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Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2060 (2012): Somalia

UN REPORTS: S/2013/413

12 July 2013

"Once Somalia adopts the EEZ under the UNCLOS regime, Somalia and Kenya would be required to initiate a separate process to negotiate a mutually acceptable maritime boundary. This would open the possibility of an adjustment of the maritime boundary from its perpendicular position towards a position following the line of latitude. Such a shift would effectively place some if not all of the disputed licenses mentioned above back into Kenyan waters. It is for this reason that on 8 October 2011 the Somali MPs voted down attempts to introduce an EEZ during the Roadmap process." UN Report, July 12, 2013.

Conflict between Somalia and Kenya over the maritime boundary

Somalia and Kenya have differing interpretations of their maritime boundary and associated offshore territorial rights. Currently, Somalia claims its maritime boundary with Kenya lies perpendicular to the coast, though this boundary is not enshrined in a mutually accepted agreement with Kenya, which envisages the maritime boundary as being defined by the line of latitude protruding from its boundary with Somalia.²⁵

Map of disputed offshore zone between Somalia and Kenya, including positions of Kenyan issued oil licenses.

The FGS has thus refused to recognise oil licenses granted to multinational companies by Kenya and which protrude into waters defined as Somali according to that perpendicular demarcation line. Oil multinational companies affected by the FGS opposition have included French oil company Total (Kenyan license L22), Italian major ENI (Kenyan licenses L21, L23 and L24), US oil firm Anadarko (Kenyan license L5) and Norway’s majority state-funded Statoil²⁶ (Kenyan license L26) (see again annex 5.5.k for a more detailed map of disputed oil licenses).

Corruption Risks

Conflicts of interest surrounding the adoption of an Exclusive Economic Zone for Somalia (EEZ).

Since 1972, Somalia has claimed an extension of its territorial sea from 12 to 200 nautical miles. However, article 3 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) limits coastal States to claim a maximum territorial sea of 12 nautical miles from the coast. Although Somalia signed UNCLOS in 1982, there has been considerable confusion over whether Somalia’s national legislation has been harmonised to give recognition to the UNCLOS regime.²⁸ On 1 May 2013, however, President Hassan Sheikh issued a statement announcing that the FGS has identified a 1988 law which puts Somalia fully in compliance with UNCLOS, and which would allow Somalia to implement an Exclusive Economic Zone (EEZ), where territorial control would be limited to 12 nautical miles but where Somalia would continue to claim sovereign rights to explore, exploit, conserve and manage natural resources that exist within 200 nautical miles of its coast.

Once Somalia adopts the EEZ under the UNCLOS regime, Somalia and Kenya would be required to initiate a separate process to negotiate a mutually acceptable maritime boundary. This would open the possibility of an adjustment of the maritime boundary from its perpendicular position towards a position following the line of latitude.²⁹ Such a shift would effectively place some if not all of the disputed licenses mentioned above back into Kenyan waters. It is for this reason that on 8 October 2011 the Somali MPs voted down attempts to introduce an EEZ during the Roadmap process.³⁰

The Monitoring Group understands that Kenya suspended Norwegian oil company Statoil from block L26 in late 2012, as the company was unwilling to meet financial obligations of developing exploration activities in the block while legal uncertainty prevailed over the Kenyan-Somali maritime boundary.³¹ However, a Kenyan Government official has confirmed that Statoil has nevertheless expressed interest in returning to develop L26 should the maritime boundary dispute be resolved in favour of Kenya.³²

The Monitoring Group has obtained information of attempts by the Norwegian Government to influence Somali parliamentarians and other FGS officials to adopt the EEZ for Somalia, which, as explained above, would lead to a separate process of redrawing of the maritime boundary towards a line of latitude.

Norway has been involved in attempts to introduce the EEZ onto the parliamentary agenda since at least 2008, when former UN SRSG for Somalia Ahmedou Ould Abdallah initiated the preparation of preliminary information indicative of the outer limits of the continental shelf on Somalia. At the time this was conducted, Statoil had no commercial interest in Somalia.³³ However, efforts by Norway to lobby Somali officials to adopt the EEZ now coincide with current Norwegian interest in the fate of L26 as well as with Norwegian involvement in the application of a Special Financing Facility (SFF) donor fund of $30 million which has been allocated under the management of FGS officials with a track record of corruption (see annex 5.2 on page 154 of the S/2013/413 UN Reports). (Note: Annex 5.2: is about "Public financial mismanagement and corruption".)

Indeed, between 6 and 13 April 2013, two non-governmental organisations, the Oslo Center and the National Democratic Institute, hosted several Somali MPs, including the FGS speaker of parliament and Norwegian national, Mohamed Osman Jawari, on a Study Tour for the Federal Parliament of Somalia, in Oslo. The week-long programme included a briefing on the SFF by Norway’s Special Envoy to Somalia, Jens Mjuagedal, and Senior Advisor, Rina Kristmoen, as well as a briefing on Norwegian legal assistance to Somalia for the establishment of an internationally-recognized EEZ. Former Norwegian oil minister Einar Steensnaes also briefed on the issue of management of natural resources (see annex 5.5.l. for programme on page 170 of the UN S/2013/413 Report). (Note: Annex 5.5.l: is about "Programme of Study Tour of Somali MPs in Oslo 6 – 13 April 2013.")

