What many people seem to not understand (or for specific reasons refuse to understand) is:
More than half of the Somali dominion is based on the Somali seas and thus vital to the survival of the Somali people.
Somalia has since 1972 as Territorial Waters (TW) and – overlaying the same area – since1989 as Exclusive Economic Zone (EEZ) an area of 825,052 square km of Somali Waters and an additional 55,895 square km as Somali continental shelf zone (CSZ), forming the maritime dominion.
The sum of the total internal area of Somalia with its 637,657 square km and the TW/EEZ area together give a total of 1,462,709 square km of recognized total Somali area, which with the additional CSZ is expanding to the present Somali area of 1,518,604 square km.
The sovereignty over the Somali area extends to the air space over the territorial sea as well as to its bed and subsoil.
These figures and this outline hopefully make it also clear to anybody what importance the marine waters have for the Somali people and the Somali nation and why many try to get their hands on them, thereby trying to push the indigenous Somali interests back.
Anybody, who tries to diminish that Somali space on earth and the sphere of Somalia and the Somali people certainly can not be seen as a friend of Somalia and the Somalis, and – if a Somali – must be tried for treason, based on the Constitution of Somalia and the Transitional Federal Charter.
The legal regime
A) Somalia has Territorial waters of 200 nautical miles (nm) based on the Somali Law No. 37 on the Territorial Sea and Ports, of 10 September 1972. This law also states clearly: “Fishing in the territorial sea (i.e. 200nm) and regular transportation of persons and goods between Somali ports are reserved for vessels flying the Somali flag, and other authorized vessels (i.e. with a licence and permission duly authorized by the legitimate Somali Government – and not e.g. by a regional governance).
It doesn’t matter that states like the USA do not like to recognize and/or respect that Somali Law, like they also try and pressure other states to give up their 200nm territorial waters, which were all established by acts of law, while the U.S.A. themselves have until today not even ratified the United Nations Convention on the Law of the Sea (UNCLOS) especially for reasons of national sovereignty or security and pushed for alterations of provisions, which would otherwise curb their rights.
Look, many peoples and states around the world do not like that the USA do not respect many international laws or conventions like the land-mine ban and a vast majority of peoples and states want that the USA abolishes US-national laws like those imposing and executing death sentences, arbitrary detentions etc. but nevertheless the USA apply these, their own laws in their territory. Likewise they have to at least tolerate that Somalia is applying its own laws in the Somali territory. The Americans would never give up an ounce of national sovereignty unless they thought they could win it back- along with a little chunk of the sovereignty of other states within the same organization. Just look at the farce of the Organization of American States. The plan was to cow the countries of Latin America and Canada into a neo-imperial arrangement with USAmerica as the core and the rest of the two continents of North and South America as the economic periphery- dependent on USAmerican patronage to maintain export-oriented primary industry-focused economies. Disgustingly parasitic of the United States of America, but crudely efficient at dominating the world for the past 60 years, this regime persisted.
It was the USA, who was the first country to expand its territorial waters beyond the common idea of the old-world states, which had claimed since the medieval times only 3 nautical miles (the distance where it could be enforced by a canon-shot from land) as their territory on the sea. Using the customary international law principle of a nation’s right to protect its natural resources, U.S. President Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles. By 1967, only 25 nations still used the old three-mile limit, while 66 nations had set a 12-mile territorial limit and eight had set – like Somalia then in 1972 – a 200-mile limit. As of May 28, 2008, only two countries still use the three-mile limit: Jordan and Palau. That limit is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British Overseas Territories, such as Anguilla.
The visionary expansion of the territorial seas to 200 nm by Somalia and other states therefore has the same legitimacy and – though maybe belittled in today’s piracy worlds – it is also an expression of taking responsibility. Notwithstanding the present deplorable state of Somalia’s security, the vision that the Somali people would have again the strength to fulfil their responsibility to govern the Somali Seas to at least a distance of 200nm from the Somali shores should, must and cannot be neglected.
