Inside the Kenya-Somalia dispute over maritime territory

President Uhuru Kenyatta with President of the Federal Republic of Somalia Mohamed Abdullahi Mohamed at State House, Nairobi: A maritime territorial dispute is threatening relations between the two countries. [File, Standard]

The Kenya-Somalia maritime territorial dispute has escalated into a full-blown diplomatic war with Nairobi expelling the Somali ambassador and recalling its top envoy from Mogadishu.

This is after Nairobi accused Mogadishu of auctioning oil exploration rights for a disputed part of the Indian Ocean which dispute is yet to be resolved in an international court.

The tussle began in August 2014 when Somalia sued Kenya at the International Court of Justice at The Hague, Netherlands, for unlawful operations in her maritime territory.

The disputed water is a triangular patch created by projecting the Kenya-Somali border eastwards. It measures 100,000 square kilometres.

In October 2015 Kenya challenged the jurisdiction of the ICJ to hear the case as well as its admissibility.

The ICJ then held the first hearing on September 19 to 20, 2016 of Kenya's petition.  In February 2017 it quashed Kenya's plea, affirming its suitability to hear the case.

The border row simmered under a raft of peacekeeping efforts.

The matter burst into the public domain December 18, 2017, when Kenyan's Attorney General Prof Githu Mungai revealed that Kenya would be filing a Counter-Memorial, a response against Somalia's claims before the ICJ.

Part of his press statement read: "The Republic of Kenya submits that the maritime boundary with Somalia is along a parallel of latitude as was decreed in the Presidential Proclamation of 1979.  This maritime boundary was revised for greater accuracy in a Second Presidential Proclamation in 2005."

Kenya wants the border to run along parallel latitude south-east of Kyunga while Somalia is pressing for a diagonal line down the Kenyan Coast.

Kenya noted that it had extended its claim beyond the 200 nautical miles in its submission before the United Nations Commission on the Limits of Continental Shelf conducted in 2009.

In the statement, Kenya accused Somalia of accepting the decree on boundaries and reneging its position later.

"Somalia has since 1979 recognized and respected the maritime boundary between the two countries along a parallel of latitude. However, in 2014, shortly before filing its case with the Court, Somalia claimed a maritime boundary along an equidistance line, ignoring the 35-year practice of recognizing and respecting the maritime boundary along a parallel of latitude," the statement further reads.

Nairobi then insisted that its maritime activities such as naval patrols, fishing, maritime research and fishing were legal owing to 1979 decree.

As Kenya waited for the court's verdict, it held the position that a negotiated solution outside was the most preferable.

However, last week Somalia, according to Kenyan authorities, Somalia auctioned oil-prospecting right in the disputed area

On Sunday, February 17, 2019, Nairobi issued three demands to Mogadishu as some of the irreducible minimums to solve the dispute.

Kenya wants Somalia to pull down a map she had presented at an economic forum in London showing the disputed triangle as Somalia's.

Kenya now wants Somalia to inform the investors that she does not claim the oil blocks and therefore has no jurisdiction to strike a deal on them.

On Sunday, Foreign Affairs Principal Secretary Macharia Kamau said: "Our wish as good neighbours is that we resolve this thing out of court. Friends don't take each to court; they sit down and discuss. That's what we expect of Somalia."

While Kenya did not give a deadline, Somalia responded by denying the auction but was tight-lipped on the preferred dispute resolution mechanism.

The communication came after a high profile meeting in Mogadishu attended by Somali President and Prime Minister.

On Saturday, February 16, 2019, Kenya called Ambassador Lucas Tumbo from Mogadishu to Nairobi for what the government later termed as consultations. Meanwhile, Somalia ambassador Mohamoud Ahmed Nur in Nairobi was expelled.

Kenya's options

With Somalia insisting that the boundary must proceed on the same trajectory into the ocean, Kenya wants it to run parallel to a latitude eastward. The disputed area, area according to Tullow is listed as Location 28 and 29 in Kenya's 30 Oil blocks and is assigned to US energy company CAMAC.