In this way, Norway’s development assistance to Somalia may therefore be used as a cover for its commercial interests there. Norway’s Minister of International Development, Heikki Eidsvol Holmås has, however, publicly denied any link between Norway’s assistance to Somalia in establishing its continental shelf rights and any commercial oil interest.³⁴

• Source: Somalia report of the Monitoring Group on Somalia and Eritrea - http://www.un.org/ga/search/view_doc.asp?symbol=S/2013/413

NORWAY Response to UN Report

July 19, 2013 Norwegian Ministry of Foreign Affairs responding to UN Monitoring Group Report said "Norway regrets claims by a UN report linking Norwegian development efforts to commercial interests in Somalia."

"Norway has for many years provided extensive assistance to Somalia both humanitarian, as well as to support efforts for peace and reconciliation and for reconstruction and development of a country who has suffered so much from hungers and wars. This has been a consistent policy aiming towards a more stable and peaceful Somalia, in which the Somali people may begin to enjoy security and hopes for a more prosperous future.

It is therefore with serious concern that we understand the Monitoring Group in its Report to the Security Council is conveying some conspiratory allegations, found on the internet, implying that Norwegian assistance to Somalia is a cover to promote the commercial interests of some Norwegian oil companies. This is both unfounded and untrue."

Adding "We are aware that the Norwegian oil company Statoil has showed some interest in possible future oil concessions in Kenya, but the Norwegian Government has always advised the company not to apply for such concessions in any areas where there may be a potential legal dispute, and when realizing that this was the case with the mentioned L26 block, Statoil decided not to get involved." MORE AT Norwegian Ministry of Foreign Affairs Website.

AKHRI: Waa Maxay Faraqa u Dhexeeya Dhul-badeedka (Territorial Sea) iyo Aagga Dhaqaalaha (EEZ)?

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References:

25  Kenya claims that a Memorandum of Understanding (MoU) signed with Somalia’s TFG in April 2009 set the border running east along the line of latitude. However, Somalia claims that the purpose of the MoU was not to demarcate the maritime boundary but rather to grant non-objection to Kenya’s May 2009 submission of claim? to the UN Commission on the Limits of the Continental Shelf to delineate the outer limits of Kenya’s continental shelf beyond the 200 nautical mile limit. (Each country’s claim requires proof of cooperation with its neighbors.) Since it was not ratified by the parliament, Somalia claimed that the MoU did not, in fact, have legal basis. Somalia’s parliament rejected this MoU in August 2009, claiming that Somalia was adhering to the appropriate requirements for delimitation of the continental shelf – not agreeing to a maritime boundary with Kenya. See Lesley Anne Warner, “East Africa’s Oil/Gas Rush Highlights Kenya- Somalia Maritime Border Dispute”, available at http://lesleyannewarner.wordpress.com/2012/07/21/east-africas-oilgas-rush-highlights-kenyasomalia-maritime-border-dispute/ . On the 6 June 2013, the Office of the Prime Minister in Somalia issued a statement saying that the council of ministers had decided that The Federal Government of Somalia does not consider it appropriate to open new discussions on maritime demarcation or limitations on the continental shelf with any parties.

26  See http://www.statoil.com/annualreport2011/en/shareholderinformation/pages/majorshareholders.aspx for precise statistics on Norwegian government holdings in Statoil.

28  See Thilo Neumann and Tim Rene Salomon, “Fishing in Troubled Waters – Somalia’s Maritime Zones and the Case for Reinterpretation”, Insights, American Society of International Law, 15 March 2012.

29  According to a maritime lawyer interviewed by the Monitoring Group on 22 April 2013, should Somali MPs vote for an EEZ, the boundary would be identified through a process of negotiation between the Somali and Kenyan Governments under international mediation, and would likely shift from a perpendicular position towards a position of latitude, given previous precedent set in the East African region, particularly in relation to the Tanzanian-Kenyan maritime border.

30  See http://www.garoweonline.com/artman2/publish/Somalia_27/Somalia_The_Roadmap_Gets_a_Tear_on_the_EEZ.shtml .

31  Kenyan Energy ministry Permanent Secretary, Patrick Nyoike was quoted in the financial press on 5 November 2012 as suggesting Statoil was relieved of L26 due to failing to honour a 3-D seismic development plan, see http://www.businessdailyafrica.com/Corporate-News/Kenya-expels-oil-giant-Statoil-from-exploration-plan-/-/539550/1612432/-/708r31z/-/index.html  . However, a Kenyan Government official interviewed in April 2013, said he had been informed that Statoil did not want to take the risk of developing L26 while the maritime boundary was still in legal dispute.

32  Interview , 12 May 2013.

33  See Norwegian Foreign Ministry website: http://www.regjeringen.no/en/dep/ud/press/news/2009/shelf_assistance.html?id=555771 .
L26 was negotiated in 2012, see http://www.trademarksa.org/news/norwegian-firm-statoil-joins-search-oil-kenya .

34  See http://www.ft.com/intl/cms/s/0/a6d5d1b6-bd9f-11e2-a735-00144feab7de.html .

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Waa Maxay Faraqa u Dhexeeya Dhul-badeedka (Territorial Sea) iyo Aagga Dhaqaalaha (EEZ)?

REMEMBER: June 6, 2013: Somali Federal Government clarifies its position on territorial waters

The government’s position is Somali Law No. 37 on the Territorial Sea and Ports, signed on 10 September 1972, which defines Somali territorial sea as 200 nautical miles and continental shelf. On 24th July 1989 Somali ratified the UN Convention on the Law of the Sea. Faahfaahin
 

Faafin: SomaliTalk.com |  July 21, 2013

Baarlamaanka Soomaaliya oo si kulul uga dooday Sharciga Cusub ee Kalluumaysiga iyo Xeerka Badda Soomaaliya ee Law No. 37

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