Legal Aspects of Somaliland Case in the New Engagement Policy with Somalia

By: Adam Haji-Ali Ahmed – 

Advocate, conflict resolution practitioner, Researcher, Lecturer, the Director of the Institute of Peace and Conflict Studies (IPCS) of the University of Hargeisa in Somaliland. E-mails: aadamhaji@gmail.com.   

Abstract 

 

This monograph examines the multidimensional nature of Somaliland’s quest for recognition and attempts to unveil the isolated state of affairs that Somaliland remained since 1991. The study will examine the legal aspects of the Somaliland case in general and in the new era -Engagement policy- which has recently started. On the other hand, the study discovers the contending ideas of the recognition over the emergence of a new state, while it underlines that the recognition is a matter of choice of the recognizing state. The study has extensively drawn on secondary sources including: relevant literatures written by both Somali and nonSomali scholars in the field. The conclusion that could be drawn from the study is to convince both the regional and international community to find valid answers to

Somaliland’s long awaiting quest for recognition, which need to be addressed through firm analysis.

 

Keywords: Secession, dissolution, recognition, state emergence, state extinction, parent state, self-determination, sovereignty, territorial integrity, unilateral declaration.

I.   Introduction  

 

Somaliland in the northern tip of the Horn of Africa is bounded by Djibouti,

Ethiopia, ‘Puntland State’ of northeast Somalia, and Yemen across the Red Sea. The people of Somaliland are ethnic Somali, sharing with other Somalis a common language, religion (Sunni Islam), and a traditional livelihood system based around nomadic pastoralism. Most come from three main ‘clan families’ – the Isaaq, Dir (Gadabursi and Iise) and Harti (Warsengeli and Dulbahante) of the Darod clan federation (Walls and Kibble,2011).  But there are, also, other small clan groups which are scattered across the country.

 

After being a British protectorate since 1884, Somaliland became an independent country on June 26, 1960. The rest of present-day Somalia, then administered by Italy, became independent several days later. Within days, the two independent regions decided to merge. But Somalilanders felt slighted almost from the start, since most of the power went to the south of the country. It is not a surprise to note that Somaliland voters rejected a referendum on a unitary constitution in June 1961 and, later that year, military officers in Hargeisa began an unsuccessful rebellion to reassert Somaliland’s independence (Ibid).

 

Following that disenchantment, a coup happened in 1969 led by General Mohamed Siad Barre to seize state power. The new military junta led by Siad Barre instituted a Marxist regime, and became a close ally of the Soviet Union (Mohamed and Ulf, 2008). Although initially enthusiastic about forming a union with Italian Somaliland, the euphoria quickly changed to disenchantment as many in the North of Somalia felt increasingly marginalized in government and other sectors of society (Michael, 2004). While the authoritarian government of Siad Barre was becoming increasingly unpopular with Somalis, nowhere was the regime more resented than in the North (Lewis, 2002).  

 

Historically and culturally, Somaliland is certainly a separate region from the rest of Somalia before it hastily and voluntarily united with the Italian part of Somalia (Gilbert, 2008). The first formal treaties between the sovereign leaders of the people of Somaliland and the British were signed in the 19^th century. Somali leaders in the north sought political protection from the British Government as a “quid pro quo for the export of their livestock, which Britain needed at its coaling station in Aden” (Michael, 2004). British Somaliland Protectorate was officially founded in July 1887, after signing so-called “protection treaties” with various northern Somali clans. However, it was briefly independent for five days in 1960 after the British withdrawal, before throwing in its lot with the former Italian south, a decision which its people have regretted ever since. In this brief period, over 34 countries, including Egypt, Israel, and the five Permanent Members of the

Security Council, recognized ‘Somaliland’ diplomatically; and interestingly Israel was the first to do so (Charles, 2009). 

 

Somaliland contends that it is a legal anomaly whose recognition would set no precedent relevant to the rest of Africa. Somaliland did exist as an independent state in 1960, albeit only for a matter of days, before voluntarily merging with the rest of Somalia. Somaliland currently exists within the old colonial boundaries of British Somaliland (Nasir, 2011). Therefore, it argues that it is simply returning to its previous status as an independent state and that its existence in no way threatens the inviolability of inherited colonial boundaries (Somaliland Ministry of Foreign Affairs, 2002). One of the most commonly articulated concerns about the idea of Somaliland’s independence is that it would set a dangerous precedent by sanctioning a redrawing of the African map. 