The Somali Law No. 37 also governs the so-called “innocent passage” of foreign merchant vessels, which only can be seen as permitted innocent passage, if the state whose flag the vessel is flying is recognized by Somalia and if the Somali authorities acknowledge, i.e. have at least been made aware and raised no objection to the passage. Illegal weapons transports like done by MV FAINA, French research vessels prospecting for oil or foreign-flagged vessels fishing illegally in Somali waters certainly have violated also this basic Somali law governing the Somali Seas, whereby the territorial provisions in the Gulf of Aden must be seen as extending towards the line piding the Gulf of Aden 50/50 with Somalia’s “over-seas” neighbour Yemen, which is why the internationally protected shipping corridor runs on the Yemeni side of the Gulf of Aden, though it had not been really agreed between Yemen and the international community.
Article 10 of the Somali Law No. 37 also stipulates since 1972: “Foreign warships are not allowed to pass through the territorial sea (i.e 200 nm) unless they are authorized by the Somali Government”. That was and is the rule, was internationally respected and enforced from 1972 until 1991 and is still valid until today – despite the temporary, occupational rules made by the UN Security Council. However, a non-existing letter, allegedly signed by former TFG president Abdullahi Yussuf, or the illegally signed later version – signed by the non-Somali Ould-Abdallah, who anyway held no Somali governmental powers – , certainly do not bear any legal significance concerning any such “permissions” or requests, which makes the present occupation of the Somali water territory by the naval armada likewise illegal. Though everybody clearly agrees that piracy has to end and sees the necessity to curb piracy and other crimes on the High Seas – as well as inside the Somali territorial waters-, one has to realize that one injustice can not be curbed with another injustice, while it has become clear meanwhile to anybody that piracy deriving from the Somali coasts and maritime crime committed by Somalis can not be exterminated by a naval armada violating the rights and sovereignty of Somalia and the Somali people. Law are made and should be enforced to avert and fight injustices, but not to create new injustices.
B) Somalia has an Exclusive Economic Zone of 200 nm (based on UNCLOS, the United Nations Common Law of the Sea derived from the United Nations Convention on the Law of the Sea, to which Somalia was one of the first 40 signatories and which had been ratified by the Somali parliament on 24. July 1989 – five years before the required number of countries signed on to make it applicable. The Convention came into force on 16 November 1994 and thereby is binding now for all signatory states – even if they would not have recognized any of the subsequent Somali governments after the 06. January 1991. Even when certain flag-states argued that there would be no “legitimate and recognized Somali Government” in Somalia, this does not mean that the legal regime of persisting national legislation and the relevant international laws – like UNCLOS – concerning the Somali waters would no longer be applicable. It is very simple to understand: If you knock on a door of a house, which is not yours, and nobody welcomes you inside, you certainly do not have the right to enter, just because nobody answers you. Likewise, if e.g. the captain of a fishing vessel would want to enter the Somali waters and believes that it would not be necessary to have the permission required by national or international law, because the flag-state of the vessel hadn’t recognized the legitimacy of a given Somali governance or simply nobody would respond to the request to be allowed to enter, he would be certainly wrong, and that vessel has to stay outside the Somali waters – no matter what.
It doesn’t matter that certain states and groups repeatedly try to create the impression that Somalia would not have an EEZ, because they just play the argument that the relevant maps are not shown on the UN website. The Somali government had declared its EEZ (the legal protection and recognition of the rights and interests of the Somalis in their waters of 200nm by the international law actually was the only reason to sign on) and the relevant charts were in Mogadishu and also with the UN offices before the war – so where are they now??? It certainly is not the fault of the Somalis, if the UN misplaces them.
However, the key issue here is that Somalia did declare its EEZ based on and together with its signature and ratification of UNCLOS in 1989 – but ALLWAYS: “Notwithstanding the regulations based on Somali Law No. 37″, which stipulates that not only the Somali rights based on UNCLOS and the Somali EEZ, but also the further Somali rights based on the Somali Law on the Sea have to be respected.
