Somaliland:SL-UN Relations;the Possibility of Establishing a Special Arrangement for Somaliland

By Mohamed A. Mohamoud (Barawaani) March – 2014

 Introduction

The United Nations needs to creatively work out a new approach to Somaliland, one that fully inherits the implications of Somaliland’s unique developmental, historical and political status. The Somaliland Special Arrangement (SSA) of the New Deal was a step in the right direction, but one that is incomplete unless complemented by a broader diplomatic ‘special arrangement’ that safeguard’s Somaliland’s gains and builds a governance structure for the region that fully takes advantage of, and does not harm to, the more than two decades of peace and effective governance. Basis for Somaliland’s Special Arrangement In contributing to create a more stable and viable region, the United Nations should not avoid confronting the history of Somaliland and Somalia. Not only are there potential and unresolved legal implications that ought to be considered, such as the sanctity of the Somali state as it was upon collapse in 1991, but there is also a need to reflect upon the fact that the borders of what the Federal Government of Somalia claims as its territory was never a coherent or uncontested entity, but was in fact an problematic, experimental and volatile arrangement that contained the seeds of its own demise. While this thirty-year experiment failed—and not just with the civil war and atrocities that characterized its later days, but through the marginalization of the Somaliland people during the two decades prior—a twenty-year process of peacebuilding and statebuilding in Somaliland has shown that there are some arrangements that can provide lasting governance and the foundations for social well-being for the Somali people.

The legal and political history to consider is as follows. Somaliland and Somalia decolonized into two independent states, before uniting to form the Somali Republic. The original Act of Union makes this clear in its first provision, which states the following: ‘Somaliland and Somalia being united, to constitute the Somali Republic, which shall be an independent,

2.Democratic and unitary Republic.’1 Additionally, Article Four of this Act also reveals that Somaliland and Somalia were two independent governments: ‘All rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia or by any person on their behalf, shall be deemed to have been transferred to and accepted by the Somali Republic upon the Establishment of the Union.’ Somaliland revoked the Act of Union in 1991 and reclaimed an independent state based on the previous internationally recognized borders, a decision based on numerous rational justifications that reflected the will of the people, based on the rights they believed were offered to them in international law.2

Therefore, it is inappropriate for the United Nations and the international community to take such a firm stand on its decision to create a single and unified state that emanates out from Mogadishu and extends to encompass Somaliland’s territory, as this both undermines and denies from the outset the idea of Somaliland’s sovereignty, self-determination and constitutional democracy. Somaliland’s arguments for independence have a legitimate basis in international law, and to prejudice against the inherent rights of Somalilanders, as decolonized peoples, to self-determination3 by subjecting them to a statebuilding project for the region (based on the UNSOM mandate) that ignores these claims is to sacrifice fundamental global principles to short-term political expediency. Somaliland’s historical claims must be clarified through an international legal inquiry and the creation of consensus, instead of having this possibility be prematurely closed out due to the momentum created by a flawed UNSOM mandate and its unitary top-down form of statebuilding—one that does not come close to conforming to either the aspirations of people of Somaliland or the facts on the ground.

This history must also take into account that Somaliland neither endorsed the Constitution of the Federal Government of Somalia (FGS), nor was a signatory to any of the principles leading

1. 1 Act of Union (1961) Somali Republic Law of 31 January 1961, No.5. (Act of Union) https: www.Somalilandlaw.com-Archives

2 Similar cases of dissolved unions are not uncommon, including Senegambia (formed in 1982 and dissolved in 1989 to reconstitute Senegal and Gambia) and the United Arab Republic (formed in 1958 and dissolved in 1961 to reconstitute Syria and Egypt), among other examples. 3 The United Nations Declaration on the Rights of indigenous peoples can be applied broadly to the people of Somaliland as the native people in their defined territory. The Declaration states the following: ‘Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the rights to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development’ (United Nations Declaration on the Rights of Indigenous Peoples (2007) Resolution adopted by General Assembly – 107th Plenary meeting 13 September 2007-https: www. un.org)

3.To its creation and Somaliland will not participate in any process that internally concerned to the FGS’s statebuilding course of action, such as the Somalia 2016 elections or the Somalia constitutional referendum. The international community can either support a process that lays claim to legitimate authority over Somaliland without the Somaliland peoples’ consent, or it can support an alternative approach to politically and diplomatically dealing with Somaliland that fully takes into account its unique status. A Transformation of UN-Somaliland Relations The facts and provisions stated above demonstrate the scope to which Somaliland’s claim to independence is both legitimate and legal; and discredits the indifferent, unjustified and potentially coercive diplomatic approach that favors Somali unification. Instead a multi-track approach is better suited to dealing with Somaliland and Somalia simultaneously, one that makes no presuppositions on either the relationship between the two entities or any binding obligations of Somaliland to participate in Somalia’s political and development processes, and instead fulfills the overarching mandate on the UN and its Security Council to promote international peace and security. While in certain instances the UN has taken this differentiated approach, it only occurs in a piecemeal and incomplete fashion, and these concessions are increasingly being eclipsed by macro-strategies and binding decisions put forward by the UN Security Council (such as UNSCR 2102 [2013] that established UNSOM) that fly in the face of Somaliland’s claims to sovereignty and self-determination, and which Somaliland has been forced to protest. The UN should focus on simultaneous development of Somaliland and Somalia, while opening up channels of peaceful dialogue, instead of creating an unequal and unfriendly atmosphere for discussions in which Somaliland finds its core interests increasingly under threat. Somaliland’s reservations about the new UN presence was first explicitly raised during and following the deployment of the UN Technical Assessment Mission (TAM) in March 2013, and these reservations prompted the Somaliland Foreign Minister at the time, Dr. Mohamed Abdillahi Omar, to write a letter in April 2013 to then-UN Security Council President H.E. Mr. Eugene Richard Gasana, in which he presented Somaliland’s view and position towards UN engagement with Somalia and Somaliland. While there were several convincing points made along the lines of what has been mentioned above, this letter has evidently been uncritically ignored and shelved in favor of the UN Security Council’s traditional doctrine of Mogadishu-centric bilateral diplomacy and representation which takes entities like Somaliland out of the picture.

With such a uncharted view of statebuilding in the Horn of Africa, what is lost is the broader principles of the United Nations Charter, which grants the following purpose of the multilateral bod: ‘To develop friendly relations among nations based on respect for the principles of equal

4.rights and self-determination of peoples, and to take other appropriate measures to strengthen Universal peace.’4 In line with the spirit of this clause, the development and endorsement of a United Nations Special Arrangement for Somaliland would be innovative way for the international community to approach Somaliland that would provide a legitimate and implementable avenue for future cooperation between Somaliland and United Nation Offices. This approach would be inspired by the precedent and framework set by the Somaliland Special Arrangement (SSA) of the New Deal which the international community endorsed at a ‘separate and distinct’ perspective and process for supporting the socio-economic and political development of Somaliland.

As the following excerpt shows, such a decision would also be in line with the broad principles of engagement set out by the Somaliland and Somalia governments themselves when agreeing to the SSA and making agreements through their Dialogue process: ‘The simultaneous endorsement of the New Deal principles was conducted in the spirit of the 13 April Ankara Communiqué signed by the Government of Somaliland and the Federal Government of Somalia as part of their on-going dialogue process, in which the sides agreed to work together to encourage greater and more effective international development assistance’.5 The SSA provides encouraging precedent and momentum within the development sphere that can pave the way for Somaliland and the international community to expand its partnership at the macro-level and country-level in a way that is separate and distinct from engagement with Somalia, and which does not violate or threaten Somaliland’s most fundamental interests. The current juncture therefore, also offers a timely opportunity and opening for discourse between Somaliland and United Nations Assistance Mission (UNSOM) to reach common ground and draw up a new and innovative framework for engagement a based on bilateral diplomacy, credible interaction and the equal exchange of ideas and information on how to build a more peaceful and stable region. These are the type of issues that must be occurring at the UN country offices, within relevant embassies and even at the UN headquarters in New York as part of a broader dialogue in harmonizing the various parallel diplomatic strands in the region (UNSOM, the Somaliland-Somalia Dialogue, and the New Deal/SSA) and taking the logical next step in a trend towards internalizing and recognizing Somaliland’s unique status.

4Charter of the United Nations and Statute of the International Court of Justice San Francisco( article 1) (1945) https: www.un.org 5 International Dialogue on Peacebuilding and Statebuilding. A New Deal for engagement in fragile states (2012) Somaliland Special Arrangement (2013-2016) –

