SOMALILAND MARITIME LAWS
(Updated: February 2017)
Somaliland pre 1966 Maritime law
In general, Maritime Law (or Admiralty Law) is the to body of laws, rules, legal concepts and processes that relate to the use of marine resources, ocean commerce, and navigation. It is one of the oldest body of laws and has also both private and public international law aspects. With the formal proclamation of the Somaliland Protectorate in 1887, the laws to be applicable in the Protectorate were set out in a series of Orders in Council. Part XIII (Legal Proceedings) of The Merchant Shipping Act 1894 and sections (in respect of civil matters) of the Colonial Courts of Admiralty Act 1890 were made applicable to the Somaliland Protectorate under sections 8(ii) and 24 of the Somaliland Order in Council 1899; and so were later the whole Admiralty Offences (Colonial) Acts 1849 and 1860. Other applicable Orders in Council were the Merchant Shipping (Workmen’s Compensation) 1908 and the Merchant Shipping (Helm Orders) 1935. The Ordinances and Regulations relating to maritime issues were:
- Carriage of Goods by Sea Ordinance, No 6 of 1926 which applied the Indian Carriage of Goods by Sea Act 1925 to the Protectorate from 17 November 1926.
- Registration of Vessels Ordinance, No 12 of 1923, which was preceded by the Kings Regulations No. 1 of 1905 on registrations of vessels (defined as meaning ‘any description of vessel used in navigation’). Section 3 of the Ordinance laid that ‘[e]very vessel employed in navigation in any waters of the Protectorate which belongs to, or is used by , any native of the Protectorate , or any person residing, or any company or partnership carrying on business therein , shall, unless exempted, be registered, lettered and number in manner hereinafter provided’. The vessels exempted from registration were ‘native’ canoes, vessels solely for pleasure or private purposes and HM ships or vessels belonging to the Protectorate Government.
- Registration of Vessels Rules –1905 and 1945 (Ports of Registration were Berbera –prefixed B; and Zeila – prefixed Z).
- Native Passenger Vessels Ordinance, No. 9 of 1935 (Native was defined as ‘any native of Africa, Arabia or Asia). This set a duty on the masters of such vessels to give notice to the appointed officers about the passengers, time of sailing and destination. The officer then could inspect the vessel to check whether it ‘unseaworthy or improperly equipped and fitted’ and may ‘withhold the port clearance of the vessel’.
- The Ports Ordinance (1929 to 1949) and the Ports Regulations (1937 to 1940).
On offences in the High Seas and in territorial waters of Somaliland, Ordinances 17 and 18 of (20 June) 1960 amended respectively the relevant provisions of the [Indian] Penal Code (IPC 1886) and the Somaliland Criminal Procedure Ordinance ( CPO 1926 as amended) as follows: Section 4 of the IPC (Extension of the Code to extra-territorial Offences) was amended to read as follows: “4(1) The provisions of this Code shall apply also to any offence committed on the High Seas or within the territorial waters of Somaliland by – (a) any person on any ship or aircraft registered in Somaliland; (b) a citizen of Somaliland on board a foreign hip to which he does not belong. (2) The provisions of this Code apply also in cases of culpable homicide, if either the death or the criminal act which wholly or partly caused the death happened in Somaliland.” [Incidentally, the 1860 IPC did not cover ‘piracy’ which was, to some extent, dealt with by the dated Admiralty Offences.] Also a new section 149A titled ‘Powers to proceed in certain cases where offence committed outside Somaliland’ was added to the CPO as follows: “149A(1) When an offence is committed on the High Seas or in the territorial waters of Somaliland by any person on a ship or aircraft registered in Somaliland or by a citizen of Somaliland on board a foreign ship to which he does not belong, he may be dealt with in respect of such an offence as if it had been committed at any place within Somaliland at which he may be found. (2) In cases of culpable homicide, if either the death or the criminal act which wholly or partly caused the death happened in Somaliland, a Court acting under this Ordinance shall have the like jurisdiction over any person charged either as a principal offender or as an abettor, as if both the criminal act and the death had happened in Somaliland, and any such person may be dealt with at any place within Somaliland at which he may be found.”
On the independence of the State of Somaliland on 26 June 1960, section 42 of the first Somaliland Constitution 1960 listed in a schedule (as was done before previously in various Orders in Council) the Indian Acts that would continue to apply in Somaliland, but also added that , in so far as these Acts do not apply, the courts shall apply, where relevant (any written Somaliland law or Ordinance has not been already modified) common law, doctrines of equity, and English statutes of general application. This was, however made subject to a proviso as to how far ‘the circumstances of Somaliland and its inhabitants permit and subject to such qualifications as local circumstances render necessary’. This meant that the relevant English Acts could be applied in so far as they were considered suitable until new legislation was promulgated.