 

African states and some Western governments have treated the inviolability of

Africa’s colonial boundaries as a core principle for the sake of preserving stability. Similarly, proponents of Somaliland independence must also confront the objections of many Somalis who definitely reject the prospect of formally dismantling the larger Somali state regarding Somaliland as a secessionist state (Nasir, 2011). However, pro-independence Somalilanders often rely on moral and historical grounds and believe that this case is exceptional and not secession, but they argue that it emerged from the ashes of a failed union and the bigger project that failed, and as a consequence of that union, it suffered more than it ever did at the hands of Britain (HRW, 2009).

 

This paper examines the legal aspects of Somaliland’s case with the new engagement policy with Somalia. The paper attempts to highlight the importance of the legal aspect of Somaliland case for Somaliland Negotiators. The paper unveils why both regional and the international bodies failed to respond to Somaliland’s demand for recognition by taking the opportunity to engage as a neutral third party, without prejudice to the final determination of Somaliland’s sovereign status. 

1.1             Methodology

 

This work examines why Somaliland has failed to acquire de jure recognition from the international community over the past twenty plus years. The study critically focuses on the legal aspects of the union as well as the legal challenges that face Somaliland against its quest for recognition. The results and the findings of the study are based on a literature review on various areas including: books, policy documents, journals, reliable websites, newspapers, and articles written in Somalia by Somali and non-Somali scholars. 

 

II. Legal Cases in Perspectives 

2.1Prior to the Independence 

 

In 1934 Somalia became part of the Italian East African Empire following

Mussolini’s conquest of Ethiopia.  In 1941, during the Second World War, the Allies occupied the whole Italian Empire and Somalia was placed under British military administration.  In the Peace Treaty of February 10, 1947, Italy renounced all rights and title to their territorial possessions in Africa. After failure of the Four Powers to reach agreement on their disposition, the matter was referred to the General assembly of the United Nations for a recommendation, which the Four Powers agreed to accept as binding.  In 1949 the General Assembly recommended that Somalia should become independent after ten-year trusteeship under Italian Administration (Paolo, 1969: 1).

 

The Italian part of Somalia has got an opportunity to shift the governance experience from the colonial hand to Somali technocrats. A gradually increasing degree of executive authority was vested in the Somali Government, established in May 1956 and composed of Abdullahi Issa Mohamud as Prime Minister and six Ministries, later raised to nine (Ibid: 2). In contrast, the Somaliland British Protectorate did not get that opportunity until the final day of the independence. As there was no plan to grant early independence for the territory, progress towards self-government was slow until the second half of the fifties (Ibid: 4).

 

On the other hand, Italian Somalia got great time and resources for drafting the future constitution, which became the unification document of the two Somalis. 

In the last three years of the trusteeship period much time and effort was devoted to the preparation of a constitution for the future independent State.  For this purpose, the Administrator of Italian Somalia appointed a technical committee of experts in September 1957. Between October 1957 and May 1959 the technical committee prepared a preliminary draft constitution of 141 articles, accompanied by a 316-page commentary. A revised and shorter draft constitution of 64 articles was prepared, with the assistance of an Italian expert, by Dr. Mohamed Seek Gabiou, who was appointed Minster for the Constitution in November 1959. Between April 4 and May 9, 1960 both drafts were examined in detail by drafting political committee of fifty Somali members. The committee approved a new draft of 100 articles and submitted it to the constituent Assembly, comprising the ninety deputies of the legislative Assembly and twenty additional Somali members (Ibid:

6). 

 

2.2Post-Independence and the Union

 

Though Somaliland was one of the British colonies in Africa, the territory remained under British control until 26 June 1960, when it received its independence as the State of Somaliland. Notification of that independence was accurately registered with the UN and over 34 governments including the five veto powers of the UN Security Council (UNSC) reportedly recognized the new state (ICG, 2006). Several days later, on 1 July 1960, the UN Trusteeship administered by Italy also achieved its independence and united with the State of Somaliland to form the Somali Republic (Martin, 2006). Although the unification had been under discussion with the leaders of the two newly independent regions, the merger and the unification were poorly prepared, and the two parliaments approved different Acts of Union^[1]. In this regard, it is not a surprise to argue that this hasty merger between two different colonial entities with different legacies, despite sharing ethnicity, language and religion, eventually caused the collapse of the Somali state after thirty years of independence.