The concept of the EEZ can not and should not be tried to be misused to diminish the rights of Somalia concerning its waters.
C) Somalia has a Continental Shelf Zone of 350 nm , based on international law and Somalia’s claim documented and handed in by Somalia on 17 April 2009 to the UN and the International Seabed Authority before the deadline of 13 May 2009. The establishment of the outer limits of the continental shelf beyond 200 nautical miles is the right of all coastal States under international law. That there again might be issues how the law will be used and interpreted to elaborate binding agreements concerning specific boundaries – like in the case of Socotra – is notwithstanding to the fact that the boundaries e.g. between Kenya and Somalia or between Djibouti and Somalia have been and are clear since Somalia signed and ratified UNCLOS in 1989. Attempts to bend or alter such by – legally anyway irrelevant – memoranda, which like in the case of Kenya were instigated by Norwegian interests, should be a warning.
The Somali Sovereignty, marine and maritime rights
While the African Union and states like Indonesia, Germany etc. respect the Somali Law of the Sea and the Somali EEZ, countries like Spain or Italy only respect this legal regime just indirectly by having told their (state-flagged) vessels to stay out of the 200nm waters of Somalia (while Spanish or Italian owned vessels flying flags of convenience – like many others – continued fish-poaching in the Somali waters). But even states like France, who tried at first to maintain the line that since the UNCLOS-EEZ maps would not be shown on the UNCLOS website (a simple omission which should have been rectified since long) and therefore Somalia would not have an EEZ, has by a declaration of their president Nicolas Sarcozy – given during a meeting in Libya – officially stated that now also France would respect the 200nm zone of Somalia. The fact that the European Union (the conglomerate of old-world countries) shares its economic zones was a big reason is their problem and does not affect Somalia, but was interestingly the reason, why Norway itself did not enter the EU as a member.
But what Norway (and other players like the EU and IMO) try to manifest now and here with the “re-establishment” of the Somali EEZ and their unwarranted “help” is not only to follow the line set by the USA, which would force the Somalis to abolish the Somali Law on the Sea and its 200nm territorial waters, but also that all the cases, which have been documented over the last 20 years as a clear violation of the Somali Law governing the 200 nm Somali territorial waters as well as the provisions set by UNCLOS and the Somali EEZ shall and would be brushed under the carpet and forgotten, because if Somalia and Somalis would get tired of that persistent game and say “ok, then just do it again” all the cases of clear violations of the existing legislation since 20 years – during which Somalia hardly could defend its rights – would be thrown out with one stoke of a pen, because it would be argued that this – newly done – “formal establishment of an EEZ” would manifest that there had been no 200nm EEZ before, which is simply not true.
Many of you and some of our members were present in Mogadishu in the years before 1991 and they are still living as key witnesses to events, when delegation after delegation from other countries tried to coerce or convince the Siad Barre government to do away with the Somali Law on the Sea and its 200nm provisions, because they wanted unhindered access to the Somali waters and resources – alas the former government remained strong and did not give in.
As a matter of fact, the Laws of the Sea of states like Somalia, Peru etc. actually did give reason to the international community to realize that it would be a good idea to have the adjacent marine waters governed by the coastal states to which they belong, and that gave rise to the legal provisions found today in the United Nations Convention on the Law of the Sea and the basic idea of creating a 200nm Exclusive Economic Zone for all coastal states, and to make provisions even for those who hadn’t declared a 200nm zone yet. To turn this now around and actually against one of the founder nations of such a regime must be seen as an outrageous act of aggression.
Today, after 20 years of civil war, and while the Somali governance and the Somali population – which never in Somali history has been so weak and vulnerable as right now – is in distress, the outside forces believe they have an ideal moment to press for such twisting of legal history and these pseudo-alterations again – solely in their own, foreign interest.
