The real pirates in Somalia: Washington, Paris and Oslo

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By Dr. Abdulkadir Salad Elmi

UN Secretary General Ban Ki-moon proposed a new international anti-piracy plan in August, but considering that the rich countries are after the oil and fish reserves of Somalia’s internationally recognised waters, Dr. Abdulkadir Salad Elmi is asking who the real pirates are.

Many people seem not to understand, or refuse to understand, that more than half of Somalia consists of the seas around the country. This makes the oceans vital to the survival of the Somali people.

Somali territorial waters (TW), declared in 1972, consist of an 825,052km2 area. A 1989 exclusive economic zone (EEZ) overlays the same area as the TW. An additional 55,895km2 of continental shelf zone (CSZ) makes up Somali ocean territory.

The sum of the total internal area of Somalia of 637,657km2, together with the TW and EEZ, make up a total of 1,462,709km2, which with the additional CSZ expands to 1,518,604km2.

These figures hopefully make clear the importance of marine waters for the Somali people and also why vested interests try to get their hands on these waters, thereby trying to push back the interests of the Somali people.

THE LEGAL REGIME

Somalia has territorial waters of 200 nautical miles (nm), based on Law No. 37 on the Territorial Sea and Ports, of 10 September 1972. This law states clearly that fishing in territorial waters and the regular transportation of persons and goods between Somali ports is reserved for vessels flying the Somali flag, and other authorised vessels with a licence and permission from the legitimate Somali government and not by a regional government.

States like the USA do not like to recognise and/or respect this law and pressurise states to give up their 200nm of territorial waters established by acts of law. Meanwhile, for reasons of national sovereignty or security the USA has not even ratified the United Nations Convention on the Law of the Sea (UNCLOS) and pushed for alterations to its provisions, which would otherwise curb their rights.

Many peoples and states around the world do not like that the USA does not respect many international laws or conventions like the land-mine ban. A vast majority of people and states want the USA to abolish national laws that impose the death sentence, but nevertheless the country applies their own laws in their territory.

Likewise, they have to at least tolerate Somalia applying its own laws in its 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. Just look at the farce of the Organisation of American States. The plan was to cow 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. This was disgustingly parasitic of the USA, but, crudely efficient at dominating the world for the past 60 years, this regime has 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 medieval times only three 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, US President Truman in 1945 extended US control to all the natural resources of its continental shelf. Other nations were quick to follow. Between 1946 and 1950, Argentina, Chile, Peru and Ecuador extended their rights to a distance of 200nm to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12nm. 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 in 1972 – a 200-mile limit. As of 28 May 2008, only two countries still use the three-mile limit: Jordan and Palau. The 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 200nm by Somalia and other states therefore has legitimacy and – although perhaps belittled by piracy – it is also an expression of taking responsibility. Notwithstanding the present deplorable state of Somalia’s security, the vision that the Somali people will again have the strength to fulfil their responsibility to govern the Somali seas to a distance of 200nm, must and cannot be neglected.

Somali Law No. 37 also governs the so-called ‘innocent passage’ of foreign merchant vessels, which can only be permitted if the state whose flag the vessel is flying is recognised by Somalia and if the Somali authorities have at least been made aware and raised no objection to the passage. Illegal weapon transports like that allegedly done by the MV Faina, French research vessels prospecting for oil or foreign-flagged vessels fishing illegally in Somali waters certainly have violated this basic Somali law.

Article 10 of Somali Law No. 37 also stipulates that since 1972: ‘Foreign warships are not allowed to pass through the territorial sea (200nm) unless they are authorised by the Somali Government.’ That was and is the rule and was internationally respected and enforced from 1972 until 1991.

However, a non-existent letter, allegedly signed by former Transitional Federal Government (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 Somali waters by the naval armada likewise illegal. Although 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 Somali territorial waters, one has to realise that one injustice cannot be curbed with another injustice. Meanwhile, it has become clear to anybody that piracy originating from the Somali coast and maritime crime committed by Somalis cannot be exterminated by a naval armada violating the rights and sovereignty of Somalia and the Somali people. Laws are made and should be enforced to avert and fight injustices, but not to create new injustices.

Somalia has an exclusive economic zone of 200nm based on the United Nations Common Law of the Sea (UNCLOS) derived from the United Nations Convention on the Law of the Sea, to which Somalia was one of the first 40 signatories and which was 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 is therefore binding for all signatory states – even if they have not recognised subsequent Somali governments after 6 January 1991. Even when certain states argued that there would be no ‘legitimate and recognised Somali Government’, this does not mean that the legal regime of persisting national legislation and the relevant international laws – like UNCLOS – are no longer applicable. It is very simple to understand: If you knock on the 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 for example the captain of a fishing vessel wants to enter Somali waters and believes that it is not necessary to have the permission required by national or international law because the flag-state of the vessel has not recognised the legitimacy of a given Somali government or simply because nobody had responded to a request for entry, he would be wrong, and would have to stay outside Somali waters – no matter what.

