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What Migingo, the world’s tiniest disputed island, tells us about international law

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File 20171204 4055 cltd56.jpg?ixlib=rb 1.1
Ugandan fishermen pull in their nets at dawn in Lake Victoria, which is shared between Uganda, Kenya and Tanzania.
Reuters/Euan Denholm

Christopher R. Rossi, University of Iowa

For as far back as anyone could remember, Migingo was nothing more than an uninhabited pinprick on Lake Victoria. One of three small islands in the eastern waters that make up an island chain, Migingo is barely the size of half a football pitch. It measures about one-half acre or about two thousand square metres.

In 2001 resourceful fishermen began using Migingo as an offshore weigh station. The islet just happened to be more habitable than the steeply sloped adjoining islets. And because the fishermen earned three to four times in a day what shore-based fishermen could earn in a month, word soon spread that Migingo’s geographic location made it ideally suitable to hunt the Nile perch.

The Nile perch, locally known as mbuta, is one of the most invasive and best studied species in history. This devastating piscavore, probably introduced by Uganda in the 1950s, is rapidly turning Lake Victoria into an Anthropogenic problem. But there is no doubting the economic value it generates as a much sought-after dinner item in European restaurants and in expanding worldwide markets.

The islet quickly became a micro slum, housing hundreds of people, including pirates and smugglers. It also sparked for the first time competing claims by Uganda and Kenya over who owns Migingo. Both countries claim it is theirs.

The debate about Migingo’s fate has been fuelled by the perceived imbalance in the Nile perch trade – Kenya owns 6% of Lake Victoria but dominates the perch trade while Uganda owns 43% but harvests less than half of Kenya’s catch. An added complication was the 2006 discovery of commercially viable oil deposits across the East African Rift System. An oil find could potentially straddle the disputed demarcation line.

The dispute has become intractable, despite bilateral and multilateral discussions. A series of aggressive encounters between Ugandan marines and Kenyan police have brought the parties to the brink of violence while eight years ago Kenyan rioters uprooted landlocked Uganda’s rail link to the Kenyan port of Mombasa. This disruption in turn affected the commercial interests of, among others, Rwanda, Burundi and eastern Democratic Republic of Congo.

Characterisations of the dispute as small do no justice to the importance of the international legal issues at play. Migingo intertwines issues of ethnicity, nationality, and politics around the competing temptations of a resource. But it also serves as an example of the lingering effects of uti possidetis,

a principle of international law, which provides that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence.

This principle reinforced the work of British imperial line drawers who reshaped the landscape of this region through cartographic shortcuts and a 1926 British Order in Council.

A brutal principle

Uti possidetis has been described as an important building block of the state system. This is because it emphasises stability, finality, and respect for territorial borders. The World Court places it among the most important legal principles.

But it is a brutal principle. It requires that states emerging from decolonisation essentially inherit the borders they received at the time of independence. The presumption is that territorial title freezes, like a photographic snapshot, at the moment of independence, regardless of how arbitrary the borders may be.

Migingo’s problem boils down to a difference of opinion between Uganda and Kenya about the ‘snap shot’ used to draw the line demarcating the border. Add to this the fact that the British took the photo a long time ago, and its camera may have been out of focus.

Out of focus or not, the international doctrine aided the project of African statecraft by settling, or at least forestalling, disputes over porous borders. It allowed African elites to consolidate power. Indeed it has informed the Charter of the Organisation of African Unity, the African Union’s Constitutive Act, and the 1964 OAU Cairo Declaration.

But the costs associated with this blunt instrument of international law remain substantial. It leaves Africa with a forced coincidence of borders among many states. Africa’s tiniest border dispute of Migingo is a metaphor for the pressures now associated with areas of conflict affecting Africa’s great hydrographic catchments.

Colonial cartography, like the entire nineteenth century Scramble for Africa begun at the Berlin Conference, was done with little regard for human geographies or the overlapping realities.

Even more problematic was the decision taken later by the British to remove the Eastern Province of the Ugandan Protectorate to the East African Protectorate. This placed a huge portion of the Rift Valley in what would become Kenya. The rationale for this line drawing was to keep within one administrative jurisdiction the 960km railway connecting Mombasa on the Indian Ocean to the northeast corner of Lake Victoria. But inserting a geographic line of convenience to accommodate railroad administration created a human geographic chaos of its own.

