AN OPEN LETTER TO THE PRESIDENT OF FEDERAL REP OF SOMALIA

9th  of October 9, 2017 :   By: Mr. Mohamed A Ahmed

PORT Leases of Bosaso and Berbera Ports.  

 President Mohamed Abdullahi Farmaajo. The present letter relates current Somalia natural resources, the constitutional Somali Federal State crisis and to the proceedings that will be initiated by Civil Society Group known as Maakhir Coast Community of Somalia against Puntland/Somaliland, DP and P & O of Dubai. In 2014 before the International Court of Justice (hereinafter ‘ICJ’ or the ‘Court’), with regards to the dispute concerning maritime delimitation in the Indian Ocean. These proceedings raise various complex legal issues, on which the Maakhir Coast Community of Somalia “CIVIL SOCIETY GROUP” is highlighting similarity on Kenya v Somalia and challenging DPW/P&O and Puntland/Somaliland “SEMI-AUTONOMOUS” government who has no mandate to act on behalf of Maakhir Community without the consent of the Federal Government of

Introduction

 The delimitation of its maritime boundaries with its neighbors Puntland and Somaliland is of crucial and strategic importance to Somalia federal sovereignty, dignity and to the people of Maakhir Coast who are the rightful habitats of the region and its people, as it is a prerequisite for an effective assertion of its rights over the natural resources present in these zones (including in the soil and subsoil), as well as to ensure or restore maritime security in the area, especially by curbing illegal fishing, piracy and waste dumping.

Key example of current in early October 2015, Kenya filed Preliminary Objections with the ICJ, asserting that Somalia’s case falls outside the jurisdiction of the Court and is  inadmissible because it is contradicting Somalia’s international obligations under the Memorandum of Understanding (‘MoU’) signed on 7 April 2009 between Somalia and Kenya.

It is true that under this MoU, Somalia and Kenya have agreed that each of them will make separate submissions to the Commission on the Limits of the Continental Shelf (‘CLCS’) that may include the area in dispute between them, asking the CLCS to make recommendations with respect to the outer limits of the continental shelf of both countries. Under the MoU,  both States have also agreed that the maritime delimitation between them ‘shall be agreed

after the [CLCS] has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations to two coastal States concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles’.

The ICJ’s jurisdiction to rule upon the dispute, the main issue facing Somalia (and the ICJ) is therefore related to the application or interpretation of the 2009 MoU signed by the Somali minister’s. More precisely, the main issues are (i) whether the 2009 MoU is in force and applicable, and (ii) whether the proceedings launched by Somalia before the ICJ were precluded by the obligation formulated in the MoU to affect the maritime delimitation ‘after the Commission has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations’, and therefore whether the application of Somalia is at risk of being declared inadmissible.

HOW MAAKHIR COAST COMMUNITY IS AFFECTED BY THE KENYAN PRECEDENT

Based on a preliminary review of materials in the public domain, Maakhir Community has identified weaknesses and risks associated with the current Federal State Constitution by setting a precedent in being silent/in absentia on how the natural resources of the country is controlled/managed by the sovereign entity recognized internationally as the sovereign state of Somalia, thus, Puntland/Somaliland and its Partner P&O and DPW MOU is disputed by Maakhir Community a job that belongs to the sovereign entity “Somalia” we believe this is another Kenya v Somalia since the outset of the dispute, and even since the initiation of the current proceedings before the ICJ Kenya v Somalia. These weaknesses adverse are related to being in absentia/silent in the legal position and arguments invoked by the community to the validity of the contract between DP/P&O and the semi-autonomous regions of Somalia in relation to the dispute, central to this is the entire sovereignty of the country of Somalia.  These may in turn jeopardize the people of Maakhir who are the rightful owners of land/sea and entail grave adverse consequences for Somalia, its people, dignity, economy and the marine environment and its future sovereignty of the state.

MAAKHIR COAST COMMUNITY has also identified specific potential risks affecting the probability of success of Somalia’s government governing the Federal States, and the need to conduct intensive legal research on current Somali Constitution and the International Maritime Law Conventions in particular on the following points, with a view to reinforce the chances for Somalia to prevail in the adjudication of this dispute: These scenario’s set’s legal precedents how contracts are granted to private entities, borders, and how the country resources is managed.

 

  • The legal effect of the MOU submitted by “Puntland on April 2017 to P & O” pursuant to which the Somalia Parliament has not ratified as the sole sovereign body in the country, this is evident by the Mission of the Somali Republic to the United Nations informed the Secretariat that the Kenya and Somali MoU had been rejected by the Parliament of the Transitional Federal Government of Somalia, and ‘is to be hence treated as non-actionable hence the reason why the MOU between Puntland and P & O needs the Somali Parliament ratification otherwise the act could be deemed illegally occupation by P & O Ports. What is the difference between Kenya case and privately-owned company by UAE?
  • The legal effect of the note verbale sent by the Ministry of Foreign Affairs of Somalia to the UN Secretary-General on 4 February 2014 (under the reference MOFA/SFR/MO/259/2014), raising  various  objections  to  the  validity  of  the 2009

MoU and opposing its registration by the United Nations, these is a protest and the validity of Dubai Port P & O will be challenged by Maakhir Coast in collaboration with the Sovereign state of Somalia.

  • The legal effect of the letter of the Prime Minister of Somalia of 19 August 2009 to the UN Secretary-General, stating inter alia that the Somali Minister of National Planning and International Cooperation had signed the 2009 MoU ‘being duly authorized by [its] government’ again, this is proof that the Federal Government of Somalia is the sovereign body and only the sovereign body could lease the resources of
  • The legal status and international effectivity of the Government of Somalia at large at the time of signature of the MoU between Kenya and Somalia, and thus its power and authority to enter into international agreements such as the MoU ; and as such once again the higher authority here is the sovereign body in this case the Federal Government of Somalia
  • The question whether the obligation enunciated in the MoU is to be interpreted as preventing Somalia from bringing the dispute to the ICJ before the CLCS makes its recommendations.

MAAKHIR CIVIL SOCIETY VICTIM OF CONSTITUTIONAL FEDERAL STATE CRISIS

 

  • The UNCLOS Convention. The principles contained within the United Nations Convention on the Law of the Sea (UNCLOS) which provides, inter alia, that: ▪ Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over Ports, ships flying its flag. The UNCLOS Convention has been broken by Puntland/Somaliland and DPW and P & O

 

  • Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea, leasing its natural resources. To discharge effectively these responsibilities, every flag State shall: • Build up a competent and adequate national Maritime Administration. These laws are International Laws and Somali Government is the sovereign state not the Puntland/Somaliland, further evidence on Sovereignty of the State lies with the government of

 

  • The Federal government is the only entity who could implement applicable rules and standards concerning, port safety, the safety of ships and persons on board and the prevention of pollution of the marine environment. These laws again could only be validated through the Somali government as the sole entity representing the Sovereign state of Somali and not Puntland, Somaliland or P & O and

 

  • The principles contained within the International Maritime Organization (IMO) to fulfil Flag State and Port State responsibilities in an effective and efficient manner by the Sovereign State, thus, in this instance the higher authority as the sovereign authority recognized international is the Somali

 

  • Port State leasing at the nation’s ports should be agreed with the Somali Federal Government to ensure that the interest of the entire community is protected the sovereignty of the country will be protected under international conventions and that the condition of the local Semi-Autonomous is substantially in conformance with the respective higher authority as the Federal State of
  • These actions are to ensure that foreign countries, ships do not pose a threat to the interests of Somalia with respect to the safety of life and property on board and are not a hazard to the marine environment in the Somalia waters. A regulation on this matter should be prepared for submission by the Somali

 

  • The Somalia Maritime Administration 5.1 The main objective is to prepare the Somalia Maritime Administration to fulfil the responsibilities of the country as a Flag State, Port State and Coastal State in an effective and efficient manner. To this end, comprehensive legislation for the control and regulation of merchant shipping with respect to the registration of ships, the registration and certification of seafarers and the safety and security of shipping needs to be

 

 

To achieve this objective the Somalia Government shall ratify, regulate and implement the relevant international instruments (Conventions), as required for the survey and certification of the flag ships and national seafarers and for the inspection of foreign ships calling at Somalia ports. Having analyzed the status of ratification by Somalia of the relevant instruments the conclusion is as follows:

This list is tentative and not exhaustive; a complete legal evaluation and assessment of the issues relevant to the merits of Maakhir Coast in collaboration with Somali government case indeed requires the collaboration of the Somali Government as the sovereign state, however, the community objects to the terms of the MOU and declares the MOU as null and void. We will challenge the validity of the MOU at the appropriate court in due course. Mr. President, the case against the UAE entities shows a greater comparison to the Kenyan disputes and central to legal issue is who has the mandate to guard the wealth of the nation and grant concession rights to foreign entities?

MAAKHIR COAST COMMUNITY is prepared to contribute to the analysis and assessment of these (and related) legal issues, as well as to any action (publications, conferences, etc.) aiming at strengthening the legal position of Somalia and the people of Somalia in its case against Puntland/Somaliland and P & O Duba/DP, on behalf of representative Maakhir Coast Community NGOs and civil society organizations in Europe and North America.

 

Author: Mr. Mohamed A Ahmed

Email: Mohamed.ahmed1001@gmail.com


Warbaahinta Kalshaale kala soo Xidhiidh Email-ka kalshaale.com@gmail.com


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