On October 12, the International Court of Justice, the supreme court of the United Nations, delivered its ruling on a long-running maritime border dispute between Kenya and Somalia.
Brought in 2014 by Somalia, the case concerned the extent of the two countries’ territorial waters and exclusive economic zones in the Indian Ocean. Kenya, refusing to recognise the ICJ’s jurisdiction over the matter, didn’t participate in the hearings.
The finer details of the case and the judgement are beyond my paygrade and probably too boring for this humble column, but the gist of it is that neither party got everything it claimed.
The court essentially pulled a Solomon and split the disputed territory between the two countries. However, since Kenya has so far exercised control over the entire area, Somalia can be said to have won the case.
For this reason, there were sporadic celebrations in Somalia (it happened to be Flag Day in the country as well) accompanied by official statements of victory from the Somali government, goading Kenya to abide by the ruling of the court.
For its part, Kenya’s government rejected the ruling and reasserted its claim to the entire territory. The president said he wouldn’t yield even an inch of the country’s waters and insisted that the conflict could only be solved diplomatically.
Better informed people tell me the decisions of the ICJ depend for their enforcement, in the final analysis, on the willingness of parties to abide by them. No legitimate executive exists to enforce them over sovereign states.
Additionally, Kenya (much like countries in North America) has more than a litte experience in the dark art of frustrating the workings of international courts.
Just the other day, Kenya confounded the International Criminal Court’s proceedings against the president, his deputy and some allies for crimes against humanity.
In short, Kenya, being significantly more powerful than Somalia, probably won’t suffer any tangible consequences from defying the ruling. It is therefore unlikely that the ruling will result in any material change in the status of the disputed territory.
I cannot predict the future of the dispute. But the popular reaction to it in Kenya, where the hashtag #NotAnInchLess and #Hatupeani (we aren’t giving anything) trended on Twitter after the ruling was delivered, got me thinking about borders, the concept at foundation of the conflict, and their history and meaning in Africa.
Drawing a line in the sand
Borders are a fundamental conceptual tool for perception. Without borders, it would be impossible to differentiate individual substances from one another. There is a place in space and time where my bum ends and the chair I’m sitting on begins.
Likewise, there has to be an end to the territory over which the government of Kenya exercises jurisdiction; universal jurisdiction would be unsustainable, while infinitely limited jurisdiction would torpedo its legitimacy.
However, as we move further from naturally occurring substances, philosophically speaking, borders increasingly become figments of the imagination, dependent for their existence on societal consensus.
Take, for instance, the border between the earth’s atmosphere and the rest of the universe (space). There is no clear line separating the two. So an arbitrary shell has been drawn at a certain height by an international organisation based in Switzerland.
As it happens, the United States’ Federal Aviation Authority has had its own (lower) shell for much longer. So, there are in fact two boundaries. It shouldn’t matter much, but this curious fact recently led to an infantile ego contest between two billionaires over which of them really made it to outer space in a shiny rocket.
The borders between countries sit somewhere in between the continuum from natural boundaries to arbitrary figments of the imagination. On the one hand, peoples are defined in part by their connection to their land.
Their claims to the land don’t hinge merely on their access to the resources the land hosts, but also to their status as a people. In a sense, communities, like plants, grow out of the ground on which they live, or have lived.
In this way, a Jew, even if his ancestors were exiled from the Middle East by the Romans, is a Jew in part because his ancestors laid claim to a plot of land in that region. The same is true of practically every ethnic group.
On the other hand, even here, the drawing of lines between peoples relies on a degree of arbitrariness. It is not obvious what exactly defines a people, and hence legitimises their claim to any piece of the earth.
My people, the Luo of Kenya, haven’t historically inhabited the land they now live on, yet it would be insulting to deny their claim to it. Countless Europeans now rely on lands in the Americas and Australia to define themselves as peoples.
On top of all this, there is the complication of the history of European colonisation in Africa. It literally reshaped the continent, arguably forever, creating new entirely new peoples through collective subjugation and the process of independence.
To a certain extent, the people who now live in Kenya and are subject to its government are a people. As such, they can lay a claim to the land on which their country sits. Yet this claim has a rather brief historical legitimacy.
What’s even more interesting is that, among the Kenyans who lay claim to this land (and the piece of water in dispute) there are ethnic Somali people, who now have the absurd patriotic duty of repudiating the territorial claims of the government that represents their historic fatherland, and of allying themselves with a government that represents many other peoples beside them.
Add onto this new-fangled international law, on the grounds of which the ICJ bases its claim to jurisdiction over the border disputes between nation-states that are themselves defined, in part, by their borders, but without whose consent the court is powerless.
In short, borders between nation-states are troublesome artifacts of history and ongoing consensus. This is especially true in Africa, where most of the borders were drawn by external parties whose main objective was to expand their own realms, not to create new nation-states.
We contemporary Africans shouldn’t overlook this. We can respect our borders, but we shouldn’t be too attached to them. In my opinion, the jingoistic posturing and nationalistic fervour Kenyans showed online in reaction to the ruling of the ICJ was unnecessary.
Yes, some territory is at stake. Yes, there may be oil in there (to digress, I think fighting over oil and gas, in this era, is old and silly). And yes, maybe the actions of the Somali government are a disingenuous ploy to galvanise domestic support.
But it is also true that no one can force Kenya to abide by the ruling. It is also true that Somalia is a neighbour whose prosperity and peace would redound to the benefit of Kenya. And it is also true that Kenya has spent lives and money to stabilise Somalia over the past ten years.
Why burn all this to the ground for a few shots of dopamine?
Borders allow us to perceive the world. We want them settled, taken for granted. To think too much about them would be a waste of our cognitive powers. So when consensus breaks down, we have the urge to impose them and move on.
But it is impossible to move on from an imposed border. Because there are people on the other side. We would do well to recall, every now and then, that we can defend our borders without alienating the people from whom they separate us.