1966 – 1989 Period
On the union of Somaliland and Somalia, the (Somalian version) of Act of Union which was belatedly adopted in January 1961 confirmed that ‘[t]he laws in force in Somaliland and Somalia at the time of the establishment of the Union shall remain in full force and effect in the respective jurisdictions subject to the provisions of the Constitution, this law or any future law’. The differences in laws continued to exist for first half of the 30 year union, and, in many areas (other than in criminal procedure), the Italian laws applicable in Somalia (before July 1960) were simply extended to Somaliland! Such was the case in Maritime laws. The 1959 Somalia Maritime Code (large pdf file) (Legislative Decree 1 of 21 February 1959(Codice Marittime della Somalia) was extended to the ‘Northern Regions’, as Somaliland was then known, under Article 1 of the Extension and Modification of the Maritime Code – Decree Law No. 7 of 1 November 1966 (English). This 1966 Decree Law, which runs to 64 Article, also amended many of the provisions the 1959 Code, including Article 1 of the Code (Territorial Sea) which was changed from previous three (3) nautical miles to twelve (12) nautical miles (see Article 3 of the 1966 Decree Law). The English language text of this Decree Law which, under Article 62, is considered to prevail, on questions of interpretation, over the Italian text is available above, but there is also here a list of the 1966 Decree Law’s Arrangements of the Chapters and Articles for a quick glance. Decree Laws (temporary urgent laws issued by the President under Article 63 of the 1960 Constitution) had to be approved by the National Assembly so they can become Law and the conversion of the 1966 Decree Law was done under Law No. 3 of 7 January 1967, which incidentally also amended Article 4, 9 and 12 of the 1966 Decree Law. The 12 nautical Miles territorial sea (set under the 1966 Decree Law) was changed by the The Territorial Sea and Ports Law 1972, which, under Article 1(1), extended it to ‘200 nautical miles’. [This was at time when various (mainly third world countries) were increasing the width of their territorial waters in the light of the then forthcoming start of the third UN Conference on the Law of the Sea in 1973.] This short law also dealt with various other shipping matters within the territorial sea.
SDR’s UNCLOS Signature and Ratification
Throughout the 1970s and 80s, however, the then Somali Democratic Republic (SDR) was fully engaged in the numerous sessions of the (third) conference relating to the drafting and finalisation of the United Nations Convention on the Law of the Sea (UNCLOS). The SDR was one of the signatories on 10 December 1982 at the Montego Bay Third UN Conference on the Law of the Sea (containing 320 articles and nine annexes) and ratified it later under Law No. 14 of 9 February 1989 (published in the Official Bulletin of 26 February 1989 - Bulletin cover page). Here is also a copy of the same Presidential Decree Law No 14 which is now available at the UNCLOS webpage). The formal notification of the SDR’s ratification without any reservations (either then or on signature in 1982 ) was made to the UN on 24 July 1989 .
[The SDR Government also published a Somali translation of UNCLOS - a scanned copy of which is available at this link – Very large pdf file]. [For a report charting the development of Somali maritime laws, see Afyare and Affi, Barriers to Developing Anti Piracy Law in Somalia, 20 November 2014, Al Jazeera Centre for Studies)
The 1989 Somali Maritime Law
It has been known for a while that the pre 1991 SDR Government promulgated a new Maritime Law as a copy of the Presidential Decree (in the Official Bulletin), Law No. 5 of 26 January 1989, putting the Law into force was available, but the attached Law was not, until 2013, available. With the collapse of the SDR state in 1990/1, those of us who were familiar with the various pre 1989 Official publications had to rely mostly on libraries and other sources abroad even after 2010/11 when,for the first time, the UNDP which collected some of copies of the SDR Official Bulletins finally decided to make them available. Nonetheless no copy of the new Somali Maritime Law was found until a one was discovered in 2013, reportedly in cupboard of a former judge in Mogadishu. This copy and has since been publicised (and re-typed) by a non-governmental organisation (SMRCC - Hey’adda Cilmibaarista Badaha Soomaaliyeed)) and by the Somalian Government.
As There is no English Language translation of the 1989 Somali Maritime Law (in Somali, Sharciga Badda Soomaaliyeed)’ A table of the Arrangements of all the Parts and Articles in Somali and our English translation is available here.
We also reproduce in the table below (in the left columns) a copy of the Law (as reportedly found), which has been divided into three sections for ease of downloading as it is a very large file, and (in the right column) a re-typed copy of the whole law together with added arrangements of the Law (in Somali & English) is re-produced.
