The Impact of Judicial Delimitation on Private Rights Existing in Contested Waters: Implications for the Somali-Kenyan Maritime Dispute

Pappa, Marianthi

Abstract

This article raises concerns about the impact of judicial delimitation on private exploratory rights existing in contested waters. These concerns stem from the tendency of judges to disregard any non-geographic factors during the process of maritime delimitation. This practice allows for the reallocation of the private rights in question and eventually creates tension between public international law and private law. This is discussed in the context of the Somali-Kenyan maritime dispute, which is currently under judicial consideration. The article will demonstrate that, insofar as international judges apply the standard doctrines of delimitation, the prospective judgment may cause the reallocation and, ultimately, the frustration of Kenya's private exploratory contracts in the disputed area. It suggests that a unitization agreement entered after delimitation may reverse this outcome. However, inasmuch as state cooperation lacks the cloak of international custom, the interests of private actors operating in contested waters remain at stake.

Citation

Pappa, M. (2017). The Impact of Judicial Delimitation on Private Rights Existing in Contested Waters: Implications for the Somali-Kenyan Maritime Dispute. Journal of African Law, 61(3), 393-418. https://doi.org/10.1017/S0021855317000286

• Journal Article Type: Article
• Acceptance Date: Apr 1, 2016
• Online Publication Date: Nov 2, 2017
• Publication Date: 2017-10
• Deposit Date: Oct 12, 2018
• Journal: Journal of African Law
• Print ISSN: 0021-8553
• Electronic ISSN: 1464-3731
• Publisher: Cambridge University Press (CUP)
• Peer Reviewed: Peer Reviewed
• Volume: 61
• Issue: 3
• Pages: 393-418
• DOI: https://doi.org/10.1017/S0021855317000286
• Public URL: https://nottingham-repository.worktribe.com/output/1138103
• Publisher URL: https://www.cambridge.org/core/journals/journal-of-african-law/article/impact-of-judicial-delimitation-on-private-rights-existing-in-contested-waters-implications-for-the-somalikenyan-maritime-dispute/80C95F73E3AE42D602069E61C44F4804
• Additional Information: License: Copyright © SOAS, University of London 2017