Dialogue crucial in the Kenya-Somalia maritime dispute

Despite economic, political and social integrations, boundary disputes pose a great threat to peace and stability in the Horn of Africa. Owing to colonial history of the region, most of these borders do not reflect interests of the local population.

The boundary dispute between Somalia and Kenya dates back to early 1963, when the British government declared Northern Frontier District (NFD) as one of Kenya’s administrative units. The move was rejected by the Somali government, sparking conflicts and soaring diplomatic relations with its neighbours.

The diplomatic tension was eased in 1967 when then President Jomo Kenyatta and the Prime Minister of Somalia Mohamed Ibrahim Igaal signed an agreement in Arusha dubbed ‘the Arusha agreement’ that paved the way for the resumption of diplomatic and commercial relations between the two countries.

Since 1991, Somalia lacked a functional government. The country fell into civil war and totally failed to perform its obligations toward its citizens and the international community in general. The legacy of the civil war was disastrous, destructive and widespread. During the civil war, Kenya immensely supported the Somali people, offering extraordinary sacrifice to re-build the Somalia government.

It hosted hundreds of thousands of Somali refugees, delivered humanitarian assistance, participated in peacekeeping missions and most importantly, mediated between warlords and traditional elders in Nairobi, leading to the establishment of a new Somalia government. 

The acceptance of the colonial border demarcation by all African countries ended borderland dispute between the two countries. But Maritime boarder dispute has been a thorn in the flesh since attempts by the two countries to lay the issue to rest has all been in vain.

The unresolvable dispute is over the ownership of about 100,000 square kilometres in the Indian Ocean, which supposedly has large deposits of oil and gas.

In another attempt to find an amicable solution, the two countries signed a memorandum of understanding (MoU) in 2009. This opened a new chapter of cooperation and better bilateral relations. The MoU notwithstanding, Somalia sued Kenya at the International Court of Justice (ICJ) in The Hague to demarcate the maritime boundary as laid down by the United Nations Convention on the Law of the Sea and other international sea laws.

Kenya wanted to settle the matter out of court, and as a result filed preliminary objection to challenge the jurisdiction of the court. However, ICJ dismissed Kenya’s prayers, setting the matter for full hearing.

In the most recent diplomatic spat, there emerged a claim that Somalia has auctioned oil blocs located in a disputed maritime border in a London Conference held on February 7, 2019. In undiplomatically, tactlessly and provocative manner, the Kenyan government considered Somalia’s alleged move an aggression that will not go unanswered. 

In a diplomatic, tactful and softly worded communication, Somalia regretted the reckless statements made by Kenya.

The accusation and counter accusation over the ownership of the maritime border that is before the adjudication of international court poses a threat to the peace, prosperity and cooperation that the two countries have enjoyed over the years.  

Maritime disputes are primarily a legal matter governed by the rules and principles of the law of the sea and other international law. Both parties are encouraged to review the dispute against the principles and rules of public international law at large. With respect to the economic development of disputed maritime areas, both parties are under international duty to negotiate in good faith, apply and exhaustively explore all avenues for alternative dispute resolution.

In addition, they are under international obligation to refrain from any unilateral exploration activities in the disputed areas.

As the parties wait for the ruling of the international court of justice, it is important that both countries provide a more flexible and balanced way to reach a satisfactory outcome. A new chapter of negotiation should be embraced to advance possible interim solutions and other formal cooperation.

- The writer is the legal advisor to Mandera County Governor.