Kenya-Somalia maritime boundary dispute
Amani Africa
Date | 03 September, 2019
Today (3 September) at 3pm the African Union (AU) Peace and Security Council (PSC) will hold a session on the maritime boundary dispute between Kenya and Somalia. This session is a follow up to the earlier 871st session of the PSC. It was put on the agenda following a request from Kenya for this matter to be considered by the PSC.
While Kenya and Somalia have been debating the delimitation of their maritime boundaries since 2009, in recent years the tension over the boundary dispute shows signs of boiling over. Following the signing in 2009 of a ‘Memorandum of Understanding between the Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to grant to 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 the Continental Shelf’, Somalia and Kenya made a submission to the Commission on the Limits of the Continental Shelf (CLCS), whose role is to make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf (as per the MoU both within and beyond) 200 nautical miles. As provided for in the MoU, the CLCS’s process is limited to the delineation of the continental shelf and is to be without prejudice to the delimitation of the maritime boundary between the two parties.
It was agreed in the MoU that the delimitation of their maritime boundaries, in the areas under dispute to be ‘on the basis of international law.’ While the CLCS process for the delimitation of the continental shelf was underway, in 2014, Somalia instituted proceedings against Kenya at the International Court of Justice (ICJ) requesting the latter to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles.
The proceeding before the ICJ has gone through various stages. Following the institution of the proceeding, the ICJ received submissions from both Kenya and Somalia. Pursuant to the procedures of the ICJ, Kenya made submissions raising objections to the jurisdiction of the ICJ and to the admissibility of Somalia’s application before ICJ in October 2015. The ICJ as per its procedures received the observations of Somalia on Kenya’s objections in February 2016. In September 2016, the ICJ as per established practice held public hearings on Kenya’s preliminary objections. Following review of the written submissions as well as those in the public hearings, the ICJ delivered its judgment on Kenya’s preliminary objection in February 2017. With Kenya’s objections rejected by the ICJ, the proceeding moved to the next stage involving consideration of the submissions of the two states on the merits of the case. During the remaining period of 2017 and in 2018, ICJ received counter memorial from Kenya. After granting the submission of a reply by Somalia and a rejoinder by Kenya, the ICJ has proceeded to receive to receive the reply by Somalia to Kenya’s counter memorial and Kenya’s rejoinder to Somalia’s reply.
Currently, the proceeding is at a stage for conducting public hearings. To this end, the ICJ has set the period between 9 and 13 September for holding public hearings on the merits of the case.
Kenya objected to the proceedings before the ICJ. It was of the opinion that the 2009 MoU, which the ICJ considered to be a treaty binding under international law, required the two countries to negotiate delimitation of the disputed boundary, and to do so only after completion of CLCS review of the submissions that the two states made on the delineation of the outer limits of the continental shelf beyond 200 nautical miles. It was also Kenya’s view that the MoU has set the method of negotiation for delimitation of the disputed boundary.
As the ICJ proceedings continue unabated and efforts for settling the matter out of the ICJ process failing, tensions have been mounting between Kenya and Somalia. The tension boiled over particularly after reports that Somalia plans to auction for oil exploration blocks in the disputed area during an event held in London in early February 2019. In response, Kenya recalled its ambassador to Somalia, Lukas Tumbo, and summoned his Somali counterpart in Kenya, Mohamoud Nur, demanding a withdrawal of the maps that were displayed in London. Various developments including disputes over the treatment of Somalia officials in Kenya and air travel between the two countries have in the ensuing months have further exacerbated the tension. There are legitimate concerns that the situation also endangers the peace process in Somalia, particularly AMISOM for which Kenya is a major contributor. These concerns also relate to the impact this mounting tension would have over Kenya’s role as the major host of Somalia refugees.
As noted above, the PSC considered the issue for the first time at its 871th session held on 22 August 2019. While Kenya presented a briefing statement during that session, Somalia declined to attend the session sending instead a note verbal indicating that the matter was pending before ICJ. While invitations have been extended to it, it was not clear if Somalia would participate in today’s session.
