Somalia now takes Kenya to The Hague over maritime boundary

Kenya and Somalia are locked in a maritime boundary dispute that is likely to take several years before being resolved by The Hague- based court.

On July 13, Somalia filed a petition at the International Court of Justice (ICJ) on Kenya’s infringing on Somalia’s border in search of crude oil and natural gas in the Indian Ocean. Kenya has to submit a counter-claim by May 27, 2016.

Analysts said if the Somalia-Kenya border were to run continuously from land into the ocean, by making the boundary lie diagonally from the northwest to the southeast, Kenya will be left with a small triangle in the Indian Ocean.

The area in dispute covers 100,000 square kilometres. A deal reached by the two countries stating that the border would run east along line of latitude was rejected by Somalia’s parliament, setting the stage for the dispute.

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Somalia’s Attorney General Ahmed Ali said his government represented by a team of British, Italian and American lawyers had presented a 150 page document to ICJ arguing the case on the maritime boundary dispute.

The suit could test relations between the two neighbouring countries as Kenyan soldiers have been battling Al Shabaab in Somalia since 2011. Kenya also hosts about 500,000 Somali refugees at the Dadaab camp.

Somalia has laid claim to Kenya’s exploration blocks L5, L21, L22, L23, L24 and L 25 arguing that the border runs continuously from land into the ocean, diagonally from the northwest to the southeast instead of the east.

BG Group last year discovered 14 metres of oil under 29.6 metres of gas in Sunbird-1 well drilled in offshore block L10A in Kenya’s Lamu basin.

Kenya has awarded acreage L5 to Anadarko Petroleum Corporation and block L22 to Total of France. Eni of Italy has acreage L21, L23 and L24. Block L25 is vacant as negotiations with Statoil of Norway were not concluded in 2012. Kenya’s Attorney-General Githu Muigai said Kenya is confident of winning saying the case filed by Somalia lacked the relevant backing of international law on maritime issues.

“We have received the memorandum filed in the court. We are moving to evaluate it and put together a team of international lawyers to defend our case in the most professional manner,” he said.

Kenya’s Foreign Affairs Cabinet Secretary Amina Mohammed last month told parliament that Somalia had agreed to pursue arbitration outside the United Nations court. Hardly a fortnight later, Somalia responded with Information Minister Mohamed Abdi Maareeye saying the country plans to pursue the case against Kenya at the ICJ.

“The issue of the Kenyan government violating our territorial waters has continued for a long time, so it’s the right time to end its fake claim in court,” he was quoted as saying by Bloomberg.

In a suit filed on August 28, 2014, Somalia wanted the ICJ to determine the geographical co-ordinates and single maritime boundary delimiting its territorial seas including the continental shelf beyond 200 nautical miles.

Somalia in its application appointed Foreign Affairs Minister Dr Abdirahman Dualeh as agent to whom all court communications can be sent and Elmi Ahmed Duale as deputy-agent. Somalia also in a letter dated September 16 appointed Ali Said Fiqi as co-agent.

Kenya in a letter dated September 30 notified the ICJ of the appointment of Kenya’s Ambassador to the Netherlands, Makena Muchiri as agent and Attorney-General Mr Muigai as co-agent. Registrar of the ICJ Philippe Couvreur wrote to Kenya on August 28 about the case filed by Somalia.

ICJ President Peter Tomka issued an order filing memorandum on October 16, 2014 after listening to both states on time-limits to prepare the first round of written pleadings. A meeting with party’s agents was held on October 15.

A senior official of Ministry of Energy said, “The maritime border of Kenya and Somalia runs horizontally east from the point at which the two countries touch on land. The practice in East Africa is boundaries run along the line of latitude.’’ The border of Kenya and Tanzania thus runs east into Indian Ocean.

According to the UN Convention on the Law of the Sea, all countries that border the ocean are allowed to use the 200 nautical miles into the ocean for exclusive economic purposes without interference.

In 2012, Somalia accused Kenya of awarding offshore oil and gas exploration blocks illegally to multinational companies. Somalia claimed the concessions lie in its waters, a claim Kenya disputed.

Kenya insisted the boundary should run east along line of latitude emanating from the land boundary terminus. At the end of negotiations, Kenya proposed the parties meet one more time in an attempt to resolve their difference. It was agreed that meetings be held in Mogadishu on August 25 and 26, 2014. Somalia said the Kenyan delegation failed to arrive for the meetings.

“The failure of the Kenyan delegation to attend the final meetings created the need for judicial resolution of this dispute,” said Dr Dualeh.

The Commonwealth Secretariat’s maritime boundary specialists in October 2010 held a workshop for government officials to prepare Kenya for its maritime boundary negotiations with Somalia.

It took into consideration the fact that failure to establish clear maritime boundaries with Somalia will have implications for security, shipping, environmental protection, fishing and offshore resource exploration in the region.