“一带一路”建设海上合作设想

（国家发展改革委、国家海洋局，2017年6月20日）

“一带一路”建设海上合作设想

（国家发展改革委、国家海洋局，2017年6月20日）

2013年，中国国家主席习近平先后提出共建“丝绸之路经济带”和“21世纪海上丝绸之路”的重大倡议。2015年，中国政府发布《推动共建丝绸之路经济带和21世纪海上丝绸之路的愿景与行动》，提出以政策沟通、设施联通、贸易畅通、资金融通、民心相通为主要内容，坚持共商、共建、共享原则，积极推动“一带一路”建设，得到国际社会的广泛关注和积极回应。

为进一步与沿线国加强战略对接与共同行动，推动建立全方位、多层次、宽领域的蓝色伙伴关系，保护和可持续利用海洋和海洋资源，实现人海和谐、共同发展，共同增进海洋福祉，共筑和繁荣21世纪海上丝绸之路，国家发展和改革委员会、国家海洋局特制定并发布《“一带一路”建设海上合作设想》。

一、时代背景

海洋是地球最大的生态系统，是人类生存和可持续发展的共同空间和宝贵财富。随着经济全球化和区域经济一体化的进一步发展，以海洋为载体和纽带的市场、技术、信息等合作日益紧密，发展蓝色经济逐步成为国际共识，一个更加注重和依赖海上合作与发展的时代已经到来。“独行快，众行远”。加强海上合作顺应了世界发展潮流与开放合作大势，是促进世界各国经济联系更趋紧密、互惠合作更加深入、发展空间更为广阔的必然选择，也是世界各国一道共同应对危机挑战、促进地区和平稳定的重要途径。

中国政府秉持和平合作、开放包容、互学互鉴、互利共赢的丝绸之路精神，致力于推动联合国制定的《2030年可持续发展议程》在海洋领域的落实，愿与21世纪海上丝绸之路沿线各国一道开展全方位、多领域的海上合作，共同打造开放、包容的合作平台，建立积极务实的蓝色伙伴关系，铸造可持续发展的“蓝色引擎”。

二、合作原则

求同存异，凝聚共识。维护国际海洋秩序，尊重沿线国多样化的海洋发展理念，照顾彼此关切，弥合认知差异，求大同，存小异，广泛协商，逐步达成合作共识。

开放合作，包容发展。进一步开放市场，改善投资环境，消除贸易壁垒，促进贸易和投资便利化。增强政治互信，加强不同文明之间的对话，倡导包容发展、和谐共生。

市场运作，多方参与。遵循市场规律和国际通行规则，充分发挥企业的主体作用。支持建立多利益攸关方伙伴关系，推动各国政府、国际组织、民间社团、工商界等广泛参与海上合作。

共商共建，利益共享。尊重沿线国发展意愿，兼顾各方利益，发挥各方比较优势，共谋合作、共同建设、共享成果，促进发展中国家消除贫困，推动形成海上合作的利益共同体。

三、合作思路

以海洋为纽带增进共同福祉、发展共同利益，以共享蓝色空间、发展蓝色经济为主线，加强与21世纪海上丝绸之路沿线国战略对接，全方位推动各领域务实合作，共同建设通畅安全高效的海上大通道，共同推动建立海上合作平台，共同发展蓝色伙伴关系，沿着绿色发展、依海繁荣、安全保障、智慧创新、合作治理的人海和谐发展之路相向而行，造福沿线各国人民。

根据21世纪海上丝绸之路的重点方向，“一带一路”建设海上合作以中国沿海经济带为支撑，密切与沿线国的合作，连接中国－中南半岛经济走廊，经南海向西进入印度洋，衔接中巴、孟中印缅经济走廊，共同建设中国－印度洋－非洲－地中海蓝色经济通道；经南海向南进入太平洋，共建中国－大洋洲－南太平洋蓝色经济通道；积极推动共建经北冰洋连接欧洲的蓝色经济通道。

四、合作重点

围绕构建互利共赢的蓝色伙伴关系，创新合作模式，搭建合作平台，共同制定若干行动计划，实施一批具有示范性、带动性的合作项目，共走绿色发展之路，共创依海繁荣之路，共筑安全保障之路，共建智慧创新之路，共谋合作治理之路。

（一）共走绿色发展之路

维护海洋健康是最普惠的民生福祉，功在当代、利在千秋。中国政府倡议沿线国共同发起海洋生态环境保护行动，提供更多优质的海洋生态服务，维护全球海洋生态安全。

保护海洋生态系统健康和生物多样性。加强在海洋生态保护与修复、海洋濒危物种保护等领域务实合作，推动建立长效合作机制，共建跨界海洋生态廊道。联合开展红树林、海草床、珊瑚礁等典型海洋生态系统监视监测、健康评价与保护修复，保护海岛生态系统和滨海湿地，举办滨海湿地国际论坛。

推动区域海洋环境保护。加强在海洋环境污染、海洋垃圾、海洋酸化、赤潮监测、污染应急等领域合作，推动建立海洋污染防治和应急协作机制，联合开展海洋环境评价，联合发布海洋环境状况报告。建立中国－东盟海洋环境保护合作机制。在中国－东盟环境合作战略与行动计划框架下，推动开展海洋环境保护合作。倡议沿线国共同发起和实施绿色丝绸之路使者计划，提高沿线各国海洋环境污染防治能力。

加强海洋领域应对气候变化合作。推动开展海洋领域的循环低碳发展应用示范。中国政府支持沿线小岛屿国家应对全球气候变化，愿意在应对海洋灾害、海平面上升、海岸侵蚀、海洋生态系统退化等方面提供技术援助，支持沿线国开展海岛、海岸带状况调查与评估。

加强蓝碳国际合作。中国政府倡议发起21世纪海上丝绸之路蓝碳计划，与沿线国共同开展海洋和海岸带蓝碳生态系统监测、标准规范与碳汇研究，联合发布21世纪海上丝绸之路蓝碳报告，推动建立国际蓝碳论坛与合作机制。

（二）共创依海繁荣之路

促进发展、消除贫困是沿线各国人民的共同愿望。发挥各国比较优势，科学开发利用海洋资源，实现互联互通，促进蓝色经济发展，共享美好生活。

加强海洋资源开发利用合作。与沿线国合作开展资源调查、建立资源名录和资源库，协助沿线国编制海洋资源开发利用规划，并提供必要的技术援助。引导企业有序参与海洋资源开发项目。积极参与涉海国际组织开展的海洋资源调查与评估。

提升海洋产业合作水平。与沿线国共建海洋产业园区和经贸合作区，引导中国涉海企业参与园区建设。实施一批蓝色经济合作示范项目，支持沿线发展中国家发展海水养殖，改善生活水平，减轻贫困。与沿线国共同规划开发海洋旅游线路，打造精品海洋旅游产品，建立旅游信息交流共享机制。

推进海上互联互通。加强国际海运合作，完善沿线国之间的航运服务网络，共建国际和区域性航运中心。通过缔结友好港或姐妹港协议、组建港口联盟等形式加强沿线港口合作，支持中国企业以多种方式参与沿线港口的建设和运营。推动共同规划建设海底光缆项目，提高国际通信互联互通水平。

提升海运便利化水平。加强与有关国家的沟通协调，围绕规范国际运输市场、提升运输便利化水平等方面紧密合作。加快与有关国家在口岸监管互认、执法互助、信息互换等方面的合作。

推动信息基础设施联通建设。共建覆盖21世纪海上丝绸之路的信息传输、处理、管理、应用体系以及信息标准规范体系和信息安全保障体系，为实现网络互联互通、信息资源共享提供公共平台。