Scanned PDF copy of the Somali Maritime Law as reportedly printed in 1988 and attached to 1989 Implementing Presidential Decree in 3 sections: (1) pp.1 – 70 Arrangements (Tusmo) & Arts. 1 – 47; (2) pp 71 – 145 (Arts. 48 – 118); and (3) pp 146 – 194 (Arts. 119 – 205). [large pdf files]. [We are grateful to those who provided us with this copy of the Law]. The Law consists of 205 Articles grouped into 5 Books (Chapters) and a total of 26 Parts. Attached herewith is a more legible re-typed copy of the Maritime Law and the Implementing Law to which we have added a full list of the Arrangements of all the Parts and Articles- Somali Maritime Law (1989) (in Somali). Incidentally the Law was passed by the Assembly towards the end of 1988, but was promulgated by the SDR President in January 1989 and should be referred as the 1989 (and not 1988) Law (i.e Law No 5 of 26 January 1989).
Article 204 (Repeals) of the Maritime Law 1989 expressly states that ‘The Maritime Code, Law No 1 of 21/2/1959 and any other Law or Regulations which are in conflict with this Law are hereby repealed’. The 1966 and 1967 modifications and changes of the 1959 Code were not mentioned in this repeal, but as they were essentially changes of the Code itself, they are caught by this repeal. Unfortunately these imprecise repealing provisions were often used in the Somalian legislation (and also nowadays still in the Somaliland legislation) but not in the pre 1960 Somaliland legislation where the extent of repeals in any new legislation was meticulously stated. A close comparative examination of the extensive 1966 changes against the 1989 Law provisions may still be called for unless the latter has indeed covered again all the 1966 amendments.
Somaliland Maritime Laws
In the absence of any other up to date applicable Maritime Laws, The Somaliland Ministry of Commerce has adopted (in the 1990s) the 1959 Maritime Code with modifications to bring it in line with the Somaliland Constitution and this was therefore in use in so far as it was consistent with the Somaliland Constitution (Article 130(5)) which the ministerial revision has largely achieved in this version: Somaliland Maritime Law (pdf). Now that it has been confirmed that there were both latter modifications of the Code and a total repeal in 1989, Article 13(5) of the Somaliland Constitution accepts, with conditions. the use of any pre 1990 legislation until new laws are promulgated. As the 1989 Law is consistent with UNCLOS, it is very likely that, pending any new Somaliland Maritime Legislation, this 1989 Law, as modified to meet the requirements of the Somaliland Constitution might be used temporarily. As far back as the 1990s, the Republic of Somaliland has defined its seas in line with UNCLOS. For more details about the Somaliland territorial waters, contiguous zone and Exclusive Economic Zone [and Fishing Zone] see the Somaliland Seas.
Following the Republic of Somaliland’s July 2014 objection to and Formal protest (to the UN) against Somalia’s Exclusive Economic (EEZ) Declaration of 30 June 2014 which purported to include the Somaliland seas (see below), Somaliland has issued its own EEZ Declaration and submitted it to the UN on 21 January 2017 (see, for more details Somaliland Seas page)
Other Somaliland Maritime Related Laws:
SOMALILAND FISHERIES LAW (Law No 24 of 27 November 1995): [see separate page] The main Somaliland Fisheries Law (Xeerka Kaluumeysiga) was passed in November 1995 and is based on the 1985 Somalia Fishery Law 1985. Note also that Articles 70 and 72, as well as Articles 234 and 235 of the Maritime Code which deal with penalties for the offences of abusive sea fishing and of fishing with prohibited means also cover fishing but most of these have been replaced by the offences and punishments in the 1985 and 1995 Fisheries Laws.
SOMALILAND PIRACY LAW (Law No. 52/2012): In view of the inadequacy of the 1962 Penal Code and the old Maritime Code in dealing with the scourge of piracy in the Gulf of Aden and off the coasts of Somalia, the House of Representative passed in February 2012 a new anti-piracy law. More details of this Law are available at this separate page.
Somaliland Shipping Agents’ Licences (Re-organisation) Law - Law No. 71 0f 21 November 1995.
The following old postings are kept below for historical reference:
Update: September 2014:
Somalia EEZ Proclamation: In this Proclamation dated 30 June 2014, the President of Somalia, having confirmed the Somali Republic’s ratification of UNCLOS and the adoption of a new Somalia Maritime Law in 1989, proclaimed the EEZ of Somalia as 200 nautical miles.
In its application to the International Court of Justice in a maritime boundary dispute case against Kenya instituted on 28 August 2014, Somalia stated in its application the following in relation to the 1989 Somali Maritime Law:
“ 7. In anticipation of its July 1989 ratification of UNCLOS, the President of Somalia issued Law No. 5 dated 26 January 1989 approving the Somali Maritime Law of 1988. Among other things, the 1988 Somali Maritime Law provided that the breadth of the territorial sea would be 12M, claimed a 200M EEZ and stated the continental shelf of Somalia extends throughout the natural prolongation of its land territory to the outer edge of the continental margin. Law No. 5 further repealed any prior laws inconsistent with the Maritime Law of 1988.
