Kenya: Can Government Beat the Deadline to Lay Claim to Expanded Territorial Waters?

Monday, 09 February 2009

For Kenya, the Indian Ocean is more than just a pretty sight – it’s worth a lot of money, too: Tourism is one of the major foreign exchange earners, Mombasa port is a thoroughfare for goods not just into Kenya, but also into central Africa, plus fishing and gas and oil exploration. But this economic zone is at stake if the government does not beat a May 2009 deadline with the United Nations Commission on the Continental Shelf.

Since 1982, UNCLOS allows member states to have control of 200 nautical miles from their shores. The concept of these Exclusive Economic Zones (EEZ) was the brainchild of the late Professor Frank X Njenga of Kenya, who brought up the idea in January 1971 during the Asian-African Legal Consultative Committee (AALCC) in Colombo. It was ideally set up to protect the rights of coastal states   particularly developing countries with limited resources to fully exploit their oceans   over the living resources off their coast and for their conservation and management, without interfering with other traditional international rights of the sea, such as the freedom of navigation and flight. “For a long time, our views were unheard and our interests unheeded when international law was being formulated by the so-called civilised nations which by definition excluded both Asian and African countries,” said Prof Njenga.

Expand it or Else

Like the other party states to the United Nations Convention of the Law of the Sea (UNCLOS), Kenya needs to meet a 19 May 2009 deadline to make submissions to the United Nations (UN) to claim ownership of their oceans beyond 200 nautical miles of their coast line as stated in article 76 of the UNCLOS. Member states are required to show that the continental shelf beyond their coastline extends beyond the 200 nautical mile point. If they can produce the necessary scientific data, and as long as the extra margin is at least 100 nautical miles from the point at which the sea reaches a depth of 2.5km, they will be granted rights over the natural resources on and under the seabed up to 350 nautical miles from land.

According to a special report done by the Economist published in January 2009, about 15m square kilometers are at stake by the deadline. Unfortunately, says the report, only 80 countries have any realistic hopes of being able to substantiate their claims. The Kenyan government claims to be able to beat the deadline, but according to Zachary Muburi-Muita, the Permanent Representative of Kenya to the United Nations, the complexity of the issues to be investigated and costs involved in compiling a credible submission are enormous:

ldquo;Implementation of article 76 of the convention requires collection, assembly, and analysis of a body of relevant hydrographic, geological and geophysical data in accordance with the provisions outlined in the Scientific and Technical Guidelines. The complexity, scale and the cost involved in such a programme, though varying from state to state according to the different geographical and geophysical circumstances, require enormous amounts of resources,” he said during the eighteenth meeting of States Parties to the UNCLOS on 14 June 2008. As a result, the lack of capacity and technical knowhow are going to be a substantial obstacle for developing countries to lay claim to their marine resources.

And the consequences for Kenya and other developing countries will be significant: If they do not meet the specified requirements by 19 May 2009, all the exploration and exploitation rights over the Indian Ocean that they lay claim to will be taken up by the International Sea Bed Authority (ISA). This will mean that Kenya will not be able to lay claim to e.g. any minerals, fish or other resources off its coastline, and instead, any country with the money and technological knowhow can apply to ISA and exploit the resources found therein.

Kenyan Task Force

According to officials at the Ministry of Foreign Affairs, Kenya already has in place legal frameworks to secure their claim, the result of a task force set up in 2006, expressing the country’s position on the continental shelf extending up to 350 nautical miles of the Kenyan cost line. The task force, called ‘the Task Force on the delineation of Kenya’s outer continental shelf,’ was set up by Kenya Gazette notice no. 3929 of 2006. It consists of a chairman, Juster Nkoroi, and 13 members who are flanked by three joint secretaries, John K. Kagasi, Stella K. Orina and Robert Kibiwot.

The terms of reference of the task force were to explore and recommend modalities for delineation of the country’s continental shelf according to the provisions of UNCLOS and in line with the best international practices. It was to also examine and review laws relating to the sustainable utilisation of resources within the maritime zones of Kenya. It was from the basis of this task force that Kenya is to make its findings and claims to the UN in May 2009.

The task force was to submit a final report to the Minister for State for Provincial Administration and Internal Security and the Head of the Public Service in November 2007. The Ministry of Foreign Affairs did neither confirm nor deny that this report had been completed. However, in a paper published in late 2008, one of the task force’s secretaries, Robert Kibiwot, indicated that Kenya had made the necessary progress. “With regard to the delineation of the extended continental shelf, Kenya is currently at an advanced stage in the process and is looking forward to making a submission to the Commission on Limits of the Continental Shelf (CLCS) before the set deadline of May 2009. Thereafter, the country shall exercise her sovereign rights over the area for purposes of exploring and exploiting the natural resources within it,” he said. Zachary Muburi-Muita, the Permanent Representative of Kenya to the United Nations, also told the United Nations that Kenya is on course with the process of establishing the extent of her outer continental shelf and expects to makes its submissions before May 2009.

