The land Boundary between Somali and Kenya is govern by Anglo-Italian treaty of May 1925 and is not subject to any dispute. However, in 2005, the United Nation has enacted a new LAW OF THE SEA which replaced the preceding laws, and Somali was since not a functioning government. Under the new law, all countries are required to negotiate with the neighbouring countries to arrive at common position on their shared maritime borders, which should be lodged with the UN specialized bodies. However, Somali was not in position to engage in any negotiation as required by the new Internal Law of Sea since it was not a functioning government following the collapse of Siyad Barre dictatorship 1991.
In 2009 a MOU was concluded by two ministers from Kenya and Somalia, whereby they agreed to commence the required maritime border negotiations. But this MOU was never rectified by the Somali council of ministers nor the Parliament.
Somalia is arguing that the maritime borderlines should be in extension of the land border between the two nations (along the same angle), whereas Kenya contends that the maritime border should be equidistant to the landline – at a right angle. Some experts have stated that the International Law of Seas is in favour of Somalia in light of several other preceding rulings made by similar international arbitrations etc. Please refer the map of East African coastal line below:
However, the following facts are it is worth noting: A closer scrutiny of the Kenyan and Tanzanian Sea boundary shows that the line is drawn at right angle to the adjacent land (Perpendicular – same as Kenyans are arguing in their dispute with Somalia. In addition to that, the angle of the land borderlines between Tanzania and Kenya is about the same angle as the Somali and Kenyan land line.
We are of the opinion that the ICC would either draw the maritime borderline between Somali and Kenya along a line parallel to the Kenyan Tanzanian line – to avoid applying double standards. However, if the court rules in favour of Somalia and the line is drawn at an inclined angle, and in extension of the landline, then Kenya should revert to the court and obtain similar ruling in respect of their maritime boundary with Tanzania which should also be not at right angle. Failing that, Kenya will lose significant portion of their maritime territories – the Sea borderline of between Somali and Kenya will cross that of Tanzania/Kenya line instead of running parallel to it.
If the maritime dispute develops into full-fledged deterioration of the relations, Kenya has two Ace cards to play, while Somali has one. Kenya may recognize Somaliland as sovereign nation, which would place Somali between the rock and hard place. Similarly, Kenya can impose economic sanctions on Somalia, including the multi-million investments that the Somali diaspora has setup in Nairobi and other Kenyan cities. Likewise, Somalia can impose ban on the import of Kat from Kenya which would result in the loss of major trade and source of foreign currency.
By Hassan Abdi Yousuf