A major sticking point relates to the possibility of settling the matter out of court. If efforts made thus far including intervention by Ethiopia’s Prime Minister Abiy Ahmed are anything to go by, it seems unlikely that the ICJ proceeding will stop. It also remains unclear there is a way for the PSC to stop the ICJ process at this point in time other than through the agreement of the two states (Of course the PSC can appeal to the ICJ to the sensitivities of the situation for peace and security and speed up the process).
Yet in the light of the escalating situation, the PSC has a role to play. As pointed out in the AU’s User Guide on African Border Dispute Settlement pointed out, ‘[b]oundary disputes are not only of concern for the States that directly contest the boundary; they can affect the stability of the international system as a whole. Accordingly, the system of international dispute settlement provides a role for regional and international organisations – such as the African Union and the United Nations – to facilitate boundary dispute resolution.’ Within this context, it is possible and even necessary that the PSC, parallel to the ICJ, initiates measures to de-escalate the tension between the two countries and ensure that it would not lead to conflicts. Perhaps part of the effort is to find ways of mitigating the fall out that may arise from the eventual outcome of the ICJ process.
At the time of going to press, it remained unclear the form that the outcome of the session would take. If there would be an official outcome, it is sure to be a communique. It is expected that the PSC will urge the two countries from taking actions that would exacerbate the crisis. It is also possible for the PSC to urge the two states to avail themselves for a mediation process that the AU and the regional organization the Inter-Governmental Authority on Development (IGAD) could facilitate.
PSC Session on Kenya-Somalia maritime boundary dispute
Amani Africa
Date | 3 September, 2019
Today (3 September) at 3pm the African Union (AU) Peace and Security Council (PSC) will hold a session on the maritime boundary dispute between Kenya and Somalia. This session is a follow up to the earlier 871st session of the PSC.
It was put on the agenda following a request from Kenya for this matter to be considered by the PSC. While Kenya and Somalia have been debating the delimitation of their maritime boundaries since 2009, in recent years the tension over the boundary dispute shows signs of boiling over.
Following the signing in 2009 of a ‘Memorandum of Understanding between the
Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to grant to 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 the Continental Shelf’, Somalia and Kenya made a
submission to the Commission on the Limits of the Continental Shelf (CLCS), whose role is to make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf (as per the MoU both within and beyond) 200 nautical miles. As provided for in the MoU, the CLCS’s process is limited to the delineation of the continental shelf and is to be without prejudice to the delimitation of the maritime boundary between the two parties.
It was agreed in the MoU that the delimitation of their maritime boundaries, in the areas under dispute to be ‘on the basis of international law.’ While the CLCS process for the delimitation of the continental shelf was underway, in 2014, Somalia instituted proceedings against Kenya at the International Court of Justice (ICJ) requesting the latter to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles.
The proceeding before the ICJ has gone through various stages. Following the institution of the proceeding, the ICJ received submissions from both Kenya and Somalia. Pursuant to the procedures of the ICJ, Kenya made submissions raising objections to the jurisdiction of the ICJ and to the admissibility of Somalia’s application before ICJ in October 2015. The ICJ as per its procedures received the observations of Somalia on Kenya’s objections in February 2016. In September 2016, the ICJ as per established practice held public hearings on Kenya’s preliminary objections. Following review of the written submissions as well as those in the public hearings, the ICJ delivered its judgment on Kenya’s preliminary objection in February 2017. With Kenya’s objections rejected by the ICJ, the proceeding moved to the next stage
involving consideration of the submissions of the two states on the merits of the case. During
the remaining period of 2017 and in 2018, ICJ received counter memorial from Kenya. After granting the submission of a reply by Somalia and a rejoinder by Kenya, the ICJ has proceeded to receive to receive the reply by Somalia to Kenya’s counter memorial and Kenya’s rejoinder to Somalia’s reply.
TCurrently, the proceeding is at a stage for conducting public hearings. To this end, the ICJ has set the period between 9 and 13 September for holding public hearings on the merits of the
case. Kenya objected to the proceedings before the ICJ. It was of the opinion that the 2009 MoU, which the ICJ considered to be a treaty binding under international law, required the two countries to negotiate delimitation of the disputed boundary, and to do so only after completion of CLCS review of the submissions that the two states made on the delineation of the outer limits of the continental shelf beyond 200 nautical miles. It was also Kenya’s view that the MoU has set the method of negotiation for delimitation of the disputed boundary.
TAs the ICJ proceedings continue unabated and efforts for settling the matter out of the ICJ process failing, tensions have been mounting between Kenya and Somalia. The tension boiled over particularly after reports that Somalia plans to auction for oil exploration blocks in the disputed area during an event held in London in early February 2019. In response, Kenya recalled its ambassador to Somalia, Lukas Tumbo, and summoned his Somali counterpart in Kenya, Mohamoud Nur, demanding a withdrawal of the maps that were displayed in London. Various developments including disputes over the treatment of Somalia officials in Kenya and air travel between the two countries have in the ensuing months have further exacerbated the tension. There are
legitimate concerns that the situation also endangers the peace process in Somalia, particularly AMISOM for which Kenya is a major contributor. These concerns also relate to the impact this mounting tension would have over Kenya’s role as the major host of Somalia refugees.
TAs noted above, the PSC considered the issue for the first time at its 871th session held on 22 August 2019. While Kenya presented a briefing statement during that session, Somalia declined to attend the session sending instead a note verbal indicating that the matter was pending before ICJ. While invitations have been extended to it, it was not clear if Somalia would participate in today’s session.
TA major sticking point relates to the possibility of settling the matter out of court. If efforts made thus far including intervention by Ethiopia’s Prime Minister Abiy Ahmed are anything to go by, it seems unlikely that the ICJ proceeding will stop. It also remains unclear there is a way for the PSC to stop the ICJ process at this point in time other than through the agreement of the two states (Of course the
PSC can appeal to the ICJ to the sensitivities of the situation for peace and security and speed
up the process).
TYet in the light of the escalating situation, the PSC has a role to play. As pointed out in the AU’s User Guide on African Border Dispute Settlement pointed out, ‘[b]oundary disputes are not only of concern for the States that directly contest the boundary; they can affect the stability of the international system as a whole. Accordingly, the system of international dispute settlement provides a role for regional and international organisations – such as the African Union and the United Nations – to facilitate boundary dispute resolution.’ Within this context, it is possible and even necessary that the PSC, parallel to the ICJ, initiates measures to de-escalate the tension between the two countries and ensure that it would not lead to conflicts. Perhaps part of the effort is to find ways of mitigating the fall out that may arise from the eventual outcome of the ICJ process.
TAt the time of going to press, it remained unclear the form that the outcome of the session would take. If there would be an official outcome, it is sure to be a communique. It is expected that the PSC will urge the two countries from taking actions that would exacerbate the crisis. It is also possible for the PSC to urge the two states to avail themselves for a mediation process that the AU and the regional organization the Inter-Governmental Authority on Development (IGAD) could facilitate.
Provisional program of work for the month of September 2019
Amani Africa
Date | September 2019
Morocco assumes the role of the monthly chairpersonship of the African Union (AU) Peace and Security Council (PSC) for the month of September. The provisional program of work includes some seven meetings, which includes two open sessions, one country specific session and a ministerial meeting on the margins of the UN General Assembly.
On 3 September the PSC is expected to hold its first session of the month and it will consider three agenda items. First, the PSC is expected to interact with the AU Commission particularly the Departments of Peace and Security and of Political Affairs. Second is the initial preparatory meeting for the PSC ministerial session on the margins of the 74th UN General Assembly in New York. Third, the PSC is also expected to adopt its program of work for the month of October.
The first open session of the month is scheduled to take place on 5 September. Convened as part of commemorating the annual Amnesty month, the open session is expected to discuss the ‘Progress
made on the implementation of the AU Master Roadmap on Silencing the Guns by 2020: challenges and perspectives, with a particular focus on the Security Sector Reform (SSR) in Africa.’
The second open session of the month is expected to be held on 10 September. It is expected to focus on climate change and its impact on island states in Africa. On the same day, the PSC is expected to hold a preparatory meeting for both the annual joint AU PSC and EU Political and Security Committee meeting and AUPSC and UN Security Council meeting.
On 12 September, the PSC will consider two agenda items. In the first part of the session it is expected to receive an update on the situation in the Central African Republic with the particular focus on transitional justice. In the second agenda, the Council is scheduled to receive a briefing on mediation and prevention of conflicts in Africa.
The following day on 13 September the PSC is expected to have a session with three agenda items. First it will consider the return of foreign terrorist fighters and the threat to peace and security in Africa. Following this, it is expected to consider the report of the AUC Chairperson on the harmonization of the ACIRC within the ASF. And lastly it will have a review of the preparation for the ministerial meeting of the PSC expected to take place on the margins of the UNGA.
The 74th session of the UNGA is expected to take place from 17-29 September and on the 25 September the PSC will hold a ministerial meeting on the ‘Interdependence between peace, security and development: towards a pact of collective responsibility’.
The last session of the month will be held on 30 September. The agenda of the session is the fight against the recruitment of children in armed groups in Africa.
In addition to these agenda items, the provisional program of the month also envisions in footnotes a videoconference of the PSC Troika with the Chair of the Security Council in preparation for the annual consultative meeting between the PSC and the UNSC. Moreover, meetings of the committee of experts and military staff committee are also expected to take place in the course of the month.
Brainstorming Session on “Popular uprisings” and its Impact on Peace and Security on the Continent
Amani Africa
Date | 22 August, 2019
Tomorrow (22 August) the African Union (AU) Peace and Security Council (PSC) will hold its 871st meeting. This is designed to be a brainstorming session on the concept of “popular uprisings” and its impact on peace and security on the continent.
International Institute for Democracy and Electoral Assistance (IDEA) and the Institute for Security Studies (ISS) are expected to brief the PSC. The Department of Political Affairs that has been engaged on the subject of popular uprisings and unconstitutional changes of government (UCG) is also best placed to provide insights on the subject. Ambassador Albert Chimbindi, chair of the month, is expected to make a statement highlighting the issues that need to be interrogated during the session.
While recent events in Algeria and more specifically Sudan reignited policy interest in the subject, it was the popular uprisings that erupted in North Africa in 2011 that first brought the issue of popular uprising to the fore of continental peace and security agenda. The AU responded to those events, particularly the precedent setting events in Tunisia, in relation to its norm banning unconstitutional change of government (UCG). Although in a strictly legalistic interpretation the ouster through street protest of Tunisia’s then President Ben Ali in early 2011 could have been deemed an UCG on account of the fact that it was not constitutionally envisaged, the PSC did not consider the lack of stipulation of changing government through popular uprising in Tunisia’s constitution as an UCG. Instead, it expressed its respect for the democratic aspiration and the will of the people, implying that the demand for constitutional rule is not simply about respecting constitutional processes for their own sake but about safeguarding the will of the people.
Clearly the issue of popular uprising has since that time become recurrent, it was in 2014 that the PSC looked specifically into the question of the relationship between popular uprising and UCG. Under Nigerian chairmanship in April 2014, the PSC dedicated its 432nd session to the theme ‘unconstitutional changes of government and popular uprisings – Challenges and lessons learnt’. In the statement issued at the session, the PSC affirmed the legitimacy of popular uprisings. It in particular held that ‘[i]n circumstances where governments fail to fulfill their responsibilities, are oppressive and systematically abuse human rights or commit other grave acts and citizens are denied lawful options,’ it ‘recognized the right of the people to peacefully express their will against oppressive systems.’
At the same time, the PSC in this statement also underscored the need ‘for developing a consolidated AU framework on how to respond to situations of unconstitutional changes of government and popular uprisings’. It in particular noted that such a framework ‘should include the appropriate refinement of the definition of unconstitutional changes of government, in light of the evolving challenges facing the continent, notably those related to popular uprisings against oppressive systems, taking into account all relevant parameters.’ Indeed, this is important since the AU norm on UCG as it stands offers no clear and systematic guidance on how to differentiate legitimate popular uprising from acts that can be considered as UCG and on how to respond to such popular movements. The PSC accordingly tasked ‘the Commission to prepare the elements of the framework and to submit to it for consideration.’
