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The Controversy over the 2009 MoU between Kenya and Somalia decided by the ICJ
Tuesday March 23, 2021

By Mohamed Trunji
 

The Controversy over the 2009 MoU between Kenya and Somalia decided by the International Court of Justice (ICJ)

 

In the maritime boundary dispute case between Kenya and Somalia, the International Court of Justice held: “the Memorandum of Understanding between Somalia and Kenya is a valid Treaty entered into force upon signature and it is binding on the parts under international Law “(paragraph 50). With this judgment delivered on 2 February 2017, the controversy over the validity of the 2009 MoU between Kenya and Somalia has finally been put to rest.

 

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Following is an exposition of the genesis of the troubled MoU before it landed on the Court’s Registry: 

 

  1. In October 2008, Mr. Ahmedou Ould Abdallah, the then Special Representative of the Secretary-General of the United Nations for Somalia, initiated, in view of the impending deadline, the preparation of preliminary information on behalf of Somalia. In this task, the Special Representative was assisted by the Kingdom of Norway, particularly Ambassador Hans Wilhelm Longva, former Legal Adviser of the Norwegian Ministry for Foreign Affairs, and Mr. Harald Brekke, then the Norwegian member of the CLCS.
  2. Under the Premiership of Senatore Omar Abdirashid, the Transitional Federal Government of Somalia was sworn into office on 22 February 2009. 
  3. On 10 March 2009, the Transitional Federal Government was informed of the initiative of the Special Representative and the assistance of Norway, and was given a draft of the preliminary information that had been prepared for it. On that occasion, it was also presented with a draft of the Memorandum of Understanding (MoU).
  4. The Prime Minister of the Transitional Federal Government of Somalia had, on 6 April, 2009, by full powers “authorized and empowered” the Minister of National Planning and International Relations, Abdirahman A. Abdishakur, to sign the MoU. No caveat relating to a need for ratification was mentioned in those full powers or in the MOU itself, which, on the contrary, provided for its entry into force upon signature.
  5. On 7 April, 2009, Kenya and Somalia signed a Memorandum of Understanding (MoU) in Nairobi. The MOU explicitly states that the two Ministers who signed it were “duly authorized by their respective Governments” to do so. In the memorandum, the two parties (Kenya and Somalia) agreed to grant to each other “no-objection “to the Commission on the Outer Limits of the Continental Shelf (CLCS) in respect of submission on the outer limits of the continental shelf beyond 200 nautical miles pursuant to article 76 of the Convention of the Law of the Sea. (UNCLOS) Its object and purpose were to constitute a no-objection agreement, enabling the CLCS to make recommendations notwithstanding the dispute between the Parties regarding the continental shelf’s delimitation. The MoU is not about the delimitation of the maritime boundary between the two countries. Article 76 (8) of the Convention on the Law of the Sea provides “Information on the limits of the continental shelf beyond 200 miles from the baseline from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Outer Limits of the Continental Shelf set up under Annex II of the Convention on the basis of equitable geographical representation. The Parties (Kenya and Somalia) signed the MOU in the context of the 13 May 2009 deadline for States to make submissions, or at least to submit preliminary information, to the CLCS regarding the outer limits of their continental shelf. 
  6. The MoU text was prepared with the assistance of Ambassador Longva in connection with the assistance Norway was providing to Somalia for the preparation of its submission of preliminary information to the CLCS. The MoU repeatedly clarifies that the process leading to the delineation of the outer limits of the continental shelf beyond 200 nautical miles is to be without prejudice to the delimitation of the maritime boundary between the Parties. 
  7. The Somali Prime Minister of the time, Senatore Omar Abdirashid A. Sharmarke and his government, in conformity with the relevant provisions of the Convention on the Law of the Sea, to which Somalia is part, approved the MoU prior to its signature. Furthermore, subsequently to its signature, the Prime Minister had twice confirmed its validity, including after its registration publication by the United Nations Secretary-General in accordance with article 102 of the UN Charter. 
  8. On 14 April, 2009, within the time limit adopted by the State parties to the Commission on outer limits of the continental Shelf beyond 200 miles, Somalia, assisted by Norway, submitted preliminary submission indicative of the outer limits of its continental shelf beyond 200 nautical miles and would make its complete submission in July 2014. On 6 May 2009, Kenya too deposited with the CLCS its submission with respect to the continental shelf beyond 200 nautical miles.
  9. The 2009 MoU was Somalia’s first indication, after Kenya’s Presidential Proclamation of 1979 whereby Kenya established a maritime boundary in its exclusive economic zone at the parallel latitude that is considered a maritime boundary dispute to exist with Kenya in the area of overlap.
  10. In a letter addressed to the Secretary-General of the United Nations date 10 October, 2009, but only forwarded to him under cover of a letter from the Permanent Representative of Somalia to the United Nations dated 2 March, 2010, the Prime Minister of Somalia informed the Secretary-General that the MoU “was considered by the transitional Parliament and that members voted to reject it”, and requested that it be treated “non-actionable.
  11. On 4 February, 2014 (nearly five years since the MoU was signed), the Somali government sent two letters to the United Nations Secretary-General. The first letter objected to the registration of the MoU of Kenya with the Secretariat of the UN. In the second letter, Somalia objected to the consideration by the CLCS of Kenya’s submission on the ground the there existed a maritime boundary dispute between itself and Kenya and that the MoU was “void and ineffective”.
  12. Given Somalia’s rejection, the CLCS determined, during the thirty-fourth session (held from 27 January to 14 March, 2014) that it was “not in a position to proceed with the establishment of the Sub-Commission to consider Kenya’s submission at the time. 
  13. The parts (Kenya and Somalia) subsequently engaged in negotiations on various questions of maritime delimitations. The Foreign Ministers of Somalia and Kenya held a meeting on 21 March 2014 at which it was agreed that a technical meeting be held in Nairobi between relevant officials.
  14. The first bilateral meeting was held in Nairobi on 26 and 27 March 2014.
  15. A second bilateral meeting was held in the same city on 28-29 July to reconvene on 26-26 August 2014 for a third meeting, but that meeting never occurred.
  16. On 21 July 2014, Somalia deposited with the CLCS its submission with respect to the Continental Shelf’s outer limits beyond 200 nautical miles.
  17. On 28 August 2014, Somalia filed with the Registry of the Court an Application instituting proceedings against Kenya. 
  18. On 4 May, 2015, Kenya, in turn, deposited its “objection to the consideration of the submission by Somalia”. However, in a Note Verbal addressed to the UN Secretary-General, dated 30 June, 2015, Kenya withdrew its objection to the CLCS consideration of Somalia’s submission.   
  19. On 7 July, 2015, Somalia sent a letter to the Secretary-General of the UN in which it withdrew its objection to the CLCS’s consideration of Kenya’s submission.
  20. On 2 February, 2017, the International Court of Justice concluded that the 2009 MoU “is a valid treaty that entered into force upon signature and is binding on the Parts under international law”. 

 


M. Trunji (FMR member “Guddiga Arrimaha Badda” of Somalia)

E-mail: [email protected]



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