Somalia vs Kenya Maritime Boundaries Disputes: Is ADR an option?

By Caroline Katisya, LL.B (UON), LL.M Energy Law and Policy (University of Dundee), CPS (K)

Introduction

On 28th August, 2014 the Federal Republic of Somalia filed a suit against the Republic of Kenya at the International Court of Justice seeking the delimitation of a single maritime boundary of all the maritime areas between the two states. Kenya raised a preliminary objection on the grounds of jurisdiction and admissibility of the application. The proceedings on merit have been postponed until the preliminary objection is heard and determined. The preliminary objection is currently being argued before the court in September 2016.

Kenya and Somalia have ratified the United Nations Convention on the Law of the Sea (UNCLOS) 1982 which defines the maritime areas belonging to coastal states as follows: a) the territorial sea as 12 nautical miles (NM) from the coastline, (b) the contiguous zone as 24NM from the coastline, ( c) the Exclusive Economic Zone (EEZ) as 200NM from the coastline and (d) the continental shelf (CS) up to 350NM from the coastline.

Kenya and Somalia are adjacent Coastal states and share a common boundary over their maritime areas. Coastal states have sovereignty and the exclusive right to explore and exploit both living and mineral resources in their maritime territory. UNCLOS encourages states to delimit their maritime boundaries at the first instance by agreement. This means good faith negotiations with the objective of reaching an equitable solution. Section 4(4) of the Kenyan Maritime Zones Act Cap 371 equally provides that the northern boundary of the maritime zone shall be delimited by agreement between Kenya and Somalia.

Dispute resolution

It is my view that Somalia’s reference of the dispute to the International Court of Justice (ICJ) was premature as several options were still available to the two governments to negotiate and reach agreement.

Part XV of UNCLOS sets out the dispute resolution mechanism for disputes arising from the Convention, first it refers to the several options set out in Article 33 of the United Nations Charter namely negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of the disputants’ choice. Thus although Somalia has chosen to resolve the dispute by peaceful means through judicial settlement, other more amicable mechanisms were available to it. Secondly, Article 283 of UNCLOS obligates the parties to exchange views on potential settlement or negotiation. Somalia contends that various exchanges of views were undertaken by the parties at diplomatic meetings without success before the filing of the suit. It is noteworthy that the new government in Somalia was established on 20th August, 2012. Somalia filed the suit against Kenya at the ICJ barely two years later. It is apparent that not enough effort was employed to resolve the dispute amicably. In order to maintain regional peace and good neighbourliness, it behooves the parties to give a fair chance to the alternative dispute resolution options. Referring disputes to international courts waters down the sovereignty of the parties, takes long to resolve and creates uncertainty and instability that deters investors. This is depicted by the recent award by an international arbitration tribunal of several islands in the South China Sea to the Philippines against China which has sparked a heated international debate due to China’s refusal to recognize the award. The arbitration was conducted under the United Nations Convention on the Law of the Sea (UNCLOS) compulsory arbitration provisions despite China’s refusal to participate. China has contested the award on several grounds including sovereignty and bias. The Philippines has proposed to hold talks with China to find an amicable solution as enforcement of the award will be a challenge.

Is Joint development a viable option?

The resolution of a dispute is attained once the interests of the parties are identified. One may deduce that the underlying cause of the escalation of the conflict is the allocation of several offshore oil blocks by Kenya to international oil companies in the disputed maritime zone. Somalia claims that the maritime boundary must be drawn in a south- south east line while Kenya contends that it should be drawn in an easterly direction from the terminus of the land boundary thus retaining the allocated oil blocks within its territory. The ICJ may choose one of several methods of delimitation, such as equidistant, meridian, parallel or perpendicular methods to determine the overlapping boundaries in the EEZ. What lies at the heart of this dispute is control of the mineral resources in the South Western Indian Ocean. The discovery of one of the largest natural gas reserves in Rovuma basin in the Tanzania/Mozambique boundary has raised the potential of equivalent finds in the disputed area.

Articles 74 (EEZ) and 83 (CS) of UNCLOS empower countries to enter into provisional arrangements before final agreement on the delimitation of the maritime boundaries is reached. These provisional arrangements should not jeopardize the final outcome of the delimitation process but provide a practical temporary solution in the spirit of understanding and cooperation.

The above UNCLOS provisions have been employed by several countries with overlapping interests in resource rich offshore zones. Timor Sea Treaty (including other agreements between Australia and East Timor) and the treaty between Nigeria and Sao Tome are examples of an alternative approach at resolving maritime disputes that have at their core the struggle for ownership of resources. Under the East Timor/Australia agreements the two countries decided not to delimit the boundaries between the two countries until the exhaustion of the rich resources in the disputed area. The two countries agreed to jointly develop the resources as a common reservoir co- owned by both parties at an agreed percentage. They created a legal and policy framework including an inter-governmental body that would allocate the area to international oil companies for exploration and exploitation of the resources. This partnership known as joint development is an alternative resolution that addresses the economic and commercial interests of the countries which is at the root of the dispute.

For Sao Tome and Nigeria a joint development agreement was entered into for 35 years with a resource sharing formula of 40:60 and the formation of a Joint Development Authority to manage and oversee the exploitation of the joint development zone. Three main legislative instruments were adopted the Joint Development Zone Petroleum Regulations 2003, Joint development Tax Regulations and the Model PSC agreement, A Joint Ministerial Council has the political responsibility for the project. This agreement ensures effective exploitation of natural resources for the benefit of both countries and is a model of African cooperation.

Conclusion

As the East African region grows in its natural resources potential it is important for nations to employ alternative dispute resolution mechanisms to solve potential conflicts and fast track their development agenda. The South China Sea arbitration has demonstrated that referring disputes to international tribunals may result in more acrimony, exorbitant costs and uncertainty. The challenge of enforcement of awards by international courts is another reason to consider voluntary resolution of disputes. It is hoped that Kenya and Somalia will emulate countries that have chosen joint development agreements as an alternative to unpredictable, protracted legal battles in the international courts.

Disclaimer:

All views represented herein are those of the Kenya Energy Think Tank and are not influenced or attributable to any external parties.