kenya risks loosing its waters

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caitlin

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Kenya risks losing almost all of its
territorial waters in the Indian
Ocean if a case filed by Somalia in
an international court succeeds.
Alarmed by the grave implications
of the move by its war-torn
neighbour, the Jubilee Government
has reopened negotiations with
Somalia over its claim to a huge
swathe of maritime territory
considered rich in oil deposits and
fish, which the ministry of Foreign
Affairs says could effectively turn
Kenya into a landlocked country.
On Saturday, Cabinet Secretary for
Foreign Affairs and Trade Amina
Mohammed told the Sunday Nation
the matter is so sensitive that a
quick meeting to facilitate direct
talks between President Uhuru
Kenyatta and his Somalia
counterpart Hassan Sheikh
Mohamud has been arranged in
New York.
“We are in discussions with the
government of Somalia. It is
unfortunate they logged their
complaints even as we dialogued
over this matter,” Ms Mohammed
said, adding that Kenya preferred
to settle the matter out of court.
Documents seen by the Sunday
Nation show that the way Somalia
wants the boundaries redrawn
would take away at least five oil
blocks and vast oceanic territory
where deep sea fishing is
conducted.
It would also mean that Kenya
might have to access the Indian
Ocean only with Somalia’s
permission.
In June, an Australian firm
prospecting off Kenya’s Indian
Ocean coast reported a verified oil
find at one of its recently
completed wells in the Lamu
Basin.
Pancontinental Oil and Gas NL
confirmed their completed Sunbird
well has intersected an oil column,
making it the first-ever discovery
of oil off the East African coast.
The dispute could also unsettle
regional harmony as the proposal
by Somalia could automatically
move the Tanzanian island of
Pemba to Kenyan territory,
according to Foreign Affairs and
International Trade Principal
Secretary Karanja Kibicho.
“This claim by Somalia could make
Kenya a landlocked country which
may restrict our access to the high
seas. And if the alterations adopt
the proposal by Somalia then the
island of Pemba will become part
of Kenya,” said Dr Kibicho.
If the case filed by Somalia at the
International Court of Justice
(ICJ) is determined in its favour
Somalia’s maritime boundary in
the Indian Ocean would stretch all
the way to Tanzania’s shores.
ECONOMIC INTERESTS
Based in the Dutch city of The
Hague, ICJ is the primary judicial
branch of the United Nations that
mostly determines legal disputes
between states.
In its application to the ICJ, the
Somali government is making
reference to a number of oil fields
in the disputed area which Kenya
has laid claim to, signalling that
the battle may have been
precipitated by economic interests.
Ms Mohammed, an experienced
diplomat with vast experience in
the UN system, said Kenya was
keen on preserving good relations
with Somalia and is making every
effort to find a solution to the
impending crisis that could create
tension in the region.
She said the New York meeting
between President Kenyatta and
President Mohamud on the
sidelines of the annual UN General
Assembly later this month was
part of the diplomatic push to sort
out the problem.
Her views were reinforced by PS
Kibicho: “We have set technical
teams who are negotiating.
Somalia is considered a friendly
state — it is our neighbour, and it
will remain so.”
The Sunday Nation has also learnt
that even as the diplomatic efforts
continued Attorney-General Githu
Muigai had scheduled an
appointment with the ICJ
president to discuss ways of
handling the crisis.
“I recently appeared before the
Law of the Sea Commission in New
York to try to attend to this
matter. But we were referred to
the ICJ because the case had been
filed (by Somalia),” Prof Muigai
said.
The AG explained that his office
was assembling a team of experts
to support Kenya’s case.
“We have already submitted an
MoU (Memorandum of
Understanding) to the UN
secretary-general showing the
delimitation of our boundaries
with Tanzania. We want the same
formula adopted in our case with
Somalia,” the AG stated.
CASUAL NATURE
Somalia rushed to court over what
sources at the Ministry of Foreign
Affairs claimed was the casual
nature in which the Kenyan
government was handling the long-
standing matter.
Somalia was apparently angered by
Kenya’s decision to skip without
notice a negotiation meeting that
was to be held between August 25
and 26 this year.
“The Kenyan delegation, without
providing either advance
notification or subsequent
explanation, failed to arrive and, as
a consequence, the additional
round of meetings that Kenya had
requested were not held,” reads
part of the application Somalia
filed in court.
The Registrar of the ICJ Philippe
Couvreur wrote to Kenya on
August 28 detailing the case filed
by Somalia.
“I have the honour to inform Your
Excellency that the Federal
Republic of Somalia has today filed
in the Registry of the Court an
Application, instituting proceedings
against the Republic of Kenya
concerning a dispute in relation to
the establishment of the single
maritime boundary between
Somalia and Kenya in the India
Ocean, delimiting the territorial
sea, exclusive economic zone and
continental shelf including the
continental shelf beyond 200
nautical miles (M),” reads the
letter.
Kenya’s ambassador to The
Netherlands, Ms Makena Muchiri,
forwarded the letter to Ms
Mohammed the following day.
APPOINTED AGENT
“Kindly note that the provision of
Article 40 of the Rules of the Court
that requires Kenya to inform the
court of their appointed agent and
the address of service at the seat
of the court to which all
communications can be sent,” Ms
Muchiri wrote.
President Mohamud appointed his
minister for Foreign Affairs and
Investment Promotion Dr
Abdirahman Dualeh the country’s
agent in the case.
In the application, Dr Dualeh made
it clear there were “no special or
relevant circumstances that could
justify Kenya’s claim” to the
territory it occupied.
According to the technical
descriptions used in documents, in
previous negotiations with Somalia,
Kenya insisted that the maritime
boundary should run due east
along the parallel of latitude from
the land boundary terminus while
Somalia said the boundary should
be drawn to follow an azimuth
(angle) of approximately N131.5
degrees east from the land
boundary terminus out to the
outer limit of the two states’
maritime entitlements.
A source at the Foreign ministry,
who did not want to be named,
explained this meant Kenya
preferred the horizontal line from
the land through the sea while
Somalia wanted a diagonal
dissection that would give it most
of the territory.
“The parties have met on
numerous occasions to exchange
views on the settlement of the
dispute over the delimitation of
their maritime boundary. None of
these negotiation sessions has
yielded agreement. Indeed no
meaningful progress towards an
agreement has been achieved at
any of them,” reads part of the
application by Somalia.
On oil exploration, Somalia claimed
that Kenya had acted unilaterally
on the basis of the current
boundary to exploit both living and
non-living resources on the Somali
side.
However, Kenya’s Foreign Affairs
PS denied that oil exploration in
the disputed area may have
sparked off the controversies.
However, Somalia claims in court
papers: “Relevant Kenyan
petroleum blocs include L-5, L-21,
L-22, L-23,L24 and L-25.According
to publicly available information
Kenya awarded block L-5 to an
American company.”
The country also lays claim to oil
blocks Kenya awarded to a French
company.
“The blocks lie entirely or
predominantly on the Somali side
of provisional equidistance line,”
read part of the court filings.
Sources in the Foreign ministry in
Nairobi allege some Western and
Gulf oil investors may have
convinced the Somali Parliament
and top politicians to claim the
territory.
Even more intriguing are
allegations that some senior
Kenyan officials may be colluding
with the Somalis by providing
them with insider information that
strengthens the ICJ case and any
diplomatic negotiations.
Any loss of territorial waters could
also compromise security as it
would restrict Kenya Navy patrols.
 
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