Let us not forget that the only interest the Norwegian state machinery has in Somalia are the potential oil reserves and fisheries, and especially concerning the off-shore oil-concessions they believe that they could get an added advantage over e.g. the French, who had secret contracts concerning off-shore drilling in the Somali waters already. That the Norwegians actually did help to beat the deadline 13 May 2009, which the International Seabed Authority had set for the declaration of interests in the CSZ, should not lead to a situation, where Somalis could be blindfolded to give up other rights, like it was tried with the rather confusing signing of that (meanwhile revoked) Memorandum of Understanding between Somali and Kenyan politicians on the – until then and based on UNCLOS clear, undisputed – boundary between Somalia and Kenya in timely and legal connection with the claim on the 350nm seabed rights of Somalia.
Though with the new 350 nm continental shelf regulations further Somali rights have been manifested, this should not lead to a situation where an expansion of certain, limited rights is traded in for a weakening of core-rights in the rear. That especially the USA is not happy with states, which based on international and national law can refute the US-Navy from sailing right up to the shores of a sovereign state is clear and was recently manifested by a near-deadly stand-off between China and the USA in the South-China Sea.
Likewise Indonesia’s UN delegate stated at the UN that the South-East Asian nation had joined Security Council efforts only to address the piracy incidents off the Somali coast by adopting Council resolutions 1816, 1836 and 1846, but stressed that while those texts tackled the scenario unfolding off the besieged coast, they must not affect the rights, obligations or responsibility of Member States under international law, which first and foremost is to respect the sovereignty of a nation – here Somalia – in the first place.
Somalia has a 200nm zone of territorial waters, like the recognized nation states of Benin, Republic of the Congo, Ecuador, El Salvador, Liberia and Peru. In Peru these provisions are even enshrined in the constitution.
Such Maritime Dominion and the right to exercise sovereignty and jurisdiction should not be given up by Somalia, especially also because the 1952 Santiago Declaration in its preamble affirms that “governments are bound to ensure for their peoples the access to necessary food supplies and to furnish them with the means of developing their economy”. The declaration also affirms how the economic zone should extend no less than 200 miles from the coast.
The 1970 Declaration of the Latin American States on the law of the sea further added that the decision to extend the jurisdiction beyond the former territorial sea limits is a consequence of “the dangers and damage resulting from indiscriminate and abusive practices in the extraction of marine resources” as well as the “utilization of the marine environment” giving rise to “grave dangers of contamination of the waters and disturbance of the ecological balance”.
The respectfully, wisely and in a sustainable as well as socially acceptable way used natural resources of Somalia’s seas are the only sound assets left for a prosperous future of the Somali people, which is why even the African Union already during the 90′s and at the Maputo and Cape Town conferences on the coastal development of Africa already clearly and expressedly urged the world to respect the Somali EEZ of 200nm. Anybody saying now that Somalia has no EEZ slaps not only the Somali people but also all nations of the African Union straight into the face.
Let us beware of Norwegian wolves or their Somali-”counterpart” Warabe appearing in the skin of an Ido and pretending to be a friend.
Let us stand and stay strong in defending the sovereignty of Somalia as a whole as well as defending Somalia’s territory including the waters and all of Somalia’s natural resources.
That we might have to go through a phase of sorting out our internal issues by strengthening regional and local governances first in order to regain our former unity, well, these are issues of our internal affairs and do not affect the internationally relevant legal provisions, must not give reason to disrespect our commons or shall not weaken our common defence against any outside aggressor.
The so-called international community has to first and foremost respect Somalia’s sovereignty and laws before they can be accepted as friends on a peoples-by-peoples and state-by-state basis – even when we are down on our knees and have to beg sometimes for help. But gifts in form of Trojan horses must be rejected and those colluding with such scams must be seen as that what they are: Traitors and enemies of the Somali people!
Please spread this to all honest Somalis – all over the world.
Dr. Abdulkadir Salad Elmi