The second paragraph of the Memorandum of Understanding gives Kenya the right to claim a sea area of Somalia:
“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 clarified. This unsolved problem of demarcation between the two coastal states is to be regarded as a “maritime dispute”. The claims of the two coastal states cover an overlapping area of the continental shelf, which is the “disputed area”.
In essence, the Transitional Government of Somalia (TFG) accepted the argument that Kenya has the right to claim part of Somali sea territory and that the dispute can be settled by either country.
No country has ever signed a letter of intent to challenge its territorial integrity. Abdirahman Abdishakur Warsame, former TFG Minister for National Planning and International Cooperation, signed the MOA on behalf of Somalia.
Between 2005 and 2007, Kenya turned to the Somali Transitional Government, headed by President Abdullahi Yusuf Ahmed, to discuss a “Memorandum of Understanding” on a non-existent maritime border dispute. An informal meeting between a Kenyan and a Somali diplomat took place in Nairobi. Kenya proposed a Memorandum of Understanding with Somalia.
The Somali diplomat shared Kenya’s initiative with former Somali Foreign Minister Ismail Hurreh Bubaa. Mr Buubaa told the Somali diplomat that there was no maritime dispute between Somalia and Kenya and that the maritime border between Kenya and Somalia was demarcated.
Ismail Hurreh: “There is no maritime dispute between Somalia and Kenya.”
In January 2009, following the resignation of President Abdullahi Yusuf Ahmed in December 2008, a new Somali president was elected in Djibouti. The Transitional Government of Somalia signed the MoU on April 7, 2009, nearly three months during which Sharif Sheikh Ahmed was sworn in as President of the Federal Republic of Somalia.
President Hassan Sheikh Mohamud accused President Sharif, Prime Minister Sharmarke and Abdirahman Abdishakur of high treason.
In 2016, President Hassan Sheikh Mohamud accused his predecessor Sharif Sheikh Ahmed, Abdirahman Abdishakur Warsame, both presidential candidates then and now, and Omar Abdirashid Ali Sharmarke, a former prime minister and 2017 presidential candidate, of treason.
“It is unfortunate that those who did not take the risk to our sea area seriously are now running for the highest office in the country. People have to think twice about who to vote for the highest office in the country, ”President Hassan Sheikh Mohamud said in 2016.
It is hardly a selfish statement in an election period. Sharif Sheikh Ahmed and Abdirahman Abdishakur Warsame, together with Prime Minister Omar Abdirashid Ali Sharmarke, decided to grant Kenya the right to claim Somali sea territory. No one has been held responsible for harming Somalia’s national interest.
Former Prime Minister Omar Abdirashid A. Sharmarke is avoiding the limelight to avoid questions about his role in the MoU with Kenya.
The Alliance for the Liberation of Somalia (ARS) dominated the transitional government after 2008. As a gimmick for President Sharif, Prime Minister Sharmarke and Minister Abdishakur, the former transitional Bundestag rejected the Memorandum of Understanding.
A national legislature cannot override a memorandum of understanding between two sovereign countries.
The Memorandum of Understanding challenges Somalia’s maritime borders and Article 1 of the 1972 Law promulgated by Major General Mohamed Siad Barre.
. The article prescribes:
“The Somali Territorial Sea comprises that part of the sea extending 200 nautical miles within the continental and island coast, which is delimited in accordance with the provisions of Articles 2 and 3 of this Act.”
President Hassan Sheikh Mohamud affirmed in a proclamation dated June 30, 2014 Somalia’s maritime borders:
“The exclusive economic zone of the Republic of Somalia extends up to two hundred (200) nautical miles from the baselines from which the breadth of territorial waters is measured.”
Prior to 1991, representatives of the Somali government attended conferences on the law of the sea. 1984 represented Dr. Mohamud Ali Turyare, former professor of international law at Somali National University, Somalia at such a conference on the United Nations Convention on the Law of the Sea.
How Kenya takes advantage of the Memorandum of Understanding with Somalia
On January 24, 2017, Kenya expressed reservations about some articles of the Convention on the Law of the Sea:
“The Government of the Republic of Kenya declares, in accordance with Article 298, paragraph 1, letter a (i) of the 1982 United Nations Convention on the Law of the Sea, that it will not accept any of the procedures provided for in Part XV, Section 2 of the Convention relating to disputes relating to the interpretation or application of Article 15 , 74 and 83 in relation to sea boundaries or those concerning historical bays or titles. The Republic of Kenya reserves the right to amend, amend or withdraw the above reservations at any time by notifying the Secretary-General of the United Nations. This notification will take effect on the day it is received by the Secretary General. “
Kenya has reservations about Article 286, Section 2, which states:
“Subject to Section 3, any dispute over the interpretation or application of this Convention, if no agreement has been reached using Section 1, shall, at the request of any party to the dispute, be submitted to the court having jurisdiction under that Section.”
In 2014, the Somali federal government submitted the maritime dispute to the International Court of Justice, a decision supported by the article on which Kenya has expressed reservations.
Both Somalia and Kenya signed the United Nations Convention on the Law of the Sea on December 10, 1982. Kenya prefers an out-of-court settlement to the decision of the International Court of Justice.
Abdirahman Abdishakur signed a Memorandum of Understanding with Kenya on behalf of Somalia. He said the money will stand with President Sharif Sheikh Ahmed.
In 2009 a delegation led by the former Prime Minister of Somalia’s Interim Government, Omar Abdirashid Ali Sharmarke, visited London.
At a ceremony for the delegation of visitors in London, Abdirisaq Osman Jurrile, Minister of Post and Telecommunications, defended the decision to sign the Memorandum of Understanding with Kenya. “Who Said We Sold Our Sea?” I swear to god we didn’t sell our sea, ”he told the audience.
President Sharif Sheikh Ahmed refuses to answer questions about the Memorandum of Understanding signed with Kenya.
President Hassan Sheikh Mohamud is a member of the Alliance of Somali Presidential Candidates, along with Abdirahman Abdishakur Warsame and Sharif Sheikh Ahmed. He criticized the incumbent President Mohamed Abdullahi Mohamed for not trying to win the sea dispute with Kenya.
The irony is that a group of Somali politicians who came to the political scene because of the nationalist sentiment against the Ethiopian intervention in Somalia signed a Memorandum of Understanding and plunged Somalia into a maritime dispute that Kenya cleverly crafted.
If the same people who put Somalia in a difficult legal position seek 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