Somalia Takes Kenya to International Court Over Border Dispute

East Africa’s economic powerhouse faces-off with Somalia, a failed regional state, at the United Nations International Court of Justice (ICJ)  after the latter rebuffed overtures seeking an out-of-court settlement over ownership of a disputed area in the Indian Ocean.

At the centre of the dispute is an area, almost 150,000 square kilometres (57,915 square miles) off the Indian Ocean coastline, said to be rich with oil, gas and tuna fish.

“As a matter of international law, the court’s judgment will be binding on Kenya,” Somalian President Mohamed Abdullahi Farmajo said in a speech to the UN General Assembly this past September. “We trust that, when that judgment is issued and the boundary is established, a lasting settlement of this longstanding dispute will finally be achieved.”

Somalia which for the past 28-years has lacked a functional government initially went to the ICJ In 2014, challenging a 2009 agreement that set its maritime border along latitudinal lines extending 450 nautical miles into the sea.

The following year, Kenya, which for nearly a century has considered the line to be its border, grudgingly engaged the international court seeking an out of court settlement but Somalia rebuffed the proposal.

The matter before the ICJ is due to take place this November 4.

Kenya insists that the marine boundary is determined by a parallel to the line of latitude to the east as per the standards set by the colonial powers, which has been adopted in the marine border between Kenya-Tanzania, Tanzania-Mozambique and Mozambique-South Africa.

But Somalia wants the boundary to extend to the southeast as an extension of the land border, which would take a large swathe of what Kenya considers its Exclusive Economic Zone (EEZ), that is an area of coastal water and seabed within a certain distance of a country’s coastline, to which a country claims exclusive rights for fishing, drilling, and other economic activities.

In 2012 Kenya submitted an application to acquire an additional 103,000 square km to delineate the outer limits of the country’s continental shelf outside the EEZ of 200 nautical miles but the plan floundered because Kenya does not have a maritime border agreement with Somalia, whereas one of the UN requirements is that countries that share the ocean must reach an agreement on border issues.

According to Kenya’s Foreign Secretary Monica Juma, the matters involved in resolving the issue “are not black and white; a sustainable solution has to be seen as mutual. We have preference for negotiated settlement,” she says.

With Somalia’s Foreign Minister Ahmed Isse Awad saying his country was instead committed to the legal process after previous negotiations with Kenya failed to resolve the matter.

Determined to follow the diplomatic route Kenya has intermittently engaged the top leadership within the African continent with most recently this September when President Uhuru Kenyatta reached out to President Abdel-Fattah El-Sisi of Egypt, who also is the current chairman of the African Union where together with his Somalian counterpart ostensibly agreed to restore “our good brotherly relationship, strengthening the diplomatic and political cooperation.”

In addition, the African Union’s Peace and Security Council (AUPSC), the organ of the African Union in charge of enforcing union decisions, patterned somewhat after the United Nations Security Council, had this late September planned  to appoint a mediator to help find “an amicable and sustainable settlement, in consultation and collaboration with the relevant regional mechanisms.”

It’s apparent to keen East Africa watchers the dispute may jettison diplomatic camaraderie existing between these two neighbouring nations ominously providing the Somalia based al-Qaeda-linked al-Shabaab militants who’ve staged deadly attacks in both countries for over a decade a tangible ecosystem to operate from within.

And Kenya’s Foreign Secretary is alive to this scary reality.

“This matter is more important than fish and hydrocarbons. The most important point is territorial integrity,” says Juma.

Kenya’s move for an out-of-court settlement had been triggered by AUPSU which had announced plans to appoint a mediator to help resolve the matter.

“We believe that this matter can be resolved amicably,” Juma had said at the time.

Somalia, however, wants the ICJ to define the boundary as laid down by the United Nations Convention on the Law of the Sea and other international sea laws.

This June Kenya wrote a protest letter to the United Nations saying the matter should be settled through mechanisms available under the African Union including through the Intergovernmental Authority for Development (IGAD) and East African Community (EAC) organizations.

Arguing the decision to take the matter to ICJ would hamper co-operation between the two nations in fighting piracy in Kenya’s waters and the fight against the Al-Shabaab within the region.

In 2016, Kenya unsuccessfully challenged the admissibility of the case at the ICJ on grounds that the court lacked jurisdiction to entertain the application with the Hague-based court dismissing the objection in February 2017.

Since late 2018 diplomatic relations between Kenya and Somalia have been sour after it emerged this February seven, that  Somalia had held an oil exploration exhibition in London where oil blocks off the Kenyan coast were put up for auction.

In a leaked report titled, Offshore Somalia 2019, Somalia says that it planned to exploit its petroleum resources effectively to achieve peace, stability and shared prosperity for all Somalis without damaging the environment.

The exhibition, which was reportedly sponsored by potential explorers, caused consternation in Kenya.

With Kenya accusing Somalia of including oil blocks in the disputed 100km Indian Ocean triangle in the exhibition, with the full knowledge that the dispute was before the ICJ.

Kenya’s Foreign Secretary complained that Somalia’s decision to offer oil blocks for sale in the contested area had undermined the principle of good faith and defeated the purpose of waiting for the Court to make a final determination.

At stake is the loss of 26 per cent of Kenya’s EEZ including 85 per cent of the continental shelf beyond the 200 nautical miles (EEZ) limit.

According to the report successful companies were to commence exploration in 2020.

“Striking resemblance to the astonishingly successful plays in Kenya, Tanzania and Mozambique indicate that offshore Somalia is about to become the hottest exploration prospect in East Africa,” said the report.

In preparation for Somalia’s upcoming offshore licensing round, the country has completed acquisition and processing of 20,185km of 2D long-offset seismic data, following a co-operation agreement.

The Programme complements 20,500km of existing seismic data that was acquired in 2014.

However, Somalia has since dismissed claims that it planned to auction oil blocks in the disputed border region before the arbitration case starts at the ICJ.

With Somalia Petroleum and Mineral Resources minister Abdirashid Mohamed Ahmed saying the Horn of Africa nation remained committed to the judicial process at The Hague-based court.

“Any suggestion that Somalia has behaved dishonourably by trying to attract bids for oils blocks in the disputed area, or indeed has even undertaken any seismic surveys in that area, is entirely unfounded,” Ahmed said in an opinion article published in Business Daily, a local newspaper early this September.

According to Timothy Walter, a maritime border conflict researcher at the Institute for Security Studies (ISS) in South Africa, risks abound for both states regardless of how the court rules.

“If the court should decide to bat for Somalia, the Kenyan border would shift dramatically,” he said leading to a domino effect that will spill over to Kenya’s southern neighbour Tanzania and as a consequence could impact negatively on neighbouring states of Mozambique, Madagascar and South Africa.

But for Somalia and Kenya doubts of working together scarcely exist.

“Both countries do not want to make any compromise when it comes to their sovereign rights. That can change, of course, but at the moment, it looks like an either-or decision,” said Walker who opines that a decision could be hammered out next year.