Saturday September 13, 2014
HMAS Darwin’s rigged hull inflatable boats, with members of the boarding party team embarked, approach a suspicious dhow to conduct a boarding in the Indian Ocean.
Kenya risks losing almost all of its territorial waters in the Indian Ocean if a case filed by Somalia in an international court succeeds.
Alarmed by the grave implications of the move by its war-torn neighbour, the Jubilee Government has reopened negotiations with Somalia over its claim to a huge swathe of maritime territory considered rich in oil deposits and fish, which the ministry of Foreign Affairs says could effectively turn Kenya into a landlocked country.
On Saturday, Cabinet Secretary for Foreign Affairs and Trade Amina Mohammed told the Sunday Nation the matter is so sensitive that a quick meeting to facilitate direct talks between President Uhuru Kenyatta and his Somalia counterpart Hassan Sheikh Mohamud has been arranged in New York.
“We are in discussions with the government of Somalia. It is unfortunate they logged their complaints even as we dialogued over this matter,” Ms Mohammed said, adding that Kenya preferred to settle the matter out of court.
Documents seen by the Sunday Nation show that the way Somalia wants the boundaries redrawn would take away at least five oil blocks and vast oceanic territory where deep sea fishing is conducted.
It would also mean that Kenya might have to access the Indian Ocean only with Somalia’s permission.
In June, an Australian firm prospecting off Kenya’s Indian Ocean coast reported a verified oil find at one of its recently completed wells in the Lamu Basin.
Pancontinental Oil and Gas NL confirmed their completed Sunbird well has intersected an oil column, making it the first-ever discovery of oil off the East African coast.
The dispute could also unsettle regional harmony as the proposal by Somalia could automatically move the Tanzanian island of Pemba to Kenyan territory, according to Foreign Affairs and International Trade Principal Secretary Karanja Kibicho.
“This claim by Somalia could make Kenya a landlocked country which may restrict our access to the high seas. And if the alterations adopt the proposal by Somalia then the island of Pemba will become part of Kenya,” said Dr Kibicho.
If the case filed by Somalia at the International Court of Justice (ICJ) is determined in its favour Somalia’s maritime boundary in the Indian Ocean would stretch all the way to Tanzania’s shores.
ECONOMIC INTERESTS
Based in the Dutch city of The Hague, ICJ is the primary judicial branch of the United Nations that mostly determines legal disputes between states.
In its application to the ICJ, the Somali government is making reference to a number of oil fields in the disputed area which Kenya has laid claim to, signalling that the battle may have been precipitated by economic interests.
Ms Mohammed, an experienced diplomat with vast experience in the UN system, said Kenya was keen on preserving good relations with Somalia and is making every effort to find a solution to the impending crisis that could create tension in the region.
She said the New York meeting between President Kenyatta and President Mohamud on the sidelines of the annual UN General Assembly later this month was part of the diplomatic push to sort out the problem.
Her views were reinforced by PS Kibicho: “We have set technical teams who are negotiating. Somalia is considered a friendly state — it is our neighbour, and it will remain so.”
The Sunday Nation has also learnt that even as the diplomatic efforts continued Attorney-General Githu Muigai had scheduled an appointment with the ICJ president to discuss ways of handling the crisis.
“I recently appeared before the Law of the Sea Commission in New York to try to attend to this matter. But we were referred to the ICJ because the case had been filed (by Somalia),” Prof Muigai said.
The AG explained that his office was assembling a team of experts to support Kenya’s case.
“We have already submitted an MoU (Memorandum of Understanding) to the UN secretary-general showing the delimitation of our boundaries with Tanzania. We want the same formula adopted in our case with Somalia,” the AG stated.
CASUAL NATURE
Somalia rushed to court over what sources at the Ministry of Foreign Affairs claimed was the casual nature in which the Kenyan government was handling the long-standing matter.
Somalia was apparently angered by Kenya’s decision to skip without notice a negotiation meeting that was to be held between August 25 and 26 this year.
“The Kenyan delegation, without providing either advance notification or subsequent explanation, failed to arrive and, as a consequence, the additional round of meetings that Kenya had requested were not held,” reads part of the application Somalia filed in court.
The Registrar of the ICJ Philippe Couvreur wrote to Kenya on August 28 detailing the case filed by Somalia.
“I have the honour to inform Your Excellency that the Federal Republic of Somalia has today filed in the Registry of the Court an Application, instituting proceedings against the Republic of Kenya concerning a dispute in relation to the establishment of the single maritime boundary between Somalia and Kenya in the India Ocean, delimiting the territorial sea, exclusive economic zone and continental shelf including the continental shelf beyond 200 nautical miles (M),” reads the letter.
Kenya’s ambassador to The Netherlands, Ms Makena Muchiri, forwarded the letter to Ms Mohammed the following day.
APPOINTED AGENT
“Kindly note that the provision of Article 40 of the Rules of the Court that requires Kenya to inform the court of their appointed agent and the address of service at the seat of the court to which all communications can be sent,” Ms Muchiri wrote.
President Mohamud appointed his minister for Foreign Affairs and Investment Promotion Dr Abdirahman Dualeh the country’s agent in the case.
In the application, Dr Dualeh made it clear there were “no special or relevant circumstances that could justify Kenya’s claim” to the territory it occupied.
According to the technical descriptions used in documents, in previous negotiations with Somalia, Kenya insisted that the maritime boundary should run due east along the parallel of latitude from the land boundary terminus while Somalia said the boundary should be drawn to follow an azimuth (angle) of approximately N131.5 degrees east from the land boundary terminus out to the outer limit of the two states’ maritime entitlements.
A source at the Foreign ministry, who did not want to be named, explained this meant Kenya preferred the horizontal line from the land through the sea while Somalia wanted a diagonal dissection that would give it most of the territory.
“The parties have met on numerous occasions to exchange views on the settlement of the dispute over the delimitation of their maritime boundary. None of these negotiation sessions has yielded agreement. Indeed no meaningful progress towards an agreement has been achieved at any of them,” reads part of the application by Somalia.
On oil exploration, Somalia claimed that Kenya had acted unilaterally on the basis of the current boundary to exploit both living and non-living resources on the Somali side.
However, Kenya’s Foreign Affairs PS denied that oil exploration in the disputed area may have sparked off the controversies.
However, Somalia claims in court papers: “Relevant Kenyan petroleum blocs include L-5, L-21, L-22, L-23,L24 and L-25.According to publicly available information Kenya awarded block L-5 to an American company.”
The country also lays claim to oil blocks Kenya awarded to a French company.
“The blocks lie entirely or predominantly on the Somali side of provisional equidistance line,” read part of the court filings.
Sources in the Foreign ministry in Nairobi allege some Western and Gulf oil investors may have convinced the Somali Parliament and top politicians to claim the territory.
Even more intriguing are allegations that some senior Kenyan officials may be colluding with the Somalis by providing them with insider information that strengthens the ICJ case and any diplomatic negotiations.
Any loss of territorial waters could also compromise security as it would restrict Kenya Navy patrols.
