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Kenya denies Somalia’s claim on maritime boundary dispute


Kenya denies Somalia’s claim on maritime boundary dispute

Kenya denies Somalia’s claim on maritime boundary dispute
Photo credit: EPA | Remko De Waal

Kenya has rebutted Somalia’s claim that negotiations to resolve the maritime boundary dispute between the two had been exhausted before it moved to the International Court of Justice (ICJ).

In their second bid to oppose the case, Kenya’s legal team argued all the meetings between the two countries over the issue were only preparatory and were meant to draw up agenda for discussion.

British lawyer, Prof Vaughan Lowe told the Court that Somalia did not in inform Kenya that it was getting fatigued with the talks, and only, suddenly went to Court.

“Objectively, there is no evidence that the parties had reached deadlock on the negotiations. Subjectively, Kenya remained committed to negotiations. It remains open to date,” Kenya argued.

Somalia sued Kenya in August 2014 before the ICJ seeking a determination of the actual flow of a sea boundary between the two countries.

Mogadishu wants the Court to help determine whether the borderline should flow eastwards as demanded by Kenya or diagonally to the south from the land border as it wants, insisting “diplomatic negotiations, in which their respective views have been fully exchanged, have failed to resolve this disagreement.”

Kenya’s Attorney-General Githu Muigai said the Somali case should be dropped because it was introducing an element of uncertainty in the relations between the two countries as well as the general cooperation for maritime security in the region.

“Maritime boundary delimitation requires sensitive bilateral negotiations. After a volatile transitional period, preliminary negotiations began in 2014, but they were cut short by Somalia… This dispute is a test in our new era in our bilateral relations.”

“Kenya does not want deadlock or perpetual uncertainty. We want a solution that will contribute to permanent peace in the region.”

The disputed area is thought to have rich deposits of oil, but Prof Muigai said Kenya had suspended any exploratory activities as a sign of commitment to await a solution, through negotiations.

On Tuesday, Somalia insisted that it was Kenya which pulled the plug on negotiations after it failed to turn up for a meeting in Mogadishu in August of 2014.

Those talks were part of a MoU the two countries signed in 2009 to specifically deal with the dispute through negotiations and with guidance from the UN Commission on the Limits of the Continental Shelf.

Kenya agrees that there had been two meetings in 2014 up to July 2014, but which were only at “technical level” and meant to boost confidence between the two sides that there was a solution on the horizon.

The said that meeting which was to happen in August failed because Kenya did not show up citing, in court documents, that its delegation would not be assured of safety. Somalia accused Kenya of a no-show without explanation, but Nairobi argues even the third meeting was only about “bridging the gap of differences between the two sides.

Bridgeable gaps

“The parties were still operating on the basis that there were bridgeable gaps between them…” Kenya said in turn criticising Mogadishu of going to court just three days after the meeting failed.

The Kenyan legal team argued the Court lacked jurisdiction since both Kenya and Mogadishu had agreed on an alternative dispute settlement.

Prof Lowe for example argued that when Kenya joined the UN, it indicated in 1965 that it would agree to the Court’s general jurisdiction only as long as there were no alternative methods of resolving disagreements.

“There is no reason to suggest that the parties were ignorant of their obligations when they signed on the agreement. The MoU stipulated a method and a time, after the CLOS (UN Commission for the Limitation of Continental Shelf) determination for delimitation. That time hadn’t arrived,” Prof Lowe said.

“At the time when the rest of the world is moving for non-judicial methods of dispute settlement, Somalia seems to be swimming in the opposite direction. Somalia cannot simply ignore its obligations to the MoU.”

Mogadishu had on Tuesday refuted the argument that the 2009 deal prevented it from resorting to courts, saying the agreement was not even specific about the boundary but was to deal with the limits of each country’s continental shelf.

Somalia is basing its arguments on Articles 15, 74 and 83 of the 1982 United Nations Convention on the Law of the Sea, which both countries ratified in 1989.

The cited articles state that where two states share coasts adjacent or opposite each other, neither state should extend territorial boundaries beyond the median line “every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured” except where there is an agreement to do so.

In Kenya’s situation, it means Somalia wants the boundary to extend diagonally to the south at Kiunga into the sea, and not eastwards as it is today. But that may also affect Kenya’s sea border with Tanzania.

The area in contest is about 100,000 square kilometres, forming a triangle east of the Kenya coast. In 2009, Kenya and Somalia reached an MoU, which was then deposited to the UN in 2011.

The agreement had stated that the border would run east along the line of latitude although further negotiations were to be held through the UN Commission on the Limits of the Continental Shelf.

This agreement also stated that maritime boundary adjustments would only occur after the commission had established the outer limits of shelf and that both sides would avoid courts as much as possible over the matter.

At UN debate, Kenyan Vice-President implores Security Council to take Somalia situation ‘seriously’

Addressing the United Nations General Assembly on 21 September 2016, the Vice-President of Kenya implored the UN Security Council to align the mandate of the African Union Mission in Somalia (AMISOM) to the threat levels in that neighbouring country, and to provide adequate, predictable funding and other support for the Mission.

“For the last two and half decades, the region has been seized with the situation in Somalia,” Vice-President William Ruto said. “Throughout this time, Kenya has stood with Somalia, provided a safe haven for refugees, joined peacekeeping missions, and invested resources in combating al-Shabaab and its affiliates.”

This solidarity has helped to substantially weaken the al-Shabaab militant group, liberated large swathes of land in Somalia and provided the space for its Government to begin the journey of rehabilitation and reconstruction, he explained.

On its part, Kenya has committed to $10 million in new funds to support the safe, dignified and orderly repatriation of the more than 400,000 Somali refugees in Kenya. “Sadly, the efforts of the region and Somalia's neighbours have not been matched by the international community,” he stated.

Instead of supporting regional activities, the European Union this year cut support for AMISOM by 20 per cent. Despite repeated appeals, the UN Security Council has failed to provide adequate, predictable funding, as well as force multipliers for AMISOM.

“I once again implore members of the Security Council to take this matter seriously and align the mandate of AMISOM to the threat levels in Somalia on land, air and sea,” he said.

On South Sudan, Vice-President Ruto said that Kenya, as a guarantor of the 2005 comprehensive peace agreement and the 2015 Agreement on the Resolution of the Conflict, has been spearheading the search for sustainable peace, continues to invest significantly in efforts to build peace.

Echoing an earlier statement made by Ghana’s President, Mr. Ruto said that Africa accounted for only three per cent of global trade. Meanwhile, Africa’s population is set to surpass that of India and China combined by 2050. “Unless the trade imbalance is reversed as a matter of urgency, this will accentuate vulnerability, poverty, risk of insecurity and instability for both Africa and the rest of the world,” he said.

In the pursuit of sustainable solutions to global challenges, Kenya hosted the UN Environmental Assembly in May, the 14th session of the UN Conference on Trade and Development (UNCTAD) in July, and the Sixth Tokyo International Conference on African Development (TICAD VI) in August. Kenya will also host the second high-level meeting of the Global Partnership for Effective Development Cooperation in Nairobi later this year.

As the current chair of the UN Peacebuilding Commission, Kenya has been at the forefront of advocating for a new peacebuilding architecture for sustainable peace throughout the world, he said, drawing attention to a pledging conference Kenya will co-host later today to boost the Secretary-General’s Peacebuilding Fund.

“For us the message is clear: If we are ever to enjoy a peaceful world for all, we cannot invest any less in peacebuilding than we do in peacekeeping,” he said.


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