Somali Parliament warned K-TFG leaders against committing treason

Mr. Mohamud M Uluso - On October 8, 2011, the Transitional Federal Parliament of Somalia (TFP) passed a law (resolution) that made a crime the implementation of one of the priority tasks of the Roadmap adopted by the selected Somali Stakeholders -- Kampala Transitional Federal Government (K-TFG), faction of Ahlu Sunna Wal Jama (ASWJ), Regional States of Puntland and Galmudug.

Article Keydmedia Online
17 October 2011

K-TFG leaders have been prohibited from the adoption of the Exclusive Economic Zone (EEZ) regime that diminishes the breadth of Somali sovereignty over its territorial water from 200 to 12 nautical miles (nm=1.852 km) by December 19, 2011.

The President and the Speaker, leaders of the K-TFG coalition, have yet to assent to the Parliament’s law.  It is doubtful if the decision of parliament will bind other stakeholders.

Article 2 of 2004 Transitional Federal Charter (TFC) affirms that the Somali territory is inviolable and indivisible and that the territorial sovereignty shall extend to the land, the islands, territorial sea, the subsoil, the air space and the continental shelf. The 1960 Constitution repeats the same description of article 2. Law no. 37 of 1972 specifies the limits of the territorial sea mentioned in the TFC and the 1960 Constitution. Therefore, nowhere in both Constitutions and in the law, it is mentioned EEZ. The Outer Continental Shelf which extends 150 nm is beyond the 200 nm.

TFP unanimously voted for the complete cessation of all activities intended to revise the legally defined Somali territorial sea border and it has retroactively nullified all “illegal and secret agreements” crafted after 1st January 1991. Some information indicates that EU awarded contracts on the Somali Sea to foreign contractors without the permission or knowledge of Somali Authority.

However, my prediction is that the invented “Somali Stakeholders” will go ahead with the EEZ declaration on schedule for three reasons. First, the earlier parliamentary rejection of the Memorandum of Understanding (MoU) signed between the D-TFG and Kenya did not stop the continuation of the activities started by the MoU. PM Abdiweli Ali Gas ignored that decision and went ahead with the signing of the Roadmap requiring EEZ declaration. Second, the role of the Parliament has been subverted by the provisions of the Kampala Accord and by the UN-Consultative Meeting (UN-CM) which gave birth to the Somali Stakeholders. Third, the Communiqué of the International Contact Group meeting in Denmark mandated immediate declaration of EEZ. Furthermore, K-TFG leaders are required to cooperate with the super Technical Committee, the Regional Political Initiative and the International Coordination and Monitoring Group all created to enforce the implementation of the Roadmap and to inaugurate the post transition arrangement after August 2012.

The difference between the 200 nm of territorial water and 200 nm of the EEZ defined in the UN Convention on the Law of Sea (UNCLOS) also known as the Law of the Sea Treaty (LOST) is the span of the territorial sovereignty of the coastal states and the restrictions and regulations on the use of their marine resource. EEZ is intended to restrict the territorial sovereignty of coastal States and to expand the sovereign rights of fishing, navigation and scientific research of maritime and industrial States for their military and economic security. The strategic decision of each coastal state is influenced by its long term strategic interests, and the changes in technological innovation as well as the special features of its sea.

Somalia has been registered as one of the countries that have claimed 200 nm of territorial water since 1972. It signed the Law of the Sea on July 24, 1989, with the stipulation that Law no. 37 is the law of the land. Somalia did not sign the agreement for the conservation and management of straddling fish stocks and highly migratory fish stocks and the agreement for the implementation of the part XI of the Convention. The understanding of the scope, legal definitions and implications of UNCLOS and its addendums requires strategic thinking, legal expertise, discipline and leadership with political acumen that are presently absent in Somalia. Experts argued that the language of UNCLOS is deliberately obscure and open for legal litigation and misinterpretations.

Croatia which shares the Adriatic Sea with Italy and Slovenia has been denied the right to claim EEZ regime enshrined in UNCLOS. China accepted EEZ but claimed full territorial sovereignty over it. Japan and USA rejected China’s claim.    
Many countries like Ecuador, Eritrea, Peru, Venezuela, Israel, Turkey and Uzbekistan chose not to sign and ratify the UNCLOS. Others like Burundi, Libya, El Salvador, Colombia, Ethiopia, United States and United Arab Emirates signed but failed to ratify it. Other Countries signed and ratified with reservations.
The United States asked a renegotiation of UNCLOS in 1994. Nevertheless, the US Congress refused to ratify the renegotiated Convention because Article 2 (3) forces the surrender of national sovereignty to the UN. The opponents of UNCLOS have attacked the creation of the International Seabed Authority and the business company “Enterprise” for Deep Seabed Mining seen as an international structure that promotes wealth redistribution and unfair concessions.

The importance of the Sea for security, economic growth, environment, energy and scientific research purposes is immense. The control of pollution, submarine navigation, offshore oil drilling, illegal fishing and laying cables and pipelines under Sea is a great challenge to the sovereignty of the coastal States. Efforts by EU to expand the coastal state jurisdiction over EEZ to prevent environmental degradation and pollution have met stiff resistance from the powerful maritime countries.

The piracy issue cannot be an excuse for change of the limit of the Somali territorial water. Prof. Nurudin Farah has reported that initially “piracy was in response to the illicit plunder of the country’s sea resources by ships owned in Europe and Asia, but flying foreign flags of all sorts. Ships would arrive in Somali waters armed for battle, with speed boats, and they would employ fishing methods banned elsewhere, at times dumping nuclear, chemical and other wastes, and at times shooting at the Somalis fishing in the same area.” Logically, the first step to address the piracy problem would be to stop the criminal activities and help re-establish the Somali State.

The K-TFG has no authority, capacity and credibility to engage on the revision of the territorial water of Somalia for the following considerations. First, K-TFG is one year stopgap government tasked to prepare for the transfer of political and legislative powers to a government legitimately elected by the Somali people. The feasibility of the goal is another matter.

Second, Somalia is a failed State that is ineligible to interact with other states as a full member of the International Community. It lacks collective decision making authority and effective bureaucratic and judicial system. The United Nations Security Council (UNSC) and the Inter-Governmental Authority (IGAD-Ethiopia and Uganda) control K-TFG. Thus, K-TFG leaders are subordinates to external powers.

Third, about half of the Somali population, which means 4 million people, needs life saving humanitarian assistance. About 750,000 out of the 4 million people are close to die for starvation. So far, K-TFG leaders failed to protect and secure the distribution and delivery of the humanitarian assistance to the needy people. Therefore, K-TFG leaders’ first priority is to doggedly focus on saving those three quarters of million lives before anything else. Matt Bryden, Coordinator of UN Monitoring Group on Somalia argues that “Somalia’s famine is less a symptom of conflict and climate than of callous and criminal conduct-including crimes against humanity that demand consequences anchored in international justice.” He added that “the scale of the TFG’s financial hemorrhaging is so immense that the term ‘corruption’ seems barely adequate.”

Fourth, the PM promised a national reconciliation plan that will lead to a national consensus and trust among Somali society on the urgent need to re-establish a national State. This pre-empts the draft of a new constitution and the declaration of EEZ regime because both will divide the Somali people rather than unite them.

The public statements and the interviews given by the Prime Minister, Dr. Abdiweli M Ali Gas and former and current Ministers of fisheries have confirmed public suspicion about their candor on the reasons behind the EEZ push.  The PM chose to give provocative and accusatory answers that did not address the EEZ question. The Parliament dismissed the current Minister of Fisheries, Abdirahman Sheikh Ibrahim after he failed to disclose significant information and danced around fake words like “trust me.” He said he knew nothing about his predecessor’s legacy on the issue. This shows the lack of institutional memory and coordination between K-TFG’s dysfunctional Institutions.

K-TFG leaders should not compromise the long term strategic security, economic and environmental interests of the present and future generations of Somalia. The Somali parliament warned K-TFG leaders against committing treason if they endorse the EEZ regime. Will the K-TFG leaders respect Parliament’s decision on Somalia’s territorial water or will they confirm my prediction? I wish I’m wrong.

Mr. Mohamud M Uluso
mohamuduluso@gmail.com

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