To: H.E. JOHNNIE CARSON
UNDER SECRETARY OF AFRICA
US. STATE DEPARTMENT
WASHINGTON DC. USA
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 re cognition 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 indep endent states, the Northern
Somaliland, a British Protectorate and Southern Somalia, an Italian
Tr ust 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 combined 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,
Rahanweyn, Dir , Isaaq, Hawiye, and Daroo d, and the dynamics of
interaction between them determines the distribution of political
power in So mlia.
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 Somaliland Clans in 1884.
These treaties were specifically int ended to ensure the maintenance
of the Independence of the Somali clans and did not cede any
ter ritory to Britain. Further, the treaties were also of a
provisional character. The nature of the treat ies 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 Wo rld Court in the Western Sahara case in 1975
reject such views. As a result, the Somaliland Clans existed as
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 about this precipitate uni on. 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 “ uni on” law in January 1961. The absence of the legal
basis for the union is clear and convincing. Further more, 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 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 vattle 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
depose d. 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 cogens. Accordingly, there is a
right to sece de from a state, if the political establishment engages
in such gross and grave human rights violati ons 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” and Ali Samater,
practiced genocidal attacks on the No rthern 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 prac tices 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 independ ence. There are sound
reasons why the right to self-determination should be conceded to
Somalila nd. First, one of the reasons behind Somaliland’s assertion
of Independence is the incompatibility be tween northern and southern
regions. The incompatibility arises from distinct colonial
experiences, which contribute, to a unique identity. Where the
reason for self-determination claims lay in histori cal 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 chang es 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-dete rmination is more conducive to
inter-state peace, its validity is strengthened manifold. It is to
be no ted that Somaliland has the potential of solving longstanding
regional disputes with Ethiopia, Kenya 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 co nnection
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 “ declara tory” 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 their claims, it is useful.
A head count of all authorities shows that the declaratory view
prevails, that recognition only confir ms the fact of existence of a
state. It is not practical politics to refuse to recognize a state
if it poss esses attributes of statehood. The attributes of statehood
as laid down in the Montevideo conventi on are a government,
territory, defined population and a capacity to enter into
international relatio ns. 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 the se 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 earlier Somalia had subsumed under its
banner of “ Greater Somalia “. It has accepted the colonial borders.
As is well known, Somalia irredentism was a major source of
instability on the Horn of Africa and its removal paves the way for
peace stability and prosperity in the region. Furthermore, the
accepta nce of colonial borders is in accordance with the AU 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.
3.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 contribut ed to the alienation of the northern(
Somaliland) population, which never acceded to the union in th e
first place. While the past cannot be undone, the international
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 prospects for peace in the region by
putting an end to the Greater So malia concept, and enable the people
of Somaliland to reclaim their future.
ANIIS A. ESSA. HEAD
SOMALILAND ADVOCACY GROUP
WASHINGTON DC. USA
Aniis@yahoo.com
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