It doesn’t matter that certain states and groups repeatedly try to create the impression that Somalia does not have an EEZ arguing that the relevant maps are not shown on the UN website. The Somali government has declared its EEZ and the relevant charts were in Mogadishu and also with the UN offices before the war. It is not the fault of Somalis if the UN has misplaced 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. The concept of the EEZ cannot and should not be misused to diminish the rights of Somalia concerning its waters.

Somalia has a CSZ of 350nm, 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 200nm is the right of all coastal states under international law. That there might be issues about how the law will be used and interpreted to elaborate binding agreements concerning specific boundaries is notwithstanding to the fact that the boundaries (for example, 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 memoranda, which like in the case of Kenya was instigated by Norwegian interests, should be a warning.

SOMALI SOVEREIGNTY, MARINE AND MARITIME RIGHTS

While the AU (African Union) and states like Indonesia and Germany respect the Somali Law of the Sea and the Somali EEZ, countries like Spain or Italy only respect this legal regime indirectly by having told their state-flagged vessels to stay out of the 200nm area, while Spanish- or Italian-owned vessels fly flags of convenience and like many others, continue poaching fish in Somali waters.

But even states like France, who tried at first to maintain the line that since the UNCLOS-EEZ maps were not shown on the UNCLOS website and therefore Somalia should not have an EEZ, have by a declaration of their president Nicolas Sarkozy – given during a meeting in Libya – officially stated that now France will also respect the 200nm zone of Somalia. The fact that the European Union (the conglomerate of old-world countries) shares its economic zones 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 – International Maritime Organisation) try to manifest 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 involving violations of Somali law which have been documented over the last 20 years should be brushed under the carpet and forgotten. All the cases over the last 20 years – during which Somalia could hardly defend its rights – would be thrown out because it would be argued that this newly done ‘formal establishment of an EEZ’ would mean that there had been no EEZ before, which is simply not true.

Many were present in Mogadishu in the years before 1991 and 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 Somali waters and resources.

Laws of states like Somalia and Peru led the international community to realise that it would be a good idea to have marine waters governed by the coastal states to which they belonged. This 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 EEZ for all coastal states, and to make provisions for those who had yet to declare a 200nm zone. To turn this around now and go against one of the founder nations must be seen as an outrageous act of aggression.

Today, after 20 years of civil war, and while the Somali government and the Somali population, which never in Somali history has been so weak and vulnerable, outside forces believe they have an ideal moment to press for the twisting of legal history solely for their own interests.

Let us not forget that the only interest the Norwegian state machinery has in Somalia are the potential oil reserves and fish resources. This is especially so with offshore oil concessions, where they believe they can gain an advantage over the French, who already have secret contracts concerning offshore drilling in Somali waters. That the Norwegians actually did help to beat the deadline of 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 can be blindfolded into giving up other rights.

Though with the new 350nm 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 to address piracy incidents off the Somali coast by adopting UN resolutions 1816, 1836 and 1846. But the delegate stressed that while the resolutions tackled piracy, they must not affect the rights, obligations or responsibility of states under international law, which first and foremost was to respect the sovereignty of a nation in the first place.

Somalia has a 200nm zone of territorial waters, like the recognised 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 not less than 200nm 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 was a consequence of ‘the dangers and damage resulting from indiscriminate and abusive practices in the extraction of marine resources’ as well as the ‘utilisation of the marine environment’ giving rise to ‘grave dangers of contamination of the waters and disturbance of the ecological balance’.

The 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 AU during the 1990s and at the Maputo and Cape Town conferences on the coastal development of Africa clearly urged the world to respect the Somali EEZ. Anybody who says that Somalia has no EEZ is giving a slap in the face to the Somali people, but also to all nations of the AU.

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, including its waters and natural resources.

That we might have to go through a phase of sorting out internal issues by strengthening regional and local government in order to regain our former unity are issues of our own internal affairs and do not affect the internationally relevant legal provisions. Somalia’s problems must not give reason to disrespect our commons or weaken our common defence against any outside aggressor.

Even when we are down on our knees and have to sometimes beg for help, the so-called international community has to first and foremost respect Somalia’s sovereignty and laws before they can be accepted as friends. Gifts in the form of Trojan horses must be rejected and those colluding with such scams must be seen for what they are: traitors and enemies of the Somali people.
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