积极参与北极开发利用。中国政府愿与各方共同开展北极航道综合科学考察，合作建立北极岸基观测站，研究北极气候与环境变化及其影响，开展航道预报服务。支持北冰洋周边国家改善北极航道运输条件，鼓励中国企业参与北极航道的商业化利用。愿同北极有关国家合作开展北极地区资源潜力评估，鼓励中国企业有序参与北极资源的可持续开发，加强与北极国家的清洁能源合作。积极参与北极相关国际组织的活动。

（三）共筑安全保障之路

维护海上安全是发展蓝色经济的重要保障。倡导互利合作共赢的海洋共同安全观，加强海洋公共服务、海事管理、海上搜救、海洋防灾减灾、海上执法等领域合作，提高防范和抵御风险能力，共同维护海上安全。

加强海洋公共服务合作。中国政府倡议发起21世纪海上丝绸之路海洋公共服务共建共享计划，倡导沿线国共建共享海洋观测监测网和海洋环境综合调查测量成果，加大对沿线发展中国家海洋观测监测基础设施的技术和设备援助。中国政府愿加强北斗卫星导航和遥感卫星系统在海洋领域应用的国际合作，为沿线国提供卫星定位和遥感信息应用与服务。

开展海上航行安全合作。中国政府愿承担相应的国际义务，参与双多边海上航行安全与危机管控机制，共同开展打击海上犯罪等非传统安全领域活动，共同维护海上航行安全。

开展海上联合搜救。在国际公约框架下，中国政府愿承担相应的国际义务，加强与沿线国信息交流和联合搜救，建立海上搜救力量互访、搜救信息共享、搜救人员交流培训与联合演练，提升灾难处置、旅游安全等海上突发事件的共同应急与行动能力。

共同提升海洋防灾减灾能力。倡议共建南海、阿拉伯海和亚丁湾等重点海域的海洋灾害预警报系统，共同研发海洋灾害预警报产品，为海上运输、海上护航、灾害防御等提供服务。支持南海海啸预警中心业务化运行，为周边国家提供海啸预警服务。推动与沿线国共建海洋防灾减灾合作机制，设立培训基地，开展海洋灾害风险防范、巨灾应对合作研究和应用示范，为沿线国提供技术援助。

推动海上执法合作。加强与沿线国对话，管控分歧，在双多边框架下推动海上执法合作，建立完善海上联合执法、渔业执法、海上反恐防暴等合作机制，推动构筑海上执法联络网，共同制定突发事件应急预案。加强与沿线国海上执法部门的交流合作，为海上执法培训提供必要帮助。

（四）共建智慧创新之路

创新是引领海洋可持续发展的源动力。深化海洋科学研究、教育培训、文化交流等领域合作，增进海洋认知，促进科技成果应用，为深化海上合作奠定民意基础。

深化海洋科学研究与技术合作。与沿线各国共同发起海洋科技合作伙伴计划，联合开展21世纪海上丝绸之路重点海域和通道科学调查与研究、季风－海洋相互作用观测研究以及异常预测与影响评估等重大项目。深化在海洋调查、观测装备、可再生能源、海水淡化、海洋生物制药、海洋食品技术、海上无人机、无人船等领域合作，加强海洋技术标准体系对接与技术转让合作，支持科研机构和企业共建海外技术示范和推广基地。

共建海洋科技合作平台。与沿线国共建海洋研究基础设施和科技资源互联共享平台，合作建设海洋科技合作园。推进亚太经合组织海洋可持续发展中心、东亚海洋合作平台、中国－东盟海洋合作中心、中国－东盟海洋学院、中国－东亚海环境管理伙伴关系计划海岸带可持续管理合作中心、中马海洋联合研究中心、中印尼海洋与气候中心、中泰气候与海洋生态系统联合实验室、中巴联合海洋研究中心、中以海水淡化联合研究中心等建设，共同提高海洋科技创新能力。

共建共享智慧海洋应用平台。共同推动国家间海洋数据和信息产品共享，建立海洋数据中心之间的合作机制和网络，共同开展海洋数据再分析研究与应用，建设21世纪海上丝绸之路海洋和海洋气候数据中心。共同研发海洋大数据和云平台技术，建设服务经济社会发展的海洋公共信息共享服务平台。

开展海洋教育与文化交流。继续实施中国政府海洋奖学金计划，扩大沿线国来华人员的研修与培训规模。推动实施海洋知识与文化交流融通计划，支持中国沿海城市与沿线国城市结为友好城市，加强与沿线国海洋公益组织和科普机构的交流与合作。弘扬妈祖海洋文化，推进世界妈祖海洋文化中心建设，促进海洋文化遗产保护、水下考古与发掘等方面的交流合作，与沿线国互办海洋文化年、海洋艺术节，传承和弘扬21世纪海上丝绸之路友好合作精神。

共同推进涉海文化传播。加强媒体合作，开展跨境采访活动，共建21世纪海上丝绸之路媒体朋友圈。创新传播方式，共同打造体现多国文明、融合多语种的媒介形态。携手开展涉海文艺创作，共同制作展现沿线各国风土人情、友好往来的文艺作品，夯实民意基础。

（五）共谋合作治理之路

建立紧密的蓝色伙伴关系是推动海上合作的有效渠道。加强战略对接与对话磋商，深化合作共识，增进政治互信，建立双多边合作机制，共同参与海洋治理，为深化海上合作提供制度性保障。

建立海洋高层对话机制。与沿线国建立多层次、多渠道的沟通磋商与对话机制，推动签署政府间、部门间海洋合作文件，共同制定合作计划、实施方案和路线图，共同推动重大项目实施。推动建立21世纪海上丝绸之路沿线国高层对话机制，共同推动行动计划的实施，共同应对海洋重大问题。办好中国－小岛屿国家海洋部长圆桌会议、中国－南欧国家海洋合作论坛。

建立蓝色经济合作机制。设立全球蓝色经济伙伴论坛，推广蓝色经济新理念和新实践，推动产业对接与产能合作。共同制定并推广蓝色经济统计分类国际标准，建立数据共享平台，开展21世纪海上丝绸之路沿线国蓝色经济评估，编制发布蓝色经济发展报告，分享成功经验。打造海洋金融公共产品，支持蓝色经济发展。

开展海洋规划研究与应用。共同推动制定以促进蓝色增长为目标的跨边界海洋空间规划、实施共同原则与标准规范，分享最佳实践和评估方法，推动建立包括相关利益方的海洋空间规划国际论坛。中国政府愿为沿线国提供海洋发展规划相关培训与技术援助，为制定海洋发展规划提供帮助。

加强与多边机制的合作。支持在亚太经合组织、东亚合作领导人系列会议、中非合作论坛、中国－太平洋岛国经济发展合作论坛等多边合作机制下，建立海洋合作机制与制度规则。支持联合国政府间海洋学委员会、东亚海环境合作伙伴、环印度洋联盟、国际海洋学院等发挥作用，共同组织推进重大计划和项目。

加强智库交流合作。推动沿线国智库对话交流，合作开展战略、政策对接研究，共同发起重大倡议，为共建21世纪海上丝绸之路提供智力支撑。中国政府支持国内智库与沿线国相关机构和国际性海洋组织建立战略合作伙伴关系，推动建立21世纪海上丝绸之路智库联盟，打造合作平台与协作网络。

