By Gatuyu Justice
The Sunday Nation on 14th September, 2014 ran a story that Kenya would lose her territorial waters in the Indian Ocean if the Republic of Somalia succeeded in a case it has filed in the international court of Justice (ICJ). Claptrap! Pure Baloney.
There is no way a coastal state like Kenya can become landlocked or forfeit her territorial waters in any manner, for the matter is a firmly regulated regime in international law mostly by the United Nation convention on the Law of the Sea (UNCLOS) which Kenya is a signatory and has domesticated through the Maritime Zones Act and the Merchant Shipping Act.
As provided in the UNCLOS and the Maritime zones Act, Kenya is entitled to 12 nautical miles (22 KMs) of territorial sea. Equally, the country is allowed to claim 12 nautical miles of contagious zone measured from the end of territorial sea and further claim 200 nautical miles of the exclusive economic zone (EEZ) measured from the baseline.
This practice of maritime zoning by coastal states became entrenched in international practice after the “Truman Proclamation” of 28 September 1945 when the Government of United states stated they had original, natural and exclusive right to the continental shelf of its shores. Other country followed suit in making similar declarations.
President Mwai Kibaki proclaimed Kenya’s Maritime zones through the Legal Notice No. 82, published in Kenya Gazette of No. 55 of 22 July 2005, instrument which was deposited with the United Nations. Therefore, claim that Kenya may be turned into a land locked country is not only far-fetched, but fictional.
The real dispute between the Republics of Kenya and Somalia is the mode of delimitation of the coast line. Kenya claims her maritime boundary runs due east from the point at which the land border meets the coast. Somalia objects, claiming the Kenyan boundary should extend perpendicular to the coastline. It’s true that if Somalia wins the case, Kenya is likely to forfeit huge triangle of ocean water stretching for more than 100,000 square kilometres it currently controls, but the rest of Kenyan waters would remain intact.
UNCLOS does not provide for specific modality of delimiting EEZ between states with opposite or adjacent coasts. Such is left for determination through agreements between the countries. It’s only in absence of such agreement that states resort to the procedures on dispute settlement which include litigating at the ICJ.
In 2009, Kenya entered into regional agreements with her two coastal neighbours. There is an agreement with Tanzania on the maritime boundary of EEZ and the continental shelf and a memorandum of understanding with Somalia Government granting each other a no objection in respect of submissions on the outer limits of the continental shelf.
Therefore, when and if, the Somali case goes for hearing, Kenya’s key argument would be to cite this agreement as a binding pact, and thus Somalia reneging on it was a violation of the doctrine of pacta sunt servanda, that agreements must be kept.
Secondly, Kenya would bring to the notice the maritime borders of the other countries along the Eastern Coast of Africa all go due east horizontally in a straight line. Unique mode cannot be applied to suit Somalia desires. This was the position in the Delimitation of Maritime Boundary in the Gulf of Maine Area case when ICJ held, criteria in delimitation of marine boundaries should be one best suited for employment in a multi-purpose delimitation.
Thirdly, Kenya would submit that the maritime territory Somalia claims has effectively been under the Kenyan control for long time and urge the court to adopt the practice of de facto maritime boundary as seen respected in the Northern Limit Line dispute between North and South Korea over the yellow sea.
Somalia key missile over Kenya in court would be to aver that when the two countries gained their respective independence, Somalia controlled the territory it claims. To deter any boundary disputes, Organisation of Africa Unity (OAU) sanctioned the principle of Uti possidetis (as you possess) which required immutability of boundaries of states left by colonial masters. Therefore, the question when in history Somalia’s maritime zones reneged to be Kenyan arises.
All in all, past jurisprudence of ICJ indicate the case may be ruled either way. In fact, in North Sea Continental Shelf cases (Germany v Denmark and Netherlands, 1969) the court asserted cases on sea boundary are determined on case by case basis.
However, in realizing the real underbelly of the case is scramble for ocean mineral resources in the continental shelf, with off shore exploitation of oil and gas gaining prominence and expected to rise in the future with improvements in technology, the two countries ought to engage and settle the dispute amicably, in a win-win situation, instead of acrimonious litigation.