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THE ARGUMENT
FOR RECOGNITION OF
SOMALILAND REPUBLIC
I. Introduction
After a bloody civil war, in January 1991 Siad Barr’s
Twenty-one-years regime was ove rthrown in Somlia. The Northern Half
of Somalia Declared its Independence as the Repu blic of Somaliland
in May 1991. This outline summarizes the main arguments for the
pro priety of such a declaration and its recognition as an
independent state under interna tional law. A thorough study is under
preparation.
The State of Somalia, which came into existence in 1960, resulted
from a merger betwe en two independent states, the Northern
Somaliland, a British Protectorate and Southe rn Somalia, an Italian
Trust Territory. General Siad Barre took over the administration in
a coup in 1969 and led the country through a calamitous period of
chaos and repressio n until he was deposed by the combined might of
several liberation movements such as the Somali National Movement
(SNM), which had been waging its battle against his regi me since
1981. After his overthrow, the south has been a Habbesian nightmare
of inter clan fighting whereas the independent Somaliland remains the
most stable region in the Horn of Africa.
II. Validity of Independence in Historical Perspective
Somali society is comprised of various clans such as Digil,
Rahanweyn, Dir , Isaaq, Hawiy e, and Darood, and the dynamics of
interaction between them determines the distribut ion of political
power in Somlia.
1 The Legal Regime of State and Sovereignty
The primary issue is the extent to which the assertion of
independence is a valid manife station of sovereignty over territory
and thus forms a legal basis for the formation of a state under
international law. A survey of the applicable law reveals that the
issue can be broken down into the question of the nature of
Somaliland’s sovereign rights before and after the act of Union of
1960 and the extent to which this will be disparities of the
viability of the Union.
2 Sovereignty
Under the Treaties of 1884
and the Act of Union of 1960
Britain signed formal treaties with the Somali Clans in 1884. These
treaties were specif ically intended to ensure the maintenance of the
Independence of the Somali clans and did not cede any territory to
Britain. Further, the treaties were also of a provisional ch aracter.
The nature of the treaties leave no doubt at all that the Somali
clans retained a large measure of sovereignty. The capacity to
conclude treaties is itself an attribute of international
personality. Old international law may have considered such treaties
as not international, but the contemporary standards exhibited by
the World Court in the Western Sahara case in 1975 reject such
views. As a result, the Somali Clans existed a s international
persons.
The two territories were independent countries with no links between
them. There was no unifying force from within. On the contrary, two
external factors served to bring ab out this precipitate union. The
first was the proposal by the British Foreign Secretary Mr. Bevin in
1946 to create a “ Great Somalia”. The second was the cession of the Haud and Ogaden to Ethiopia by Britain in 1954. Both served as
stimulants of national ident ity. When the union was signed there
were a number of legal loose ends. Since both th e North and South
were Independent countries, they could unite only by an
internation al treaty as in the case of the Germanys. Such a treaty
was never signed. The Somalila nd “ North” passed a “ union law”
which did not have any legal validity in south and the
constitutional requirements regarding the election of the President
were never comple ted. Conscious of such legal loopholes, the
National Assembly attempted to remedy the situation by passing a
retroactive “ union” law in January 1961. The absence of the leg al
basis for the union is clear and convincing. Furthermore, the North
“Somaliland” decis ively rejected the draft constitution in a
referendum evidencing a permanent rift betw een north and south.
III-Arguments for Independence under Contemporary International law
1-Violation of Human Rights and Fundamental Freedoms
It has always been an accepted rule that oppression, including the
deprivation of basic rights such as right to life, justifies
secession. Hugo Grotius mentions that a ruler who shown himself to
be the enemy of the people can be deposed and vittles emphasizes
th at the primary duty of the ruler is to safeguard the welfare of
the citizens and once he/she violates that cardinal rule, he can be
deposed. In International law, human righ ts are embodies in various
treaties such as the International Bill of Rights and are also
acknowledged to be rules of jus cogent. Accordingly, there is a
right to secede from a state, if the political establishment engages
in such gross and grave human rights viol ations including genocide.
This finds support among many jurists. The test to determine the
extent of deprivation of human rights and the legitimacy of
secession is whether a group is being targeted due to its ethnic,
cultural of other unique characteristic.
The regime of General Siad Barre “ Afweyne” practiced genocidal
attacks on the North ern Clans, especially Isaaq. The bombing and
shelling of two cities in the North Hargeis and Burao alone killed
50,000 and another 2,000,000 fled to Ethiopia. African Watch rep orts
that inhuman practices were committed on woman and children. Most of
the peop le killed or displaced were Isaaq. The government forces
also looted everything and laid over a million land mines in the
North “ Somaliland”. Several U.S. government documents including the
State Department’s Human Rights Reports attest to the massive
violatio ns of human rights such as rights to life and habeas corpus.