While there has been efforts within the Department of Political Affairs to undertake the review process, there has been no follow up on this subject from the side of the PSC. Instead, the issue featured as part of the final report of the AU High-level Panel on Egypt in June 2014. Observing the lacuna in the AU norm on UCG, the Panel proposed the elaboration of a guideline for determining the compatibility of popular uprisings that result in a change of government with the norms on UCG. According to the proposal, for popular uprisings to be compatible with existing AU norms, consideration should be had to the following five elements: ‘(a) the descent of the government into total authoritarianism to the point of forfeiting its legitimacy; (b) the absence or total ineffectiveness of constitutional processes for effecting change of government; (c) popularity of the uprisings in the sense of attracting significant portion of the population and involving people from all walks of life and ideological persuasions; (d) the absence of involvement of the military in removing the government; (e) peacefulness of the popular protests’.
As can be seen from these considerations, rather than being completely new the Panel built on the press statement of the PSC from its 432nd session as the references to failure of the government or its descent into repressive authoritarian rule and the lack of any effective constitutional means for changing the government (the principle of last resort) make it clear.
In a measure that illustrated an emerging norm affirming the legitimacy of popular uprisings, the PSC reiterated the language it used in its press statement of 432nd session in the case of Burkina Faso. The PSC in the communique of its 465th session relating to the situation in Burkina Faso of made reference to “the recognition of the right of peoples to rise up peacefully against oppressive political systems”. Even more recently in relation to the situation in Sudan, the PSC clearly stated its recognition of the ‘legitimate aspirations of the Sudanese people to the opening of the political space in order to be able to democratically design and choose institutions that are representative and respectful of freedoms and human rights’. The PSC accordingly made a distinction between the popular protests in Sudan and the military takeover of power, which it condemned as being contrary to the AU norm on UCG.
Clearly, AU’s treatment of the popular uprisings in North African, Burkina Faso and most recently in Sudan vis‐à‐vis its norm on UCG has signaled a new approach in interpreting legal frameworks that provide justification and legitimacy for popular uprisings in ousting authoritarian regimes. Yet, although the considerations elaborated in the final report of the AU High‐level Panel on Egypt offer the framework for establishing the framework for distinguishing those popular uprisings that constitute UCG from those that do not, there has been no follow up to the Panel’s useful foundational work. Accordingly, there remain lack of clarity including on the question of what makes an uprising or protest movement popular and hence consistent with the AU norm on UCG.
The most recent background to the agenda of this session is the surge of protest events on the continent. While these events have been witnessed in many parts of the continent, they have been notable, among others, in Burundi, Congo, DRC, and Ethiopia. Indeed, some of the conflict data sets notably the Armed Conflict Location and Event Data (ACLED) noted that, accounting for a total of 5660 events in 2017, protests and riots have become the leading conflict or crisis events on the continent.
This session affords the PSC an opportunity for clarifying a number of questions related to popular uprisings including vis‐à‐vis the list of considerations developed in the June 2014 AU High‐Level Panel report. Apart from the question noted above, these questions include who makes the determination of when an uprising becomes popular, what sets ordinary protest events apart from popular uprisings and whether there is a threshold that should be met for making such determination. While these questions are important, it is worth recognizing that there can be no full proof and mathematically precise formula for making determination on these questions.
What these questions rather highlight is the need for following up on the outstanding tasks stipulated in the press statement of the 432nd session of the PSC. The PSC is holding tomorrow’s brainstorming session five years after its landmark meeting on UCG and popular uprising in 2014. This presents it with the opportunity for making such follow up to the outcomes of its 432nd session.
As a brainstorming session, the expected outcome of the session remains unclear. Yet, irrespective of whether the outcome takes the form of a communique or press statement, it is expected that the PSC would reiterate its 432nd session on the need for addressing the gap in the AU normative framework. More specifically, the PSC may also task the AU Commission to establish an ad hoc body composed of the PSC Committee of Experts and legal experts who have studied the issue to produce and submit to it a proposal with objective guidelines on determining popular uprisings based on the various PSC outcome documents and the outline set out in the report of the AU High‐Level Panel and with the support of the Department of Political Affairs and the AU Legal Counsel. The PSC may also call on for addressing the root causes of popular dissent highlighted in its 432nd session including through the expansion of the democratic space, respect for constitutional term limits, ensuring the credibility of elections as the normal avenue for changing governments and by addressing socio‐economic grievances and inequalities.