Wednesday September 21, 2016
Somalia’s legal team denounced the controversial Memorandum of Understanding (MOU) which Kenya used to demonstrate that there was an alternative means of resolving the long-standing boundary dispute/COURTESY
Only the International Court of Justice (ICJ) will give Somalia and its people what is rightfully theirs in a peaceful process.
Those were the arguments of Somalia’s legal team when it took to the floor of the Hague based court to make its oral submissions in a case in which it wants ICJ to determine the disputed boundary dividing the maritime region between Kenya and Somalia in the Indian Ocean.
“If we are to have any hope of a durable and equitable solution that contributes to regional peace and security it lays in this great hall of justice and in the hands of distinguished members of this court,” Somalia’s agent Mona al-Sharmani argued.
In a strong worded statement, Somalia denounced Kenya’s submissions that ICJ lacked jurisdiction to determine the matter on the basis that avenues of resolving the maritime border battle had not been exhausted.
Somalia’s legal team denounced the controversial Memorandum of Understanding (MOU) which Kenya used to demonstrate that there was an alternative means of resolving the long-standing boundary dispute.
They didn’t dispute that the MOU existed.
But their point of contention and divergence from Kenya’s position was that the absolute intention of the MOU and as clearly stated on its title it was for the two parties ‘to grant each other no objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission on the Limits of Continental Shelf’ (CLCS).Paul Reichler told the court that the drafter of the MOU – Norway – was crystal clear that the purpose of the MOU was to grant each other no objection in respect to submissions on the outer limits of the continental shelf to the CLCS.
“The one and only purpose of the MOU was to assure that there would be no obstacle to the CLCS consideration of our two countries submissions concerning the establishment of the continental shelf beyond 200 nautical miles,” al- Sharmani stated.
According to Somalia, there was no single statement that suggested that the dispute over the maritime boundary would be resolved through negotiations.
“Kenya cannot truly believe that the MOU created a binding commitment to an alternative method of dispute settlement. Neither Kenya nor Somalia considered the MOU to have established a specific or exclusive means of settling the maritime boundary dispute let alone obligated the parties to resolve the dispute.”
“There is not a single reference to resettlement of the maritime boundary dispute or to establishment of a method for resolving that dispute. This is how the drafter of the MOU and the two parties understood the object and purpose of the agreement. Norway in fact took pains to distance itself from and avoid involvement in settlement of the boundary dispute and to separate that dispute as far as possible,” he explained.
It was his submission that at no point Kenya perceived the MOU to have provided a solution of negotiating the maritime dispute until after Somalia moved to the ICJ to battle the dispute legally.
“Kenya knows this evidence puts them in a difficult if not desperate situation in their attempt to invoke the MOU to escape the court’s jurisdiction. Desperate circumstance often breeds desperate measures or at least desperate arguments and that is the likely explanation for the argument elaborated for the first time yesterday.”
Kenya was further accused of insincerity in its arguments, when the lawyers told the court that it boycotted a final meeting scheduled to find a solution to two previous meetings.
“Kenya then failed to attend a subsequent meeting – a meeting it insisted on having as the last and final resort and did so without prior notice or later explanation. We only learnt of its purported security concerns when it filed its preliminary objections in October 2015,” al-Sharmani explained.
The agent also disputed Amb Rose Makena’s claim that there were no serious meetings held to discuss the maritime dispute.
“I personally participated in those negations. They were not just technical level meetings as you heard yesterday. The talks were hard and sometimes heated. The positions taken by the parties were far and irreconcilable.”
The court heard that Somalia had a legitimate and functioning government, a constitution and had the capacity to manage its natural resources including its nautical resources.
“Our ability to explore those natural resources has been seriously hindered by the lack of defined maritime boundary with Kenya. We seek nothing more or nothing less than to have our maritime dispute with our Kenyan brothers and sisters resolved finally and definitively in an equitable manner in accordance with requirements of the international law,” the agent stated.
Without the court determining the matter, the agent said there was no any possibility of Kenya and Somalia to settle the dispute through negotiations.
She told the court that Kenya’s conduct was wanting and Somalia in fact could not trust Kenya over fears that it could use its sturdy political muscle to disadvantage the young democracy and after all it had betrayed its trust after it changed the agreement of the MOU.
“The issues that are at the heart of this case unite all Somalis. Whatever other differences may divide us, it is no exaggeration to say that the eyes of the entire Somali Nation are upon us today. And they will remain upon us until this court renders its ultimate decision,” al- Sharmani submitted.
Somalia moved to the ICJ to seek a definition of a boundary stipulated by the United Nations Convention on the Law of the Sea as well as other international sea laws.
The bone of contention is about 100,000 square kilometers offshore territory in the Indian Ocean where Somalia and Kenya border each other.
Kenya insists that its boundary lies parallel to the line of latitude giving it the larger share of the maritime region whereas Somalia is seeking for the extension of the boundary to the southeast – the reason why it moved to the ICJ in 2014.