How to solve Kenya-Somalia maritime border row

Somalia has eventually taken Kenya to the International Court of Justice at The Hague over the six-year dispute about the Indian Ocean maritime boundary.

The case gives us an opportunity to explore international mechanisms of negotiated resource management, particularly when the conflict is international. Africa has had her fair share of conflicts over resources: the Angola war, the conflict in the DRC, the diamond war in Sierra Leon.

But there are examples of well managed territorial disputes in Africa. The most notable is the Nigeria-S?o Tomé & Príncipe treaty. We can draw lessons from this treaty to see how the Kenya-Somalia dispute can be resolved amicably.

The Kenya-Somalia conflict is about what direction the boundary should take in the Indian Ocean. Somalia insists that her 1960 border stretched diagonally south-eastwards. Kenya says the boundary should move eastwards.

The clash is of course over the resources within and below the sea floor. It is estimated to hold substantial oil and gas deposits. Kenya has already licensed seven oil blocks for oil exploration in the disputed area. This is what ostensibly angered Somalia.

The dispute is both complex and simple. Complex because, maritime boundaries are never clearly demarcated. Worse, Somalia has no stable government to conclusively settle the issue. Simple because there are already international frameworks for resolving such disputes.

In 2009, Kenya signed an MOU with Somalia, agreeing that the boundary runs eastwards, the way it is with Tanzania. Kenya had prompted her war-torn neighbour to an agreement in order to beat the May 2009 deadline given by the United Nations’ Commission on the Limits of the Continental Shelf (CLCS). The commission had required coastal states to submit data over limitations and directions of their maritime boundaries. CLCS required states with shared maritime boundaries to agree on their territories, exclusive economic zones and continental shelves beyond 200 nautical miles.
Upon these three, it is possible to craft a win-win agreement between states.

However it is not all conflict. Media analysts on the Kenya-Somalia case quickly pointed out at the Nigeria-S?o Tomé & Príncipe resource sharing agreement as a good example of how the two Eastern African countries could agree to resolve dispute. In 1990, large amounts of hydrocarbons were discovered in the Gulf of Guinea, 180 kilometres off the Nigerian coast. S?o Tomé & Príncipe is a group of tiny islands in the same region. The country is a former Portuguese colony and dirt poor. So there was excitement over the oil find. But Nigeria was also salivating at the discovery.

With foresight, in 2001, the two countries signed a treaty under a Joint Development Plan framework. The MOU was grounded on the international conventions, which allow countries sharing disputed maritime boundaries to create Joint Development Zones (JDZ). The Nigeria- S?o Tomé & Príncipe JDZ covers about 34, 470 sq. km in the Atlantic Sea.

This kind of arrangement is anchored in the December 1982 United Nations Convention of ‘the law of the Sea’ (UNCLOS). This guides states faced with deadlocks over maritime boundaries to have ‘provisional arrangements of a practical nature....’ Otherwise, it stipulates that while

states continue negotiating, a provisional framework for cooperation can be put in place. The S?o Tomé & Príncipe is overseen by the Joint Development Authority (JDADA). This plan gives Nigeria 60 per cent and Sao Tome Principe 40 per cent of the offshore oil revenue. Analysing this joint venture in the Journal of Science and Power engineering, Huang Wen Jo stresses on the importance of negotiated agreements on disputed waters for ‘stable bilateral relations...’ A commentary on the issue on French Radio International last week pointed out that a Joint Development Zone could be the best option. But then we are dealing with a country without a stable central government.

To a casual observer, the Kenya-Somalia territorial case over the Indian Ocean seems curious, irritating even: A failed state fomenting a conflict against a country it relies on for so many things, almost its lifeline. There is the issue of timing at a time of approaching elections in the horn of Africa country. There is perhaps national pride. Some analysts have alluded to possible influence from powerful interested countries or groups.

The sensible thing is easterly direction from Ras Kamboni into the sea. The world is replete with maritime border conflicts. The China-Philippines case is the latest.

The eastern Africa region is the newest battleground for resources. Boundary cases are likely to increase here as big world energy consumers concentrate on the continent’s resources. The Tanzanian-Malawi case over Lake Malawi is just unfolding. The lake is said to be sitting over millions of barrels of oil and gas.

There is also a simmering maritime border conflict between Tanzanian and Mozambique. Then the resources under Lake Albert could in future fun out into a conflict between Uganda and the DRC.

Analysts say that forming Joint Development Zones is a sustainable way to manage resources in disputed areas.