Continental Margin

Physically, the seabed adjacent to the coast is usually comprised of three separate sections. The first slopes down gradually from the low watermark to a depth averaging about 1.3km, at which the angle of the slope increases markedly. This is what is known as the continental shelf. The second is the section bordering the shelf and having a deeper slope, going down to 1.2km to 3.5km: this is the continental slope. The third lies beyond the slope and is manifested by a gentler falling away of the seabed and descends to around 3.5km to 5.5km. This is the continental rise and it consists mainly of sediments washed from the mainland. Together, these three sections from the continental margin, which constitutes about one fifth of the sea floor.

This section is of importance for any country as it is the region that off shore exploration and exploitation of oil and gas on a commercial scale is most active and viable. Besides oil and gas, it is this region where other minerals such as titanium, tin, and chromium are found. In addition, there are important fishery resources on the continental shelf.

Exploiting Offshore Resources

Kenya has not yet discovered any commercially viable deposits of oil or gas in its continental shelf, but exploration is ongoing, albeit at a low level. Such efforts makes the proclamation of its continental shelf even more important. Should Kenya strike oil or gas, being a signatory to UNCLOS will come with additional benefits: Under UNCLOS, a developing state that is a net importer of a natural resource produced from its continental shelf is exempted from making payments for annual contributions for the exploration of non-living resources beyond the 200 nautical mile limit paid to ISA. Kenya being a net importer of oil and gas would therefore qualify for this.

But even if Kenya is on course to claim the rights to its Indian Ocean waters, the government’s lack of capacities means that Kenya is not able to make full use of its existing, let alone expanded resources. According to statistics from the Kenya National Bureau of Statistics for example, fish landed from the ocean accounted for only 6% of the total revenue generated from the fisheries sector in 2007. That would amount to only KES500m with the current 200 nautical miles. According to the Institute for Security Studies (ISS), a regional security research institute operating across sub-Saharan Africa, existing state capacity and political will at both national and regional levels are failing to adequately protect marine resources from illegal and unsustainable exploitation in Kenya. This is compounded by a lack of accountability and transparency in the granting of licenses and permits by the government to foreign trawlers to fish in Kenya’s waters. Foreign fleets continue to fish illegally in Kenya’s territorial waters: Amongst the largest exploiters of Kenya’s fish stocks were South Korea, Taiwan, France and Japan.. In 2006, the government announced plans to install a vessel monitoring system to help combat illegal foreign trawler fishing and also imposed a ban on trawling to protect the artisanal sector. However, apart from fleets bought by the Kenya Revenue Authority (KRA) to curb evasion of tax, there are no shipping vessels in Kenya’s territorial waters to combat illegal fishing. This is unlikely to change even if more of the coastal area comes under Kenya’s official jurisdiction, so the complex and costly effort will not yield any immediate economic benefits in the fisheries sector. However, Kenya can also not afford to miss the deadline, and forego all claims to its offshore resources.

Undersea Fibre Optic Cable

The eagerly awaited fiber optic cables being laid in the ocean will not be affected by the May 2009 deadline. Article 56 of the UNCLOS states that every coastal state shall act in a manner that is not injurious to the interests of other states. In the EEZ, all states, whether coastal or land-locked, enjoy the freedoms of navigation, overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines. Therefore even with the expansion of the territorial waters of Kenya and other states to 350 nautical miles, the ongoing fiber-optic projects will not be hindered. Currently two consortiums are laying down under sea fiber optic cables: The East African Marine System (TEAMS) is an initiative spearheaded by the government of Kenya to link the country to the rest of the world through a submarine fibre optic cable. The Eastern Africa Submarine Cable System (EASSy) is the second consortium, funded by the World Bank and the Development Bank of Southern Africa.

Offshore Border Dispute with Somalia
The question of where exactly to draw the offshore border between Kenya and its northern neighbour Somalia has long been a concern for Kenya’s efforts in oil exploration in the Lamu region. However, with no central government or any legitimate governing body, Somalia will not be in a position to file the necessary documentation to secure its coastal areas, and therefore may lose its erritorial waters to Kenya, Djibouti, Ethiopia and Yemen. With the increased incidences of piracy in its waters too, it is likely that the international community will be more than willing to see the waters of the country be fall under the jurisdiction of one of its more stable neighbors. Already, the UN security council has given the green light to states to patrol the waters of Somalia to curb the incidences of piracy. Under the UNCLOS, this would actually not be allowed as it will be encroachment of a sovereign country's territorial waters.