MARITIME DELIMITATION IN THE INDIAN OCEAN (SOMALIA

V. KENYA) AND ITS EFFECT TO THE OFFSHORE

EXPLORATION BLOCKS
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Introduction

The dispute on the delimitation of maritime boundary between Kenya and Somalia in the Indian
Ocean has been building up for quite some time and it is shaping up to be a clash to watch out
for. Given the significance of the case which is hinged on various variables such as national
pride, sovereignty not to mention the existing vast amount of oil, fish and minerals in the
disputed area, so much is at stake for both countries, Kenya especially.
The case started on the 28th of August, 2014 when Somalia filed a case against Kenya with regard
to a dispute concerning maritime delimitation in the Indian Ocean, at the International Court of
Justice in Hague.
Somalia has complained that Kenya has wrongly claimed parts of its territorial waters in the
Indian Ocean. The disputed area stretches over 100,000 square kilometers. Kenya sees the border
extending in a straight line from its land border into the Indian Ocean, which would give it the
additional area. Somalia says the demarcation should continue along the land border in a
southeasterly direction, which would put the additional area on its side.
In its application to the court, Somalia, said the two countries "disagree about the location of the
maritime boundary," according to the tribunal. The matter, had previously been referred to
negotiations, with the aim of reaching an out of court settlement.
What happened next, was an abrupt end to diplomatic negotiations with Somalia stating that they
"have failed to resolve this disagreement." However, British lawyer, Prof Vaughan Lowe told the
Court that Somalia did not inform Kenya that it was getting fatigued with the talks, and only,
suddenly went to Court. In his words, he stated that, Objectively, there is no evidence that the
parties had reached deadlock on the negotiations. Subjectively, Kenya remained committed to
negotiations. It remains open to date, .Somalia has requested that the court "determine the
precise geographical coordinates of the single maritime boundary in the Indian Ocean."
On the 23rd of September, 2016, the preliminary objection filed by Kenya was set for hearing and
was accordingly heard. Kenya challenges the jurisdiction of the case stating that negotiations are
ongoing, a fact which Somalia vehemently denies.
What is at stake, in terms of Kenyas vested interest, ranks potentially in billions. At the moment,
Kenya engaged in extensive oil exploration in the Indian Ocean. The map below (Courtesy of
http://subseaworldnews.com), shows the offshore oil exploration blocks.

The map below and the images attached therein below, specifically shows the offshore
exploration blocks, and operators awarded the right to explore in the Lamu Basin. The question
on many players minds, is, what is the effect of the pending case on the exploration activities and
what would the outcome.

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EFFECT OF THE CASE ON EXPLORATION IN THE LAMU BASIN

Essentially, two major exploration blocks, as shown in the above map (Courtesy of,
somalitalk.com) face uncertainty over the pending outcome of the case. At the moment, there
stands no orders at the preliminary stage, preventing the operators from continuing with their
work and thus, enjoy the freedom of contract with Kenya, especially so, since what is before the
court is a preliminary objection.
When the time comes, and a final decision is reached on the mater, be it at the preliminary stage
or on whatever stage, in whatever trajectory the case takes, the operators have to take into
consideration what step they ought to take in light of the decision.
If in any case, the court decides that the territory claimed, legally belongs to Somalia, then, the
contracts between the operators and the Government of Kenya may have to be renegotiated, to
accommodate the decision of the Court on the areas in dispute. This is because, the contract as it
is, with the Government of Kenya on the Republic of Kenya will suffer nullity since the
Government of Kenya, will have no legal capacity to award blocks on territory that does not
legally belong to it. The operators may also opt to negotiate new agreements, with the
Government of Somalia on the territory depending on the outcome of the case.
If the outcome is such that the territory remains Kenyan, the status of the exploration blocks
remain the same, thus will not be a cause of fear.

At the moment, however, it will be important to watch the court as its decision could alter the
boundary of Kenya as we now know it.