KENYA :Why government risks losing maritime dispute with Somalia

Kenya is likely to lose maritime dispute claims against Somalia in the long run if past determinations of International Court of Justice (ICJ) are anything to go by, a maritime law expert has cautioned. Prof Musili Wambua, who is one of Kenya’s foremost maritime law experts says the method adopted by Kenya to claim the maritime border — parallel of latitude — is likely to be dropped in favour of the one preferred by Somalia – equidistant line. At stake are oil and gas deposits in the three blocks within the disputed area. Kenya could win on some of the preliminary points on jurisdiction raised last week and the dispute could be stayed pending determination of the Commission on the Limits of the Continental Shelf (CLCS).

“Based on the cases decided by the ICJ, Kenya may lose on the use of the parallel of latitude as the court is likely to settle on the equidistant line, leading Kenya to lose the oil blocks L21, L23 and L24,” Wambua says. He says that the only way Kenya can avoid losing is by demonstrating existence of “very strong circumstances which warrant a departure from the equidistant line advocated by Somalia.”

“There are strong arguments which may persuade the court to stay the proceedings pending the conclusion of the submission to CLCS. However, it is worth noting that Somalia’s claim is not restricted to the extra 150nm which Kenya is claiming in the CLCS reference,” Wambua said.

In its court papers, Somalia wants delimitation of three zones – the Territorial Sea, the Exclusive Economic Zone and Continental Shelf. “It is only in Nicaragua v Honduras that the ICJ departed from the principle of equidistant special circumstances principle/rule and applied bisector method because equidistant could not produce equitable outcome,” Wambua said.

The bedrock of Kenya’s preliminary objections to the case is a 2009 Memorandum of Understanding (MoU) with Somalia acknowledging a dispute and vowing not to challenge each other’s claims pending CLCS process of registering borders.

Former Foreign Affairs minister Moses Wetang’ula signed the MoU on behalf of Kenya while Abdirahman Warsame the National Planning minister signed for Somali.

During written and oral submissions last week, Kenya painted the picture of a Somali government that has fallen to Al Shabab propaganda that by agreeing to the MoU, Somali had essentially sold the sea to Kenya.

On the same year it was signed, Somali parliament disowned the MOU. It now blames Kenya for “capitalising” on its vulnerability during a delicate transitional moment after years of upheaval.

“After many years of conflict and exploitation, Somalia is proud to be in a position to stand on its own feet, and claim its lawful sovereign rights and jurisdiction in the waters and seabed adjacent to its coast,” Somalia says in submissions being considered by the judges. It says it was ambushed with the MoU, that the proposal for the same never originated from them, that they gave “very little input” and that the signed MoU bears only Kenya’s Court of Arms. It blames Kenya for failing to attend the final round of negotiations in Mogadishu in August 2014.

While Kenya argues security fears led to cancellation of the visit by Mr Wetangula, Somalia says Italian and French companies have continued their exploratory activities in disputed areas courtesy of Kenya. However during the oral hearings, Kenya’s lawyer Prof Payam Akhavan said Somali’s claims were overblown as “Oil has yet to be discovered, let alone exploited.” Attorney General Githu Muigai also said Kenya had suspended its activities in the disputed area.

“There is no basis for Somalia’s alarmist accusations against Kenya — and most certainly no justification for the accusation that it is an unjust nation taking advantage of its neighbour. “This is especially unbecoming given the extraordinary sacrifices that Kenya has made in solidarity with the Government and people of Somalia,” Prof. Akhavan said.

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