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 overthrown in Somlia. The
Northern Half of Somalia Declared its Independence as
the Republic of Somaliland in May 1991. This outline
summarizes the main arguments for the propriety of such
a declaration and its recognition as an independent
state under international law. A thorough study is under
preparation.
The State of Somalia, which came into existence in 1960,
resulted from a merger between two in dependent states,
the Northern Somaliland, a British Protectorate and
Southern Somalia, an Itali an 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 repression until he was deposed by the
comb in ed might of several liberation movements such as
the Somali National Movement (SNM), which had been
waging its battle against his regime since 1981. After
his overthrow, the south has been a Habbesian nightmare
of interclan 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, Gabooye, Rahanweyn, Dir , Isaaq, Hawi ye, and
Darood, and the dynamics of interaction between them
determines the distribution 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 manifestation 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
dispositive 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 specifically inte nded 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
character. 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 as international persons.
The two territories were independent countries with no
links between them. There was no unify ing force from
within. On the contrary, two external factors served to
bring about this precipita te union. The first was the
proposal by the British Foreign Secretary Mr. Beven 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 identity.
When the union was signed there were a number of legal
loose ends. Since both the North and South were
Independent countries, they could unite only by an
international treaty as in the case of the Germanys.
Such a treaty was never signed. The Somaliland “ 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
completed. 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 legal basis for the union is clear and
convincing. Furthermore, the North “Somaliland”
decisively rejected the draft constitution in a
referendum evidencing a permanent rift between 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 su ch 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 that 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 rights are
embodies in various treaties such as the International
Bill of Rights and are also acknowledged to be rules of
jus cogent. Accordingly, the re is a right to secede from
a state, if the political establishment engages in such
gross and grav e human rights violations 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 Northern 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 reports that
inhuman practices were committed on woman and children.
Most of the people 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
violations 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, as does the
U.N.Charter in Article 1 and 55. The principal questions
here are however, whether 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
self-determination should be conceded to Somaliland.
First, one of the reasons behind Somaliland’s assertion
of Independence is the incompatibility between northern
and southern regions. The incompatibility arises from
distinct colonial experiences, which contribute, to a
unique identity. Where the reason for self-determina tion
claims lay in historical experiences that are grounded
in colonialism, there is no reason to de ny the right to
the people who wish to exercise it. Second, when the
assertion of self-determin ation 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 British protectorate in 1960. Third,
when the assertion of self-determination is more
conducive to inter-state peace, its validity is
strengthened manifold. It is to be noted that Somaliland
has the potential of solving lo ngstanding regional
disputes with Ethiopia, Kenya and Djibouti, due to its
acceptance of co lonial borders and close ties with
Ethiopia. Finally, legal right of self-determination
arise upon the abu se 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 referendum. 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 appears 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 “ decl aratory” and
“ constitutive” were used to debate about the nature and
function of recognition. However, in contemporary
international law, recognition alone is not dispositive
in determining the legal status of states. Other norms
of a humanizing character have entered the process of
making states. To the extent however, that recognition
enables a people to internationalize the ir claims, it is
useful.
A head count of all authorities shows that the
declaratory view prevails, that recognition 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 population and a
capacity to enter into international relations. It is
evident that Somaliland possesses all the attributes of
statehood. Its distinct people occupy their traditional
territory and the government has effective control over
the population. Under these circumstances, 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 earli er Somalia had
subsumed under its banner of “ Greater Somalia “. It has
accepted the colonial bo rders. As is well known, Somalia
irredentism was a major source of instability on the
Horn of Afri ca and its removal paves the way for peace
stability and prosperity 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
colonial 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 policies of Somalia also co ntributed to the
alienation of the northern population, which never
acceded to the union in the first place. While the past
cannot be undone, the international community has a rare
opportunit y 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 prospects for peace in
the region by putting an end to the Greater Somalia
concept, and enable the people of Somaliland to reclaim
their future.
ANIIS ABDILLHE ESSA
SOMALILAND ADVOCACY GROUP
WASHINGTON DC
ANIIS@YAHOO.COM
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