Jamhuuriyadda Federaalka Soomaaliya
Xafiiska Ra'iisul Wasaaraha
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The Federal Republic of Somalia
Office of the Prime Minister
Ref: OPM/ (;} ~ /,6~ /03/2021
To: Mr. Philippe Gautier
Registrar
International Court of Justice
Peace Palace
2517 KJ The Hague
Netherlands
Dear Sir:
Date: 22/03/2021
I have the honour of responding to your letter dated 16 March 2021 (No.
154773) in the case concerning Maritime De/imitation in the lndian Ocean (Somalia v.
Kenya), transmitting the text of the question put to the Federal Republic of Somalia by
Judge Bennouna on 16 March 2021.
On the day the oral hearings on the merits dosed,18 March 2021, Kenya has
written a further letter to the Registrar seeking to adduce new evidence in support of its
daim that Somalia "acquiesced" in the delimitation of the Parties' maritime boundary
along a parallel of latitude.This new evidence is in addition to the more than 4,000
pages of new evidence which Kenya filed on 5 March 2021, just 10 days before the
start of the final hearing before the Court and more than two years after Kenya filed its
Rejoinder.
The latest tranche of new material - which Kenya describes as a "new piece of
critical evidence", which it daims to have "unearthed" for the first time on 16 March
2021 - consists of a single actof Somali domestic legislation enacted in 19841C'the
Mining Code''), which has long been publidy available on the internet,and five maps
(four of which are already induded as Annexes to Kenya's Counter-Memorialfiled in
1Somali Democratic Republic, Law No. 7 of 9 January 1984, Approving and Containing the Mining Code (9 Jan.
1984) (Annex 1 to Kenya's Letterof 18 March 2021).
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
if(
December 20172).This material is neither new nor critical.It provides no support
whatsoever for Kenya's acquiescence argument.
Kenya's daim that Somalia "suppress[ed]" the Mining Code, which Kenya only
managed to "unearth" the day Somalia concluded its oral presentations to the Court, is
wholly unjustified. TheMining Code is published legislation which is available on the
internet and easily discoverable via a simple Google search, or by a review of websites
listing African mining legislation.3The Code is referred to in publicly available books and
reports,4 including at least onedocument in the materials Kenyafiled on 5 March
2021. 5Somalia has not sought - nor would it have any conceivable reason to seek - to
"suppress" this piece of publicly available legislation which, for the reasons set out
below, is entirely irrelevant to the issues before the Court.
Fi1St,the Mining Code and the maps (re-)submitted by Kenyacannot and do not
support Kenya's argument that the Parties have delimited their maritime boundary
through a process of unilateral assertion by Kenya and acquiescence by Somalia.In
Ghana v. Côte d1voire, Ghana relied on "oil concession maps established by both
private and public sources" in support of its argument that the States had delimited
their maritime boundary through a tacit agreement.The Special Chamber rejected that
argument, observing that "none of these maps is able to define authoritatively a
maritime boundary in the area concerned". 6rhe Special Chamber expressed
considerable doubt as to whether the States' oil concession practice could have any
bearing on the delimitation of their maritime boundary:
2See Somali Concession Blocks for the year 1978. KCM, Vol. Il, Figure 1-20; Somali Concession Blocks for the year
1986. KCM, Vol. Il, Figure 1-21; Map of the Oil and Gas Activities in Somalia (adopted from Deloitte, 2009). KCM,
Vol. 11, Figure 1-28; Somali Republic Concessions and Key 1988 Wells. KCM, Vol. Il, Figure 1-35.
3 For example, the African Mining legislation Atlas enables anyone to download a copy of the Law and explains
that: "The primary mining code of Somalia is the Mining Law of 1984. lt regulates and governs the conduct of al/
mining operations and related activities within the territory of the Republic of Somalia". African Mining Legislation
Atlas, "Summary: Somalia" (last updated 12 May 2019), availab/e at https://www.amla.
org/countries/44?name=Somalia (emphasis added).
4See, e.g. ,IbibiaLucky Worika, Environmenta/ Law & Po/icy of Petro/eum Deve/opment (2002), p. 103;
AbubakarMohamud, "Environmental regulation of emerging offshore oil and gas activities in Somalia" in WORLD
MARITIME UNIVERSITY DISSERTATIONS 1133 (2019), p. 48.
5SeeProject Compliance Report, Democratic Republic of Somalia, Petroleum Exploration Promotion Project (Credit
1043-50), Report No. 7533, The World Bank (8 Dec. 1988). Appendix 2 to Kenya's 22 February 2021 Application,
Annex 44, para. 1.03. ("The Mining Code of 1970 and its regulations of 1971 governed petroleum exploration and
production until limited amendments to the Mining Code were promulgated in the form of a new Mining Code
dated January 9, 1984.")
