Why the ICJ should co-opt African dispute-solving mechanisms

A plethora of African border disputes threatens to overwhelm the International Court of Justice and reduce its authority as a court of last resort. Instead, such cases should be referred to the excellent dispute-resolution mechanism set up by the African Union, argue Kenya’s Amb Macharia Kamau and Fredrick Koigu Ndegwa.

The International Court of Justice (ICJ) has allowed liberal use of its facilities by African States to settle border disputes. Of the 18 African cases presently being considered by the Court, 13 involve territorial and boundary disputes. This trend is particularly worrying given that there are around 100 active border disputes across the African continent. These disputes are projected to intensify on account of growing nationalism, expanding populations, and competition for limited resources.

If allowed to continue, the culture of escalating unmediated disputes to the ICJ will overwhelm the Court and further weaken regional and continental mechanisms constituted to address disputes and to complement the ICJ in its role.

The ICJ is the principal judicial organ of the United Nations but not the sole international agency devoted to the settlement of legal disputes. The ICJ must therefore remain the Court of last resort where mature disputes, exhaustively processed through all existing mechanisms, terminate for final adjudication.

In allowing liberal use of the Court, the ICJ is encouraging a litigant culture among African states where referrals to the Court are made not in the interest of justice but the pursuit of narrow concerns and attempts to use the Court to legitimise political contests.

This predicament will not only dilute the influence of the court but also erode its authority, making its determinations unenforceable.

Unlike the European Court of Justice, the ICJ is not a supranational court with compulsory and exclusive jurisdiction but a court intended to adjudicate disputes among diverse sovereigns.

Therefore, the Court should prioritise the disputes it entertains and allow for a graduated mechanism for dispute settlement before a matter is accepted by it.

Parties approaching the Court must demonstrate that they have exhausted all alternative, mutually agreed upon platforms for dispute settlement. When parties seek a settlement at the ICJ after a settlement is reached in alternative forums of dispute settlement, they must demonstrate why and how they find a settlement reached at a regional or continental forum unsatisfactory.

In many instances, the rush to have a dispute determined by the ICJ is inspired not by the parties to the dispute but by foreign political and economic interests which leverage on their resources, judicial experience, and influence to attract settlements favourable to them.

Efforts to short circuit regional and continental forums for dispute settlement are to a large extent driven by commercial urgency and motivated by attempts to avoid scenarios where such foreign interests could be interrogated.

The AU’s robust mechanisms

Acknowledging this challenge, the African Union (AU) established a robust mechanism for dispute settlement in Africa – including border delimitation and demarcation.

Beyond an elaborate regional and continental court system, the AU established the African Union Border Programme (AUBP) in 2007 to facilitate, among other things, border delimitation and demarcation. The establishment of the AUBP was in cognisance of the fact that ill-defined borders in Africa were a source of conflict especially when natural resources and foreign economic interests were at play. Contested borders are not only a threat to international peace and security but also a barrier to regional integration.

The AUBP is guided by the principle of negotiated settlement of border disputes as provided for in Resolution 1069 (XLIV) on Peace and Security in Africa through Negotiated Settlements of Boundary Disputes adopted by the 44th Ordinary Session of the Council of Ministers.

The AUBP operationalises the shared commitment among African States to “pursue the work of border delimitation and demarcation as factors for peace, security, economic and social progress”.

This commitment is expressed in the Memorandum of Understanding on Security, Stability, Development and Cooperation in Africa (CSSDCA) adopted by the Assembly of the Heads of State and Government held in 2012.

The capacity of the AU to exhaustively address border disputes has been clearly demonstrated through the AUBP. The successful resolution of the Tanzania, Mozambique and Comoros maritime dispute is a case in point. In 2011, the AUBP facilitated negotiations that resulted in the establishment of maritime boundaries between the three East African Countries and the Indian Ocean triple point between them.

Changing global dynamics

The ICJ faces increasingly complex and multifaceted issues arising from the changing dynamics of the contemporary world. In a world where crises are the norm, it is imperative to deploy existing resources to address the most pressing issues and ensure the synergy of assets at the regional, continental, and international levels to address contemporary challenges.

Beyond efforts to address the structural and institutional shortcomings in the ICJ, the co-option of other dispute mechanisms will contribute to making the Court truly representative and even more honourable, faithful, impartial, and conscientious.

Institutions such as the AUBP, other regional and continental organisations and legal institutions can play a central role in the settlement of disputes as well as facilitate the work of the ICJ by having matters exhaustively addressed and processed through these institutions before being escalated to the ICJ.

The refining of disputes through these organisations will not only provide unique regional perspectives that benefit the ICJ but also address the criticism of the ICJ largely being Eurocentric in its approach.

The increased use of the AUBP to mediate border disputes will also reduce the current liberal use of the ICJ that risks overwhelming the Court. It will also strengthen the AUBP and other regional organisations which should have the primary responsibility for disputes originating in their regions.

This approach will facilitate expedited settlement of disputes and ensure greater acceptance of settlements. Regional mechanisms evidently appreciate the nuances better and are able to accommodate the complementary factors of peace, security and stability, the need for a broad-based political settlement that ensure the sustainability of settlements reached.

Article 30 of the Statute of the International Court of Justice provides that “the Court shall frame rules for carrying out its functions”. The Court should consider bold actions that meet the demands of a changing world including referring matters for regional adjudication.

The 13 African border and territorial disputes currently before the Court can be effectively and expeditiously managed by the AUBP and other African-led dispute resolution mechanisms. Africa today has the ways and means to find African solutions to African problems.

In the interests of justice as well as international peace, security and stability, the Court should favourably consider referring the Maritime Dispute case between Kenya and Somalia to the AUBP – especially considering the implications for regional peace and security as well as the effect this case will have on the existing maritime boundaries between African States in the Indian Ocean.

In this connection, the decision by the African Union Commission to initiate consultations between Kenya and Somalia to address the border dispute in line with AU legal instruments marks an important first step in exhaustively resolving the matter. This initiative is particularly timely given Kenya’s decision not to participate in the proceedings of the Maritime delimitation case filed against Kenya at the ICJ.

Ambassador Macharia Kamau is Principle Secretary, Ministry of Foreign Affairs, Kenya.

Fredrick Koigu Ndegwa is a Foreign Service Officer, currently studying at the National Defence College, Kenya.