The recent diplomatic shuttle at the behest of Dr. Abiy Ahmed of Ethiopia to narrow the spat between Somalia and Kenya is a welcome effort and a sign of maturity of the region’s leaders. However, Somalia must protect its national interest and stay the course with its petition that it submitted to the International Court of Justice (Cour Internationale De Justice).
On March 5, 2019, Mohamed Abdullahi Farmajo arrived in Addis Ababa to have talks with Dr. Abiy Ahmed. A day later, (March 6, 2019) he deliberately tweeted about their meeting and said that Kenya and Somalia “have agreed to work towards peace and to take measures in addressing issues that escalated the tensions.”
On Wednesday, clutching hands, Dr. Abiy and Mohamed Farmajo arrived at Nairobi’s Jomo Kenyatta International Airport. Consequently, they conferred in face-to-face talks with Uhuru Kenyatta to resolve the row over the disparate claims on a large swath of maritime zone on the Indian Ocean bordering Somalia and Kenyan.
Unlike many speculations, Somali leaders report that the scope of the mediation was limited, and it did not target convincing Somalia to withdraw its petition from the International Court of Justice (ICJ). Sources close to Mogadishu confirmed to me that most of the discussion focused on “mending relations that deteriorated fast” because of Kenya’s hasty decision to disrupt the diplomatic relationship of the two.
It is recalled that on February 17, Kenya prematurely ordered the Somali ambassador to leave Nairobi while simultaneously recalling its ambassador over unsubstantiated “auctioning of oil and gas blocks in disputed territorial waters of the Indian Ocean.”So did Kenya irresponsibly weaken the two counties’ relations.
Dr. Abiy’s attempt to bring an end to the conflict was blown out of proportion by Ethiopia’s media, particularly Ethiopian National TV. In the Amharic news hour version, ENT seemed to have reported on the matter hyperbolically and misled many listeners as if Dr. Abiy Ahmed requested of Mr. Mohamed Farmajo to drop his country’s legal case on its ownership of the contested maritime zone.
However, that was not the case. Somalia did not waiver from its original position of resolving this matter legally, told me a Mogadishu insider. Reliable information is emerging that Dr. Abiy’s effort was limited to (1) easing the tension between the two and have them resume diplomatic missions and reopen their respective embassies, and (2) work together to promote regional cooperation, resolve contentious issues through diplomacy, and maintain stability.
Origins of the Conflict
The conflict that transpired between the two sisterly countries over a maritime zone of about 100,000 square kilometers is rich in oil and gas resources. For the record, the ownership squabble over delimitation of maritime boundaries between Somalia and Kenya has been around since the 1970s. The first team of Somalia to work on this matter was headed by the late diplomat and lawyer, Ambassador Abdilahi Said Osman. Both countries always wanted to resolve it amicably. Several inconclusive meetings were held between the two sides as far back as 1978.
On its part, Somalia always claimed the contested zone to be its legitimate zone. So did Kenya. However, the current flare-up of the conflict has its origins in a widely misunderstood Memorandum of Understanding (MOU) between Kenya and Somalia. On April 7, 2009, an MOU “granting each other no-objection with respect to submission on the Outer-limits of the Continental Shelf beyond each country’s 200 nautical miles” was signed by the two respective governments. This MOU stipulated that the two sides shall not rule out to seek higher authority to arbiter their competing claims over the contested 100,000 square miles ocean zone.
Former Prime Minister Omar Abdirashid’s administration initiated the MOU; because many Somalis mistrust Mr. Sharmarke, suspicion right away abounded the intent of the MOU. The gist of it was to establish “The delimitation of the continental shelf between the Republic of Kenya and the Somali Republic (hereinafter collectively referred to as “the two coastal States”) has not yet been settled. This unresolved delimitation issue between the two coastal States is to be considered as a “maritime dispute”. The claims of the two coastal States cover an overlapping area of the continental shelf which constitutes the “area under dispute.”
Since then, too much haze had clouded the real contents and Somalia’s final nullification of the MOU, and it never ceased to be a political hot potato to both past and present administrations. To set the record straight, on October 10, 2009, the Office of Somalia’s Prime Minister sent a letter informing the Kenyan government that the Somali Transitional Parliament that has the final jurisdiction and constitutional mandate over the disposition of the matter has overwhelming voted “to reject the ratification of that MOU on August 1st, 2009.”
This letter noticed to the government of Kenya was also copied and forwarded to the relevant UN office, and it read: “We could, therefore, request the relevant offices of the UN to take note of the situation and treat the MOU as non-actionable.”
And it was in that context that former President Hassan Sheikh Mahmoud, once he assumed the presidency and failed to convince Kenya to respect Somalia’s legitimate ownership of this maritime resources, initiated a legal recourse. President Hassan deserves a belated commendation on this matter and how he ably organized an effective work program and a profoundly qualified legal team to take the matter to ICJ.
In general, the law of the sea has established governance over the ocean, as well as maritime zone delimitation since the League of Nations codified the Law of the Sea (LOS) in the 1930s. Since then, many countries sought legal resolution from the court. One of the last judgments the court reached as of 2014 is on the case of Chile vs Peru.
Somali presented a persuasive legal case to the ICJ. Its lawyers argued that “the memorandum of understanding never created a binding commitment to an alternative method of dispute settlement.” Neither did the court ever decided over similar cases by following Kenya’s argument. Given the facts, documents, and arguments presented to the Court, Kenya is extremely nervous, and Somalia is hopeful.
According to sources close to Mogadishu, the position of Somalia on its petition filed with International Court of Justice is unchanged. “Somalia will press ahead with its legal recourse and awaits positive results,” told me this source who wants to remain anonymous.
The Somali government’s position is not to talk about the case and its details for it is in the hands of the court. Legal experts seem to have advised leaders of Somalia to not delve into the matter. However, that does not absolve Mr. Mohamoud Farmajo from talking to the nation!
What can we expect from the court’s rulings? It can rule in favor of either one of the petitioners. It is also possible that it can arrive at a win-win decision that is an amicable solution to both sides. Subsequent modifications to LOS regulate various conflicts on boundary delimitation between two or more States show mixed results. Articles 15 of LOS, the EEZ (Article 74), and the CS (Article 83) laws provide for rulings to potentially reach an “equitable solution,” that should not be second-guessed by the litigants. Therefore, any type of final ruling is possible. And leaders in Mogadishu need to have a candid conversation with the nation to explain everything “Badda Soomaliya,” or the “Somali sea.”
By Faisal Roble
Faisal Roble, a writer, political analyst and a former Editor-in-Chief of WardheerNews, is mainly interested in the Horn of Africa region. He is currently the Principal Planner for the City of Los Angeles in charge of Master Planning, Economic Development and Project Implementation Division.