Why the memorandum of understanding was not challenged as “Null and Void?


In 2014 Somalia sued Kenya, for maritime border dispute before the International Court of Justice, asking The Hague-based court to determine the “precise geographical co-ordinates” of the maritime boundary in the Indian Ocean between the two neighboring countries, adding that diplomatic negotiations regarding the matter have not resolved the dispute.

In October 2015, Kenya raised objections against the International Court of Justice’s jurisdiction and the admissibility of the application presented by Somalia.

Kenya’s legal team cited the so called “memorandum of understanding” that dates back to April 2009, in which both nations, according to Kenya, “agreed not to take the current case to the ICJ”.

The Memorandum of understanding signed between Somalia and Kenya on 07.04.2007 was considered and examined by the Transitional Federal Parliament of Somalia and the members voted to REJECT the ratification of that MOU on 01.08.2009.

The resolution of the Parliament of Somalia was communicated to the UN Secretary General on March 2010, asking to take note that the MOU was “non-actionable” for Somalia.

The UN noted the Somalia’s position on the MOU,publishing on its website the following note: “By a note verbale dated 2 March 2010, the Permanent Mission of the Somali Republic to the United Nations informed the Secretariat that the MOU had been rejected by the Parliament of the Transitional Federal Government of Somalia, and is to be hence treated as non-actionable”.

Now, Kenya is fighting to remove the case from the Hague Court and argues the MOU is the main legal document to resolve the case.

During the Preliminary Objections hearing on September 19-23 I was expecting that the Somalia legal team will challenge the validity of the MOU and will deny its very existence.

Instead, the Somalia legal team passively accepted the MOU as legal and binding document for Somalia by entering in the merits of the MOU as they stated that the absolute intention of the MOU for the two signing parties was ‘to grant each other no objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission on the Limits of Continental Shelf’ (CLCS). An express admission to accept the MOU as binding document for Somalia, though differing in the interpretation of its provisions.

Why the legal team was silent on the Parliament resolution and the rejection of the MOU?

It seems our team conceded very important goal to Kenya: the recognition of the MOU as legal, binding and enforceable document between Somalia and Kenya. That is what they wanted from the beginning.

Even if the MOU is not an international treaty, convention or bilateral agreement, the will of the Transitional Federal Parliament of Somalia superseded the signature of a single minister of a transitional government that was unfit to deal so important issues in a time Somalia was not in position to defend, politically, economically and legally its territorial integrity.

The preliminary objections hearings in Hague were wrapped up today 23rd of September 2016 and the court will announce the date they will deliver their verdict on whether the court has jurisdiction to deal the matter.

However, there is still chance to file any other relevant information before 3pm (Somalia time) on September 28 2016.

Let us take advantage of this deadline to make CLEAR once for all that the Memorandum of Understanding of 07.04.2009 does not exist for Somalia by virtue of the Transitional Federal Parliament resolution on 01.08.2009.

Abdulkadir Mohamed Tahlil