Is Kenya seeking out-of-court settlement on spat with Somalia?

Saturday March 9, 2019

Kenya is reaching out to neighbours and international community to find an amicable solution to the maritime dispute with Somalia.

Diplomatic sources said Kenya is now trying to persuade Somalia to withdraw the case at the International Court of Justice in favour of an out-of-court settlement, which could include shared development of the oil and gas resources.

Other sources said Nairobi is also pushing Somalia to withdraw the maps it allegedly put out in London to auction the oil and gas blocks. Mogadishu has, however, denied sharing maps of the contested area.

Kenya is also under pressure to restore diplomatic relations, after it sent the Somali ambassador home and recalled its own from Mogadishu.

The visit to Nairobi on Tuesday by Somali President Mohamed Farmajo and Ethiopian Prime Minister Abiy Ahmed for talks with President Uhuru Kenyatta marked the beginning of of normalisation of diplomatic relations, but the settlement of the dispute over the maritime border remains elusive.

Dr Abiy has offered to mediate as fears abound that the diplomatic tiff could affect proposed economic projects affecting the three countries.

A statement from the Prime Minister’s Office said that “Through the leadership of PM Abiy Ahmed, presidents Kenyatta and Farmajo met to discuss extensively the source of the two countries dispute. Both agreed to work towards peace and to take measures in addressing particular issues that escalated the tensions.”

This comes as some marine experts said Kenya and Somalia are better partnering in the exploitation of natural resources in the disputed maritime border as they continue to negotiate over the boundary.

A good example is Nigeria and Sao Tome & Principe that established Joint Development Zones (JDZ) in 2003 after it became clear they could not agree on the maritime borders and could not individually exploit the resources.

JDZs are normally established when the parties find it difficult to agree on a single boundary between them or because the resources straddling the maritime border cannot be effectively exploited by the states acting alone.

Dr Hassan Khannenje, the director, Horn International Institute for Strategic Studies, told The EastAfrican that Kenya having lost the preliminary objections to the admissibility of the case and the court’s jurisdiction, is worried that going ahead with the case could be risky and an out-of-court settlement was Kenya’s most preferred mechanism.

“Judicial processes are adversarial, time and resource consuming, and the court’s compulsory jurisdiction and binding decision may be viewed as an imposition of some sort if it goes against the spirit of such a party’s dispute resolution preference,” said Dr Khannenje.

He suggests that Kenya and Somalia adjust their claims to create a Grey Zone for purposes of joint development or they can as well limit their continental shelf beyond 200 nautical miles to a distance that leaves a zone to be exploited for joint development.

Kenya’s decision to reach out to the United Nations and the African Union Security Councils has raised concerns within the Somali diplomatic circles whereby Nairobi is said to have launched a diplomatic pressure to force Somalia into accepting an out-of-court settlement.

Open to negotiation

Kenyan Cabinet Secretary for Foreign Affairs, Dr Monica Juma, announced in late February that Kenya has drawn the attention of the UN and African Union Security Councils to the unfolding maritime border dispute with Somalia.

Dr Juma, who also reached out to UK High Commissioner, Nic Hailey and France’s Aline Kuster-Menager, said Kenya was open to negotiations to towards an amicable solution to the dispute, a position Kenya had always maintained.

However, the Principal Secretary in the Ministry of Foreign Affairs, Macharia Kamau termed the allegations that Kenya is putting diplomatic pressure on Somalia as “pure speculation.”

He instead said that Kenya, besides the maritime dispute, is working on multiple matters related to counter-terrorism and advancing the security and well-being of Kenyans.

President Farmajo’s office tweeted that that objective of the Somalia leader was to restore and strengthen diplomatic relations with Kenya.

But President Farmajo’s talks with President Kenyatta have not gone down well with Somalia MPs. Former Minister of National Resources, Abdirazak Mohamed, said it is a national issue that President Farmajo cannot unilaterally decide.

“Somali MPs following the case will question President Farmajo when parliament resumes,” Mr Mohamed said.

Filing of submissions

Negotiations over the maritime border dragged on for six years without much success, before Somalia filed a suit at the ICJ in 2014, accusing Kenya of encroaching on 100,000 square km of marine territory with potential oil and gas deposits in the Indian Ocean.

Hearing of the case is yet to begin, but the ICJ required Somalia to file its submissions by June 18, 2018 while Kenya was to file a rejoinder by December 18, 2018.

Somalia has anchored its case on Article 15 of the Convention of the Law of the Sea adopted in 1982, but Kenya maintains that the disputed area was in fact under its jurisdiction before the convention was enacted.

The ICJ can either give a ruling that is binding and has no option for appeal or issue an advisory opinion on legal questions, meaning it could direct for negotiations.

The UN Charter grants the General Assembly or the Security Council power to request the court to issue an advisory opinion on any legal question, especially when it could have serious socio-economic repercussions.

The diplomatic row started on February 16 when Kenya sent away the Somalia ambassador and recalled its own for consultations on grounds that a section of the oil blocks Somalia had exhibited to potential buyers in London on February 7, were within its 200 nautical miles Exclusive Economic Zone.

Somalia denies any wrongdoing.


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