6Dispute Concerning De/imitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean
{Ghana/Côte d'Ivoire}, Judgment of 23 September 2017, ITLOS Reports 2017, para. 148.
Villa Somalia, E-mail: [email protected] or [email protected];Jr7u, Somalia
"The Special Chamber would further like to point out that it
has doubts as to whether the practice linked to the oil
activities of the Parties might be sufficient to establish a
single maritime boundary for the territorial sea, the exclusive
economic zone and the continental shelf within and beyond
200 nm. Offshore oil activities take place on the seabed of
the territorial sea and the continental shelf. The legal regime
covering such activities does not have recourse to the
sovereign rights of the coastal State concerned over, for
example, the water column above the continental shelf
within 200 nm. Furthermore, the Special Chamber notes that
the oil ·
activities of the Parties have taken place at a distance of
much less than 200 nm from the baseline. Therefore, it is
doubtful how such activities could have a bearing upon the
delimitation of the continental shelf within and beyond 200
nm".7
These observations apply a fortiori to Kenya's reliance on Somalia's oil
concession practice in support of its case that the Parties delimited their maritime
boundary through a process of unilateral assertion and acquiescence.
In addition to oil concession maps, in Ghana v. Côte d1voiréGhana also sought to
rely on provisions of national legislation to support its case concerning the existence of
a tacit agreement.Again, the ITLOS Special Chamber rejected that attempt.After
observing that, "national legislation, as a unilateral act of a State, is of limited relevance
to proving the existence of an agreed maritime boundary", the Special Chamber
dismissed the relevance of Cote d1voire'sdomestic legislation, as the legislation "dealt
with a concession on oil activities, not with the establishment of a boundary in the
territorial sea". 8The same is true of Somalia's Mining Code, which does not purport to
establish any terrestrial or maritime boundaries. 9
Second, and in any event, even if ( quod non) Somalia's domestic legislation
concerning oil concessions was legally capable of bearing upon the delimitation of the
Parties' maritime boundary,the content of the Mining Code cannot provide any support
for Kenya's case that Somalia acquiesced in the delimitation of a maritime boundary
along a parallel of latitude. Kenya relies on Article 58 of the Mining Code (although it
7/bid., para. 149.
8/bid., para. 163.
9 lndeed, this the fact that the Mining Code was not intended to establish any such boundary is made explicit by
Article 2(1)(b) of the Mining Code, which refers to "the territorial sea as determined by the relevant legislation in
force from time to time". Somali Democratic Republic, Law No. 7 of 9 January 1984, Approving and Containing the
Mining Code (9 Jan. 1984) (Annex Ill to Kenya's Letter of 18 March 2021) (emphasis added).
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
does not accurately quote the terms of that Article in its letter to the Court).Article 58
provides:
"For the purpose of awarding areas pursuant to this Part,
the areas of the Republic referred to in Article 2 hereof shall
be divided into blacks, according to a grid system,
determined in accordance with rules to be prescribed by the
Minister. Blacks must be of a rectangular shape with two of
their sides oriented in the northsouth direction, except
where the borders of the Republic, other natural boundaries
or the boundaries of other areas which are currently subject
to a permit or lease, prevent it". 10
Article 58 does no more than mandate that Somalia's territory and territorial sea
shall be divided into rectangular licensing blacks, two of the four sides of which must
follow a "northsouth" (i.e., vertical) line, unless this was rendered impossible by
Somalia's territorial borders or other natural or licensing boundaries.It follows that the
other two sides of each concession black must follow a horizontal line in all
circumstances. This is obviously not because such horizontal linesalign with Somalia's
land or maritime boundaries (which do not follow such lines) but simply because this
was conducive to the clear establishment, definition and management of the concession
blocks.Nothing in the Mining Law purports to determine or reflect the limits of the
territorial sea (still less the EEZ or continental shelf, which are not referred to anywhere
in the legislation).
Thini, Kenya's argument that the Mining Code supports an inference that the
charts appended to the Somali Maritime Law of 1988 must have shown a maritime
boundary along a parallel of latitude is without merit. As Somalia has explained, despite
extensive and diligent searches it has not been possible to locate a copy of the charts
appended to the Somali Maritime Law, which are presumed to have been lost or
destroyed during Somalia's long civil war.11However, the wording of the Somali
Maritime Law is fully consistent with an equidistance line, and rather obviously
inconsistent with a parallel of latitude.12There is no suggestion that any of the maps
enclosed with Kenya's letter - none of which purports to show the location of the
Parties' maritime boundary - were based on, or intended to reflect, the missing charts.
Neither the terms of the Mining Code, nor the maps enclosed with Kenya's letter,
support Kenya's claim that the missing charts showed a parallel maritime boundary.
10 Somali Democratic Republic, Law No. 7 of 9 January 1984, Approving and Containing the Mining Code (9 Jan.
1984), Art. 58.
