（國家發(fā)展改革委、國家海洋局，2017年6月20日）

“一帶一路”建設海上合作設想

（國家發(fā)展改革委、國家海洋局，2017年6月20日）

2013年，中國國家主席習近平先后提出共建“絲綢之路經(jīng)濟帶”和“21世紀海上絲綢之路”的重大倡議。2015年，中國政府發(fā)布《推動共建絲綢之路經(jīng)濟帶和21世紀海上絲綢之路的愿景與行動》，提出以政策溝通、設施聯(lián)通、貿(mào)易暢通、資金融通、民心相通為主要內(nèi)容，堅持共商、共建、共享原則，積極推動“一帶一路”建設，得到國際社會的廣泛關注和積極回應。

為進一步與沿線國加強戰(zhàn)略對接與共同行動，推動建立全方位、多層次、寬領域的藍色伙伴關系，保護和可持續(xù)利用海洋和海洋資源，實現(xiàn)人海和諧、共同發(fā)展，共同增進海洋福祉，共筑和繁榮21世紀海上絲綢之路，國家發(fā)展和改革委員會、國家海洋局特制定并發(fā)布《“一帶一路”建設海上合作設想》。

一、時代背景

海洋是地球最大的生態(tài)系統(tǒng)，是人類生存和可持續(xù)發(fā)展的共同空間和寶貴財富。隨著經(jīng)濟全球化和區(qū)域經(jīng)濟一體化的進一步發(fā)展，以海洋為載體和紐帶的市場、技術(shù)、信息等合作日益緊密，發(fā)展藍色經(jīng)濟逐步成為國際共識，一個更加注重和依賴海上合作與發(fā)展的時代已經(jīng)到來?！蔼毿锌欤娦羞h”。加強海上合作順應了世界發(fā)展潮流與開放合作大勢，是促進世界各國經(jīng)濟聯(lián)系更趨緊密、互惠合作更加深入、發(fā)展空間更為廣闊的必然選擇，也是世界各國一道共同應對危機挑戰(zhàn)、促進地區(qū)和平穩(wěn)定的重要途徑。

中國政府秉持和平合作、開放包容、互學互鑒、互利共贏的絲綢之路精神，致力于推動聯(lián)合國制定的《2030年可持續(xù)發(fā)展議程》在海洋領域的落實，愿與21世紀海上絲綢之路沿線各國一道開展全方位、多領域的海上合作，共同打造開放、包容的合作平臺，建立積極務實的藍色伙伴關系，鑄造可持續(xù)發(fā)展的“藍色引擎”。

二、合作原則

求同存異，凝聚共識。維護國際海洋秩序，尊重沿線國多樣化的海洋發(fā)展理念，照顧彼此關切，彌合認知差異，求大同，存小異，廣泛協(xié)商，逐步達成合作共識。

開放合作，包容發(fā)展。進一步開放市場，改善投資環(huán)境，消除貿(mào)易壁壘，促進貿(mào)易和投資便利化。增強政治互信，加強不同文明之間的對話，倡導包容發(fā)展、和諧共生。

市場運作，多方參與。遵循市場規(guī)律和國際通行規(guī)則，充分發(fā)揮企業(yè)的主體作用。支持建立多利益攸關方伙伴關系，推動各國政府、國際組織、民間社團、工商界等廣泛參與海上合作。

共商共建，利益共享。尊重沿線國發(fā)展意愿，兼顧各方利益，發(fā)揮各方比較優(yōu)勢，共謀合作、共同建設、共享成果，促進發(fā)展中國家消除貧困，推動形成海上合作的利益共同體。

