The case at the international court could have dire consequences on the Kenya-Tanzania relations and regional cooperation as well
BY TNLM REPORTER
Kenya’s oil discovery frenzy is under threat as Somalia moves to claim the coastline. The area in dispute has about five exploration blocks already occupied by a number of companies, including America’s Anardako Petroleum Corporation, Eni S.P.A of Italy, and Total S.A of France.
The wartorn country has instituted proceedings against Kenya at the International Court of Justice (ICJ), the principal judicial organ of the United Nations, with regard to “a dispute concerning maritime delimitation in the Indian Ocean”, the UN said in a statement.
The decision followed the breakdown of diplomatic talks between the neighbours. “None of these negotiation sessions have yielded agreement. Indeed, no meaningful progress toward agreement has been achieved at any of them,” Somalia says in its plea to the UN.
Equipped with sketch maps (see above and next page), Somalia claims that Kenya has occupied its territory, and given it out to oil explorers.
Somalia explains that the boundary line in the territorial sea “should be a median line … since there are no special circumstances that would justify departure from such a line” and that, in the EEZ (exclusive economic zones) and continental shelf, the boundary “should be established according to the three-step process the Court has consistently employed in its application of Articles 74 and 83”.
“Kenya has acted unilaterally on the basis of its purported parallel boundary with Somalia, including in the territorial sea, to exploit both the living and non-living resources on the Somalia’s side of the provisionally drawn equidistant line. It has, for example, offered a number of petroleum exploration blocks that extend up to the northern limit of the parallel boundary it claims
On the other hand, Kenya Kenya’s current position on the maritime boundary is that it should be a straight line emanating from the joint where the boundaries of the two countries lock, and extending due east along the parallel of latitude on which the land boundary meet, through the full extent of the territorial sea, EEZ and continental shelf, including the continental shelf beyond 200 [nautical miles.
Somalia thus requests the Court “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]”. It further asks the Court “to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean”.
Somalia contends that both States “disagree about the location of the maritime boundary in the area where their maritime entitlements overlap”, and asserts that “diplomatic negotiations, in which their respective views have been fully exchanged, have failed to resolve this disagreement”.
The claim by Somalia has left the Kenya government on edge. But experts are concerned about the likely fall-out if Somalia has its way. “Kenya could also claim to redraw its boundary with Tanzania. This can be so dangerous to regional stability,” says a senior official in Kenya’s Ministry of Foreign Affairs. “It could be a terrible precedence.”
According to Karanja Kibicho, the principal secretary, Foreign Affairs, “this claim by Somalia could make Kenya a landlocked country which may restrict our access to the high seas. And if the alterations adopt the proposal by Somalia then the island of Pemba will become part of Kenya”.
It would appear Kenya’s failure to craft legislation to protect its boundaries has come to haunt it, just a couple of years after Uganda seized Migingo island. “I don’t think we have been serious with the issue of protecting our borders. We have taken a cavalier attitude, which is terrible,” a State counsel says.
A series of meetings between February and March hardly bore fruits. In July, Kenya asked for a meeting in Mogadishu on July 25-26, 2014 to find a way of resolving the issue. “Although the Somalia delegation was ready to meet on those days, the Kenya delegation, without providing advance notification nor subsequent explanation, failed to arrive and, as a consequence, the additional round of meetings that Kenya had requested were not held.
“The inability of parties to narrow the differeneces between them, and the failure of the Kenyan delegation to attend the final meeting, have made manifest the need for judicial resolution of this dispute.”
But Kenya’s Foreign Affairs secretary Amina Mohammed states that “ee are in discussions with the government of Somalia. It is unfortunate they logged their complaints even as we dialogued over this matter,” according to the Daily Nation newspaper.
Somalia submits that “the jurisdiction of the Court under Article 36, paragraph 2, of its Statute is underscored by Article 282 of UNCLOS”, which Somalia and Kenya both ratified in 1989.
Article 282 of the United Nations Convention on the Law of the Sea provides that: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”
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