11Memorial of Somalia (hereinafter "MS"), Vol. 1, para. 3.6, fn. 62.
12 Reply of Somalia (hereinafter "SR"), Vol. 1, para. 2.99.
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
lh1
Fourth and in any event, the argument which Kenya seeks to advance on the
basis of the Mining Code and the maps enclosed with its letter to the Court remains in
fundamental conflict with:
• Kenya's previous statements to the Court13 and to the Commission on the
Limits of the Continental Shelf14on the status of the Parties' maritime
boundary;
• The terms of the Memorandum of Understanding signed by Kenya and
Somalia in April 2009;15
• Kenya's own domestic legislation enacted in 1972 and 1989, which expressly
stipulates that (i) the Parties' maritime boundary in the territorial sea follows
a "median line every point of which is equidistant" from the relevant
basepoints,
• and (ii) the Parties' maritime boundary in the EEZ shall be delimited pursuant
to a future agreement between Kenya and Somalia;16
• The maritime boundary negotiations between Kenya and Somalia in 2013 and
2014·17
f
• Kenya's own practice regarding oil concessions, which is reflected in
numerous maps showing that between 1978 the late 1990s (i.e., the period
during which the Mining Code was enacted) Kenya granted concession blacks
whose northernmost boundaries consistently respected an equidistance line;18
and
• The various official maps published by Kenya between 1979 and 2003 which
consistently showed an equidistant maritime boundary in the territorial sea.19
135eeSR, Vol. 1, paras. 2.15-2.21; CR 2021/1, pp. 40-41, paras. 12-18 (Sands).
145eeSR, Vol. 1, pa ras. 2.26-2.29; CR 2021/1, pp. 41-42, paras. 19-22 (Sands).
155eeSR, Vol. 1, para. 2.22-2.25; CR 2021/1, pp. 38-39, paras. 6-11 (Sands).
16SeeSR, Vol. I, para.2.36, fu. 60; Republic of Kenya, Law No. 2 of 1972, Territorial Waters Act (16 May 1972), §
2(4). MS, Vol. Ill, Annex 16; Republic of Kenya, Chapter 371, Maritime Zones Act (25 Aug. 1989), § 4(4). MS,
Vol. III, Annex 20 (quoted in KCM, para. 79); CR 2021/1, pp. 44-46, paras.29-33(Sands).
17 5eeSR, Vol. 1, paras. 2.31-2.33; CR 2021/1, pp. 42-43, paras. 23-28 (Sands).
18SR, Vol I, paras. 2.74-2.78.See MS, Vol. Il, Annexes M2-M7: Petroconsultants S.A., Kenya (Coastal Area):
Synopsis 1979 (Feb. 1980). MS, Vol. Il, Annex M2; Petroconsultants S.A., Kenya (Coastal Area): Synopsis 1982
(Jan. 1983). MS, Vol. II, Annex M3; Petroconsultants S.A., Kenya: Synopsis 1984 (Jan. 1985). MS, Vol. Il, Annex
M4; Petroconsultants S.A., Kenya: Synopsis 1985 (Jncluding Current Activity) (Apr. 1986). MS, Vol. II, Annex M5;
Petroconsultants S.A., Kenya: Synopsis 1994 (Jan. 1995). MS, Vol. Il, Annex M6; Petroconsultants S.A., Kenya:
Synopsis 1995 (July 1996). MS. Vol. II, Annex M7; Petroconsultants S.A., Kenya: Current Status and Synopsis
1996 (June 1997). MS. Vol. II, Annex M8; CR 2021/ 1, pp. 50, para. 48 (Sands).
19SeeSR, Vol. I, paras.2.82-2.86; Republic of Kenya, Ministry of Agriculture, Explorato,y Soil Map of Kenya
(1980). SR, Vol. II, Annex 6; National Oil Corporation of Kenya, Hydrocarbon Potential of the Coastal Onshore
and Offshore Lamu Basin of South-East Kenya: Integrated Report (1995). KCM, Vol. II, Annex 38; Republic of
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
(}'1
Accordingly, the Mining Code and the maps (re-)submitted by Kenya are not new
or "critical"and are of no probative value in support ofKenya's "acquiescence"
argument. That argument remains entirely devoid of any legal or factual merit.
Please accept, Sir, renewed assurances of my highest consideration.
Sincerely,
~ H.E. Mahdi Moh
Deputy Prime M
Agent
Federal Republic
Kenya, Survey of Kenya, NATIONALATLASÜFKENYA(5th ed., 2003), pp. 66, 69. SR, Vol. Il, Annex 7; CR 2021/1,
p. 50, paras. 49-50 (Sands).
Villa Somalia, E-mail: [email protected] or [email protected] Mogadishu, Somalia
Somalia’s observations on Kenya’s second request to submit new documents