Why Kenya’s Démarche on Somalia Maritime Dispute was Merited

While noting that the Kenya/Somalia dispute and its decision thereof rests with the International Court of Justice (ICJ), the diplomatic decisions to the solution rests in the leaderships of both Kenya and Somalia. Noteworthy is that the legal processes are actions of the last resort if any other pacific means of settlements of dispute by the parties involved is untenable.

As a final resort to pacific settlement of the dispute, Kenya invited Somalia to enter into “provisional arrangements of a practical nature” pending the agreement on maritime boundary on May 25, 2016. This however did not mature into a negotiated agreement.

Later in February 2, 2017, judgement by the ICJ found that “it had jurisdiction to entertain the application as filed by Somalia on 28 August 2014 and that the application was admissible”. There is no recourse to this at this point.

The February 2, 2018 order by the ICJ in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone and the continental shelf, including the continental shelf beyond 200 nautical miles” authorized the submission of a Reply by Somalia and a Rejoinder by Kenya and fixed 18 June and 18 December 2018 as the respective time-limits for the filing of those written pleadings. The ICJ reserves the subsequent procedure for further decision. Whatever the court shall decide will be binding to both parties.

Up until 2014, Kenya has had uncontested jurisdiction in the disputed maritime area since its first proclamation of the Exclusive Economic Zone (EEZ) in 1979, that reflected prior colonial practice. Her economic activities in the area were limited to temporary exploratory activities which were later suspended, gains and loses notwithstanding. Owing to the Security threat, patrolling by the Kenyan Navy was necessary in light of lack of Maritime Enforcement Capacity by Somalia coupled with Al-Shabaab weapons smuggling and infiltration at sea, which were under an African Union Mandate with the endorsement of the United Nations Security Council.

The consequent action by the Government of Kenya in protest of the alleged presentation of the maps for auction in disputed maritime area at the Somalia Oil and Gas Conference in London, United Kingdom, is an indication of heightened communication appeared to imply that the Government was heavy in spirit, immediate in resort and that all options were on the table in addressing the situation on Maritime Territory implying that initial efforts had failed to pass across the message. The Ministry of Foreign Affairs notes that:

“On 6^th February, 2019, the Ministry of Foreign Affairs, alarmed at the incorrect display and characterization of Kenyan maritime territory as belonging to Somalia, during the London auction, summoned the Somali Ambassador to Kenya and formally demanded a withdrawal of the incorrect map displayed at the Conference and a cessation of the auction of the oil and gas blocks in Kenya’s territory. The Ambassador of Somalia received the protest and confirmed on the same day that Kenya’s alarm and consternation at developments at the London Conference, had been registered at the highest level of the Somali Government. It was agreed that there would be a speedy and amicable response to Kenya’s objections.”

By the time Kenya’s Ambassador to Somalia was being summoned and his counterpart in Kenya being sent for further consultations, Somalia’s response was yet to be known to the Ministry. The Ministry of Foreign Affairs and International Cooperation of Somalia in a letter dated 17^th February 2019 noted:

“We note that the Government of Kenya has characterized these maps as “illegal”. The maps in question depict Somalia’s claimed maritime zones and are entirely consistent with Somalia’s long-standing position, including its claim in the maritime delimitation case with Kenya currently before the International Court of Justice (ICJ). This long-standing position reflects the Government of Somalia’s duty to protect its sovereignty, political independence, territorial integrity and unity.”

Did the situation merit the response by the Government?

The 1961 Vienna Convention on Diplomatic Relations does merit actions of a similar nature and spirit, as noted under Article 9, that:

“The receiving State…”in this case Kenya, “…may at any time and without having to explain its decision, notify the sending State…” in this case Somalia, “that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State”.

In practice, the act of recalling of a diplomat can be for developmental purposes for instance when the Ministry recalls its own Ambassadors for brief or further instructions or an act of protest in the case of mis-behavior of the diplomat or gross violation of human rights or state interests by the sending state. In all cases examples can be drawn, for instance when Malawi in 2016, recalled 82 diplomats from countries abroad (including Kenya) in plans to reform the Ministry, rationalize diplomatic staff and downsize the Missions Abroad against the Government’s Strategic Foreign Interests.

In another instance, when an official enjoying diplomatic immunity is accused of a serious crime, expulsion is usually the host country’s only recourse. For instance, the Obama Administration in 2012 expelled (declared Persona non Grata) the Venezuelan Consul General, Livia Acosta Noguera, in Miami over allegations that she had discussed possible cyberattacks on U.S. soil while stationed at her country’s embassy in Mexico in her prior assignment. In 2011, following Malawi’s expulsion of the United Kingdom’s High Commissioner to Malawi, Fergus Cochrane-Dyet after a leaked cable quoting him describing Malawi’s President Bingu wa Mutharika as “becoming ever more autocratic and intolerant of criticism”. In return, British Foreign Secretary William Hague sent packing acting High Commissioner of Malawi, Flossie Gomile-Chidyaonga and her dependents “at the earliest opportunity”, warning of serious consequences, recognizing that U.K. is the largest donor to 40% of Malawi’s budget from abroad. Furthermore, an invitation to the Malawian Government to celebrate the Royal Wedding was thereafter withdrawn.

In most cases, expelling an Ambassador or any official does not reflect severing bi-lateral diplomatic relations. The chargé d’affaires would easily take charge of an Embassy in the Ambassador’s absence and is in a good position to step in following an expulsion.  The practice of diplomatic protests is left to the inventiveness of the policy makers at Foreign Affairs, just as civil society is allowed to enjoy the right of peaceful demonstrations in the country, the mode of delivery is left to their creativity. 

Kenya and Somalia relations remain solid, their futures extricable and intimately interconnected.  

Joel Okwemba is the  Managing Director  at the Centre for International and Security Affairs.