Case Note: Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment on Preliminary Objections

The ICJ's judgment on preliminary objections in Somalia v. Kenya touched new ground by ruling on such key provisions of UNCLOS as Articles 282 and 287. Its implications may go well beyond the present case. The Court ruled that the acceptance of its jurisdiction arising under Article 282 prevails over the selection of a preferred tribunal under Article 287 by election or by default. Some thought needs to be given to the manner in which the Court interpreted Articles 282 and 287. Instead of using the travaux pre paratoires as a supplementary means to confirm the meaning resulting from the application of the general rule in Article 31 of the VCLT, the Court seemed to base the core of its interpretation on the travaux pre paratoires. The Court's interpretation of the relationship between Articles 282 and 287 in effect accords pride of place to itself. On a practical front, some States Parties of UNCLOS which have made optional clause declarations with reservations of various types may have to ponder what this Judgment means for them in the case of maritime delimitation disputes. Those States Parties which have not chosen the Court as its preferred forum or given it any prominence under Art. 287(1) will see their express choices of means of dispute settlement to be under a cloud, in light of the Court's interpretation of Art. 282 in the present case.