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From: Berhane Habtemariam (Berhane.Habtemariam@gmx.de)
Date: Fri Sep 17 2010 - 16:43:51 EDT
The real pirates in Somalia: Washington, Paris and Oslo
Abdulkadir Salad Elmi
2010-09-17, Issue <http://www.pambazuka.org/en/issue/496> 496
<http://www.pambazuka.org/en/category/features/66955>
http://pambazuka.org/en/category/features/66955
<http://www.flickr.com/photos/ctsnow/95142681/>
http://www.pambazuka.org/images/articles/496/66955_mogadishu_tmb.jpg
cc CT Snow UN Secretary General Ban Ki-moon proposed a new international
anti-piracy plan in August, but with rich countries after the oil and fish
reserves of Somalia's internationally recognised waters, Abdulkadir Salad
Elmi wants to know 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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