加强民间组织合作。鼓励与沿线国民间组织开展海洋公益服务、学术研讨、文化交流、科技合作、知识传播等活动，推动民间组织合作与政府间合作相互促进，共同参与海洋治理。

五、积极行动

中国政府高度重视与有关国家的海上合作，加强战略沟通，搭建合作平台，开展了一系列合作项目，总体进展顺利。

高层引领推动。在中国与相关国家领导人的见证下，与泰国、马来西亚、柬埔寨、印度、巴基斯坦、马尔代夫、南非等国签署了政府间海洋领域合作协议、合作备忘录和联合声明，与多个沿线国开展战略对接，建立了广泛的海洋合作伙伴关系。

搭建合作平台。在亚太经合组织、东亚合作领导人系列会议、中国－东盟合作框架等机制下建立了蓝色经济论坛、海洋环保研讨会、海事磋商、海洋合作论坛、中国－东盟海洋合作中心、东亚海洋合作平台等合作机制。相继举办21世纪海上丝绸之路博览会、21世纪海上丝绸之路国际艺术节、世界妈祖海洋文化论坛等一系列以21世纪海上丝绸之路为主题的活动，对增进理解、凝聚共识、深化海上合作发挥了重要作用。

加大资金投入。中国政府统筹国内资源，设立中国－东盟海上合作基金和中国－印尼海上合作基金，实施《南海及其周边海洋国际合作框架计划》。亚洲基础设施投资银行、丝路基金对重大海上合作项目提供了资金支持。

推进内外对接。中国政府鼓励环渤海、长三角、海峡西岸、珠三角等经济区和沿海港口城市发挥地方特色，加大开放力度，深化与沿线国的务实合作。支持福建21世纪海上丝绸之路核心区、浙江海洋经济发展示范区、福建海峡蓝色经济试验区和舟山群岛海洋新区建设，加大海南国际旅游岛开发开放力度。推进海洋经济创新发展示范城市建设，启动海洋经济发展示范区建设。

促成项目落地。马来西亚马六甲临海工业园区建设加紧推进。巴基斯坦瓜达尔港运营能力提升，港口自由区建设、招商工作稳步推进。缅甸皎漂港“港口+园区+城市”综合一体化开发取得进展。斯里兰卡科伦坡港口城、汉班托塔港二期工程有序推进。埃塞俄比亚至吉布提铁路建成通车，肯尼亚蒙巴萨至内罗毕铁路即将通车。希腊比雷埃夫斯港已建设成为重要的中转枢纽港。中国与荷兰合作开发海上风力发电，与印尼、哈萨克斯坦、伊朗等国的海水淡化合作项目正在推动落实。海底通信互联互通水平大幅提高，亚太直达海底光缆（APG）正式运营。中马钦州－关丹“两国双园”、柬埔寨西哈努克港经济特区、埃及苏伊士经贸合作区等境外园区建设成效显著。

展望未来，中国政府愿用信心和诚意与沿线各国共同推进“一带一路”建设海上合作，共享机遇，共迎挑战，共谋发展，共同行动，珍爱共有海洋，守护蓝色家园，共同推动实现21世纪海上丝绸之路的宏伟蓝图。

The Government of Canada, the Government of the Kingdom of Denmark, the Government of the Republic of Finland, the Government of Iceland, the Government of the Kingdom of Norway, the Government of the Russian Federation, the Government of the Kingdom of Sweden, and the Government of the United States of America (hereinafter referred to as the “Parties”),

Recognizing the importance of maintaining peace, stability, and constructive cooperation in the Arctic;

Recognizing the importance of the sustainable use of resources, economic development, human health, and environmental protection;

Reiterating the urgent need for increased actions to mitigate and adapt to climate change;

Emphasizing the importance of using the best available knowledge for decision-making;

Noting the importance of international scientif i c cooperation in that regard;

Fully taking into account the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, in particular the provisions in Part XIII on marine scientif i c research as they relate to promoting and facilitating the development and conduct of marine scientif i c research for peaceful purposes;

Recalling the Kiruna Declaration on the occasion of the Eighth Ministerial meeting of the Arctic Council held in May 2013 and the Iqaluit Declaration on the occasion of the Ninth Ministerial meeting of the Arctic Council held in April 2015;

Recognizing the ongoing development of the International Polar Partnership Initiative as determined by the Executive Council of the World Meteorological Organization;

Recognizing the signif i cance of the research priorities as determined by the International Conference on Arctic Research Planning;

Recognizing the ef f orts of the Arctic Council and its subsidiary bodies;

Recognizing the signif i cant scientif i c expertise and invaluable contributions to scientific activities being made by non-Parties and specifically by the Arctic Council Permanent Participants and Arctic Council Observers;

Recognizing the substantial benefit gained from the financial and other investments by the Arctic States and other nations in the International Polar Year and its outcomes, including in particular new scientif i c knowledge, infrastructure and technologies for observation and analysis;

Recognizing the excellent existing scientif i c cooperation already under way in many organizations and initiatives, such as the Sustaining Arctic Observing Networks, the International Arctic Science Committee, the University of the Arctic, the Forum of Arctic Research Operators, the International Network for Terrestrial Research and Monitoring in the Arctic, the World Meteorological Organization, the International Council for the Exploration of the Sea, the Pacif i c Arctic Group, the Association of Polar Early Career Scientists, indigenous knowledge institutions, the International Arctic Social Sciences Association, and many others; and

Desiring to contribute to and build upon existing cooperation and make ef f orts to develop and expand international Arctic scientif i c cooperation, Have agreed as follows:

Article 1 Terms and def i nitions

For the purposes of this Agreement:

“Facilitate” means pursuing all necessary procedures, including giving timely consideration and making decisions as expeditiously as possible;

“Participant” means the Parties’ scientif i c and technological departments and agencies, research centers, universities and colleges, and contractors, grantees and other partners acting with or on behalf of any Party or Parties, involved in Scientif i c Activities under this Agreement;

“Scientific Activities” means efforts to advance understanding of the Arctic through scientific research, monitoring and assessment. These activities may include, but are not limited to, planning and implementing scientific research projects and programs, expeditions, observations, monitoring initiatives, surveys, modelling, and assessments; training personnel; planning, organizing and executing scientific seminars, symposia, conferences, workshops, and meetings; collecting, processing, analyzing, and sharing scientific data, ideas, results, methods, experiences, and traditional and local knowledge; developing sampling methodologies and protocols; preparing publications; and developing,implementing, and using research support logistics and research infrastructure;

“Identif i ed Geographic Areas” means those areas described in Annex 1.

Article 2 Purpose

The purpose of this Agreement is to enhance cooperation in Scientific Activities in order to increase ef f ectiveness and efficiency in the development of scientif i c knowledge about the Arctic.

Article 3 Intellectual property and other matters

Where appropriate, cooperative activities under this Agreement shall take place pursuant to specif i c implementing agreements or arrangements concluded between the Parties or Participants pertaining to their activities, particularly the fi nancing of such activities, the use of scientif i c and research results, facilities, and equipment, and dispute settlement. Through such specific agreements or arrangements, the Parties shall, where appropriate, ensure, either directly or through the Participants, adequate and ef f ective protection and fair allocation of intellectual property rights, in accordance with the applicable laws, regulations, procedures, and policies as well as the international legal obligations of the Parties concerned, and address other matters that may result from activities under this Agreement.

Article 4 Entry and exit of persons, equipment, and material

Each Party shall use its best efforts to facilitate entry to, and exit from, its territory of persons, research platforms, material, samples, data, and equipment of the Participants as needed to advance the objectives of this Agreement.

Article 5 Access to research infrastructure and facilities

The Parties shall use their best ef f orts to facilitate access by the Participants to national civilian research infrastructure and facilities and logistical services such as transportation and storage of equipment and material for the purpose of conducting Scientif i c Activities in Identif i ed Geographic Areas under this Agreement.