Under these circumstances the SNM and the people in the North “
Somaliland” had a legal right under international law to at in their
self-preservation.
2-Self-Determination
Article one of the International Bill of Rights refers to the right
to self-determination, a s does the U.N.Charter in Article 1 and 55.
The principal questions here are however, w hether the right to
self-determination is applicable in Somalia and if it is, whether it
will entitle Somaliland to claim independence. There are sound
reasons why the right to se lf-determination should be conceded to
Somaliland. First, one of the reasons behind So maliland’s assertion
of Independence is the incompatibility between northern and sout hern
regions. The incompatibility arises from distinct colonial
experiences, which cont ribute, to a unique identity. Where the
reason for self-determination claims lay in histo rical experiences
that are grounded in colonialism, there is no reason to deny the
right to the people who wish to exercise it. Second, when the
assertion of self-determination does not result in changes in
international boundaries and does not pose a threat to inter-state
peace, it ought not to be denied to achieve the short-term goal of
doctrinal uniformity. Somaliland has expressly stated that it
accepts the boundaries of the Britis h protectorate in 1960. Third,
when the assertion of self-determination is more condu cive to
inter-state peace, its validity is strengthened manifold. It is to
be noted that S omaliland has the potential of solving longstanding
regional disputes with Ethiopia, Keny a and Djibouti, due to its
acceptance of colonial borders and close ties with Ethiopia.
Finally, legal right of self-determination arises upon the abuse of
the political principle of self-determination. In this connection
two related issues have to be remembered. First, North “ Somaliland”
had overwhelmingly rejected the unified constitution in a
refe rendum. Second, the U.N. practice of conducting plebiscites
prior to desalinization, as in the case of British Togo land. Under
these circumstances, right to self-determination a ppears to be
applicable to Somaliland. The exercise of such a right should also
enable it to claim its independence.
IV. The Arguments for Recognition
1. The legal nature of recognition
Old International law settled questions of title by the tool of
recognition. Theories such as “ declaratory” and “ constitutive”
were used to debate about the nature and functi on of recognition.
However, in contemporary international law, recognition alone is not dispositive in determining the legal status of states. Other norms
of a humanizing chara cter have entered the process of making states.
To the extent however, that recogniti on enables a people to
internationalize their claims, it is useful.
A head count of all authorities shows that the declaratory view
prevails, that recogniti on only confirms the fact of existence of a
state. It is not practical politics to refuse to recognize a state
if it possesses attributes of statehood. The attributes of statehood
as laid down in the Montevideo convention are a government,
territory, defined popula tion and a capacity to enter into
international relations. It is evident that Somaliland po ssesses all
the attributes of statehood. Its distinct people occupy their
traditional terri tory and the government has effective control over
the population. Under these circum stances, the recognition of
Somaliland is an international imperative.
2. Conformity with international law
As indicated above, Somaliland has renounced territorial claims on
other countries that the earlier Somalia had subsumed under its
banner of “ Greater Somalia “. It has accept ed the colonial borders.
As is well known, Somalia irredentism was a major source of
in stability on the Horn of Africa and its removal paves the way for
peace stability and pr osperity in the region. Furthermore, the
acceptance of colonial borders is in accordance with the OAU policy.
Fears of balkanization as a result of the recognition of Somaliland
are unfounded since no new border is being created as in fact, for
the first time colonia l borders troubled borders are those of
Somaliland. Lastly, the International community is under an
obligation to recognize because of the obligation to protect and
promote human rights under Articles 55 and 56 of the U.N. charter.
Only international attention can assist the fledgling state to stand
on its own feet.
V. Conclusion
The Birth of Somaliland is an inevitable result of a distinct
colonial experience. It is also the result of extreme economic
exploitation and human suffering. The irredentist polici es of
Somalia also contributed to the alienation of the northern
population, which never acceded to the union in the first place.
While the past cannot be undone, the internatio nal community has a
rare opportunity to bring peace and prosperity to the Horn. By a
single act of recognition, it can end the sad sage of human
suffering, enhance the pros pects for peace in the region by putting
an end to the Greater Somalia concept, and en able the people of
Somaliland to reclaim their future.
ANIIS A. ESSA. DIRECTOR
SOMALILAND ADVOCACY GROUP
WASHINGTON DC…USA
aniis@yahoo.com
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