Dangerously Consequential Presidential Proclamation and Executive Summary

It is tragic in Somalia’s case as espoused in President Hassan Sheikh’s
recent Presidential Proclamation is that the issue was misleadingly framed as
securing and claiming our EEZ of 200 nm. What is wrong with this emphasis or
red herring is that according to UNCLOS every country can automatically claim
an EEZ of 200 nautical miles with limited rights and privileges with regards to
exercising sovereignty. But this is a diversion. The true objective and purpose
of the recently orchestrated campaign of President Hassan Sheikh is to limit
Somalia’s Territorial Sea to 12 nautical miles, undermining Somali Law
No. 37 on the Territorial Sea and Ports, of 10 September 1972. This law is the
only valid legal instrument at the UN’s depository (see the attached law
from Somalia’s UNCLOS site) that states our Territorial Sea to be 200
nautical miles.
On Monday July 21, 2014, the Somali government quietly submitted an
Executive Summary to the Commission on the Limits of the Continental Shelf
(CLCS), stating that its Territorial Sea limit to be 12 nautical miles,
Contiguous Zone to be 24 nautical miles, EEZ to be 200 nautical miles, and
Continental Shelf to be 350 nautical miles (read page 7). This submission plus
the President’s recent Proclamation representing Somalia’s position and claims
will be included in the provisional agenda of the thirty-seventh session of the
Commission to be held in New York in early 2015 and to be considered for
recommendations (See CLCS site). The recently submitted Executive Summary
also states: “The Government of Norway has provided assistance and advice
to the Federal Government of Somalia (FGS) in the preparation of the present
submission, and the Royal Norwegian Ministry of Foreign Affairs, the
Norwegian Petroleum Directorate and the Norwegian Mapping Authority
have been involved in this work.”
The recent remarks by President Hassan Sheikh and the Minister of Fisheries
and Marine Resources are misrepresentations and propaganda to mislead the
public. In his address to Parliament, the President failed to tell the legislators
24 hours prior his government officially submitted an Executive Summary to
the UN laying the ground to change Somalia’s Territorial Sea Limit to 12
nautical miles from 200 nautical miles.
Given the record of Mogadishu’s regime I would not be surprised if greed and
corruption might be the driving forces behind the hasty efforts to limit
Somalia’s Territorial Sea to 12 nautical miles. It is clear to a neutral observer that the interests of persistent foreign countries (Norway and Kenya) are the
driving force behind the recent flurry of activities by the inept and corrupt
regime in Mogadishu.
One wonders why the leadership and members of parliament are silent on this
important question; after all, they have the principal and primary authority to
pass all laws in Somalia including the maritime laws.
It is obvious that President Hassan Sheikh’s dangerously consequential
Presidential Proclamation and Executive Summary have totally bypassed
Parliament. I suppose we don’t have legally competent officials or scholars in
our judiciary who could have warned of the obvious danger this Presidential
Proclamation poses in undercutting Somalia’s maritime rights.
The major problem with this Proclamation’s submission to the United
Nations Convention on the Law of the Sea (UNCLOS) is that the President
started inaccurately his Proclamation with draft Laws No. 5, 11, and Decree
14 of 1989 as though they are final and not understanding these are internal
state documents that were never settled nor harmonized with national
maritime laws in effect such as Law No. 37. Siad Barre’s
regime never submitted these laws to the UN to declare an Exclusive
Economic Zone, Continental Shelf or Contiguous Zone in accordance with the
UNCLOS, which requires the incorporation of the definition of the maritime
zones limits. The website of UNCLOS Depository for Somalia under the
heading “Legislations” confirms never receiving these three laws precisely and
states “not available” (see Somalia’s UNCLOS page).