Article 6 Access to research areas

1. The Parties shall facilitate access by the Participants to terrestrial, coastal, atmospheric, and marine areas in the Identif i ed Geographic Areas, consistent with international law, for the purpose of conducting Scientif i c Activities.

2. The Parties shall facilitate the processing of applications to conduct marine scientif i c research under this Agreement consistent with the 1982 United Nations Convention on the Law of the Sea.

3. The Parties also shall facilitate joint Scientific Activities that require airborne scientif i c data collection in the Identif i ed Geographic Areas, and that are subject to specif i c implementing agreements or arrangements concluded betweenthe Parties or Participants pertaining to those activities.

Article 7 Access to data

1. The Parties shall facilitate access to scientific information in connection with Scientif i c Activities under this Agreement.

2. The Parties shall support full and open access to scientific metadata and shall encourage open access to scientific data and data products and published results with minimum time delay, preferably online and free of charge or at no more than the cost of reproduction and delivery.

3. The Parties shall facilitate the distribution and sharing of scientif i c data and metadata by, as appropriate and to the extent practicable, adhering to commonly accepted standards, formats, protocols, and reporting.

Article 8 Education, career development and training opportunities

The Parties shall promote opportunities to include students at all levels of education, and early career scientists, in the Scientif i c Activities conducted under this Agreement to foster future generations of researchers and to build capacity and expertise to advance knowledge about the Arctic.

Article 9 Traditional and local knowledge

1. The Parties shall encourage Participants to utilize, as appropriate, traditional and local knowledge in the planning and conduct of Scientif i c Activities under this Agreement.

2. The Parties shall encourage communication, as appropriate, between holders of traditional and local knowledge and Participants conducting Scientif i c Activities under this Agreement.

3. The Parties shall encourage holders of traditional and local knowledge, as appropriate, to participate in Scientif i c Activities under this Agreement.

Article 10 Laws, regulations, procedures, and policies

Activities and obligations under this Agreement shall be conducted subject to applicable international law and the applicable laws, regulations, procedures, and policies of the Parties concerned. For those Parties that have subnational governments, the applicable laws, regulations, procedures, and policies include those of their subnational governments.

Article 11 Resources

1. Unless otherwise agreed, each Party shall bear its own costs deriving from its implementation of this Agreement.

2. Implementation of this Agreement shall be subject to the availability of relevant resources.

Article 12 Review of this Agreement

1. The Parties shall meet no later than one year after the entry into force of this Agreement, as convened by the depositary, and from then on as decided by the Parties. The Parties may elect to convene such meetings in conjunction with meetings of the Arctic Council including inviting Arctic Council Permanent Participants and Arctic Council Observers to observe and provide information. Scientif i c cooperation activities with non-Parties related to Arctic science may be taken into account when reviewing the implementation of this Agreement.

2. At such meetings the Parties shall consider the implementation of this Agreement, including successes achieved and obstacles to implementation, as well as ways to improve the ef f ectiveness and implementation of this Agreement.

Article 13 Authorities and contact points

Each Party shall designate a competent national authority or authorities as the responsible point of contact for this Agreement. The names of and contact information for the designated points of contact are specified in Annex 2 to this Agreement. Each Party shall promptly inform the other Parties in writing through its competent national authority or authorities and through diplomatic channels of any changes to those designations.

Article 14 Annexes

1. Annex 1 referred to in Article 1 constitutes an integral part of this Agreement and is legally binding.

2. Annex 2 referred to in Article 13 does not constitute an integral part of this Agreement and is not legally binding.

3. At meetings of the Parties referred to in Article 12, the Parties may adopt additional legally non-binding Annexes. Annex 2 referred to in Article 13 may be modif i ed as provided in that Article.

Article 15 Settlement of disputes

The Parties shall resolve any disputes concerning the application or interpretation of this Agreement through direct negotiations.

Article 16 Relationship with other international agreements

Nothing in this Agreement shall be construed as altering the rights or obligations of any Party under other relevant international agreements or international law.

Article 17 Cooperation with non-Parties

1. The Parties may continue to enhance and facilitate cooperation with non-Parties with regard to Arctic science.

2. Parties may in their discretion undertake with non-Parties cooperation described in this Agreement and apply measures consistent with those described in this Agreement in cooperation with non-Parties.

3. Nothing in this Agreement shall affect the rights and obligations of the Parties under agreements with non-Parties, nor preclude cooperation between the Parties and non-Parties.

Article 18 Amendments to this Agreement

1. This Agreement may be amended by written agreement of all the Parties.

2. An amendment shall enter into force 30 days after the date on which the depositary has received the last written notification through diplomatic channels that the Parties have completed the internal procedures required for its entry into force.

Article 19 Provisional application, entry into force, and withdrawal

1. This Agreement may be applied provisionally by any signatory that provides a written statement to the depositary of its intention to do so. Any such signatory shall apply this Agreement provisionally in its relations with any other signatory having made the same notif i cation from the date of its statement or from such other date as indicated in its statement.

2. This Agreement shall enter into force for a period of five years 30 days after the date of receipt by the depositary of the last written notif i cation through diplomatic channels that the Parties have completed the internal procedures required for its entry into force.

3. This Agreement shall be automatically renewed for further periods of fi ve years unless a Party notif i es the other Parties in writing at least six months prior to the expiration of the fi rst period of fi ve years or any succeeding period of fi ve years of its intent to withdraw from this Agreement, in which event this Agreement shall continue between the remaining Parties.

4. Any Party may at any time withdraw from this Agreement by sending written notif i cation thereof to the depositary through diplomatic channels at least six months in advance, specifying the ef f ective date of its withdrawal. Withdrawal from this Agreement shall not af f ect its application among the remaining Parties.

5. Withdrawal from this Agreement by a Party shall not af f ect the obligations of that Party with regard to activities undertaken under this Agreement where those obligations have arisen prior to the ef f ective date of withdrawal.

Article 20 Depositary

The Government of the Kingdom of Denmark shall be the depositary for thisAgreement.

DONE at Fairbanks, Alaska, United States of America this 11th day of May, 2017. This Agreement is established in a single copy in the English, French, and Russian languages, all texts being equally authentic. The working language of this Agreement shall be English, the language in which this Agreement was negotiated. The Depositary shall transmit certif i ed copies of this Agreement to the Parties.

I. INTRODUCTION (PARAS. 15-30)

The Court fi rst notes that Somalia and Kenya are adjacent States on the coast of East Africa. Somalia is located in the Horn of Africa. It borders Kenya to the south-west, Ethiopia to the west and Djibouti to the north-west. Somalia’s coastline faces the Gulf of Aden to the north and the Indian Ocean to the east. Kenya, for its part, shares a land boundary with Somalia to the north-east, Ethiopia to the north, South Sudan to the north-west, Uganda to the west and Tanzania to the south. Its coastline faces the Indian Ocean. Both States signed the United Nations Convention on the Law of the Sea (UNCLOS) on 10 December 1982. Kenya and Somalia ratified UNCLOS on 2 March and 24 July 1989, respectively, and the Convention entered into force for the Parties on 16 November 1994. Under Article 76, paragraph 8, of UNCLOS, a State party to the Convention intending to establish the outer limits of its continental shelf beyond 200 nautical miles shall submit information on such limits to the Commission on the Limits of the Continental Shelf (CLCS). The role of the Commission is to make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf beyond 200 nautical miles. With regard to disputed maritime areas, under Annex I of the CLCS Rules of Procedure, entitled “Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes”, the Commission requires the prior consent of all States concerned before it will consider submissions regarding such areas.

The Court recalls that, on 7 April 2009, the Kenyan Minister for Foreign Affairs and the Somali Minister for National Planning and International Cooperation signed a “Memorandum of Understanding between the Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to grant to each other No-Objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission onthe Limits of the Continental Shelf”. On 14 April 2009, Somalia submitted to the Secretary-General of the United Nations preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles. On 6 May 2009, Kenya deposited with the CLCS its submission with respect to the continental shelf beyond 200 nautical miles. In June 2009, the MOU was submitted by Kenya to the Secretariat of the United Nations for registration and publication pursuant to Article 102 of the Charter of the United Nations. The Secretariat registered it on 11 June 2009, and published it in the United Nations Treaty Series. In the following years, both Parties raised and withdrew objections to the consideration of each other’s submissions by the CLCS. Those submissions are now under consideration.

On 28 August 2014, Somalia instituted proceedings against Kenya before the Court, requesting the latter to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles. As basis for the Court’s jurisdiction, Somalia invoked the declarations recognizing the Court’s jurisdiction as compulsory made by the two States. Kenya, however, raised two preliminary objections: one concerning the jurisdiction of the Court, the other the admissibility of the Application.

II. THE FIRST PRELIMINARY OBJECTION: THE JURISDICTION OF THE COURT (PARAS. 31-134)

In its fi rst preliminary objection, Kenya argues that the Court lacks jurisdiction to entertain the present case as a result of one of the reservations to its declaration accepting the compulsory jurisdiction of the Court, which excludes disputes in regard to which the parties have agreed “to have recourse to some other method or methods of settlement”. It asserts that the MOU constitutes an agreement to have recourse to another method of settlement. It adds that the relevant provisions of UNCLOS on dispute settlement also amount to an agreement on the method of settlement.

The Court fi rst considers the MOU and whether that instrument falls within the scope of Kenya’s reservation. It begins by examining the legal status of the MOU under international law. It explains that should it find the MOU valid, the Court will embark on its interpretation and outline what ef f ects, if any, the MOU has in respect of the jurisdiction of the Court in this case. If the Court reaches theconclusion that the MOU does not render Kenya’s reservation to its optional clause declaration under Article 36, paragraph 2, of the Court’s Statute applicable in the present case, it will then address Kenya’s submission that the case falls outside the Court’s jurisdiction because of the provisions of Part XV of UNCLOS.

A. The Memorandum of Understanding (paras. 36-106)

1. The legal status of the MOU under international law (paras. 36-50)

The Court considers that in order to determine whether the MOU has any effect with respect to its jurisdiction, it is appropriate first to address the issue whether the MOU constitutes a treaty in force between the Parties.

Under the customary international law of treaties, which is applicable in this case since neither Somalia nor Kenya is a party to the 1969 Vienna Convention on the Law of Treaties, an international agreement concluded between States in written form and governed by international law constitutes a treaty. The MOU is a written document, in which the Parties record their agreement on certain points governed by international law. The inclusion of a provision addressing the entry into force of the MOU is indicative of the instrument’s binding character. Kenya considered the MOU to be a treaty, having requested its registration in accordance with Article 102 of the Charter of the United Nations, and Somalia did not protest that registration until almost fi ve years thereafter. Furthermore, it is clear from the actual terms of the MOU, which make express provision for it to enter into force upon signature, and the terms of the authorization given to the Somali Minister, that this signature expressed Somalia’s consent to be bound by the MOU under international law. The Court concludes that the MOU is a valid treaty that entered into force upon signature and is binding on the Parties under international law.

2. The interpretation of the MOU (paras. 51-105)

The Court turns to the interpretation of the MOU. This instrument consists of seven paragraphs, which are unnumbered. In order to facilitate references to the paragraphs, the Court considered it convenient to insert numbering in its analysis.

In interpreting the MOU, the Court applies the rules on interpretation to be found in Articles 31 and 32 of the Vienna Convention, which it has consistently considered to be reflective of customary international law. Article 31, paragraph 1, of the Vienna Convention provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Theseelements of interpretation – ordinary meaning, context and object and purpose –are to be considered as a whole. Paragraph 2 of Article 31 sets out what is to be regarded as context. Article 31, paragraph 3, provides that there shall be taken into account, together with the context, any subsequent agreement between the parties regarding the interpretation or application of the treaty, any subsequent practice which establishes such an agreement, and any relevant rules of international law applicable in the relations between the parties.

The sixth paragraph of the MOU is at the heart of the first preliminary objection under consideration. It is, however, difficult to understand that paragraph without a prior analysis of the text of the MOU as a whole, which provides the context in which any particular paragraph should be interpreted and gives insight into the object and purpose of the MOU. The Court therefore proceeds fi rst of all to such an analysis, before examining the sixth paragraph.

The Court observes that the title of the MOU and its first five paragraphs indicate the purpose of ensuring that the CLCS could proceed to consider submissions made by Somalia and Kenya regarding the outer limits of the continental shelf beyond 200 nautical miles, and to issue recommendations thereon, notwithstanding the existence of a maritime dispute between the two States, thus preserving the distinction between the ultimate delimitation of the maritime boundary and the CLCS process leading to delineation. The sixth paragraph, on which the Parties’ arguments focused in particular since Kenya contends that it contains the agreed dispute settlement method regarding the Parties’ maritime boundary, provides that delimitation in the disputed areas “shall be agreed between the two coastal States on the basis of international law after the Commission has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations …”. The question for the Court is whether the Parties, in that sixth paragraph, agreed on a method of settlement of their delimitation dispute other than by way of proceedings before the Court, and agreed to wait for the CLCS’s recommendations before any such settlement could be reached.

The subject-matter of the sixth paragraph of the MOU relates to “[t]he delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles …”. The use of the word “including” implies that the Parties intended something more to be encompassed by delimitation in “the areas under dispute” than delimitation in respect of the continental shelf beyond 200 nautical miles. The Parties haveexplicitly given a meaning to the term the “area under dispute” as the area in which the claims of the two Parties to the continental shelf overlap, without dif f erentiating between the shelf within and beyond 200 nautical miles. In addition, the text as a whole makes it apparent that the MOU was concerned, in so far as it addressed delimitation, solely with the area of the continental shelf, both within and beyond 200 nautical miles from the two States’ respective coasts. The sixth paragraph therefore relates only to delimitation of the continental shelf, “including the delimitation of the continental shelf beyond 200 nautical miles”, and not to delimitation of the territorial sea, nor to delimitation of the exclusive economic zone. Accordingly, even if, as Kenya suggests, that paragraph sets out a method of settlement of the Parties’ maritime boundary dispute, it would only apply to their continental shelf boundary, and not to the boundaries of other maritime zones.

The Court turns to the question of whether the sixth paragraph, by providing that the delimitation of the continental shelf between the Parties “shall be agreed… on the basis of international law after the Commission has concluded its examination of [their] separate submissions … and made its recommendations…”, sets out a method of settlement of the Parties’ maritime boundary dispute with respect to that area.

The Court recalls that, according to the applicable rule of customary international law, the sixth paragraph of the MOU must be interpreted in good faith in accordance with the ordinary meaning given to its terms in their context and in light of the object and purpose of the MOU. Pursuant to Article 31, paragraph 3 (c) of the Vienna Convention, “[a]ny relevant rules of international law applicable in the relations between the parties” should be taken into account, together with the context. In this case, both Somalia and Kenya are parties to UNCLOS, which is expressly mentioned in the MOU. UNCLOS therefore contains such relevant rules. Moreover, given that the sixth paragraph of the MOU concerns the delimitation of the continental shelf, Article 83 of UNCLOS, entitled “Delimitation of the continental shelf between States with opposite or adjacent coasts”, is particularly relevant.

The Court considers that it is reasonable to read the sixth paragraph of the MOU in light of Article 83, paragraph 1, of UNCLOS. In that context, the reference to delimitation being undertaken by agreement on the basis of international law, which is common to the two provisions, is not prescriptive of the method of dispute settlement to be followed and does not preclude recourse to dispute settlement procedures in case agreement could not be reached. The sixth paragraph of theMOU goes beyond the wording of Article 83, paragraph 1, by inclusion of the second part of the clause under consideration, providing that “delimitation …shall be agreed … after the Commission has concluded its examination . . . and made its recommendations…”. It is clear from the case file that Kenya did not consider itself bound by the wording of the sixth paragraph to wait for the CLCS’s recommendations before engaging in negotiations on maritime delimitation, or even reaching agreements thereon, and could at least commence the process of delimitation before that of delineation was complete. However, Kenya has advanced the argument that negotiations on maritime delimitation could not be fi nalized and, therefore, that no fi nal agreement could be reached, until after the recommendations of the CLCS had been received. It may be the case that, as the Parties agree, the endpoint of their maritime boundary in the area beyond 200 nautical miles cannot be definitively determined until after the CLCS’s recommendations have been received and the outer limits of the continental shelf beyond 200 nautical miles established on the basis of those recommendations. This is consistent with Article 76, paragraph 8, of UNCLOS. A lack of certainty regarding the outer limits of the continental shelf, and thus the precise location of the endpoint of a given boundary in the area beyond 200 nautical miles, does not, however, necessarily prevent either the States concerned or the Court from undertaking the delimitation of the boundary in appropriate circumstances before the CLCS has made its recommendations.

The Court does not consider that the sixth paragraph of the MOU can be interpreted as precluding the Parties from reaching an agreement on their maritime boundary, or either of them from resorting to dispute settlement procedures regarding their maritime boundary dispute, before receipt of the CLCS’s recommendations. The Parties could have reached an agreement on their maritime boundary at any time by mutual consent. Moreover, read in light of Article 83, paragraph 1, of UNCLOS, the use of the phrase “shall be agreed” in the sixth paragraph does not mean that the Parties have an obligation to conclude an agreement on a continental shelf boundary; it rather means that the Parties are under an obligation to engage in negotiations in good faith with a view to reaching an agreement. The Parties agree that the sixth paragraph did not prevent them from engaging in such negotiations before receipt of the CLCS’s recommendations. There is no temporal restriction contained in the sixth paragraph on fulf i lling this obligation to negotiate. The fact that the Parties set an objective as to the time for concluding an agreement does not, given that this paragraph is not prescriptive of a method of settlement to be followed, prevent a Party from resorting to disputesettlement procedures prior to receiving the recommendations of the CLCS. Furthermore, both Somalia and Kenya are parties to UNCLOS, which contains in Part XV comprehensive provisions for dispute resolution, and both States have optional clause declarations in force. The Court does not consider that, in the absence of express language to that ef f ect, the Parties can be taken to have excluded recourse to such procedures until after receipt of the CLCS’s recommendations. Finally, the MOU repeatedly indicates that the CLCS process leading to delineation is to be without prejudice to delimitation, treating the two as distinct.

In summary, the Court observes the following in respect of the interpretation of the MOU. First, its object and purpose was to constitute a no-objection agreement, enabling the CLCS to make recommendations notwithstanding the existence of a dispute between the Parties regarding the delimitation of the continental shelf. Secondly, the sixth paragraph relates solely to the continental shelf, and not to the whole maritime boundary between the Parties, which suggests that it did not create a dispute settlement procedure for the determination of that boundary. Thirdly, the MOU repeatedly makes clear that the process leading to the delineation of the outer limits of the continental shelf beyond 200 nautical miles is to be without prejudice to the delimitation of the maritime boundary between the Parties, implying – consistently with the jurisprudence of this Court – that delimitation could be undertaken independently of a recommendation of the CLCS. Fourthly, the text of the sixth paragraph of the MOU ref l ects that of Article 83, paragraph 1, of UNCLOS, suggesting that the Parties intended to acknowledge the usual course that delimitation would take under that Article, namely engaging in negotiations with a view to reaching agreement, and not to prescribe a method of dispute settlement. Fifthly, the Parties accept that the sixth paragraph did not prevent them from undertaking such negotiations, or reaching certain agreements, prior to obtaining the recommendations of the CLCS.

Given the foregoing, the Court considers that the sixth paragraph of the MOU reflected the expectation of the Parties that, in light of Article 83, paragraph 1, of UNCLOS, they would negotiate their maritime boundary in the area of the continental shelf after receipt of the CLCS’s recommendations, keeping the two processes of delimitation and delineation distinct. As between States parties to UNCLOS, such negotiations are the first step in undertaking delimitation of the continental shelf. The Court does not, however, consider that the text of the sixth paragraph, viewed in light of the text of the MOU as a whole, the object and purpose of the MOU, and in its context, could have been intended to establisha method of dispute settlement in relation to the delimitation of the maritime boundary between the Parties. It neither binds the Parties to wait for the outcome of the CLCS process before attempting to reach agreement on their maritime boundary, nor does it impose an obligation on the Parties to settle their maritime boundary dispute through a particular method of settlement.

In line with Article 32 of the Vienna Convention, the Court has examined the travaux préparatoires, however limited, and the circumstances in which the MOU was concluded, which it considers confirm that the MOU was not intended to establish a procedure for the settlement of the maritime boundary dispute between the Parties.

3. Conclusion on whether the reservation contained in Kenya’s declaration under Article 36, paragraph 2, is applicable by virtue of the MOU (para. 106)

The Court concludes that the MOU does not constitute an agreement “to have recourse to some other method or methods of settlement” within the meaning of Kenya’s reservation to its Article 36, paragraph 2, declaration, and consequently this case does not, by virtue of the MOU, fall outside the scope of Kenya’s consent to the Court’s jurisdiction.

B. Part XV of the United Nations Convention on the Law of the Sea (paras. 107-133)

The Court next considers whether Part XV of UNCLOS (entitled “Settlement of disputes”) amounts to an agreement on a method of settlement for the maritime boundary dispute within the meaning of Kenya’s reservation.

It fi rst recalls that Part XV, entitled “Settlement of disputes”, comprises three sections. Section 1 sets out general provisions regarding the peaceful settlement of disputes. It requires States parties to settle disputes concerning the interpretation or application of the Convention by peaceful means (Art. 279) but expressly provides that they are free to employ “any peaceful means of their own choice” (Art. 280). States parties may agree between themselves to a means of settlement that does not lead to a binding decision of a third party (e.g., conciliation). However, if no settlement has been reached by recourse to such means, either of those States parties may submit the dispute to the court or tribunal having jurisdiction under Section 2 of Part XV, unless their agreement to such means of settlement excludes the procedures entailing a binding decision in Section 2 (Art. 281, para. 1). Finally, while Article 282 makes no express reference to an agreement to the Court’sjurisdiction resulting from optional clause declarations, it nevertheless provides that an agreement to submit a dispute to a specif i ed procedure that applies in lieu of the procedures provided for in Section 2 of Part XV may not only be contained in a“general, regional or bilateral agreement”, but may also be reached “otherwise”.

The phrase “or otherwise” in Article 282 thus encompasses agreement to the jurisdiction of the Court resulting from optional clause declarations. Both Kenya and Somalia recognize this interpretation of Article 282 and agree that if two States have accepted the Court’s jurisdiction under the optional clause with respect to a dispute concerning the interpretation or application of UNCLOS, such agreement would apply to the settlement of that dispute in lieu of procedures contained in Section 2 of Part XV. It is equally clear that if a reservation to an optional clause declaration excluded disputes concerning a particular subject, there would be no agreement to the Court’s jurisdiction falling within Article 282, so the procedures provided for in Section 2 of Part XV would apply to those disputes, subject to the limitations and exceptions that result from the application of Section 3.

In the present case, however, the Court must decide whether Article 282 should be interpreted so that an optional clause declaration containing a reservation such as that of Kenya falls within the scope of that Article. The travaux préparatoires of UNCLOS make clear that the negotiators gave particular attention to optional clause declarations when drafting Article 282, ensuring, through the use of the phrase “or otherwise”, that agreements to the Court’s jurisdiction based on optional clause declarations fall within the scope of Article 282.

Article 282 should therefore be interpreted so that an agreement to the Court’s jurisdiction through optional clause declarations falls within the scope of that Article and applies “in lieu” of procedures provided for in Section 2 of Part XV, even when such declarations contain a reservation to the same effect as that of Kenya. The contrary interpretation would mean that, by ratifying a treaty which gives priority to agreed procedures resulting from optional clause declarations (pursuant to Article 282 of UNCLOS), States would have achieved precisely the opposite outcome, giving priority instead to the procedures contained in Section 2 of Part XV. Consequently, under Article 282, the optional clause declarations of the Parties constitute an agreement, reached “otherwise”, to settle in this Court disputes concerning interpretation or application of UNCLOS, and the procedure before this Court shall thus apply “in lieu” of procedures provided for in Section 2 of Part XV.

As previously noted, Kenya’s acceptance of the Court’s jurisdiction extends to “all disputes”, except those for which the Parties have agreed to resort to amethod of settlement other than recourse to the Court. In the present case, Part XV of UNCLOS does not provide for such other method of dispute settlement. Accordingly, this dispute does not, by virtue of Part XV of UNCLOS, fall outside the scope of Kenya’s optional clause declaration.

A fi nding that the Court has jurisdiction gives ef f ect to the intent ref l ected in Kenya’s declaration, by ensuring that this dispute is subject to a method of dispute settlement. By contrast, because an agreed procedure within the scope of Article 282 takes precedence over the procedures set out in Section 2 of Part XV, there is no certainty that this intention would be fulfilled were this Court to decline jurisdiction.

C. Conclusion (para. 134)

In light of the Court’s conclusion that neither the MOU nor Part XV of UNCLOS falls within the scope of the reservation to Kenya’s optional clause declaration, the Court fi nds that Kenya’s preliminary objection to the jurisdiction of the Court must be rejected.

III. THE SECOND PRELIMINARY OBJECTION: THE ADMISSIBILITY OF SOMALIA’S APPLICATION (PARAS. 135-144)

The Court then considers Kenya’s preliminary objection to the admissibility of Somalia’s Application. In support of its contention that the Application is inadmissible, Kenya makes two arguments.

First, Kenya claims that the Application is inadmissible because the Parties had agreed in the MOU to negotiate delimitation of the disputed boundary, and to do so only after completion of CLCS review of the Parties’ submissions. The Court having previously found that the MOU did not contain such an agreement, it must also reject this aspect of Kenya’s second preliminary objection.

Secondly, Kenya states that the Application is inadmissible because Somalia breached the MOU by objecting to CLCS consideration of Kenya’s submission, only to consent again immediately before fi ling its Memorial. According to Kenya, the withdrawal of consent was a breach of Somalia’s obligations under the MOU that gave rise to significant costs and delays. Kenya also contends that a State“seeking relief before the Court must come with clean hands” and that Somalia hasnot done so. The Court observes that the fact that an applicant may have breached a treaty at issue in the case does not per se af f ect the admissibility of its application. Moreover, the Court notes that Somalia is neither relying on the MOU as an instrument conferring jurisdiction on the Court nor as a source of substantive law governing the merits of this case. Thus, Somalia’s objection to CLCS consideration of Kenya’s submission does not render the Application inadmissible.

In light of the foregoing, the Court fi nds that the preliminary objection to the admissibility of Somalia’s Application must be rejected.

IV. OPERATIVE PART (PARA. 145)

For these reasons,

THE COURT,

(1) (a) by thirteen votes to three,

Rejects the fi rst preliminary objection raised by the Republic of Kenya in so far as it is based on the Memorandum of Understanding of 7 April 2009;

IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Crawford, Gevorgian;

AGAINST: Judges Bennouna, Robinson; Judge ad hoc Guillaume;

(b) by fi fteen votes to one,

Rejects the fi rst preliminary objection raised by the Republic of Kenya in so far as it is based on Part XV of the United Nations Convention on the Law of the Sea;

IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Crawford, Gevorgian; Judge ad hoc Guillaume;

AGAINST: Judge Robinson;

(2) by fi fteen votes to one,

Rejects the second preliminary objection raised by the Republic of Kenya;

IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Crawford, Gevorgian; Judge ad hoc Guillaume;

AGAINST: Judge Robinson;

(3) by thirteen votes to three,

Finds that it has jurisdiction to entertain the Application fi led by the FederalRepublic of Somalia on 28 August 2014 and that the Application is admissible.

IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Crawford, Gevorgian;

AGAINST: Judges Bennouna, Robinson; Judge ad hoc Guillaume.

Vice-President YUSUF appends a declaration to the Judgment of the Court; Judge BENNOUNA appends a dissenting opinion to the Judgment of the Court; Judges GAJA and CRAWFORD append a joint declaration to the Judgment of the Court; Judge ROBINSON appends a dissenting opinion to the Judgment of the Court; Judge ad hoc GUILLAUME appends a dissenting opinion to the Judgment of the Court.

Declaration of Vice-President Yusuf

1. Vice-President Yusuf agrees with the Court’s decision on the preliminary objections raised by Kenya and the reasoning that led the Court to its decision. Nevertheless, the circumstances in which the present dispute regarding the jurisdiction of the Court has arisen call for some observations to be made.

2. The Memorandum of Understanding (“MOU”) in this case was drafted, as a matter of fact, by Ambassador Hans Wilhelm Longva of Norway in the context of assistance provided by Norway to African States, which enabled them to make submissions or submit preliminary information to the Commission on the Limits of the Continental Shelf (“CLCS”) within the time-limits prescribed by the States parties to the UN Convention on the Law of the Sea.

3. Many African States lack the requisite geological, geophysical, and hydrological technical expertise to compile a submission to the CLCS; in this respect, Norway’s assistance was invaluable. However, this technical assistance should be distinguished from the drafting and conclusion of the MOU, which is a legal and policy matter that could have easily been directly negotiated by the two neighbouring States.

4. More than 50 years after their independence, it is surprising that Somalia and Kenya are in dispute over an agreement that they neither negotiated nor drafted. International law in the twenty-f i rst century is more important than ever; its ef f ects pervade the daily lives of people throughout the world. As the scope of international law has increased, so too has the importance of ensuring that each State actively participates in the creation of international legal instruments and rules which af f ect its peoples and resources, and understands the obligations that ittakes on.

5. No Government can afford today to put its signature to a bilateral legal instrument which it has neither carefully negotiated nor to which it has hardly contributed. This applies especially to African Governments, which, due to their painful historical experience with international legal agreements concluded with foreign powers, should pay particular attention to the contents of such agreements.