8. On 9 February 1989, Somalia further enacted Law No. 11 adopting UNCLOS and incorporating the Convention’s provisions into internal law. The same date, Presidential Decree No. 14 was promulgated, entering Law No. 11 into effect.
9. On 30 June 2014, in conformity with UNCLOS, the President of Somalia issued a Proclamation claiming an EEZ extending to 200M from normal baselines. The same day, Somalia deposited with the United Nations Division of Ocean Affairs and the Law of the sea a list of co-ordinates defining the outer limits of its EEZ”.
The EEZ outer limits co-ordinates submitted by Somalia the UN on 30 June 2014 are available at this UNCLOS Webpage relating to Somalia.
The Somaliland Republic Formal Protest to the UN: Somaliland has long ago accepted that UNCLOS was ratified by and was part of the laws of the pre 1991 Somali Republic, and has stated so, for example, in its 1995 Fisheries Law. However, having noted that the EEZ outer limits co-ordinates submitted by Somalia to the UN purported to cover the Somaliland sea (in the Gulf of Aden), the Somaliland Ministry of Foreign Affairs lodged, on 23 July 2014, a formal protest with the UN Secretary-General against Somalia’s declaration of an Exclusive Economic Zone, which it sees as a violation of Somaliland’s sovereignty. A Ministry Press Release dated 7 August 2014 stated, that Somaliland confirmed in its formal protest that it ‘emphatically rejects, opposes and will not recognise these declarations by the Republic of Somalia to the extent that they purport to include or affect the waters, continental shelf and other maritime entitlements of the Republic of Somaliland’ and that
‘The Republic of Somaliland remains supportive of all efforts to improve regional co-ordination and promote economic development in the Horn of Africa. However, Somaliland’s co-operation and contributions to such efforts have always been on the understanding that Somaliland will continue to exercise sovereignty and sovereign rights with respect to the waters and continental shelf adjacent to the Republic of Somaliland's territory in accordance with international law. Somalia cannot and does not exercise jurisdiction or physical control over the waters and continental shelf off the coast of Somaliland.’
UPDATE: 09/04/2013: In a meeting on 18 March 2013 of the “Somali Contact Group on Counter Piracy” (The Kampala Process) which brings together representatives of the FG of Somalia, Puntland, Galmudug and the Somaliland Republic a draft Communique No 2 on the Legal Issues of the Maritime Strategy was issued. This included the following paragraphs on maritime jurisdiction:
“ 5. Many existing Somali maritime laws relate to the Law of the Sea Convention 1982. There is some uncertainty as to the consequences of Presidential Decree Number 14 of 9th February 1989 upon the Law of 1972. There is some uncertainty as to whether the 1988 Law of the Somali Sea is in force. However, we have determined that: “(a) In 1989 Somalia ratified the Law of the Sea Convention 1982; (b) That the law drafted in 1988 was in line with our commitment, indicated by Somalia signing and ratifying the Law of the Sea Convention 1982, to bring our law into coherence with the Convention; and (c) That the Official Somali Bulletin of 1989 (for example pages 85 and 90) confirms that the Law of the Sea Convention 1982 was effective in Somali Law as of the date of that Bulletin.”
6. We will seek to confirm the status of these laws with our Parliaments. However, now that there is significant clarity regarding the Somali maritime domain, we call upon international naval forces, in accordance with relevant UNSC resolutions, to assist in the protection of our maritime domain.
7. We have also determined, as technical experts, that we must progress our work on a number of related jurisdictional issues. We are resolved to co-operate in defining our maritime domain. We will seek to ensure that the jurisdictional reach of our Courts and our Maritime Police / Coast Guard are properly considered as a component of Somali law reform activities.”
( EDITOR: I have added to this extract the links to the documents referred to, which were already available in this page)
Update: The Somali Maritime Resource & Security Strategy (Final) September 2013 was agreed upon by a working group consisting of delegates from Somaliland, Puntland, Galmudug & the SFG under the Kampala Process. [The document is also available at the Oceans beyond Piracy website].
2012: For an up to date analysis of the implications of the inconsistency between the 1972 Law and UNCLOS, see: the recent article in the American Society of International Law Insights [Neumann and T and Salomon T R (2012) Fishing in Troubled Waters - Somalia’s Maritime Zones and the Case for Reinterpretation, ASIL Insights, Volume 16, Issue 9. ].
See also the page on the Somaliland Territorial and other Seas for more information.
The pre 1991 Somali Republic has also (as far as we can ascertain) acceded to the following other maritime related conventions:
The instruments of ratification were approved in 1989 for the following two conventions but we can trace no record of notification to the IMO:
The pre 1991 Somalia Government also ratified the following regional treaties: