
Marine law review.
Dundua,N.(2007).Delimitation of maritime boundaries between Adjacent States. United Nations.
The Nippon Foundation.
Elferink, O. and Alex, G.(1994).The law of maritime boundary delimitation: a case study of the
Russian Federation. Dordrecht; Boston: Martinus Njihoff Publishers.
Evans, D. M. (1991).Maritime delimitation and expanding categories of relevant circumstances.
International and comparative law quarterly (London) .
Henkin, L. (1987). How nations behave. 2nd ed. Oxford: Clarendon Press; New York: Oxford
University Press. .
Jagota, S.P.(1985).Maritime boundary. Dordrecht; Boston: Martinus Njihoff Publishers.
Kreil,E.(2006). Article on South China Sea Cited on February 2013, Available from
http://www.eia.doe.gov/emeu/cabs/South_China_Sea/pdf.pdf
Kolb,R.(2003).Case law of equitable maritime delimitation:digest and commentaries. The
Hague;Martinus Njihoff Publishers.
54
Leonard,L.and Hankey,B.(2003).Method, Oppositeness and Adjacency, and proportionality in
Maritime Boundary Delimitation.Leiden; Boston: Martinus Nijhoff publishers.
Masahiro, M.(2002).Considerations of equity in maritime boundary cases before the International
Court of justice.The Hague; Netherlands: Kluwer Law International.
Maurice,M.(2003).On the quasi-normative effect of maritime boundary agreements.In Liber
Amicorum Judge Shigeru Oda.Edited by Nisuke Ando, Nijhoff publishers.
Nelson, L. and Dolliver, M.(1990 ).The roles of equity in the delimitation of maritime boundaries.
American journal of international law (Washington, D.C)
Tanja, J. G.(1990).The legal determination of international maritime boundaries. Deventer;
Boston: Kluwer Law and Taxation Publishers.
Weil, P.(1989)The law of maritime delimitations - reflection; translated from the French by
Maureen MacGlashan. Cambridge: Grotius.
55
Cases
Arbitration Tribunal for the delimitation of the maritime boundary between Guinea and GuineaBissau;
Award
of
14
February
1985.International
legal
Materials.
1986.
P.252.
www.heinonline.org
Case concerning delimitation of the maritime boundary in the Gulf of Maine area (Canada/United
States of America); Judgment of 12 October 1984 – Merits. www.icj-cij.org
Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta); Judgment of 3 June 1985.
www.icj-cij.org
Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya); Judgment of 24
February 1982 – Merits. www.icj-cij.org 89
Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening): Judgment of 10 October 2002 – Merits. www.icj-cij.org
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands) (1967-1969); Judgment of 20 February 1969 - Merits. www.icj-cij.org
Conventions
Convention on the Continental shelf.Done at Geneva 29 April 1958.Entered into force on 10 June
1964.
Convention on the Territorial Sea and the Contiguous Zone.Done at Geneva 29 April 1958.Entered
into force on 10 September 1964.
United Nations Convention on the Law of the SeaLaw of the Sea.Done on 10 December 1982 in
Montego Bay, Jamaica.Entered into force on 16 November 1994.
56
Appendix 1
EXCHANGE OF NOTES BETWEEN THE UNITED REPUBLIC OF TANZANIA AND
KENYA CONCERNING THE DELIMITATION OF THE TERRITORIAL WATERS
BOUNDARY BETWEEN THE TWO STATES
I (NOTE SENT FROM KENYA TO TANZANIA)
Kenyan note
December 17th, 1975
Your Excellency,
I have the honour to refer to the meetings held between officials of the United Republic of
Tanzania and of the Republic of Kenya on 8th May, 1972 at Mombasa, Kenya and from 6th to 8th
August, 1975 at Arusha, Tanzania and on 4th September, 1975 at Dar-es-Salaam, Tanzania, on the
delimitation of the territorial waters boundary between our two countries and to state that, as a
result of the said meetings, the following points were agreed:
1.
Boundary:
Base Lines:
a. RasJimbo beacon-Kisite Island (rock)
b. RasJimbo-Mwamba-wamba beacon
c. Mwamba-wamba beacon-Fundo Island beacon (rock)
d. Fundo Island beacon (rock)-RasKigomasha lighthouse
e. Kisite Island (rock)-MpungutiyaJuu-lighthouse
57
2.
The description of the boundary:
a) On the West: The median line between the RasJimbo beacon-Kisite Island/RasJimboMwamba-wamba beacon base lines to a point 12 nautical miles from RasJimbo up to a
point hereinafter referred to as 'A', located at 4°49'56"S and 39°20'58"E;
b) On the East: The median line derived by the Intersection of two arcs each being 12 nautical
miles drawn from MpungutiyaJuu-lighthouse and RasKigomasha lighthouse respectively
hereinafter referred to as point 'B', located at 4°53'31"S and 39°28'40"E and point C,
located at 4°40'52"S and 39°36'18"E;
c) On the South: An arc with the center as the Northern Intersection of arcs with radii 6
nautical miles from point 'A' as described in paragraph 2(a) above and point 'B' which is the
Southern Intersection of arcs from RasKigomasha lighthouse and MpungutiyaJuu
lighthouse.
d) The eastward boundary from Point C, which is the Northern Intersection of arcs from
RasKigomasha lighthouse and MpungutiyaJuu lighthouse as described under paragraph 2
(b) above, shall be the latitude extending eastwards to a point where it intersects the
outermost limits of territorial water boundary or areas of national jurisdiction of two states.
e) The marine charts of 1:250,000 describing the co-ordinates of the above points shall form
an integral part of this agreement.
3
Fishing and fisheries:
a) It was agreed that indigenous fishermen from both countries engaged in fishing for
subsistence, be permitted to fish within 12 nautical miles of either side of the territorial sea
boundary in accordance with existing regulations.
b) It was agreed that there be reciprocal recognition of fisheries licenses, regulations and
practices of either state applicable to indigenous fishermen aforesaid. The fishing within
the area specified in paragraph 3 (a). After due consideration of the said points of
agreement, including the attached map describing the co-ordinates of the boundary as
delimited, the Government of the Republic of Kenya hereby confirms that it accepts the
above recommendations having been fully convinced that they are for the mutual benefit of
our two countries.
58
If the Government of the United Republic of Tanzania is of the same view, then it is suggested that
this Note and your reply thereto in the affirmative shall constitute an Agreement for the territorial
waters boundary between our two states and other related matters referred to above and the same
shall enter into force on the date of the receipt of your said Note in reply.
Accept, Your Excellency, the assurances of my highest consideration.
Yours
Dr. MunyuaWaiyaki
Minister for Foreign Affairs
H.E. Mr. Ibrahim Kaduma, M.P.,
Minister for Foreign Affairs,
United Republic of Tanzania
Dar es Salaam, Tanzania
II (RESPONSE FROM TANZANIA TO KENYA)
Tanzanian note
9th July, 1976
Your Excellency,
I have the honour to acknowledge receipt of your letter Ref. No. MFA.273/430/001A/120 of 17th
December, 1975 which reads as follows:
[See Letter I]
I have the honour to confirm that the foregoing is acceptable to the Government of the United
Republic of Tanzania.
Please accept, Your Excellency, the assurances of my highest consideration.
Ibrahim M. Kaduma
59
Minister for Foreign Affairs
H.E. Dr. MunyuaWaiyaki
Minister for Foreign Affairs,
Office of the Minister,
Nairobi,
Kenya
60