Even worse, in the Presidential Proclamation item #3 states: “In the Exclusive
Economic Zone, the freedoms of navigation and over-flight and of the laying of
submarine cables and pipelines shall be governed by international law.” But
according to Somali Law No. 37 on the Territorial Sea and Ports, of 10
September 1972, our Territorial Sea of 200 nautical miles gives us now the
sovereign and exclusive right to govern freedoms of navigation and over-flight
and of the laying of submarine cables and pipelines without international
interference. Why on earth the President wants to surrender these Somali rights
and all the financial benefits these rights will accrue for our nation? This is
beyond belief!.
In my view, the Presidential Proclamation should have started instead with a
language such as “… Having considered and reiterating the full force
and validity of Law No. 37 on Territorial Waters and Ports, of 10
September 1972, by means of which it establishes the breadth of its territorial waters at 200 nautical miles in accordance with
international law…. etc.”. The inclusion of this language is important,
because countries that want to protect their 200 nautical miles as their
Territorial Sea must register their reservation with UNCLOS so as not to be
delimited to the widely accepted 12 nautical miles; which is the default and
globally prevalent standard. Remember as I stated at the beginning, countries
such as Peru and Ecuador have asserted 200 nautical miles as their Territorial
Sea.
For those who are interested to know the UN’s persistent strategy to limit our
Territorial Sea to 12 nautical miles by diverting attention to the EEZ’s 200
nautical miles and the Continental Shelf’s 350 nautical miles, is to simply
shield those who would be legally liable had our Territorial Sea was 200
nautical miles. Why this is significant? Because otherwise the International
Community will have no legal basis to arrest and charge young Somalis as
pirates and more importantly to avoid potential future lawsuits that might be
brought by the Somali government for dumping toxic waste in Somali
territorial waters that caused hundreds of deformed births, to say nothing of
the illegal fishing and depletion of Somali marine resources.
Worth noting is that the United Sates Senate which refused to ratify UNCLOS
has always protested Somalia’s Law No. 37 of September 10, 1972, asserting a
200-mile Territorial Sea, and described it as excessive. This assertion may be
found in U.N. LOS BULL., No.2, Mar. 1985, at 76, which I am researching but
this protest cable sent the by American Embassy Mogadishu note dated Aug.
28, 1982 should be sufficient (State Department telegram 231502, Aug. 18,
1982; American Embassy Mogadishu telegram 6215, Aug. 29, 1982). For
further details read: “Fishing in Troubled Waters – Somalia’s Maritime Zones
and the Case for Reinterpretation; published by the American Society for
International Law, and “International Cooperation To Combat Piracy &
Armed Robbery Against Ships”, by Professor Robert Beckman submitted at a
roundtable discussion on the United Nations Convention on the Law of the
Sea in 2010.
For the benefit of those who are not familiar with the history and background
surrounding Somalia’s Territorial Sea and waters, I thought the following
comments on chronological events and facts might be useful:
1. The United Nation has as an official submission of Somali Law No. 37
on the Territorial Sea and Ports, of 10 September 1972 so according to
international law: “The Somali Territorial Sea includes the
portion of the sea to the extent of 200 nautical miles within the continental and insular coasts, delimited according to
the provisions of articles 2 and 3 of this Law” and “The
Somali Territorial Sea is under the sovereignty of the Somali
Democratic Republic. Offences committed within the limits
of the Territorial Sea on board a vessel relating to penal
health and public security shall be governed by Somali law”;
2. All countries signatory to the United Nations Common Law of the Sea
(UNCLOS) in 1982 are required to ratify the law prior to 1994;
harmonize it with their relevant national laws and accept that its
Territorial Sea to be 12 nautical miles, Contiguous Zone to be another
12 miles, and Exclusive Economic Zone (EEZ) to be 200 nautical
miles;
3. Since Somalia was in a civil war starting 1991 it was not in a position
to officially respond to the UNCLOS 1982 requirement as stated in
number 2 above; therefore in the case of Somalia according to
international law it has de facto and de jure a 200 nautical miles as its
Territorial Sea and EEZ under UNCLOS;

4. The former Somali Transitional Federal Government (TFG) in 2008
under former PM Sharmarke signed a Memorandum of
Understanding (MOU) with Kenya facilitated by Norway and with the
encouragement of former UN SGSR Amadou Ould-Abdallah opened
the door for a dispute between Somalia maritime borders with Kenya.
However, shortly thereafter the Somalia’s Transitional Federal
Parliament overwhelmingly rejected the validity of the MOU. Worth
noting, Somalia’s Transitional Government per UNSC resolutions had
no mandate from the Somali people to represent them and no power
to sign and ratify treaties and international covenants;
5. On March, 18, 2013, Somalia’s Foreign Minister Fawziya Yusuf Aden
and her Kenyan counterpart jointly issued a communique which
ambiguously opened the door again on the same issues raised in the
TFG’s 2009 Memorandum of Understanding, though stating that:
“…6. We will seek to confirm the status of these laws with
our Parliaments.” (as stated in the attached communique);
6. In an effort to rectify and put to bed any confusion and ambiguity
created by former Foreign Minister Fawziya Aden, the current Foreign
Minister Dr. Abdirahman Beile sent a letter dated February 4,
2014 (this letter is shown on Kenya’s CLCS page under “Somalia” heading) to UNSG’s Ban Ki-Moon, regarding the Continental Shelf
Zone and Kenya’s transgressions. In reiterating Somalia’s position
with regards to its maritime boarders, he stated “…protesting the
continued activities of oil companies under license to Kenya in
maritime zones claimed by the Somali Republic…” and made an
excellent point in relation to the “…person considered as representing
a State for the purpose of adopting or authenticating the text of a
treaty or for the purpose of expressing the consent of the State to be
bound by a treaty…”where President Hassan’s Proclamation is
constitutionally dubious since he is a President with limited or shared
executive powers with the Prime Minister unlike Kenyan or American
Presidents who are after all are elected in direct elections by their
citizens. Besides, these laws are the Parliament’s prerogative
exclusively;
7. On June 30, 2014, President Hassan Sheikh issued a Presidential
Proclamation with specific coordinates of Somalia’s EEZ that
undermined Dr. Beile’s letter which clarified Somalia’s position
succinctly regarding the Continental Shelf Zone, As explained above,
this proclamation makes reference to drafted internal state papers
with no legal standing. However, the UN and countries such as Kenya
and Norway after becoming aware of the existence of such internal
documents that were never submitted to UNCLOS, found it opportune
to use this information and coerce Somalis to accept it as an existing
and binding UNCLOS instruments. Where else in the world have you
seen an internal state document that is work in progress and is open
for debate and discussion domestically is construed as an agreed upon
national law already submitted to the UN. Legal scholars in the forum
and elsewhere could correct me if I am wrong on this;
8. On July 21, 2014, “the Federal Republic of Somalia submitted to the
Commission on the Limits of the Continental Shelf, in accordance with
Article 76, paragraph 8, of the Convention, information on the limits
of the Continental Shelf beyond 200 nautical miles from the baselines
from which the breadth of its Territorial Sea is measured. In
accordance with the Rules of Procedure of the Commission
(CLCS/40/Rev.1), a communication is being circulated to all Member
States of the United Nations, as well as States Parties to the
Convention, in order to make public the Executive Summary of the
submission, including all charts and coordinatescontained in that
summary. The consideration of the submission made by Somalia will
be included in the provisional agenda of the thirty-seventh session of the Commission to be held in New York in early 2015. Upon
completion of the consideration of the submission, the Commission
shall make recommendations pursuant to Article 76 of the
Convention.” (Copied from UN CLCS’s site). The Parliament
should urgently withdraw and invalidate both the
Presidential Proclamation and the Executive Summary and
send a reassertion of Somali Law No. 37 of Territorial
Waters and Ports .
