In a recent East African economic forum, a senior official with the Somali Transitional Federal Government (TFG) was approached by several high ranking officials from neighboring countries (whom-we-shall-not-name) to sign a declaration letter, agreeing to set a number to Somalia's exclusive economic zone (EEZ). Unconfirmed reports say that the official vehemently declined to sign anything pertaining to Somalia's EEZ rights and objected to a document that indicated Somalia’s territorial waters to be 12 nautical miles. Moreover, upon his return to Somalia the official gave a fiery news conference warning about the imminent exploitation of Somalia's seas and shorelines. Unfamiliar to the laws regarding the EEZ, many TFG officials and parliament members of the government took the senior official’s warnings as an affirming sign - the world was out to get Somalia. Albeit, most of them were unaware that discussions on Somalia's EEZ have been ongoing ever since lawless Somalia descended into chaos after the removal of the late dictator.
The news that the Transitional Federal Government (TFG) of Somalia is involved in negotiations with members of the international community regarding Somalia’s exclusive economic zone (EEZ) should come as no surprise to anyone. There have been reports of illegal commercial fishing, and even illegal dumping of biological and hazardous waste in the coastlines of Somalia. But nothing has captured the attention of the world and the Somali leaders more, than the rise in pirate activity and the costs of dealing (a recent report from 2005-2010 put it at $22 billion and counting) with piracy in Somalia's territorial seas and beyond. Recent reports mention that international community has lost somewhere in the range of $22 billion dollars between 2005 and 2011 due to piracy in Somalia’s seas [see report titled “Twenty Years of Collapse and Counting - The cost of failure in Somalia”]. All these factors have begun to shine a big spotlight on what to do about the vast shorelines of Somalia and the limits of the international community in helping Somalia address the piracy and finding a way for it to secure its borders. Nevertheless, the questions asked are: what international laws and treaties govern? Are Somalia's legislators and politicians aware of the laws regarding the EEZ? In addition, are Somalia's neighbors rewarding themselves with extra EEZ to advance their own economic agendas, in the absence of a functioning government in Somalia? We hope our brief analysis will help shine some light on these issues.
Numerous cliams have been made as to whether Somalia’s Territorial Sea is 12 nautical miles (nm) or 200 nm. The senior politician we quoted from above, himself was unclear of this issue when he indicated in his fiery speech about the illicit designs of the "conquering" east African countries. However, I think the question should be framed this way: why has the TFG government prioritized delineating an EEZ in its Roadmap to peace & security, and why is it important to do this by a deadline? Let us start with the laws, and what we know of them.
The treaty or international legal framework that sets out the rights and responsibilities of nations in their use and utilization of the world’s oceans is called the United Nations Convention on the Law of the Seas (UNCLOS) and is commonly referred to as the Law of the Sea Convention. This treaty resulted from a nine-year convention that concluded in 1982, it came into force in 1994, and to date over 160 countries and the European Commission have joined. Somalia ratified UNCLOS on 24 July 1989 without making any declarations or reservations. UNCLOS in essence extends the sovereignty of a coastal State beyond its land territory and internal waters, to an adjacent belt of sea defined as the a State’s territorial sea, which is up to 12 nautical miles (roughly 72912 feet or 22224 meters) from the baseline of the coastal state. Beyond the 12 nautical mile limit, the convention recognizes a further 12 nautical miles (or 24 nautical miles depending on some cases) from the territorial sea baselines limit that is referred to as the contiguous zone. The Convention also recognizes an area beyond and adjacent to the territorial sea defined as the EEZ of which a State has special rights over its exploration and use of marine resources. The Convention lays out that the EEZ “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.”
At the time of the signing of the UNCLOS, the state of Somalia had national legislation in place that specified Somalia’s terrotorial sea and right. Recorded as Somalia’s Law No. 37 on the Territorial Sea and Ports of 10 September 1972, it specified in Article I that “Somalia's territorial sea includes portions of the sea to the extent of 200 nautical miles…”. Law No. 37 measurements of Somali Territorial waters was inconsistent with UNCLOS, however, as of this writing Law No. 37 is on file at the UN repository of National Legislation and Delimitation Treaties of States of the African regions. Moreover, it is referenced on the UNCLOS website of Table of Claims to Maritime Jurisdiction last updated on 15 July 2011 , which indicates that Somalia has claim to 200 nm of Territorial Sea and no defined EEZ. Law No. 37 makes no mention of an EEZ or continental shelf.
According to the Table, there are currently four other countries that have defined their Territorial Seas to be 200 nm: Benin, El Salvador, Ecuador and Peru. Most of the State Parties, who are signatories to UNCLOS, have a Territorial Sea of 12 nm and others have even declared less.
Another important function of UNCLOS is that it gives legal basis to States to exercise jurisdiction over acts of piracy on the high seas - without consideration for where the piracy attacks occurred or the nationality of the suspects. This jurisdiction is limited to those acts that occur only on the high seas, which are areas outside of the Territorial Sea and EEZ, open to all States and not subject to the sovereignty of any one State. This legal framework and discussions around Somalia’s EEZ drive the international community’s discussions in countering piracy along Somalia’s waters. This is one of the main reasons why the international community today is pushing to establish Somalia’s EEZ and continental shelf area, irrespective of Somali Legislation Law No. 37.
Since Somalia became party to the Convention prior to 13 May 1999, it had to make a submission to Commission on the limits of Continental Shelf (CLCS) by 13 May 1999, in order to establish the outer limits of an extended continental shelf. A preliminary information submission was made on 8 April 2009, with assistance from the Government of Norway during the tenure of former Prime Minister Omer Abdirashid Ali Sharmake. The CLCS has not made any recommendations or put forth any clarifications pertaining to that submission.
Somalia's neighboring state Kenya, ratified UNCLOS on 3 March 1989 and also needed to make their submission to the CLCS by 13 May 2009, which they did successfully. Attached to their submission was a Memorandum of Understanding signed by Somalia's former Prime Minister Sharmake stating the unresolved delimitation issue between the two coastal States was to be considered a “maritime dispute” and was to remain in an unresolved status. The memo added that the establishment of the outer limits of the continental shelf beyond 200 nautical miles is without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts. Within a few weeks, members of the Somali TFG Parliament rejected the memorandum that Prime Minister Sharma'arke signed in support of Kenya’s submission. As a result, Kenya’s submission to the CLCS remains suspended and the CLCS has not issued a recommendation as of this writing.
Kenya’s purpose in seeking the outer limit delimitation of their extended continental shelf is motivated by the pursuit of finding oil. In the last few years, the government of Kenya has aggressively invested in oil exploration on its shores and most recently in the offshore arena. It has signed numerous oil exploration contracts with various countries and companies, of some which were later abandoned when their prospecting didn’t yield any finds.
A contention area of most concern to Somalia is the Kenya-Somalia Lamu basin (referred to in short as the Lamu Basin) which stretches from the southern tip of Kenya bordering Tanzania, and extends as far north into southern Somalia and westwards towards the interior of Northern Kenya.(See map below) The basin covers both onshore and offshore fields, with an aerial extent of over 132,720 Sq Km. As of recent close to 40 wells have been drilled in the Lamu Basin with several oil and gas shows. The Lamu basin continues to be a prospective and attractive offshore basin for many offshore drilling companies. Offshore license fields in the Kenya side of the Lamu basin have attracted numerous international oil & gas conglomerates including recent American and French investors.
Recent offshore license blocks made available by several companies show a significant encroachment of the Somalia EEZ zone as shown in the maps (Lion Petroleum Kenya and EEZ Zone maps of appendix 8 & 9). These offshore oil & gas fields in the Indian ocean will be prone to be bring more scrutiny to the EEZ zoning rights of both Kenya, Somalia and potentially other regional countries. And with the current government in Somalia being unable to clearly define & demark its own EEZ zone, coupled with its inability to police & secure its vast shoreline, the problems may only get worse and increase the pressure on the TFG to find a quick resolution.
Kenya as one of the few stable countries in the east african corridor, has the greatest interest and the largest gain in trying to resolve this dispute and hence the reason for Benchmark 2 in the TFG’s Roadmap is delineating Somalia’s EEZ by 19 December 2011. So now that we know Law No. 37 did not define an EEZ for Somalia, would the Somali people trust the TFG to enter into negotiations and protect their interests?
There is still another unanswered question here. UNCLOS State Parties were required to harmonize their existing national laws that were in conflict with the Convention. Somalia did not get an opportunity to do that until now. So does that mean the Convention takes precedence over the national legislation? This is a question for an attorney specializing in international conflict of laws.
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