SOMALILAND MARITIME LAWS
(Updated: September 2014)
The main laws which govern maritime issues in Somaliland are the pre 1991 laws in so far as they are in accord with the Somaliland Constitution (Article 13(5))
1. The Maritime Code, which is based on the 1959 Somalia Maritime Code (large pdf file) (Legislative Decree 1 of 21 February 1959, as amended and extended to Somaliland in 1966 under Decree Law No. 7 of 1 November 1966. The Decree Law was converted into Law by Law No. 3 of 7 January 1967). The Somaliland Ministry of Commerce has adopted the 1959 Maritime Code with modifications to bring it in line with the Somaliland Constitution and it is therefore in use in so far as it is consistent with the Somaliland Constitution (Article 130(5)) and the ministerial revision has largely achieved that purpose: Somaliland Maritime Law (pdf). Somaliland is considering the introduction of more up to date maritime and shipping laws.
In January 1989, the military government passed Law No. 5 of 26 January 1989 which purported to introduce a new Maritime Law in place of the 1959 Code but no copy of the new Code is available and (as far as we are aware) none has been passed on to the IMO or other international bodies. Some provisions of the Maritime Code have, in any case, been repealed, at various times, by the 1972 Law (see below) and by the various Fisheries and other Laws. (See below for the further developments before 2014).
It has recently been confirmed that a copy of the 1989 Somali Maritime Law has been located and this Law did indeed repeal the 1959 Code and endorse fully the provisions of UNCLOS relating to the territorial seas. No electronic copy of the 1989 Law (sometimes referred as the 1988 Law as it was passed by Assembly in 1988) is currently available but will be posted here as soon as we have such a copy. See below for further information on these recent 2014 developments.
2. Somaliland Seas: The Territorial Sea and Ports Law 1972, in so far as it is still subsisting, is applicable to Somaliland but under 130(5) of the Somaliland Constitution all references to “Somalia” now refer to “Somaliland” and Article 2 of the Constitution defines clearly “the territory of the Republic of Somaliland” as “consisting of all the land, islands, and territorial waters, above and below the surface , the airspace and the continental shelf”. The provisions of this 1972 Law have to be read with those of the United Nations Convention on the Law of the Sea (UNCLOS) which limits the extent of territorial waters to 12 nautical miles, but also establishes a Contiguous Zone of up to 24 nautical miles and an Exclusive Economic Zone of up to 200 nautical miles; and with the Somali Republic’s 1989 Ratification of the Convention (see below).
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. ]. The uncertainties raised by the 1972 Law which preceded the Somali Democ. Republic’s ratification of the UNCLOS are explored. These concerns underline the international community’s calls for delimitation of “Somalia’s” maritime boundaries which have been seen by many Somalians as being driven by interests other than theirs, specially when hurried agreements on maritime delimitations are foisted on a country which is still in turmoil. The article points out that many African and Latin American made extensive territorial sea claims 1970 and 80s but -
‘As of today (i.e 2012), Somalia is one of six coastal states that persist in claims to territorial seas exceeding twelve nautical miles. Members of the international community have explicitly protested Somalia’s territorial sea claim. The resulting ambiguity over Somalia’s territorial sea leads to difficulties in monitoring fishing activities off the Somalian coast and potentially hinders Somalia in executing its rights of maritime jurisdiction’.
The article argues that in ratifying UNCLOS in 1989, Somalia accepted the provisions on the breadth of the different maritime zones, including the territorial sea, without reservations, declarations, or statements on the breadth of its territorial sea. In any case no declaration or statement would have excluded or modified the legal effect of UNCLOS in its application to Somalia. Moreover, Somalia is obliged to fulfill its obligations under UNCLOS in good faith and to exercise the rights, jurisdiction, and freedoms recognized by UNCLOS in a manner which does not constitute an abuse of right.
The article points out that even though an unequivocal declaration of a Somalian EEZ would end the legal uncertainty, and the United Nations and the International Contact Group on Piracy off the Coast of Somalia have unsuccessfully attempted to end the legal limbo by convincing Somalia to declare a 200 nm EEZ, the Somalian parliament opposes such a move, seeing it as giving up sovereignty.
A coastal state need not make a claim to its territorial sea in order to establish sovereignty over its adjacent waters, but it does need to to determine the specific breadth of its territorial sea within the limits set forth in international law. The article posits that the most reasonable conclusion from the Somalian declaration of 1972 is that it expresses the intent to establish the outer limit of the territorial sea as 200 nautical miles which cannot stand up in international law. However Somalia’s intent to establish a territorial sea as far as deemed permissible could be allowed to stand. Consequently, with respect to other states, the Somalian territorial sea could be limited to the waters off the Somalian coast up to a limit of 12 nautical miles.
As to question whether Somalia’s 200 nautical mile declaration can be interpreted to mean the extension of Somalia’s Exclusive Economic Zone, the article, after examining two countries which initially claimed similar breadth for their territorial seas, concludes that ‘These examples clearly indicate that contrary to its wording, older national legislation on the territorial sea may well be reinterpreted as applying to the EEZ, although it should be added that both Brazil and Uruguay established a twelve nm territorial sea and a 200 nm EEZ in 1993 and 1998 respectively’. The article concludes that Somalia’s 1972 declaration on the territorial sea
‘may provide sufficient legal content to consider Somalia’s territorial sea and its EEZ as established in accordance with public international law. A further unambiguous declaration of an EEZ may be desirable in terms of legal security, but is not needed by the EU to execute its protective mandate or by Somalia to establish a fisheries regime. Consequently, IUU fishing may be treated as such.’
As far as Somaliland is concerned, although Article 1 of the 1972 Law states that the Somali Democratic Republic territorial sea extends to 200 nautical miles, it had (and has) no practical application to the Somaliland coast which faces entirely the opposite coast of YEMEN at a distance of much less than 200 nautical miles at its farthest. For more details about the Somaliland territorial waters, contiguous zone and Exclusive Economic Zone [and Fishing Zone] see the Somaliland Sea. In view of the geography of the somaliland 530 mile Somaliland coasat the Gulf of Aden and as flagged, albeit inadequately, by the Article 2 of the 1995 Somaliland Fishing Law, Somaliland’s waters will reflect the limits set out in the laws of its other martime neighbours (Djibouti and Yemen) and are likely to consist of a territorial sea of 12 nautical miles, a contiguous zone of 24 nautical miles and an Exclusive Economic Zone of 200 nautical miles which in reality, as in Djibouti and, for most of its coast, the Yemen (excluding the Island of Socotra), will be nowhere near that limit. Although Somaliland remains unrecognised under international law, it has full control of its territory.
3. Somaliland considers itself bound by the United Nations Convention on the Law of the Sea, which was signed by the Somali Democratic Republic on 10 December 1982 and ratified under Law No. 14 of 9 February 1989 (published in the Official Bulletin of 26 February 1989 - Bulletin cover page. Here also a copy of the same Presidential Decree Law No 14 which is now available at the UNCLOS webpage). The formal notification of Somalia’s ratification (without any reservations either then or on signature in 1982 ) was made to the UN on 24 July 1989 .
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].
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.’
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:
4. 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.
5. 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 has passed in February 2012 a new anti-piracy law. More details of this Law are available at this separate page.
6. Other Shipping and Ports Related Laws: