“To Appear or not to Appear this was the Question” – The Saga of Kenya’s Non-Appearance in the Kenya –Somalia Maritime Delimitation in the Indian Ocean Case

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“To be, or not to be, that is the question:

Whether ’tis nobler in the mind to suffer

The slings and arrows of outrageous fortune,

Or to take arms against a sea of troubles (…)”

Shakespeare, Hamlet, Act 3, Scene 1

Just like Hamlet, Kenya was recently facing the question whether, to paraphrase William Shakespeare, to argue its case in the ICJ even when facing a sea of troubles, or rather to eventually suffer the slings and arrows of outrageous fortune of a possible negative outcome. Yet, while the outcome is still uncertain, the case raises some peculiar features of instances of non-appearance under Art. 53 Statute. It is those peculiar procedural questions that will be considered in this contribution.

Somalia had submitted its application in the Maritime Delimitation in the Indian Ocean Case as early as 2014, the Court’s jurisdiction being based on the declarations under Art. 36 (2) ICJ Statute submitted by Somalia and Kenya in 1963 and 1965 respectively. At the outset Kenya participated in the proceedings and raised preliminary objections, which the Court rejected however in 2017 (cf. Judgment of 2 February 2017). After the parties had submitted their Counter-Memorial, as well as a Reply and a Rejoinder on the merits of the case, the Court scheduled public hearings on their merits to start on 9 September 2019.

Those were later rescheduled to November 2019, after Kenya on 3 September 2019 had submitted what might be called a somewhat last minute request for a postponement after it had hired a new team of lawyers representing  Kenya in the case (cf. for further details on this development here). Subsequently, the oral hearing was upon renewed request submitted by Kenya rescheduled for 8 June 2020, and then, on 18 May 2020, once again rescheduled to 15 March 2021 given the prevailing COVID-19 related circumstances.

By late January 2021, i.e. approximately six weeks prior to the oral hearing, Kenya then requested a further postponement ‘until such time as the pandemic would have subsided’, which request the Court then however rejected (cf. CR 2021/2, p. 10). By letter dated 22 February 2021 and received by the Court on 5 March 2021, i.e. ten days prior to the envisaged start of the oral hearing only, Kenya submitted material to the Court entitled ‘New documentation and evidence’ under Art. 56 Rules of Court consisting of, on the whole, nine volumes of material with 199 annexes and 11 exhibits to which submission Somalia did not, as a matter of principle, object.

Finally, effective 12 March 2021 i.e. three days prior to the start of the oral proceedings, at which time the Court had already made public the schedule of the hearing including Kenya’s slots thereof (cf. the Court’s Press Release 2021/11 of 9 March 2021), Kenya informed the Court that it did not plan to attend the hearing, enclosing at the same time a 175 page long ‘Position Paper’ submitted, as Kenya put it, “for consideration by the Judges even as the hearing proceeds without Kenya’s participation” (cf. CR 2021/2, p. 11) and also “humbly request[ing] to allow its [representative] to address the Court orally for 30 minutes before the start of the hearings”. Once Somalia had opposed the request the same day, the Court rejected both requests (ibid.)

It is noteworthy, however, that the said ‘Position Paper’ is not available on the Court’s case-related website and thus does not seem to be perceived by the Court as forming part and parcel of the case file the Court having, as is usual practice, made available to the public all case-related pleadings. It may be thus also safe to assume that the said document has neither been conveyed to Somalia.

This was however not yet the end of the procedural saga, given that on the very day of the opening of the hearing, which was scheduled to start on 15 March, at 3. p.m., the Court received a letter from Kenya (to which Somalia replied the same day) which, as the Court put it, “present[ed] the possibility that these oral proceedings will continue beyond today” (cf. CR 2021/3, p. 8), i.e. after the termination of Somalia’s first round of oral pleading. The Court then took the unusual step to defer the reading of Somalia’s final submissions, which normally would have taken place at the end of Somalia’s first round of pleading for lack of a second round, Kenya having decided to not participate in the hearing. It thus seems that Kenya had somewhat considered the option to still participate in the hearing one way or the other, which option however, as shown, did not turn into reality. The Court had to thus schedule an additional hearing for the sole and exclusive purpose of enabling Somalia to read its final submissions (cf. CR 2021/4).

Leaving aside Kenya’s reasons for not participating set out in an extensive Press Statement by the Kenyan Ministry of Foreign Affairs, ranging from alleged issues of procedural unfairness related to Judge Yusuf’s participation in the case (whose recusal Kenya had unsuccessfully sought) and the hearing being held in a hybrid format including partially via video-link, as well as Kenya’s claim of Somalia’s application having been fuelled by ‘influential third party commercial interests’, it is noteworthy at what length the Court was attempting to accommodate Kenya’s procedural requests, be it for several postponements (even where such requests have been made quite late), or be it for the possibility to produce new arguments and evidence in written form, trying to thereby, it seems, eventually prevent yet another instance of non-appearance after Venezuela had not appeared in the Arbitral Award of 3 October 1899 case (Guyana v. Venezuela) (cf. Judgment of 18 December 2020 (Jurisdiction of the Court), paras. 5 et seq.) and the United States having indicated that they will not participate in the proceedings brought by the State of Palestine (cf. Case concerning Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Order of 15 November 2018, ICJ Reports 2018, p. 708 (709-710)).

It is also worth noting that this is only the second case after the Case concerning Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan) where the respondent State, after having actively participated in written proceedings of a specific phase of a given case, then opts for non-appearance when it comes to the oral hearing. (cf. Marshall Island v. Pakistan, CR 2016/2, p. 6). It remains to be seen, however, whether such instances of ‘partial oral-only non-appearance’ will repeat itself in the future, depending on whether States involved in cases before the Court have the feeling that either, as Pakistan had indicated (ibid.), they have a strong case which they believe does not depend on further elaboration by way of oral arguments, or because they believe it is more advantageous to somewhat ‘delegitimize’ the possible outcome of the proceedings by not participating in such a hearing.

Apart, it goes without saying that this case, just like any former instance of non-appearance before the Court, also raises the question as to whether we are currently facing a broader renaissance of instances of non–appearance in proceedings both before the ICJ, but also in inter-State judicial proceedings before other international tribunals (as to that question cf. already H. von Mangoldt/ A. Zimmermann, Art. 53, marginal note 77, in: A. Zimmermann/ C. Tams (eds.), The Statute of the International Court of Justice – A Commentary (3rd ed, 2019)). In any case, contrary to what Somalia argued (cf.  CR 2021/2, p. 14 (Gulaid)), non-appearance by a party in proceedings before the ICJ, deplorable as it may be, does not constitute a violation of any obligation arising under the Charter or the Statute or indeed the Court’s Rules (cf. von Mangoldt/ Zimmermann, ibid., mn. 78), the Court being thus under an obligation to safeguard the sovereign equality of both, the appearing and the non-appearing party as contemplated by Art. 53 ICJ Statute.

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    Arman Sarvarian says

    March 29, 2021

    Dear Professor Zimmermann,

    Thank you for this informative post. Please allow me to refer to the resolution and final report of the ILA Committee on the Procedure of International Courts and Tribunals, adopted in December 2020:

    1. 'The Committee proposes the following measures for default cases before the ICJ and the ITLOS and in inter-State arbitration:

    2) Acknowledgement of irregular communications from the defaulting party to the panel on procedural matters (with the exclusion of ‘position papers’ and other published accounts of that party’s views on the merits) in procedural orders and judgments while refusing to give
    weight to views expressed therein by the defaulting party on procedural matters (e.g. – on applications to intervene by third States) in light of the waiver by the defaulting party
    of the exercise of its procedural rights;'

    2. 'The Committee proposes the amendment of Articles 56(2) of the ICJ
    Rules and 71(2) of the ITLOS Rules and the inclusion of provisions in arbitral procedural rules to prescribe indicative criteria for authorisation of late filing. Without the consent of the opposing party, such criteria might be that the document was discovered or retrieved after the closure of the written phase, or that it supported a rebuttal made necessary by the last written
    submission; the document must also be material to the proceedings, though its weight would remain to be assessed at a later stage.'

    As you noted, the absence of objection by Somalia meant that the late documents were admitted under Article 56(1) rather than 56(2). Nonetheless, it would have been interesting to see the result had Somalia decided to object.

    On the wider issue of 'non-appearance', the position of Kenya is not clear to me from her press release. Is it one of 'default', which entails withdrawal from participation in the proceedings? If so, then it indeed resembles the position of Pakistan in the Nuclear Disarmament Cases as a waiver of a procedural right, as opposed to a failure to participate, which was the decision of Venezuela (Arbitral Award) and the United States of America (Embassy Relocation). If Kenya has defaulted, an interesting difference is the timing in that both Venezuela and the USA did so from the outset of the proceedings; the timing of Kenya is closer to that of the USA in Military and Paramilitary Activities, though even there, the USA did so shortly after the adverse judgment on jurisdiction rather than deep into the merits phase. Although Kenya cites multiple motives, the key one seems to be whether she reject kompetenz-kompetenz, as this is arguably the necessary implication of a decision not to appoint or to withdraw an agent.

    Arman Sarvarian says

    March 29, 2021

    Apologies, amendment to my comment above. If the position of Kenya is NOT one of default, then it indeed resembles the position of Pakistan.