10.4.2021
Somalia vs. Kenya - The maritime border dispute - africanlegalstudies.blog
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Somalia vs. Kenya – The maritime border dispute
By René Brosius < https://africanlegalstudies.blog/author/rene-brosius/>
10. April 2021 < https://africanlegalstudies.blog/2021/04/10/somalia-vs-kenyathe-maritime-border-dispute/>
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Source: AFP
COMMENT René Brosius 09 April 2021
https://africanlegalstudies.blog/2021/04/10/somalia-vs-kenya-the-maritime-border-dispute/
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Somalia and Kenya do not have a tension-free relationship. Many reasons for
this lie in the conflict-ridden history. The border between the two countries is a
disputed colonial legacy. Large ethnic Somali minorities still live on Kenya’s
territory, especially in the so-called North Eastern Province. The majority of the
approximately 1.4 million people living there are ethnic Somalis.
After the collapse of Siad Barre’s regime in 1991, there was also a massive flow
of refugees to Kenya, resulting in the world’s largest refugee camp, Dadaab,
with around 400,000 people. However, the two countries are also closely and
diversely intertwined beyond this. In Nairobi, large parts of economic life are in
the hands of Somali businessmen. The Eastleigh district is also called “Little
Somalia.” Nairobi is home to much of the NGO scene operating in Somalia,
and many prominent and/or wealthy Somali families have at least a second
residence in Kenya. Kenya, in turn, provides troop contingents to the African
Union Mission in Somalia (AMISOM). Tensions between the two countries are
regularly apparent. Travel restrictions, closed borders, and disputes over air
travel, export/import sanctions or threats to close Somali refugee camps are
frequent occurrences. One of the standing disputes revolves around maritime
border demarcation and was brought before the International Court of Justice
(ICJ) in The Hague already in 2014.
What is at stake?
The common land border flows into the Indian Ocean. Here, too, the boundary
line is in dispute. However, this has less to do with colonial heritage and more
to do with fishing rights and suspected oil and gas deposits. While Somalia
assumes that the maritime boundary automatically continues the direction of
the land boundary, ultimately up to a distance of 200 nautical miles from the
mainland coast, Kenya believes that the maritime boundary should make a 45degree turn in a northerly direction and run parallel to the latitude in the
future. Kenya would thus gain a maritime area of about 162,580 square
kilometres (area figures vary widely here). A huge area, especially with regard
to the natural resources mentioned above.
On April 7, 2009, the Kenyan Foreign Minister and the Somali Minister of
Planning and International Cooperation signed a Memorandum of
Understanding (MOU), which had the goal of clarifying the long border
dispute. Interestingly, the agreement was prepared by the Norwegian Embassy,
which was supposed to provide legal support to the transitional government in
Somalia, which had only been in office for a short period at that time. The
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MOU stated that the final course of the border between the two coastal
countries had not yet been conclusively determined and that both parties to
the dispute should present their ideas to a commission within a reasonable
time. Paragraph 6 of the short document states:
“The delimination of maritime boundaries in the areas under dispute…shall be
agreed between the two coastal States on the basis of international law after
a Commission [on the Limits of the Continental Shelf, hereinafter CLCS]…
made its recommendations to two coastal States concerning the
establishment of the outer limits of the continental shelf beyond 200 nautical
miles. This memorandum of Understanding shall enter into force upon its
signature.”
Immediately after the MOU was signed, Somalia declared the treaty nonbinding. According to Somali “custom”, the Somali representative was not
authorized to sign this treaty. Consequently, the agreement had no binding
effect. Kenya, on the other hand, insisted on compliance with the treaty and
argued that the treaty had already entered into force upon signing in
accordance with paragraph 6. At the very least, Somalia had to adhere to the
agreed procedure of paragraph 6 of the Memorandum of Understanding. This
would give priority to bilateral agreement over a judicial solution. The dispute
remains relevant to both sides up to today. On the one hand, it is a matter of
political honour in view of the conflict-ridden neighbourhood. On the other
hand, however, it is also a tangible economic issue. For example, the question
of whether fishermen can operate in these areas or whether fishing rights can
be sold to third parties (e.g. China, Europe, USA, Japan) depends on a
settlement of the dispute. Finally, exploration rights for the presumed oil and
gas resources are also increasingly at stake.
After years of dispute, Somalia appealed to the ICJ in 2014. Both parties to the
dispute had acceded to the agreement in 1989 but reckoned that they had
different chances of success in “naked” application. Kenya therefore disputed
the jurisdiction of the ICJ and hoped for greater chances of achieving at least a
partial territorial success in the context of a bilateral clarification. However, as
early as February 2, 2017, the ICJ declared itself competent. The fundamental
decision was therefore made four years ago. The decisive factor was the
interpretation and legal classification of the MOU. According to this, it was
neither the purpose of the MOU to determine alternative dispute settlement
mechanisms, nor did the wording suggest this. More far-reaching, however,
was the legal classification of such MOUs. The International Court of Justice did
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not attribute binding effect to them “as a matter of international law.” It is
certainly true that such agreements have a certain legal content. However, this
could be used primarily in the interpretation of disputes. The issue became
topical not only because of the current political crisis in Somalia, but also
because the ICJ scheduled the first public hearing on March 15, 2021, after
several postponements. Kenya cancelled its participation in the hearing at the
last moment. Many Somali commentators interpreted this as Kenya’s
withdrawal.
Where do things go from here?
The ICJ may now rule on the matter. It is believed to be more inclined to the
Somali side. However, such proceedings can drag on for several years. Until
then, the area remains disputed and opens the door to uncontrolled
exploitation of resources, as well as numerous environmental pollutions
through illegal dumping of waste in the “no man’s land”. Incidentally, the
decisions of the ICJ are not enforceable. In the past, countries have simply
ignored the court’s decisions. Somalia has therefore not yet won.
René Brosius is a doctoral candidate at the Chair of African Legal Studies at
the University of Bayreuth. He is primarily dealing with issues of law and
economics in Somalia.
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