 

Consequently, early dissatisfaction with the arrangements negotiated by Somaliland leaders led the Northern voters to reject the unitary Constitution in a June 1961 referendum (Hussein, 2002). In October 1962, Northern ministers resigned from the government and several days later Northern representatives walked out of the National Assembly and threatened to boycott it (Lewis, 2002). Apart from the above, the situation had changed when the civil administration of the Republic was ended by military officers who managed to overthrow the civilian government^[2]. The established military government continued the centralization of the state authority under the leadership of the late General Mohamed Siad Barre. It is worth mentioning that the political attitude of the military junta was to reunite the Somali regions in the Horn of Africa and to bring them under the rule of the Somali state. Nonetheless, Barre’s expansionist ambitions ended with Somalia’s catastrophic defeat by Ethiopia and its allies in the 1977–1978 Ogaden War.

 

In 1991, after the downfall of the Barre regime and the collapse of the Somali state, the Somali National Movement (SNM) without prior notice declared

Somaliland’s independence within the borders of the former State of Somaliland. Since then, it has established a condition of relative peace and security, and held democratic local, parliamentary and presidential elections. It has also fulfilled the established criteria for recognition as a state such as: stable population, a defined territory, a functioning government and capacity to enter into relations with other states in the international forums.  Its achievements have won widespread praise and acknowledgement at regional, continental, and international levels, and therefore, its recognition has been favorably assessed by the African Union Mission, and Conflict Prevention Non-governmental Organizations (NGOs), particularly, the International Crisis Group (ICG). Despite Somaliland’s success stories, the international community refuses to recognize it as an independent state. For this to happen, there are local, regional and international actors that have their interests and other factors that have contributed their part for the denial of recognition in relation to Somaliland. 

 

Therefore, the major challenge comes from southern Somalia which remained in chaos since 1991. Here, there are many Somalis who definitely reject the prospect of formally dismantling the larger Somali state by regarding Somaliland as a secessionist state. Where the Somaliland people argue that they united with southern Somalia in 1960 to attain their desire and aspiration and again decided to withdraw from that union in 1991 to live in an independent state, because of the injustice they faced under successive Somalia regimes and vow to resist any attempt to make their country return to a union which collapsed twenty plus years back.

III.          The Somaliland Case in a Legal Perspectives

3.1Somaliland Case: Unilateral Secession vs. Dissolution with legal selfdetermination under international Law?  

 

One of the most important challenges ahead of Somaliland Recognition has been to clarify the status of the its situation since 1991, after it declared that it regained its independence as a result of the collapse of the Somali state in 1991. The question is, does Somaliland Declaration constitute Unilateral Secession? Or is it dissolution from a failed state? How will the case of Somaliland have legitimacy without the consent of the parent state? All the above questions need to be answered as a challenge to Somaliland recognition.    

 

The act of secession has different aspects of international law, such as a unilateral declaration of independence without the consent of the parent state (Michael, 2004). In this regard, new states may arise from the partition or unification of old states. England and Scotland became the state of Great Britain. The United Kingdom was again partitioned when the Irish Free State was formed. Norway and Sweden became separated; Belgium and Holland, while the states of Germany were united (Maciver, 2006). 

 

Similarly, the dissolution is quite different from secession. However, in international law, dissolution is when a state has broken up into several entities, and no longer has power over those entities. An example of this is the case of the former USSR dissolving into different republics (Nasir, 2011). 

 

On the same token, Senegal emerged from the dissolution of the Mali Federation- a federal arrangement formed between it and Soudan^[3] under the French

Constitution of 1958. The former colonies of Senegal and Soudan became ‘autonomous States’ within the French Community (James, 2006). Subsequently, it was agreed that the Mali Federation would be established; Senegal and Soudan agreed to join it. Under the constitution of the Mali Federation of January 17 1959, its constituent units were regarded as ‘sovereign’, as was the Federation itself. Shortly after the Federation was inaugurated, serious difficulties arose between Senegal and Soudan and on 20 August 1960; Senegal purported to withdraw. This was initially opposed by Soudan but was accepted on 22 September 1960 when Soudan asserted its independence outside the French Community under the name of Mali (Ibid). Different members of the Security Council described the situation in different terms when it considered the applications for United Nations membership by Senegal and Mali on 28 September 1960 (Ibid). But it was common ground that the two entities had resolved their differences, that each had achieved separate independence, and that the Federation of Mali had thereby ceased to exist. 

 

So, the above-mentioned issue has not been addressed and it is important to be discussed between Somaliland and rest of the Somalia to resolve the issue. 

Otherwise it will remain a challenge to recognition for ‘Somaliland’ to reach statehood.

 

3.2Does Somaliland have a right to exercise the Self-determination Doctrine? 

 

A broad construction of self-determination may be argued by Somaliland, the first justification that Somaliland may claim lies in its history as a British colony. A colony has a legal right to exercise the right of self-determination independency from its colonizer. Some argue Somaliland, as a former colony, may exercise its right to self-determination because it has not yet done so by invalidating its union with south Somalia because there was no national referendum or popular vote on the matter (Aaron, 2010).

 

But those who opposed the Somaliland case may nullify this argument by arguing that the fact of the unification, which was, even though there was no national vote on the issue, democratically elected leaders of each former colony, oversaw the unification process and these leaders did not act contrary to the will of people (Ibid). The answer of this critique can be that although democratically elected leaders of each country-Somaliland & Somalia- had overseen the process of unification, it was not complete because there was no popular vote through referendum. Furthermore, the Act of Union had not been passed during the unification period by Somalia legislature until seven months later, which had been passed retrospectively making the union process incomplete.

 

The second way that Somaliland could exercise its right to self-determination is through internal self-determination, by using Somalia’s established political procedures and mechanisms of self-rule to realize its policy goals. The circumstances in Somalia, however, make it difficult for Somaliland to exercise internal self-determination (Ibid). Now it is possible after Somaliland and Somalia talks started in the London conference and the dynamics and geopolitics of the region are dramatically changing.  In fact, any region within a failed state may have little or no opportunity to petition its government in the furtherance of selfdetermination, simply because it lacks a functioning government. Some scholars argue that Somaliland’s inability to exercise internal self-determination is strong enough support for the claim that Somaliland has the right to separate from Somalia. But under the existing norms this claim is insufficient (Ibid).

3.3Does Somaliland have a legal basis for Self-determination?  

Perhaps Somaliland’s best legal argument for independency in the furtherance of self-determination arises under one of the three legal theories of self determination – bilateral, unilateral or de facto. Let us examine each of them, especially, what the pros and cons for the case of Somaliland are. 

3.3.1Bilateral Self-determination  

Under this theory, the primary aim is cooperation between the party seeking independency and the parent state. It has two requirements; first, the Somalia domestic law would need to make some provisions for secession and second, Somaliland would need to engage in “principled negotiations” with the Somali government on the issue of secession. To overcome these requirements there are two insurmountable barriers to any efforts at bilateral secession. First, the prolonged state of lawlessness in the south precluded such political action; and second, even if that were not the case, the Somali government is not favorable to the idea of a breakup of the country (Ibid). 

 

But now after the opening of channels of communication between the two parties, Somaliland and Somalia, this option is possible for Somaliland to pursue bilateral self-determination through talks and convincing their counterpart that it is of the interest of both sides to split into two states which will live side by side as brother states. 

 

3.3.2Unilateral Self-determination  

 

This theory requires three elements: that the Somalilanders are “people”, that have been subjected by the Somali government to serious human rights violations and that no other viable options exist (Ibid). If you look at the above-mentioned condition, it is not an easy one to be fulfilled because it needs proof beyond a reasonable doubt that a genocide happened in Somaliland during the Siad Barre regime. So, Somaliland must prepare and build its case to submit to a petition to international forums which shows that massacres and mass-killings, which amount to serious human rights violations, and that there were no any other viable options other than self-determination. But the argument of those opposed Somaliland case is that despite the human right abuses perpetrated against the people of Somaliland, it is unclear whether they are sufficiently significant to support an argument in favour of justified unilateral secession. If any other remedies exist, Somaliland must resort to such remedies before seceding (Ibid).

 

So, if Somaliland will not succeed to prove the serious human rights violations which occurred during the Said Barre regime then it will be difficult to make Unilateral Self-determination in the International Law arena (Adam, 2012). So, Somaliland has to prepare and gather all the evidence that supports the human rights violations and mass-killings which occurred during the Barre regime. Somaliland cannot do it alone; it has to get support from forums that know how to gather evidence for prosecution of human rights violations. Somaliland can either hire private firms or get support from its allies or those who are concerned about its situation.

3.3.3De facto Self-determination  

One may argue that, since 1991, Somaliland has already gained independence through de facto secession. De facto on its own, however, is legally insufficient. Arguing de facto secession may be better where some nations recognize Somaliland, but in the case of Somaliland no country has done so (Ibid). Somaliland has a de facto Secession but this is not enough and they have to double their diplomatic efforts to secure the de jure recognition which is a must for their nation and statehood ambition. 

 

3.4Legal Precedents from the region and International Instruments 

Secession can generally be defined as the “separation of part of the territory of a state carried out by the resident population with the aim of creating a new independent state or acceding to other existing state and which originally takes place in the absence of consent of the previous sovereign” (Michael, 2004). Yet, the lack of consent distinguishes secession from devolution or grant of independence.

       

The same as the history has proven that states are not never-ending entities, but subject to constant changes in shape and character. States have been coming and going throughout the last 350 years or so, since the ‘birth’ of statehood in Westphalia in 1648 (Ibid). But, even a glance back into more recent history reveals substantive changes in the landscape of international relations. Numerous states have emerged following the fall of the Berlin Wall and the collapse of the Soviet Union. Since 1945, the number of states has almost quadrupled leaving us with 191 members of the United Nations in 2003 (Ibid). In general, international law does not interfere with the political processes of state emergence and extinction, but leaves these matters to the people and the facts on the ground. The means by which a state emerges is accordingly not a matter of international law. It remains rather confined to the acknowledgement of the factual emergence of a new entity and to the evaluation of its legal status. Accordingly the specific criteria necessary for statehood are: population, territory, effective governance and eventually, depending on the contextual circumstances, international recognition (Vaughan, 2007).

 

It is necessary to distinguish between secession in pursuance of and in violation of self-determination. Whether the territory in question is a self-determination unit, it may be presumed that any secessionist government possesses the general support of the people. On the other hand, it is possible for a seceding government manifestly to lack general support of the people concerned (Rein, 2004). However, revolution and self-determination are not mutually exclusive. On the contrary, the former may be an extreme form of the latter, and it seems that not only revolution but secession similarly is an extreme form of self-determination and that they both should have equal status under international law.

 

State practice since 1945 in relation to secession of this type has not been entirely consistent. However, in three of the earlier cases of seceding territories, at least some degree of international recognition was extended at a relatively early stage. The Indonesian situation was the first of these. Indonesian nationalist leaders declared the Republic of Indonesia on 17 August 1945. There followed a protracted conflict, military and diplomatic, with the Netherlands before sovereignty was formally transferred on 27 December 1949 (James, 2006). The events of this period have been described elsewhere. What is of interest here is that, although Indonesia was probably not a fully independent state before December 1949, it was accorded a certain- even considerable- legal status during the conflict. It was recognized as a de facto government by the Netherlands itself and by a number of other states; in addition several states accorded de jure recognition.

 

Similarly, the status of the Democratic Republic of Vietnam (DRVN), after the declaration of independence in 1945, was complicated by the conflicting grants of authority by France to various local governments, and by the claims of both governments to represent Vietnam as a whole (Ibid). As in the Indonesian case, various states recognized the Democratic Republic of Vietnam (DRVN). France also extended a somewhat equivocal de facto recognition. On the other hand, these complicating features were not present in the case of Algeria. The Algerian Republic was proclaimed on 19 September 1958 and after protracted hostilities was granted formal independence by France on 3 July 1962 (Ibid). After some hesitation, the General Assembly took the matter up in 1960 and 1961, calling upon the parties to negotiate “with a view implementing the right to the Algerian people to self-determination and independence respecting the unity and territorial integrity of Algeria (Ibid)”. Algeria had also been recognized before 3 July 1960, by a certain number of states.  

 

The case of Somaliland is quite different from what the thesis discussed above or is similar in one way or another (Nasir, 2011). Somaliland was British Protectorate and gained its independence from the Great Britain of the United Kingdom on 26 June 1960, four days later, it unilaterally united with its Italian southern part of Somalia, over 34 countries including the five permanent members of the UN Security Council, Egypt, Israel and others recognized as the State of Somaliland (Charles, 2009). Nevertheless, Somaliland argues that it is not secessionist state from its parent State. But it regained its independence and it suspended only the dysfunctional unity with its counterpart, while it asserting and maintaining the territory and boundaries left by the British government in 1960. 

 

Conclusion

 

To wind up the above discussion, it is a great opportunity for Somaliland and Somalia that they can be two different states that live side by side and they can settle their legal status and the dispute between them through dialogue and peaceful settlement. On the other hand, they united yesterday-1960- under their own consents and today they are free to choose their own future courses because the self-determination principle will exist forever. 

 

On the same token, Somaliland Negotiators’ team must be conscious about the legal aspects of Somaliland’s Case during the dialogue and engagement period with Somalia because in 1960 Somaliland Leaders and its people failed to calculate tactfully their own rights legally during the unification process.  If the same reoccurs, that will be a disastrous situation for the nation and the future generations. So, in general, the engagement policy is good for Somaliland but only if Somaliland develops a successful strategy to implement during the talks and negotiation period.

 

 

 

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SOURCE:

 http://www.soradi.org/attachments/article/0/SORADI%20book-2013.pdf

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