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Kenya pushes back on border row with Somalia

Attorney General Githu Muigai at a past event. PHOTO | NMG
Attorney General Githu Muigai at a past event. PHOTO | NMG 

Kenya has dismissed Somalia’s claim to a large maritime zone off its Indian Ocean coast, insisting it is an afterthought not backed by law.

Attorney-General Githu Muigai said Kenya has kept its offshore activities within the established marine boundaries recognised and respected by both parties for more than 35 years.

“Kenya asserts that all her activities, including navy patrols, fisheries practice, marine and scientific research and oil exploration are within the marine boundary established by Kenya and recognised and respected by both parties since 1979,” Prof Muigai says in a response to Somalia’s suit at the International Court of Justice (ICJ) in August 2014 seeking to have a new border line drawn.

If implemented, the proposal would see Somalia’s territorial waters extended southwards to a number of Kenya’s oil exploration blocs such as L5 and L28.

Kenya had sought dismissal of Somalia’s application on grounds that the ICJ had no jurisdiction in the matter but the court, in a majority decision, authorised the case to proceed and gave Kenya up to yesterday to file a response.

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“Today, Kenya filed her response (the Counter-Memorial) to the case filed by Somalia with the registry of ICJ in The Hague, The Netherlands,” Prof Muigai said in a statement yesterday.

Somalia’s case is being seen in the context of looming global conflict over natural resources as better technologies lead to better search and extraction of resources from the sea, including oil.

Similar disputes have erupted in the South China Sea pitting a number of countries, including China, Vietnam and the Philippines.

No appeals

For Kenya, winning the case at The Hague is critical because judgments issued in disputes between States are binding upon the parties concerned.

“Judgments are final and without appeal. If either of the parties challenges their scope or meaning, it has the option to request an interpretation. In the event of the discovery of a fact hitherto unknown to the Court, which might be a decisive factor, either party may apply for revision of the judgment,” the ICJ says.

Prof Muigai said Somalia has for over 35 years recognised and respected the maritime boundary between the two countries along a parallel of latitude, adding that Mogadishu acknowledges these facts but does not recognise their legal effect.

Kenya insists that Somalia’s push for a maritime boundary based on an equidistant line implies that Kenya’s oil exploration activities in the disputed area are unlawful.

Equidistance line is defined by the United Nations as a “line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.”

The UN, under which the ICJ operates, has several means of adjudicating maritime boundaries taking into account factors such as fairness.

Ideally, neighbouring countries should arrive at a mutual agreement on where their territorial claims end but failure to do so usually leads to global litigation.

Countries have a right to territorial sea covering 12 nautical miles off their coast, according to UN laws. States can also enforce their laws for areas up to 24 nautical miles from their land.

Resources

They can also exploit marine resources, including drilling oil, fishing and energy production from water and wind in larger areas known as exclusive economic zones (EEZ) and which cover up to 200 nautical miles.

Drilled petroleum exploration wells and blocks of Kenya. PHOTO | COURTESY | NATIONAL OIL

Drilled petroleum exploration wells and blocks of Kenya. PHOTO | COURTESY | NATIONAL OIL

The Kenya-Somalia dispute is about access and control of marine resources in the deep waters.

The ICJ has disclosed that Somalia in its application claimed that it decided to sue Kenya after diplomatic negotiations failed.

Ironically, Prof Githu says the government believes that negotiating with Mogadishu is the best way of resolving the dispute.

The court says Somalia has requested it “to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles.”

Mogadishu has also asked the court to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.

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