The second paragraph of the Memorandum of Understanding gives Kenya the right to claim a maritime territory of Somalia’s:
“The delimitation of the continental shelf between the Republic of Kenya and the Somali Republic (hereinafter collectively referred to as “the two coastal States”) has not yet been settled. This unresolved delimitation issue between the two coastal States is to be considered as a “maritime dispute”. The claims of the two coastal States cover an overlapping area of the continental shelf which constitutes the “area under dispute”.
In essence, the Transitional Federal Government of Somalia (TFG) accepted the argument that Kenya has a right to claim a portion of the Somali maritime territory, and that the dispute can be settled by both countries.
No country has ever signed a MOU to put its territorial integrity into dispute. Abdirahman Abdishakur Warsame, the former TFG Minister for National Planning and the International Cooperation signed the MOA on Somalia’s behalf.
Between 2005 and 2007 Kenya approached the Transitional Federal Government of Somalia led by President Abdullahi Yusuf Ahmed about “Memorandum of Understanding” on a non-existent sea boundary dispute. An informal meeting was held in Nairobi between a Kenyan diplomat and Somali diplomat. Kenya proposed an MOU with Somalia.
The Somali diplomat shared Kenya’s initiative with the former Somalia Foreign Minister Ismail Hurreh Bubaa. Mr Buubaa told the Somali diplomat that there was no maritime dispute between Somalia and Kenya and that the sea boundary between Kenya and Somalia was delimited.
In January 2009 a new Somali President was elected in Djibouti following the resignation of President Abdullahi Yusuf Ahmed in December 2008. The Transitional Federal Government of Somalia signed the MOU on April 7th 2009, almost three months Sharif Sheikh Ahmed was sworn in as the President of the Federal Republic of Somalia.
In 2016 President Hassan Sheikh Mohamud accused his predecessor President Sharif Sheikh Ahmed, Abdirahman Abdishakur Warsame, both Presidential Candidates then and now, and Omar Abdirashid Ali Sharmarke, a former Prime Minister and a 2017 Presidential Candidate, of high treason.
“It is unfortunate that those who have not taken seriously the risk to our maritime territory are now running for the highest office of the country. People must think twice about whom they elect to the highest office of the country” said President Hassan Sheikh Mohamud in 2016.
It is hardly a self-serving statement in an election time. Sharif Sheikh Ahmed and Abdirahman Abdishakur Warsame along with Prime Minister Omar Abdirashid Ali Sharmarke resolved to grant Kenya the right to claim a Somali maritime territory. No one was held accountable for damaging Somalia’s national interest.
Alliance for the Reliberation of Somalia ( ARS) dominated the post-2008 Transitional Federal Government. As a face-saving gimmick for President Sharif, Prime Minister Sharmarke and Minister Abdishakur, the former Transitional Federal Parliament rejected the Memorandum of Understanding.
A national legislature cannot rescind a Memorandum of Understanding between two sovereign countries.
The Memorandum of Understanding questions Somalia’s maritime boundaries and article 1 of 1972 law promulgated by Major General President Mohamed Siad Barre.
. The article stipulates:
“The Somali territorial Sea includes the portion of the sea to the extent of 200 nautical miles within the continental and insular coasts, delimited according to the provisions of articles 2, and 3 of this Law.”
President Hassan Sheikh Mohamud reaffirmed Somalia’s maritime boundaries in a proclamation dated June 30th, 2014:
Before 1991 the Somali Government representatives attended conferences on the law of sea. In 1984 Dr Mohamud Ali Turyare, a former Professor of International Law at the Somali National University represented Somalia at one such conference on United Nations Convention on the Law of Sea.
How Kenya Exploits the MOU with Somalia
On January 24th 2017 Kenya expressed reservations about some articles of the Convention on the law of the sea:
“The Government of the Republic of Kenya pursuant to Article 298 (1)(a)(i) of the United Nations Convention on the Law of the Sea, 1982, declares that it does not accept any of the procedures provided for in Part XV Section 2 of the Convention with respect to disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles. The Republic of Kenya reserves the right at any time by a notification addressed to the Secretary General of the United Nations to add to, amend, or withdraw any of the foregoing reservations. Such notification shall be effective on the date of their receipt by the Secretary General.”
Kenya has reservations about section 2 of article 286 which states:
“Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.”
In 2014, the Federal Government of Somalia submitted the maritime dispute to the International Court of Justice, a decision backed up by the very article about which Kenya has expressed reservations.
Both Somalia and Kenya signed the United Nations Convention on the Law of the Sea on December 10th 1982. Kenya prefers out of court settlement to adjudication by the International Court of Justice.
In 2009, a delegation led by the former Prime Minister of the Transitional Federal Government of Somalia Omar Abdirashid Ali Sharmarke visited London.
At a ceremony for the visiting delegation held in London Abdirisaq Osman Jurrile, Posts and Telecommunications Minister, defended the decision to sign the Memorandum of Understanding with Kenya. “Who said ‘we have sold our sea’”? I swear to God we did not sell our sea” he told the audience.
President Hassan Sheikh Mohamud, is a member of, along with Abdirahman Abdishakur Warsame and Sharif Sheikh Ahmed, the Alliance of Somali Presidential Candidates. He criticised the incumbent President Mohamed Abdullahi Mohamed for not putting effort into winning the maritime dispute with Kenya.
The irony is that a group of Somali politicians who came to the political scene on nationalist sentiment against the Ethiopian intervention in Somalia had signed a Memorandum of Understanding and plunged Somalia into a maritime dispute that Kenya has cunningly manufactured.
If the same people, who put Somalia in a difficult legal position, are seeking the Somali Presidency, there is no guarantee that Somali leaders will not sign agreements that damage Somalia’s territorial integrity.
This article first appeared in the © Puntland Post, 2021 and is republished with permission