Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
This case is important because a lot of political tension between the two countries since there is no amicable solution that has been found. Somali has brushed shoulders with Kenya on the possession of the potentially oil wealthy region that is on the boundary between the two countries. Somalia believes and claims that some the blocks contained in the blocks which Kenya has given exploration contracts stretch out within Somalia waters. On 28th August, 2014 Somalia established maritime disagreement proceedings against Kenya at the International Court of Justice (the “ICJ”), the chief legal organ of the United Nations (“UN”).
Case Background and Facts
In line with a yearly review by a global financial company KPMG, as in recent times as 2012, Kenya had no established oil or gas treasury. This nevertheless was altered when Tullow Oil, a UK investigation company, discovered oil reservoirs in Turkana all along the Great Rift Valley. Also, global oil and gas exploration firms that were prospecting alongside the larger East African shoreline had revealed enormous natural gas reservoirs off the shoreline of Mozambique and Tanzania. This provoked exploration at the Kenyan coast since it lies on the same geographical level surface. The Australian Pancontinental Oil and Gas Company revealed that it had exposed offshore oil and gas treasury off the Mombasa seashore. The move provoked Kenya to expand more exploration blocks and offer the same for sale to exploration companies.
The Basis of Somalia’s Claim
The Somali government in its submission argues that the maritime borderline involving the Partakers. This is in matters touching on the continental shelf, territorial sea and exclusive economic zones (EEZ). The three zones are supposed to be established in harmony with the United Nations Convention on the Law of the Sea (“UNCLOS”). The Somalia government based their argument on Article 15 of UNCLOS which states that at the point where the coasts of two States are opposed or neighboring each other, none of the two States is at liberty to enlarge its territorial sea further than the center line (of the low water point at the State’s shoreline).
This can only be altered if there are in the least extraordinary state of affairs allowing such change, if there is an accord involving the two States or there are any historical justifications for such a change to take effect. On or after the provisions of Article 15 of the UNCLOS, a borderline is to be drawn that is in the middle involving the coastlines of the two States so as to give natural resource independence. Even though Kenya has not given an official respond on the subject matter, Somalia in its submission had claimed that Kenya’s present situation on the maritime borderline is that it ought to be an in a straight line. Coming from the Parties’ land border line end of the line, and stretching due east all along the corresponding latitude on which the land border line end of the line sits. It is from beginning to end of the complete coverage of the territorial sea, EEZ, and continental shelf, as well as the continental shelf further than 200 nautical miles.
Somalia additionally added that the demarcation process of EEZ’s set out in the Article 74 of the UNCLOS ought to be the guide in establishing a lucid maritime boundary connecting Kenya and Somalia. Article 74 of the UNCLOS sets out the modus operandi to be followed, which motivates the parties to attain a joint agreement, failure to which the States involved shall opt to the events set out in the UNCLOS. In 2009, Kenya ascended a Memorandum of Understanding (“MoU”) with Somalia in which Kenya assertion had positioned the maritime borderline running owing east by the side of the line of latitude.
Nonetheless, Somalia counter disagreed that the function of the MoU is not to distinguish the maritime boundary but to a certain extent grant non-objection to Kenya’s May 2009 compliance of assertion to delineate the external limits of Kenya’s continental shelf further than the 200 nautical mile boundary. Somalia’s parliament, on the other hand, discarded this MoU in August 2009, saying that Somalia was heading to the suitable necessities for delimitation of the continental shelf, and thus not approving the a maritime borderline with Kenya
Jurisprudence of Maritime Boundary Disputes
The universal rule functional in maritime boundary disagreements by the ICJ has for all time been that except the conditions set out in the Article 15 of the UNCLOS are satisfied, the defaulting cure would be the implementation of a central line. This was functional in the 2009 case relating to the Maritime Delimitation in the Black Sea (Romania v. Ukraine). The case implicated similar state of affairs as the at hand Kenya-Somalia case, in which there was a disagreement as how the maritime borderline in the Black Sea would be defined between Romania and Ukraine.
The ICJ in ascending at its conclusion apprehended that pursuant to Article 15 of the UNCLOS, there were no particular state of affairs for change of the maritime borderline between Romania and Ukraine, there was no harmony involving the two states and there were no historical validations for such a modification. As a matter, the disagreement between Kenya and Somalia would require to be determined taking all matters into explanation and not just have a blanket submission of the central line principle. As a matter of interest, if one is to go after the central line principle, part of Tanzania’s Pemba Island is to fall squarely within Kenyan waters. It will be of interest to track Kenya’s point of view in this regard. Even though the case is still in court, the decision is clear as we have seen in the argument above. The matter needs scrutiny, and the judge’s rule should not be only based Article 15 of the UNCLOS.
The state of Kenya will have to give substantial reasons onto why it should have some block in the Somalia yet they claim to be Kenyan territory and why it’s claimed by the Somalis. The way of arbitrating this case should not again be merely based on other similar cased dealt before in other countries. Each party must be well listened to so that the judgment should be fair because it will be a historic time for both the countries. This ruling will affect the economy of both the countries since either will be given the liberty to run their activities in the area awarded to them independently
Since these kinds of disagreements take an extensive time to be determined, the possible consequence of a decision of the ICJ will nevertheless be historic for Kenya and Somalia. In addition, in line with the decision, this could have an effect on present disputes based on ownership of shoreline oil and gas resources in Africa, which are the freshly filed Ghana – Ivory Coast disagreement.