5.Moreover, a UN Special Arrangement for Somaliland can provide a way out of the current impasse in the relationship between the Somaliland Government and UNSOM, in which attempts by UN Special Representative to the Secretary General Nicholas Kay to establish a UNSOM sub-office in Hargeisa barred by the Somaliland government. With time having passed and a more clear understanding of the potential relationship between Somaliland and the UN having been fleshed out through UNSOM’s experience on the ground, it is now vital that the Somaliland Ministry of Foreign Affairs and International Cooperation requires to engage a diverse array of diplomatic tools to convince the SRSG Kay to contemplate the possibility of establishing this UN Special Arrangement for Somaliland. There is no doubt that Somaliland has demonstrated to the international community its continuous remarkable progress in deepening peace, security and in constructing a working model of statehood that is capable of transforming international community engagement into tangible development achievements. Therefore, opening bilateral talks between Somaliland and UNSOM is essential, as it can serve as a positive diplomatic calculation where both sides build a new partnership that draws from accumulated momentum to pursue progress along a range of mutually-beneficial interests, such as regional stability, security and development. Although there are many public grievances and criticisms against UN operations in Somaliland, including its model of managing programs and making decisions from faraway capitals, such as Nairobi and elsewhere, instead of directly in Somaliland. Nevertheless, the UN remains indispensable and valued partner for Somaliland, alongside other international institutions such as the EU, World Bank and AU. Hence, any partnership between the UN and Somaliland must be based on the principles of direct engagement, shared ownership, equal status, trust, and respect for the norm of ‘do no harm’, and the Somaliland Government must therefore argue—on the basis of many reasonable justifications, such as the current stage of Somaliland’s development and its unique political experiences—for the establishment of a United Nations’ Special Arrangement for Somaliland, similar to the one put together and endorsed by Somaliland and the international community under the New Deal.

Somaliland has been a viable and responsible international partner since 1991 and in this respect had demonstrated socio-economic, political and security commitments and achievements that are beneficial to the entire region. Somaliland’s bottom up approach to recovery and reconstruction is based on inclusive, indigenous and participatory processes which have widely attracted regional and international attention and praise. These locally-driven and resilient processes of peacebuilding, statebuilding and democratization provide lessons and building blocks that must be preserved and promoted throughout the region. In attempting to develop innovate and effective possibilities for revitalizing the partnership and channels of communication between Somaliland and UNSOM Office, full advantage of Somaliland’s achievements can best be ensured if the international community deals with Somaliland as a de facto state in practice,

6.while leaving open the question of de jure statehood to be taken up at the highest of diplomatic levels at the appropriate time. Conclusion, Recommendations and Possible Way Out It is clear that the eventual relationship between Somaliland and United Nations requires a credible and ground-breaking policy transformation that will involve significant levels of consensus-building around a new mode of partnership. The UN needs to recognize that any bilateral agreement between United Nations and the Federal Government of Somalia in Mogadishu cannot be extended to Somaliland, not only because of the political illegitimacy of such an act (as it goes against the democratic will of the Somaliland people), but also because of its practical incompatibility with the realities in Somaliland (which is characterized by fundamental different of developmental, social and political conditions) Moreover, defining the way out necessitates contextualization, pragmatism and the establishment of suitable diplomatic channels of communication—any coercive diplomatic attempts to overrule this democratic will or alter these realities will only undermine and aggravate the current achievements of Somaliland, while creating less fertile ground for dialogue between Somaliland and Somalia over the future of their political relationship.

1. Since Somaliland and the UN have experienced certain negative repercussions from the fruitless stagnation of relations, it is in the interest of both parties to immediately open cordial dialogue to propose and debate the most appropriate framework for future engagement.

2. Establishing a UN Special Arrangement for Somaliland provides a very amendable avenue and promising foundation for this renewed engagement, and should be put on the table. This means accepting and addressing Somaliland’s case as a special prototype for development and statebuilding in a post-conflict environment, one that is justifiable by contextual precedent (i.e. the SSA of the New Deal) and international law (self-determination and Somaliland’s unique historical context), and is it practical of necessity to ensure a conformity with the ‘do no harm’ principles.

3. The United Nations is urged to rethink and re-evaluate its traditional and nontraditional relationship with Somaliland, because any UN and international community partiality will likely be contrary to the international humanitarian and peacekeeping principles on which it is founded, and could potentially close down the space for productive and peaceful negotiations between Somaliland and Somalia.

4. Creating amicable cooperation between Somaliland and UN requires an adequate consideration of and reflection on the need for addressing the rights and wishes of the

People of Somaliland, and must try to harmonize such engagement with other internal modalities and processes, such as the SSA and the Somaliland-Somalia Dialogue.

5. UNSOM can also contribute to the enhancement of the bilateral dialogue between Somaliland and Somalia, since currently such dialogue provides the most promising means to (1) promote practical cooperation between Somaliland and Somalia to address common issues; (2) resolve disputes arising from the current difference in opinion of Somaliland’s status; and (3) providing for the eventual and final political agreement of Somaliland’s self-determination and independent sovereignty.

6. For its part, Somaliland needs to create the necessary domestic environment conducive to international engagement, and facilitate the establishment of mutually beneficial bilateral relations with the international community, including UN, EU, World Bank, IGAD, UA as well as other international partners.

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Commentary on UN and Somaliand relations

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Mohamed A. Mohamoud (Barawaani) Independent Researcher, MA International Relations and Diplomacy and Author of various academic papers about Somaliland, Somalia and Horn of Africa:

Email: mohamed.diiriye@gmail.com