The diplomatic spat between Kenya and Somalia on the demarcation of the contested resource-rich Exclusive Economic Zone (EEZ) in the Indian Ocean continent shelf is, probably, the most potent contestations in modern times. But there is a history to this contest. On February 28, 1979, a Presidential Proclamation that delineated Kenya’s territory in the sea was issued by then president Daniel arap Moi. The Proclamation gave Kenya sovereign rights to explore, exploit and manage the natural resources within the EEZ in their renewable and non-renewable forms including the waters, aquatic life such the fish, the sea-bed and its sub-soil.
On June 9, 2005, the second proclamation that reiterated that of 1979 was made by then president Mwai Kibaki. It is important to note that these proclamations were consistent with the United Nations Convention on the Law of the Sea (UNCLOS) of 1964, which is a pointer to two main yet probable conjectures.
First that Kenya, as a member of a community of states, respected the conventional principles. Second, that the delineation of international boundaries issue is historical, a reason a solution had to be found by the formation of UNCLOS. The former conjecture can be strengthened by the sheer fact that the Federal Government of Somalia remained mum on the proclamation(s) and did not interfere with Kenya’s sea territory, at least, for a period of 35 years after the decree was first issued. The UNCLOS charter delineates rules and procedure for demarcation of the sea between contiguous countries. As it is, the standard is 200 nautical miles, which is an equivalent of 370 kilometres of the coastline. Exceptions to this standard may apply where adjacent countries have a tombolo or an isthmus. These exceptions may include the kind of agreement that saw the construction and use of the Suez Canal or the wisdom of the International Tribunal for Law of the Sea, which is an alternative to the International Court of Justice that determinations border issues between contesting countries, on the diplomatic row between Ghana and Ivory Coast and on how the neighbouring countries can share rights to explore, exploit and manage the Atlantic Ocean resources. On April 7, 2009, a memorandum was signed between the two governments granting no-objection in regard to the countries’ submissions on the outer limits of the continental shelf that exceeds 200 nautical miles.
The memorandum was submitted to the Commission on the Limits of the Continental Shelf (CLCS), which sits in New York. The aim of CLCS is to ensure that in matters pertaining the computation of the outer limits of the continental shelf beyond the sea or ocean baselines from where the breath of the territorial sea lies that UNCLOS principles are adhered to. As the effervescence of the old, often serene, contestation heats up again, it is important pursuing diplomatic approaches in pursuing the matter. The war-torn country of Somalia tested the ‘sweet grapes’ of what lies below the sea through its exploration of the oil reserves within its territory. It is a non-renewable resource and it is worth speculating that they know enough distraction to the Kenyan government will allow them to exploit what conventionally belongs to Kenya, such that by the time the International Court of Justice (ICJ) makes a determination, they will have significantly reduced Kenya’s potential gain.
It is also important to speculate that technology is the unseen catalyst to the feud. This is because technology has made it possible to detect and quantifiy as well as exploration, exploitation and processing of resources beyond limits that hitherto existed, in terms of efficiency. The current diplomatic feud is not the only one through which the Mogadishu government has tried to distract the resilience the Kenyan people. It should be remembered that between 1963 and 1967, Kenya had to deal with the Shifta War.
International communities should also step in helping wrangling countries on border lines reach amicable solutions, as Kenya and Somalia awaits the ICJ’s ruling, which must be impartial to deter a cycle of antagonism among countries that have access to international waters.
Obed Nyangena, economist, via email.
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