Where the line falls

Some evidence suggests that Migingo was the generic name of the undifferentiated island chain which only later differentiated the two other islets. These are Ugingo, which lies 660 feet east of Migingo, and Pyramid Island, 2km south of Migingo. Ugandan surveyors claim that Ugingo is actually Pyramid Island, because it is shaped like a pyramid. This finding would put Migingo inside Uganda by a matter of meters.

Uganda’s President Yoweri Museveni was said to have suggested that Migingo was located in Kenya’s water but he claims he was misquoted. Even if this were indisputably so, much of the Kenyan catch of Nile perch may derive from illegal fishing activity in Ugandan waters.

Evidence suggests the perch breed off Kenya’s shallow littoral and migrate into deeper waters around Migingo. Where the line falls between Uganda and Kenya in Lake Victoria will have little effect on the need for a managed solution. This would necessarily also involve Tanzania, and require cooperation, which is lacking.

Problems facing the Lake Victoria catchment directly affect the livelihood of 30 million people. Efforts to promote the sustainable development of the lake now involve an array of international organisations, specialised institutions of the East African Community, and Rwanda and Burundi as part of a more sensitive environmental understanding of the lake catchment region.

The small geographic size of the Migingo dispute belies the grave political consequences of inaction, making Migingo a metaphor for African resolve in the Anthropocene.

The ConversationThe author’s in depth analysis of the Migingo dispute has just been published in the Brooklyn Journal of International Law

Christopher R. Rossi, Lecturer in international law, University of Iowa

This article was originally published on The Conversation. Read the original article.

Why Al-Shabaab targets Kenya – and what the country can do about it

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An armed policeman searches for Al-Shabaab gunmen during the deadly Westgate shopping mall terrorist attack in Nairobi in 2013.
Reuters/Goran Tomasevic

Brendon J. Cannon, Khalifa University

Kenya has suffered the far-reaching effects of repeated attacks by Somalia-based Al-Shabaab terrorist group for years. Tourism has declined. Jobs have been lost and foreign direct investment has withered. The greater Horn of Africa region bordering Somalia has also suffered, but statistics indicate that Kenya experiences an inordinate number of attacks by the terror group.

This trend cannot be explained by geography alone. Granted, Kenya’s porous and ill-guarded borders does make it easier for terrorists to infiltrate the country. But Ethiopia has a much longer border with Somalia than Kenya does.

Between 2006 and 2007 Al-Shabaab conducted few attacks outside of Somalia. There was only one terrorist attack in Ethiopia; there were none in Kenya. In contrast, between 2008 and 2015, the group executed a total of 272 attacks in Kenya and only five in Ethiopia.

Some scholars have focused on Al-Shabaab’s retaliation for Nairobi’s armed intervention in Somalia, beginning in late 2011, as the reason for Kenya’s woes. Yet Ethiopian forces have been in Somalia for more than a decade and both Burundi and Uganda contribute heavily to the African Union Mission In Somalia (AMISOM).

It is also worth remembering that the incursion by the Kenya Defence Forces (KDF) was itself a reaction to Al-Shabaab attacks within Kenya that date back to 2008.

So what explains Al-Shabaab’s focus on Kenya? Our research indicates that Al-Shabaab attacks critical Kenyan targets for both logical and opportunistic reasons. They are based on geographical proximity to Al-Shabaab’s bases in southern Somalia and reinforced by other variables that play into terrorist groups’ general modus operandi.

For example, attacks such as those perpetrated by Al-Shabaab in Kenya exploit existing opportunity spaces and can be referred to as “propaganda by deed”. In this, they seek to raise attention to the group’s existence and viability, thereby enticing recruits to its ranks and spreading fear. In essence, the larger and more brutal the attack, the more the group is perceived as potentially more relevant and powerful than it possibly is.

Indeed, Al-Shabaab’s attacks in Kenya have been characterised by their gruesome effect and have attracted critical news coverage internationally. This gives Al-Shabaab a level of publicity, notoriety and international relevance that often belies its increasing isolation in Somalia.

