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Kenya fears over maritime territorial row with Somali

By Kamau Muthoni | March 22nd 2019 at 12:00:00 GMT +0300

President Uhuru Kenyatta, Ethiopian Prime Minister Abiy Ahmed and Somalia President Abdullahi Farmajo when they met on Wednesday morning in Nairobi to discuss the source of maritime dispute. [Photo Courtesy]

Country believes that just like in the past, the two parties have not exhausted all the dispute settlement mechanisms.

A leaked document suggests a Somali Minister made a presentation at an auction in London, where the Kenya's neighbour auctioned four contested oil blocks, with the agreement due to be implemented in January 2020.

Kenyan authorities have raised eyebrows at this dateline given the International Court of Justice (ICJ) case between her and Somalia on the disputed maritime boundary will be heard in September this year and a decision unlikely by January.

Somalia had disputed that the auction of oil blocks 230, 231, 232 and 233 ever took place, but the 21-page document details the presentation by Petroleum and Mineral Resources Minister Abdirashid Mohamed Ahmed in London at Claridges Hotel, at which Somalia put up the three oil blocks in the Indian Ocean for sale.

Although Somalia and Kenya had for decades had a mutual agreement on the borderline, the former's authorities lodged the dispute at the ICJ just a year after Soma Oil Limited, chaired by former British Conservative Party leader Michael Howard, inked its deal with the Horn of Africa nation on August 13, 2013.

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Somalia’s current Prime Minister Hassan Ali Khaire is a former Soma Oil executive director.

Somalia took a turnaround on its 35-year standing agreement with Kenya to file a claim before The Hague-based court.

In 1982, Somalia, through current president of ICJ Abdulqawi Ahmed Yusuf, supported Kenya’s equitable sharing idea. This presentation was made in a UN conference on the law of the sea.

Justice Ahmed, a Somali national, now presides over the court in which his motherland has sought to extend its claim in the sea.

“Such delimitation should be effected in accordance to equitable principles,” he said in a conference held in Montego Bay, Jamaica on December 10, 1982.

“Somalia is not offering, nor does it have any plans to offer any blocks in the disputed maritime area until the parties' maritime boundary is decided by the ICJ," Somalia replied to Kenya’s protest that it had sold the blocks.

For the last 35 years, the two countries respected a maritime boundary running eastward as contained in the 1979 Presidential Proclamation until 2014 when Somalia took Kenya to court.

The dispute between Kenya and Somalia dates back to independence. The war- scarred country had claimed parts of the former Northern Frontier districts of Kenya (North Eastern Province).

The regions that Somalia then claimed belong to her included Northern Kenya, Ogaden in Ethiopia, Djibouti and Somaliland as well as its present territory.

The dispute after independence was about land territory. The past disputes between the two states were resolved through amicable agreements mediated by Congo and Zambia under Organisation of African Unity.

It was after these mediations that Kenya opened its boundaries and Nairobi established diplomatic relations with Somalia.

To the current maritime dispute, during the signing of the memorandum of understanding on April 7, 2009 in Nairobi, Kenya was represented by then Minister for Foreign Affairs Moses Wetang’ula. Somalia’s Minister for National Planning and International Co-operation Abdirahman Warsame represented his nation. 

Prior to the matter being submitted to the international court, both countries were on the verge of delimiting their maritime boundaries with a view of undertaking explorations within the waters to harness available resources.

States agreed

The two states had agreed they would make separate submissions to the Commission on the Limits of Continental Shelf (CLCLS).  

During negotiations on the development of the Law of the Sea in 1974, Africa, as a united region, sent its delegation to UN for negotiations. The team was led by two Kenyans - Prof Frank Njenga, who was then Ministry of Foreign Affairs PS, and a Mr Adede.

At the meeting, countries were allowed to proclaim their sea boundaries using either an equitable sharing formula or the equidistance sharing formula using geographical points of a nation’s territory.

Kenya and Somalia advocated use of the equitable sharing formula that allows coastal states equal access to water resources. The head of the Somalia delegation at the time of the negotiations was Abdulqawi, who is the current President of the ICJ.

During the third UN Conference on the Law of the Sea, held in Montego Bay, Jamaica in December, 1982, Yusuf stated: “Such delimitation should be effected in accordance to equitable principles.”

While Kenya recognises international courts for the settlement of disputes, she believes that just like in the past, the two parties have not exhausted all the dispute settlement mechanisms in place, including regional bodies such as the African Union.

Kenya remains skeptical that the resolutions arrived at will be in her best interests.

At independence, all African countries, except Somalia and Morocco, agreed to retain their colonial boundaries as had been demarcated. The two countries were perhaps driven to policies of expansionism, with Somalia believing in its five-point flag while Morocco sought to expand its territory to the Western Sahel.

When Kenya proclaimed its boundaries in 1979, Somalia accented to the same and deposited the proclamation at the United Nations. The Proclamation for the Exclusive Economic Zone (EEZ) means that Kenya has a right to explore any natural resources and minerals in the delineated area.

“The delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law,” the agreement states.

The Declaration dated February 28, 1979, and signed by then President Daniel arap Moi, read that Somalia’s waters boundary was at the Eastern Latitude, South of Diua Damasciaca Island. The proclamation, Moi noted, did not derogate Kenya’s right over the continental shelf, as defined in the Continental Shelf Act of 1973.

The Act defines a continental shelf to include the seabed and sub-soil of the submarine areas adjacent to the Coast of Kenya. President Moi’s proclamation was conferred by UN in 1982.

In 2005 Kenya’s third President Mwai Kibaki made another proclamation, slightly amending the 1979 one for clarity.

Emerging question in the case is: Why are five permanent members of ICJ no longer bound by the rules of the international court, yet they would like other countries to be bound?

This is considering that the five member states declared they would not subject themselves to the veto powers of the court.

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