by Muna Cali
Saturday, April 11, 2015
On Tuesday 17 March 2015, thousands of Somalis took to the streets in Mogadishu, chanting “ITALIA FUORI DAL NOSTRO MARE” and “ITALIA, SMETTI DI DERUBARE LA SOMALIA”, meaning “Italy get out of our seas” and “Italy stop looting Somalia.” These sentiments are directed at ENI, the giant Italian oil company that since 2012 has been carrying out exploration activities in the Somali waters.
According to ENI, their activities have been sanctioned by the Government of Kenya, which provided ENI with licenses to operate in the area in question. But ENI’s position is legally wrong and morally reprehensible. The Italian Government, a major shareholder in ENI (with a stake of over 30%), shares the responsibility for the illegal operations conducted by ENI in Somalia.
There are no excuses for ENI’s misguided decision to enter the Somali seas. It is standard procedure for companies, particularly conglomerate oil companies doing business worldwide, to carry out a thorough due diligence regarding the viability of investing in a particular country. Such due diligence includes the assessment of potential legal issues that may emanate from operations in a foreign country, particularly developing countries. One of the basic questions that the diligence report would have had to address is whether there is, or could potentially arise, a dispute in the territory or waters where the company is interested in conducting its activities. ENI, an international oil company with over $60 billion in market value, has more than enough resources, including a large legal department and the services of outstanding Italian and foreign law firms, to carry out a thorough due diligence prior to authorizing the company to embark on such reckless activities in Somalia’s waters.
It is therefore difficult to believe that ENI, with all of its resources, failed to appreciate the legal risks that it assumed when it accepted a license from the Kenyan Government. Kenya did not, and does not, have the legal authority to issue such licenses in that area. Even an inexperienced law student would have been able to spot the legal liability that ENI was assuming. ENI should not have relied on the self-serving position that the Kenyan Government had adopted but was required to assess and verify the reasonableness and the legal basis for that position. Kenya has unilaterally claimed “a parallel of latitude” boundary line with Somalia, a position that is contrary to the law of the sea and well-established jurisprudence. A quick survey of maritime boundary delimitation case law in the past decade would easily have shown that Kenya’s position lacks legal foundation.
In addition, the Somali Government has directly informed ENI’s lawyers and senior management of the illegality of its operations in the Somali waters and it has requested ENI to immediately terminate these activities. ENI refused to do so. Finally, the Somali Government initiated legal proceedings on 28 August 2014 at the International Court of Justice (ICJ) requesting the ICJ to delimit the maritime boundary between both countries. In its application to the ICJ, the Somali Government referred to the illegal activities carried out by ENI in the disputed area. The Somali Government again requested ENI to cease all activities pending resolution by the ICJ. ENI and the Italian Government arrogantly dismissed these requests while other major oil companies in similar circumstances have suspended their operations.
Now the Somali people, outraged by the contempt shown by the Italian Government and ENI for Somalia’ territorial integrity and sovereignty over its own seas, took to the streets of Mogadishu in protest against Italy. It is unfortunate that Italy, a country that has long historic relations with Somalia, has embarked on such reckless and ill-founded behavior and damaged the goodwill that it has long enjoyed in Somalia. If Italy thought that they could take advantage of Somalia’s political turmoil and prey on its natural resources, they were mistaken. The Somali people will not stand by and watch ENI or any other multinational company loot their natural resources with impunity. Italy may have miscalculated the Somali people’s resolve and dignity.
Muna Cali
[email protected]