Why Al-Shabaab targets Kenya

Al-Shabaab’s current – though shrunken – stronghold is in southern Somalia. The geographic proximity of southern Somalia to targets in Kenya makes it easier to plan and launch terrorist attacks. The terror group has attacked not only Nairobi, but Mandera and Garissa in the north-east, as well as Kenya’s tourist-filled coastline. In contrast, potential targets such as Addis Ababa, Djibouti or Kampala are geographically distant and logistically difficult to reach.

Kenya is also one of sub-Saharan Africa’s most important states and East Africa’s hub. Its international visibility and status lead Al-Shabaab to make conscious decisions and efforts to attack it. Attacking targets in Kenya, particularly in Nairobi or on the coast, guarantees Al-Shabaab a level of international coverage that a similar attack in Ethiopia, for example, would not.

Most international media operate freely in Kenya. Many outlets, such as Xinhua, CNN and Al-Jazeera base their Africa operations in Nairobi. The media coverage given to horrific attacks here presents presents Al-Shabaab the “oxygen” it needs to survive and, potentially, thrive.

Kenya’s highly-developed tourism sector is another target. The cumulative result of attacks and terrorism related travel advisories has been a marked decline in the number of tourists visiting the country since 2013. This has also led to hotel closures and job losses along the entire tourism supply chain.

This appears to bleed into arguments that posit Al-Shabaab attacks Kenya to bring it to its knees economically, influence foreign policy and force it to withdraw from Somalia. We argue that while this is partially true, it is not the only reason Al-Shabaab attacks Kenya’s tourist spots. Rather, it attacks Kenya because it’s a tourist hub and offers ample, opportune targets for terror.

Finally, Kenya’s security services are reportedly riddled with inefficiency and corruption. Al-Shabaab has exploited this fact. There have been strong allegations as well as hard evidence that Kenya’s police and military have occasionally colluded with Al-Shabaab.

What Kenya can do

Kenya needs to squarely face this reality and take appropriate measures to counter a persistent and therefore predictable threat.

This does not imply that the Kenyan government should anticipate the location or timing of attacks. But it should be aware of and take appropriate measures to counter this threat.

Research has demonstrated that the most promising way to reduce terrorism is to reduce the terrorists’ confidence in their ability to carry out attacks. Kenya needs to proactively address border security and revamp national security apparatuses.

But before shelling out money for the recruitment and training of more security and military personnel, Kenya must firmly deal with the omnipresent bugbear of corruption. Research on the proposed Kenya-Somalia border wall, for example, demonstrated it will have little positive effect if the design and construction are simply vehicles for corruption.

Walls may stop some determined terrorists but they are largely useless if guards are susceptible to bribes and let attackers through. In 2014 two Al-Shabaab affiliated border guards bribed Kenyan border guards to escort them from Somalia to Mombasa. The two were later captured in the city driving a vehicle stuffed with automatic weapons, rounds of ammunition and almost 50 kilograms of explosives.

The overall lack of training and professionalism in the security sector must also be addressed. Close attention should be paid to the well-being and quality of security personnel and equipment at installations ranging from shopping malls to private homes, government buildings and borders.

Third, the Kenyan government has been unable or unwilling to effectively counter negative news stories and Al-Shabaab propaganda that paint the country as a “hotbed of terror”. The fact remains that some states, including Kenya, appear to suffer more from the public perception of instability and danger from terrorism than others. These perceptions often correspond little to reality or statistics.

Terrorism is a region wide problem. It makes sense for Kenya to work with Somalia and Ethiopia on shared borders, refugees and the like.

Yet Kenya must also understand that it is the primary Al-Shabaab target outside of Somalia. No amount of regional cooperation will entirely alter that. As such, it must attempt to positively and consistently address the reasons why it is the target of attack largely on its own.

The ConversationDominic Ruto Pkalya contributed to this article and the research it cites.

Brendon J. Cannon, Assistant Professor of International Security, Department of Humanities and Social Science, Khalifa University

This article was originally published on The Conversation. Read the original article.