Dissenting opinion of Judge Bennouna

In the case brought by Somalia concerning maritime delimitation in the Indian Ocean, the Court has rejected Kenya’s first preliminary objection concerning the existence of another method of dispute settlement under paragraph 6 of the memorandum. The issue being one of interpretation of that paragraph, the Court referred to the general rule of interpretation enshrined in Article 31 of the Vienna Convention on the Law of Treaties. It lays down, as a starting point, the ordinary meaning of the terms of the treaty. But the Court proceeded dif f erently and assumed that paragraph 6 was difficult to understand without an overall analysis of the context in which it should be interpreted, as well as its object and purpose. In doing so, the Court reversed the general rule of interpretation and reached the conclusion that the sixth paragraph did not constitute another method of settlement of the maritime dispute and therefore did not trigger Kenya’s reservation. The reasoning by analogy between paragraph 6 and Article 83 of UNCLOS has led the Court to erroneous conclusions since these provisions are not comparable. In particular, unlike Article 83 of UNCLOS, paragraph 6 contains a precise time constraint. Ultimately, the Court has come to give a dif f erent meaning to the terms of the sixth paragraph which is unrelated to their ordinary meaning, holding that they do not establish a dispute settlement procedure likely to fall within the scope of Kenya’s reservation.

Joint declaration of Judges Gaja and Crawford

Judges Gaja and Crawford disagreed with the reasons of the majority on issues of both jurisdiction and admissibility concerning the MOU.

On jurisdiction, they reasoned that paragraph 6 of the MOU, by setting an obligation to negotiate, would not affect the Court’s jurisdiction unless it fell within Kenya’s optional clause reservation. The words “other method … of settlement” in Kenya’s reservation contemplate a method of resolving the dispute. But negotiations in good faith may not result in such a resolution. In order fornegotiations to be caught by Kenya’s reservation, either the Parties must have agreed to reach an agreement by negotiation (i.e., a pactum de contrahendo) or negotiation would have to be stipulated as the exclusive method of settlement. The Parties agree that paragraph 6 of the MOU does not impose an obligation to reach an agreement. Neither is there any ground for suggesting that the Parties intended to exclude resort to other methods of settlement if negotiations failed. Thus paragraph 6 was not caught by Kenya’s optional clause reservation.

On admissibility, Judges Gaja and Crawford reasoned that paragraph 6 of the MOU bound each party to refrain from taking unilateral action to trigger dispute settlement before the CLCS had made its recommendation. However, the Parties were free to derogate from this time-limit, which they did in 2014 by commencing negotiations without reserving their position under paragraph 6. By doing so, they set aside the time-limit in paragraph 6, making the Application of Somalia admissible.

Dissenting opinion of Judge Robinson

Judge Robinson disagrees with the majority’s rejection of Kenya’s first preliminary objection. However, the opinion focuses on the rejection of the second basis advanced by Kenya for its first preliminary objection since, in his view, it is more problematic because of the very serious implications it has for the interpretation and application of the carefully elaborated provisions of Part XV of UNCLOS.

Under Article 36, paragraph 2, of the Court’s Statute, both Kenya and Somalia accepted the Court’s jurisdiction subject to certain reservations. With regard to the reservation relevant to this case, Kenya accepted the Court’s jurisdiction over all disputes other than: “Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”.

Given this lucid and unambiguous text, Judge Robinson argues that it is wholly unreasonable for the majority to conclude that the optional clause declarations between Kenya and Somalia constitute an agreement that falls within the scope of Article 282 when Part XV of UNCLOS sets out in Article 287 other methods of settlement.

Judge Robinson takes issue with the numerical criterion – the majority’s conclusion relies on the fact that “more than half of the then-existing optional clause declarations” contained the Kenyan-type reservation – used by the majorityto determine whether the travaux préparatoires can be construed as excluding the Kenyan-type reservation. He suggests that what is required is a qualitative evaluation of the impact of Kenya’s reservation on the optional clause declarations of both States and that the signal failure of the majority decision is its refusal to carry out such an evaluation. In his view, such an evaluation clearly shows that the consensual bond required for optional clause declarations to found the jurisdiction of the Court cannot take root in the environment created by Kenya’s reservation and that, therefore, there is no agreed procedure within the terms of Article 282 of UNCLOS to be applied in lieu of the procedures in Part XV.

He concludes that the net ef f ect of the majority Judgment is to turn Article 287, paragraph 3, of UNCLOS on its head by treating the ICJ as the default mechanism when that provision assigns that role to the Annex VII Tribunal referred to in Article 287, paragraph 1, subparagraph (c).

Dissenting opinion of Judge ad hoc Guillaume

Judge ad hoc Guillaume disagrees with the Court’s decision to reject the fi rst preliminary objection raised by Kenya in so far as it is based on the Memorandum of Understanding (MOU) of 7 April 2009. He takes the view that paragraph 6 of the MOU, interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of the MOU’s object and purpose, establishes a method of settlement for the maritime delimitation dispute between Somalia and Kenya. By agreeing to it, the Parties undertook to negotiate with a view to reaching an agreement once the Commission on the Limits had reviewed their respective submissions concerning the outer limits of the continental shelf beyond 200 nautical miles.

Judge ad hoc Guillaume further considers that the discussions held by the Parties in 2014 cannot be construed as a subsequent agreement on the interpretation of paragraph 6 of the MOU, or as the expression of a renunciation by Kenya of its rights under that paragraph. Finally, in his view it cannot be argued that the obligation to negotiate contained in paragraph 6 has been exhausted. Judge ad hoc Guillaume therefore concludes that, in view of Kenya’s reservation to its declaration made under Article 36, paragraph 2, of the Statute – which excludes disputes in regard to which the parties to the dispute have agreed to have recourse to some other method of settlement – the Court should have found that it lacks jurisdiction.

JAMAICA, Kingston （12 May 2017）－ The International Seabed Authority and China MINMETALS Corporation have signed a 15-year exploration contract for polymetallic nodules.

The exploration contract was signed on Friday, 12 May in Beijing, China by the Secretary-General of the International Seabed Authority, Michael Lodge and the Chairman of China MINMETALS Corporation, He Wenbo.

The allocated area covers a surface area of 72,745 km2 of the Clarion-Clipperton Fracture Zone in the Pacif i c Ocean.

At the signing ceremony, Secretary-General Lodge said “China, and indeed the whole world, is facing a tremendous challenge – how can we meet an increasing metal demand in an environmentally sustainable way? In two weeks’ time, we shall be meeting at the United Nations in New York to discuss the challenges for the implementation of Sustainable Development Goal 14; the conservation and sustainable use of the ocean and its resources”.

“If we are serious about developing a blue economy, based on sustainable use of marine resources, and a low carbon future, we are going to need an increased supply of metals for the world economy. Renewable technologies for example require two to three times more steel per megawatt generated that conventional infrastructure. Increased supplies of strategic metals such as cobalt and tellurium will also be needed”.

“We also need to acquire these minerals without increasing our overall carbon footprint”.

China is also sponsoring another contractor with the Authority for the exploration for polymetallic nodules in the Clarion Clipperton Zone since 2001, and for which a fi ve-year extension was signed recently between Secretary-General Lodge and COMRA Secretary-General Liu Feng.

China also sponsors COMRA in contracts for exploration for polymetallic sulphides in the Southwest Indian Ridge and for exploration for cobalt-rich ferromanganese crusts in the West Pacif i c Ocean.

AGREEMENT ON ENHANCING INTERNATIONAL ARCTIC SCIENTIFIC COOPERATION

（Arctic Council, 11 May 2017）

Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

Summary of the Judgment of 2 February 2017

CHINA MINMETALS CORPORATION SIGNS EXPLORATION CONTRACT WITH THE INTERNATIONAL SEABED AUTHORITY