SOMALILAND TERRITORIAL SEA, CONTIGUOUS ZONE & EXCLUSIVE ECONOMIC ZONE
Article 2 of the Somaliland Constitution states that:
“1. The territory of the Republic of Somaliland covers the same area as that of the former Somaliland Protectorate and is located between Latitude 8° to 11° 30’ north of the equator and Longitude 42° 45’ to 49° East; and consists of the land, islands, and territorial waters, above and below the surface, the airspace and the continental shelf.
2. The Republic of Somaliland is bordered by the Gulf of Aden to the north; Somalia to the east; the Federal Republic of Ethiopia to the south and the west; and the Republic of Djibouti to the north west.
3. The territory of the nation is inviolable, and shall not be trespassed upon.”
The land boundaries of Somaliland have all been delineated in international agreements as they coterminous with those of the short lived independent State of Somaliland which was the successor state of the British Somaliland Protectorate from 26 June 1960 to 1 July 1960 when it formed a union with Somalia.
The Somaliland Coastline extends from just east of Loyade (at 43° 15’ 45” E) on the Djibouti border to just east of Elayo ( at 48° 53’ E) on the border with Somalia (which mostly runs at 49° E). the distance is 530 miles and the main islands off the coast are Mait Island in the east and the Sadadin and Aibat Islands in the west.
The Somaliland coast is entirely on the Gulf of Aden and thereby runs opposite the Yemen coast. Although the distances between various Somaliland coastal points and their opposite points in the Yemen vary, the distance between Berbera, the main port of Somaliland and Aden in the Yemen is only 140 nautical miles. Even at its farthest at the boundary between Somaliland and Somalia, the opposite Yemen coasts are less than 180 nautical miles (which is the distance between the Yemen port of Al Mukala and the Somalia port of Bosaso which is situated not that far from the Somaliland boundary). This geographical proximity between the Somaliland and Yemen coasts means that the 200 nautical miles territorial sea set by Article 1 of the Somali Democratic Republic 1972 Territorial Sea and Ports Law (Law No. 37 of 10 September 1972) was never practically applicable to the Somaliland coasts, but was meant for the Indian Ocean Somalian coasts. The Law, in any case, preceded 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 (with the the formal notification of ratification made to the UN on on 24 July 1989), but there is no record that it was revised before the end of the Somalia government in 1991.
Taking note of these geographical considerations, the Somaliland Fishery Law 1995 indicates in Article 2 that the territorial limits of the Republic will be 12 nautical miles and that Exclusive Economic Zone will be delineated between Somaliland and the Yemen and, in reality is likely to be extend from the coast to 100 nautical miles at its widest and 30 miles at its narrowest. The new Somaliland Law dealing with the Somaliland maritime boundaries (territorial sea, Contiguous Zone and the Exclusive Economic Zone) is more likely to mirror the relevant territorial sea and C&EE Zones laws of Yemen and Djibouti and is likely to set the following limits of:
- 12 nautical miles for the territorial sea;
- 24 nautical miles for the contiguous Zone; and
- pending delimitation 200 nautical miles for the Exclusive Economic Zone (and fishing zone) which with delimitation will, as stated above be considerably less when delimited between Somaliland and Yemen which also claims a 200 nautical mile for its Exclusive Economic Zone .
In a recent interview with the Yemen Times (13 March 2012), the Yemeni First Deputy Minister of Fishery Wealth, Mr Abdullah Ba-Sonbol, stated that their 200 nautical miles Exclusive Economic Zone:
“... applies in the Arabian Sea except in the case of borders with Somalia where the smaller distance is divided between the two sides according to the International Law of the Sea. Yemen intends now to demarcate maritime borders with Somalia in accordance with the International Law and the only obstruction here is the lack of a central Somali government with which we can deal or agree.”
The maritime boundary delimitation with Djibouti, and especially on the tripoint between the three countries , is also still outstanding.
In view of the illegal fishing in Somaliland water, Somaliland does and will guard, to the best of its resources, its Territorial sea, Contiguous zone and Exclusive Economic Zone (EEZ) which, pending the conclusion of delimitation agreements, shall not extend beyond a median line between Somaliland and Yemen or beyond a line every point of which is equidistant from the nearest points on the baselines form which the breadth of the territorial sea of Somaliland and that of Yemen are measured. Fishing shall therefore be subject to authorisation from Somaliland authorities up to these median or equidistant lines of the Exclusive Economic Zone which, as already mentioned in Article 2B of the 1995 Somaliland Fishery Law, “shall by law extend from the coast to 100 nautical miles at its widest and 30 miles at its narrowest”.
The 1972 Law and its incompatibility with the UN Convention on the Law of the Sea (UNCLOS)
This issue has been pointed out in various recent studies. In a 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, 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.”
Somaliland’s position, as signaled in Article 2 of the 1995 Fishery Law is more in line with UNCLOS and also reflects the geography of the its coast. Although the Law did not clearly set out the extent of the contiguous zone, it has made clear Somaliland’s claim to a territorial sea of 12 nautical miles and an Exclusive Economic Zone up to the maritime boundary of Yemen, which cover between the two countries zones covers the whole width of the Gulf of Aden. Somaliland, though still unrecognised enforces, as far as it practicable, in its municipal courts contraventions of the 1995 Fishing Law, and , within the territorial waters, under other criminal laws. The 1995 Law needs considerable updating and a separate law dealing with territorial sea and the C&EE Zones is also urgently required.