三、合作思路

以海洋為紐帶增進共同福祉、發(fā)展共同利益，以共享藍色空間、發(fā)展藍色經(jīng)濟為主線，加強與21世紀海上絲綢之路沿線國戰(zhàn)略對接，全方位推動各領域務實合作，共同建設通暢安全高效的海上大通道，共同推動建立海上合作平臺，共同發(fā)展藍色伙伴關系，沿著綠色發(fā)展、依海繁榮、安全保障、智慧創(chuàng)新、合作治理的人海和諧發(fā)展之路相向而行，造福沿線各國人民。

根據(jù)21世紀海上絲綢之路的重點方向，“一帶一路”建設海上合作以中國沿海經(jīng)濟帶為支撐，密切與沿線國的合作，連接中國－中南半島經(jīng)濟走廊，經(jīng)南海向西進入印度洋，銜接中巴、孟中印緬經(jīng)濟走廊，共同建設中國－印度洋－非洲－地中海藍色經(jīng)濟通道；經(jīng)南海向南進入太平洋，共建中國－大洋洲－南太平洋藍色經(jīng)濟通道；積極推動共建經(jīng)北冰洋連接歐洲的藍色經(jīng)濟通道。

四、合作重點

圍繞構(gòu)建互利共贏的藍色伙伴關系，創(chuàng)新合作模式，搭建合作平臺，共同制定若干行動計劃，實施一批具有示范性、帶動性的合作項目，共走綠色發(fā)展之路，共創(chuàng)依海繁榮之路，共筑安全保障之路，共建智慧創(chuàng)新之路，共謀合作治理之路。

（一）共走綠色發(fā)展之路

維護海洋健康是最普惠的民生福祉，功在當代、利在千秋。中國政府倡議沿線國共同發(fā)起海洋生態(tài)環(huán)境保護行動，提供更多優(yōu)質(zhì)的海洋生態(tài)服務，維護全球海洋生態(tài)安全。

保護海洋生態(tài)系統(tǒng)健康和生物多樣性。加強在海洋生態(tài)保護與修復、海洋瀕危物種保護等領域務實合作，推動建立長效合作機制，共建跨界海洋生態(tài)廊道。聯(lián)合開展紅樹林、海草床、珊瑚礁等典型海洋生態(tài)系統(tǒng)監(jiān)視監(jiān)測、健康評價與保護修復，保護海島生態(tài)系統(tǒng)和濱海濕地，舉辦濱海濕地國際論壇。

推動區(qū)域海洋環(huán)境保護。加強在海洋環(huán)境污染、海洋垃圾、海洋酸化、赤潮監(jiān)測、污染應急等領域合作，推動建立海洋污染防治和應急協(xié)作機制，聯(lián)合開展海洋環(huán)境評價，聯(lián)合發(fā)布海洋環(huán)境狀況報告。建立中國－東盟海洋環(huán)境保護合作機制。在中國－東盟環(huán)境合作戰(zhàn)略與行動計劃框架下，推動開展海洋環(huán)境保護合作。倡議沿線國共同發(fā)起和實施綠色絲綢之路使者計劃，提高沿線各國海洋環(huán)境污染防治能力。

加強海洋領域應對氣候變化合作。推動開展海洋領域的循環(huán)低碳發(fā)展應用示范。中國政府支持沿線小島嶼國家應對全球氣候變化，愿意在應對海洋災害、海平面上升、海岸侵蝕、海洋生態(tài)系統(tǒng)退化等方面提供技術(shù)援助，支持沿線國開展海島、海岸帶狀況調(diào)查與評估。

加強藍碳國際合作。中國政府倡議發(fā)起21世紀海上絲綢之路藍碳計劃，與沿線國共同開展海洋和海岸帶藍碳生態(tài)系統(tǒng)監(jiān)測、標準規(guī)范與碳匯研究，聯(lián)合發(fā)布21世紀海上絲綢之路藍碳報告，推動建立國際藍碳論壇與合作機制。

（二）共創(chuàng)依海繁榮之路

促進發(fā)展、消除貧困是沿線各國人民的共同愿望。發(fā)揮各國比較優(yōu)勢，科學開發(fā)利用海洋資源，實現(xiàn)互聯(lián)互通，促進藍色經(jīng)濟發(fā)展，共享美好生活。

加強海洋資源開發(fā)利用合作。與沿線國合作開展資源調(diào)查、建立資源名錄和資源庫，協(xié)助沿線國編制海洋資源開發(fā)利用規(guī)劃，并提供必要的技術(shù)援助。引導企業(yè)有序參與海洋資源開發(fā)項目。積極參與涉海國際組織開展的海洋資源調(diào)查與評估。

提升海洋產(chǎn)業(yè)合作水平。與沿線國共建海洋產(chǎn)業(yè)園區(qū)和經(jīng)貿(mào)合作區(qū)，引導中國涉海企業(yè)參與園區(qū)建設。實施一批藍色經(jīng)濟合作示范項目，支持沿線發(fā)展中國家發(fā)展海水養(yǎng)殖，改善生活水平，減輕貧困。與沿線國共同規(guī)劃開發(fā)海洋旅游線路，打造精品海洋旅游產(chǎn)品，建立旅游信息交流共享機制。

推進海上互聯(lián)互通。加強國際海運合作，完善沿線國之間的航運服務網(wǎng)絡，共建國際和區(qū)域性航運中心。通過締結(jié)友好港或姐妹港協(xié)議、組建港口聯(lián)盟等形式加強沿線港口合作，支持中國企業(yè)以多種方式參與沿線港口的建設和運營。推動共同規(guī)劃建設海底光纜項目，提高國際通信互聯(lián)互通水平。

提升海運便利化水平。加強與有關國家的溝通協(xié)調(diào)，圍繞規(guī)范國際運輸市場、提升運輸便利化水平等方面緊密合作。加快與有關國家在口岸監(jiān)管互認、執(zhí)法互助、信息互換等方面的合作。

推動信息基礎設施聯(lián)通建設。共建覆蓋21世紀海上絲綢之路的信息傳輸、處理、管理、應用體系以及信息標準規(guī)范體系和信息安全保障體系，為實現(xiàn)網(wǎng)絡互聯(lián)互通、信息資源共享提供公共平臺。

積極參與北極開發(fā)利用。中國政府愿與各方共同開展北極航道綜合科學考察，合作建立北極岸基觀測站，研究北極氣候與環(huán)境變化及其影響，開展航道預報服務。支持北冰洋周邊國家改善北極航道運輸條件，鼓勵中國企業(yè)參與北極航道的商業(yè)化利用。愿同北極有關國家合作開展北極地區(qū)資源潛力評估，鼓勵中國企業(yè)有序參與北極資源的可持續(xù)開發(fā)，加強與北極國家的清潔能源合作。積極參與北極相關國際組織的活動。

（三）共筑安全保障之路

維護海上安全是發(fā)展藍色經(jīng)濟的重要保障。倡導互利合作共贏的海洋共同安全觀，加強海洋公共服務、海事管理、海上搜救、海洋防災減災、海上執(zhí)法等領域合作，提高防范和抵御風險能力，共同維護海上安全。

加強海洋公共服務合作。中國政府倡議發(fā)起21世紀海上絲綢之路海洋公共服務共建共享計劃，倡導沿線國共建共享海洋觀測監(jiān)測網(wǎng)和海洋環(huán)境綜合調(diào)查測量成果，加大對沿線發(fā)展中國家海洋觀測監(jiān)測基礎設施的技術(shù)和設備援助。中國政府愿加強北斗衛(wèi)星導航和遙感衛(wèi)星系統(tǒng)在海洋領域應用的國際合作，為沿線國提供衛(wèi)星定位和遙感信息應用與服務。

開展海上航行安全合作。中國政府愿承擔相應的國際義務，參與雙多邊海上航行安全與危機管控機制，共同開展打擊海上犯罪等非傳統(tǒng)安全領域活動，共同維護海上航行安全。

開展海上聯(lián)合搜救。在國際公約框架下，中國政府愿承擔相應的國際義務，加強與沿線國信息交流和聯(lián)合搜救，建立海上搜救力量互訪、搜救信息共享、搜救人員交流培訓與聯(lián)合演練，提升災難處置、旅游安全等海上突發(fā)事件的共同應急與行動能力。

共同提升海洋防災減災能力。倡議共建南海、阿拉伯海和亞丁灣等重點海域的海洋災害預警報系統(tǒng)，共同研發(fā)海洋災害預警報產(chǎn)品，為海上運輸、海上護航、災害防御等提供服務。支持南海海嘯預警中心業(yè)務化運行，為周邊國家提供海嘯預警服務。推動與沿線國共建海洋防災減災合作機制，設立培訓基地，開展海洋災害風險防范、巨災應對合作研究和應用示范，為沿線國提供技術(shù)援助。

推動海上執(zhí)法合作。加強與沿線國對話，管控分歧，在雙多邊框架下推動海上執(zhí)法合作，建立完善海上聯(lián)合執(zhí)法、漁業(yè)執(zhí)法、海上反恐防暴等合作機制，推動構(gòu)筑海上執(zhí)法聯(lián)絡網(wǎng)，共同制定突發(fā)事件應急預案。加強與沿線國海上執(zhí)法部門的交流合作，為海上執(zhí)法培訓提供必要幫助。

（四）共建智慧創(chuàng)新之路

創(chuàng)新是引領海洋可持續(xù)發(fā)展的源動力。深化海洋科學研究、教育培訓、文化交流等領域合作，增進海洋認知，促進科技成果應用，為深化海上合作奠定民意基礎。

深化海洋科學研究與技術(shù)合作。與沿線各國共同發(fā)起海洋科技合作伙伴計劃，聯(lián)合開展21世紀海上絲綢之路重點海域和通道科學調(diào)查與研究、季風－海洋相互作用觀測研究以及異常預測與影響評估等重大項目。深化在海洋調(diào)查、觀測裝備、可再生能源、海水淡化、海洋生物制藥、海洋食品技術(shù)、海上無人機、無人船等領域合作，加強海洋技術(shù)標準體系對接與技術(shù)轉(zhuǎn)讓合作，支持科研機構(gòu)和企業(yè)共建海外技術(shù)示范和推廣基地。

共建海洋科技合作平臺。與沿線國共建海洋研究基礎設施和科技資源互聯(lián)共享平臺，合作建設海洋科技合作園。推進亞太經(jīng)合組織海洋可持續(xù)發(fā)展中心、東亞海洋合作平臺、中國－東盟海洋合作中心、中國－東盟海洋學院、中國－東亞海環(huán)境管理伙伴關系計劃海岸帶可持續(xù)管理合作中心、中馬海洋聯(lián)合研究中心、中印尼海洋與氣候中心、中泰氣候與海洋生態(tài)系統(tǒng)聯(lián)合實驗室、中巴聯(lián)合海洋研究中心、中以海水淡化聯(lián)合研究中心等建設，共同提高海洋科技創(chuàng)新能力。

共建共享智慧海洋應用平臺。共同推動國家間海洋數(shù)據(jù)和信息產(chǎn)品共享，建立海洋數(shù)據(jù)中心之間的合作機制和網(wǎng)絡，共同開展海洋數(shù)據(jù)再分析研究與應用，建設21世紀海上絲綢之路海洋和海洋氣候數(shù)據(jù)中心。共同研發(fā)海洋大數(shù)據(jù)和云平臺技術(shù)，建設服務經(jīng)濟社會發(fā)展的海洋公共信息共享服務平臺。

開展海洋教育與文化交流。繼續(xù)實施中國政府海洋獎學金計劃，擴大沿線國來華人員的研修與培訓規(guī)模。推動實施海洋知識與文化交流融通計劃，支持中國沿海城市與沿線國城市結(jié)為友好城市，加強與沿線國海洋公益組織和科普機構(gòu)的交流與合作。弘揚媽祖海洋文化，推進世界媽祖海洋文化中心建設，促進海洋文化遺產(chǎn)保護、水下考古與發(fā)掘等方面的交流合作，與沿線國互辦海洋文化年、海洋藝術(shù)節(jié)，傳承和弘揚21世紀海上絲綢之路友好合作精神。

共同推進涉海文化傳播。加強媒體合作，開展跨境采訪活動，共建21世紀海上絲綢之路媒體朋友圈。創(chuàng)新傳播方式，共同打造體現(xiàn)多國文明、融合多語種的媒介形態(tài)。攜手開展涉海文藝創(chuàng)作，共同制作展現(xiàn)沿線各國風土人情、友好往來的文藝作品，夯實民意基礎。

（五）共謀合作治理之路

建立緊密的藍色伙伴關系是推動海上合作的有效渠道。加強戰(zhàn)略對接與對話磋商，深化合作共識，增進政治互信，建立雙多邊合作機制，共同參與海洋治理，為深化海上合作提供制度性保障。

建立海洋高層對話機制。與沿線國建立多層次、多渠道的溝通磋商與對話機制，推動簽署政府間、部門間海洋合作文件，共同制定合作計劃、實施方案和路線圖，共同推動重大項目實施。推動建立21世紀海上絲綢之路沿線國高層對話機制，共同推動行動計劃的實施，共同應對海洋重大問題。辦好中國－小島嶼國家海洋部長圓桌會議、中國－南歐國家海洋合作論壇。

建立藍色經(jīng)濟合作機制。設立全球藍色經(jīng)濟伙伴論壇，推廣藍色經(jīng)濟新理念和新實踐，推動產(chǎn)業(yè)對接與產(chǎn)能合作。共同制定并推廣藍色經(jīng)濟統(tǒng)計分類國際標準，建立數(shù)據(jù)共享平臺，開展21世紀海上絲綢之路沿線國藍色經(jīng)濟評估，編制發(fā)布藍色經(jīng)濟發(fā)展報告，分享成功經(jīng)驗。打造海洋金融公共產(chǎn)品，支持藍色經(jīng)濟發(fā)展。

開展海洋規(guī)劃研究與應用。共同推動制定以促進藍色增長為目標的跨邊界海洋空間規(guī)劃、實施共同原則與標準規(guī)范，分享最佳實踐和評估方法，推動建立包括相關利益方的海洋空間規(guī)劃國際論壇。中國政府愿為沿線國提供海洋發(fā)展規(guī)劃相關培訓與技術(shù)援助，為制定海洋發(fā)展規(guī)劃提供幫助。

加強與多邊機制的合作。支持在亞太經(jīng)合組織、東亞合作領導人系列會議、中非合作論壇、中國－太平洋島國經(jīng)濟發(fā)展合作論壇等多邊合作機制下，建立海洋合作機制與制度規(guī)則。支持聯(lián)合國政府間海洋學委員會、東亞海環(huán)境合作伙伴、環(huán)印度洋聯(lián)盟、國際海洋學院等發(fā)揮作用，共同組織推進重大計劃和項目。

加強智庫交流合作。推動沿線國智庫對話交流，合作開展戰(zhàn)略、政策對接研究，共同發(fā)起重大倡議，為共建21世紀海上絲綢之路提供智力支撐。中國政府支持國內(nèi)智庫與沿線國相關機構(gòu)和國際性海洋組織建立戰(zhàn)略合作伙伴關系，推動建立21世紀海上絲綢之路智庫聯(lián)盟，打造合作平臺與協(xié)作網(wǎng)絡。

加強民間組織合作。鼓勵與沿線國民間組織開展海洋公益服務、學術(shù)研討、文化交流、科技合作、知識傳播等活動，推動民間組織合作與政府間合作相互促進，共同參與海洋治理。

五、積極行動

中國政府高度重視與有關國家的海上合作，加強戰(zhàn)略溝通，搭建合作平臺，開展了一系列合作項目，總體進展順利。

高層引領推動。在中國與相關國家領導人的見證下，與泰國、馬來西亞、柬埔寨、印度、巴基斯坦、馬爾代夫、南非等國簽署了政府間海洋領域合作協(xié)議、合作備忘錄和聯(lián)合聲明，與多個沿線國開展戰(zhàn)略對接，建立了廣泛的海洋合作伙伴關系。

搭建合作平臺。在亞太經(jīng)合組織、東亞合作領導人系列會議、中國－東盟合作框架等機制下建立了藍色經(jīng)濟論壇、海洋環(huán)保研討會、海事磋商、海洋合作論壇、中國－東盟海洋合作中心、東亞海洋合作平臺等合作機制。相繼舉辦21世紀海上絲綢之路博覽會、21世紀海上絲綢之路國際藝術(shù)節(jié)、世界媽祖海洋文化論壇等一系列以21世紀海上絲綢之路為主題的活動，對增進理解、凝聚共識、深化海上合作發(fā)揮了重要作用。

加大資金投入。中國政府統(tǒng)籌國內(nèi)資源，設立中國－東盟海上合作基金和中國－印尼海上合作基金，實施《南海及其周邊海洋國際合作框架計劃》。亞洲基礎設施投資銀行、絲路基金對重大海上合作項目提供了資金支持。

推進內(nèi)外對接。中國政府鼓勵環(huán)渤海、長三角、海峽西岸、珠三角等經(jīng)濟區(qū)和沿海港口城市發(fā)揮地方特色，加大開放力度，深化與沿線國的務實合作。支持福建21世紀海上絲綢之路核心區(qū)、浙江海洋經(jīng)濟發(fā)展示范區(qū)、福建海峽藍色經(jīng)濟試驗區(qū)和舟山群島海洋新區(qū)建設，加大海南國際旅游島開發(fā)開放力度。推進海洋經(jīng)濟創(chuàng)新發(fā)展示范城市建設，啟動海洋經(jīng)濟發(fā)展示范區(qū)建設。

促成項目落地。馬來西亞馬六甲臨海工業(yè)園區(qū)建設加緊推進。巴基斯坦瓜達爾港運營能力提升，港口自由區(qū)建設、招商工作穩(wěn)步推進。緬甸皎漂港“港口+園區(qū)+城市”綜合一體化開發(fā)取得進展。斯里蘭卡科倫坡港口城、漢班托塔港二期工程有序推進。埃塞俄比亞至吉布提鐵路建成通車，肯尼亞蒙巴薩至內(nèi)羅畢鐵路即將通車。希臘比雷埃夫斯港已建設成為重要的中轉(zhuǎn)樞紐港。中國與荷蘭合作開發(fā)海上風力發(fā)電，與印尼、哈薩克斯坦、伊朗等國的海水淡化合作項目正在推動落實。海底通信互聯(lián)互通水平大幅提高，亞太直達海底光纜（APG）正式運營。中馬欽州－關丹“兩國雙園”、柬埔寨西哈努克港經(jīng)濟特區(qū)、埃及蘇伊士經(jīng)貿(mào)合作區(qū)等境外園區(qū)建設成效顯著。

展望未來，中國政府愿用信心和誠意與沿線各國共同推進“一帶一路”建設海上合作，共享機遇，共迎挑戰(zhàn)，共謀發(fā)展，共同行動，珍愛共有海洋，守護藍色家園，共同推動實現(xiàn)21世紀海上絲綢之路的宏偉藍圖。

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, Can?ado 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, Can?ado 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, Can?ado 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, Can?ado 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