Furthermore, it seems to me what President Hassan fails to appreciate is that
Somalia and a handful of other countries have the blessing and privilege to
claim 200 nautical miles as their Territorial Sea due to the maritime laws passed
by Siad Barre regime’s when other countries did not.
The fact that Somalia has the sovereign right of 200 nautical miles as Territorial
Sea and all the benefits it entails is precisely what is driving crazy Kenya and
their partner in crime Norway of wanting to limit Somalia’s Territorial Sea to 12
nautical miles. Remember, no one is disputing the legality and right of
Somalia’s EEZ to be 200 nautical miles nor its Continental Shelf to be even a
350 nautical miles. What Kenya and Norway are doing is creating falsely the
impression that the issue at contention is the establishment of a Continental
Shelf and EEZ for Somalia, but in reality, this is a straw man created to
camouflage their hidden agenda to coerce Somalia to voluntarily relinquish
its Territorial Sea of 200 nautical miles by urging the Somali government to
submit new documents with UNCLOS to nullify Somali Law No. 37 (preserving
200 nm for Somalia’s Territorial Sea) and replace it with Laws No. 5, 11, and
Decree 14 of 1989 that are deemed to be invalid as I explained earlier. Why the
obsession with these old draft laws of 1989 and not require the passage of new
laws by the newly recognized government? Because it is prior to 1994 when
UNCLOS became in effect.
What Kenya regrets is that unlike Somalia, Kenya’s government in the 1970s
failed to enact laws like Somali Law No. 37 and claim 200 nautical miles as their
Territorial Sea.
I wonder if it is too much to expect from Somalia’s current parliament –
notoriously renowned for its dereliction of duties and vote selling to the highest
bidder – to rectify the damage done by President Hassan Sheikh’s reckless
Presidential Proclamation and Executive Summary.
Also this responsibility falls on patriotic and concerned Somalis wherever they
are to organize and work hard to annul this Proclamation and related Executive
Summary to protect the nation’s marine resources. Parliament can be helpful
by making it very difficult to make amendments without a comment period for the public and civil societies to express their views and subsequently deliberate
thoroughly these pertinent issues in the parliament. Only after adhering to this
transparent process should the final version of the amendment or new law put
to vote requiring at least two-thirds majority for it to take effect. This process
should also apply to any new laws and amendments that govern the country’s
natural resources particularly oil and gas.
Finally, equally distressing is how the current regime in Mogadishu transferred
to the UAE the privilege and right to exploit the country’s oil and gas without
due consultation and input from parliament (see attached). The deal was signed
by the Minister of Mineral and Petroleum who is a novice in the complex world
of hydrocarbon negotiations to say nothing about his lack of knowledge and
expertise to understand the terms of the legal agreement he signed!
Most of us became aware of this deal after it had been executed, which normally
is the way all citizens of poor and fragile countries discover the plundering of
their most precious natural resources (Read: How an Israeli Billionaire Wrested
Control of One of Africa’s Biggest Prizes).
Perhaps others more knowledgeable than me can provide us detailed
information about what is in this secret deal. What is astounding about this deal
is that the Somali government is giving away carte blanche to the government
of UAE the right to exploit Somalia’s oil and gas. However, we all know the UAE
has neither the technical know-how nor companies with the capability to do so,
in essence, the UAE is a broker or “Dellaal”(as stated in Mubadala
Petroleum website: “…The assets we manage include exploration, appraisal,
development and production projects, with a primary geographic focus on the
Middle East, Africa and Central and Southeast Asia. Through acquisitions,
partnerships and the winning of new exploration licenses, we are continuing
to expand our asset base but maintaining a clear geographical focus and
discipline in relation to the nature of the opportunities we pursue.”); who
obtained billions of dollars’ worth of rights for free and can now turnaround and
shop for an international oil company or companies that have the capabilities
to explore and drill, and enter into agreements with them pocketing billions of
dollars that will be denied to Somali people.
With a regime like the one we have in Mogadishu, who needs an enemy