Dr. Edna Adan

Somaliland Recognition Team

31 Years of Somali Republic was the result of a political marriage between Somaliland, a former British protectorate that was the first Somali territory to become independent on 26th June 1960, and Italian Somalia in the south, which gained its independence from Italy four days later, 1st July 1960. Due to nationalist sentiment at the time of independence, and the broader goal of uniting all Somalis, a political marriage was adopted and the Somali Republic was formed on 1st July 1960, four days after Somaliland’s independence from Britain, and the day that southern Somalia gained independence from Italy.

For Africa, Somaliland’s recognition should not threaten a ‘Pandora’s box’ of secessionist claims in other states. But, recognition of Somaliland would force Somalia to solve unending war with Al Shabaab and between their regional states. Instead, Somaliland recognition offers a means to positively change the incentives for better governance inside Somalia. However, Somaliland recognition would not resolve all of Somalia’s problems, or the region’s. But, the facts on the ground speaks for itself: Republic of Somaliland as the former British protectorate has developed a stable system of politics, blending modern and traditional elements, including an elected President and House of Representatives as well as an Upper House of Elders (Guurti), securing the support of clan-based power structures. Therefore, Somaliland is presidential system unlike Somalia is parliamentarian system, which both country cannot be integrate now or ever as there are fundamental issues that nor political or militarily resolve.

The Recognition Chestnut

Somaliland remains hitherto unrecognised by any government, a source of great frustration among Somalilanders. As one Somalilander quote “It keeps people out. It keeps the state fragile. It keeps investors out. It shuts the door on international monetary organisations. It limits the progress of the country, trade, and travel. It keeps us an isolated island. Our recognition is our right.” The legal and moral justification for Somaliland’s independence and international recognition, that it fulfils the Montevideo criteria for statehood (a permanent population, a defined territory, government, and the capacity to defend and represent itself) along with the obvious support for self-determination within the territory itself. Five million Somalia are holding the aspirations of 3.9 million Somalilanders hostage.

Somaliland and the International Community

Non-recognition means that Somaliland to a large extent stands outside the mechanisms established by the international system for regulating the flows of people, money and goods across national frontiers. Though the Somaliland government is anxious to play the role of a responsible state in this respect, and the international community is equally anxious for it to do so, it is unable to assume full membership of the relevant international treaties and organisations, while other global actors can make only very partial use of the facilities that it may provide. Time and again, awkward ad hoc expedients have to be devised in order to manage issues that could be straightforwardly regulated between states. Examples include:

  • Protection Sea Coastlines: The Somaliland coast borders the vital commercial waterway of the Gulf of Aden, while some international aid has helped to strengthen the Somaliland coastguard, further collaboration, including the use of Somaliland ports by other navies, is prevented by non-recognition.
  • Wildlife Trafficking: Again because of its strategic location, Somaliland provides a natural departure point for trafficking wildlife into the Arabian Peninsula and further afield.
  • International Security: Non-recognition prevents other states and international organisations from providing necessary assistance to the Somaliland army, including training and appropriate weaponry, though some assistance has filtered through to the fledgling coastguard on the basis that this is a ‘policing’ operation. Recognition would also make it possible to exclude Somaliland from international sanctions rightly imposed on Somalia as a whole.
  • Arms Trafficking: This is a region of extensive unregulated arms flows, especially of small arms, which could more effectively be controlled under a normal state framework.
  • Environmental Protection: Both fisheries and terrestrial environmental degradation need management systems which again could best be provided by collaboration between a recognised state and other states and international institutions.

Conclusion: A Game Changer?

Given Somaliland’s current international representation, recognition is not an ‘either/or’ or ‘yes/no’ decision, but rather one of ‘more or less’ since Somaliland already has offices in Addis Ababa, Djibouti, London, Sana, Nairobi, Washington DC, Brussels, South Africa, Sweden and Oslo, and its passport is recognised by South Africa, Kenya, Djibouti, and Ethiopia and Taiwan.

 

                                                           THE RECOGNITION OF SOMALILAND

According to Bradbury, Somaliland is a de facto state which exercises control over (most of) its borders, has its own currency, levies taxes and sports state symbols such as flag and national anthem. More importantly, it has reached a higher degree of civil liberties, economic freedom and democratically elected government than any other country in the region. With its refusal to recognize Somaliland the international community is applying double standards, since it has acted swiftly to recognize breakaway Yugoslavian or Soviet Republics (e.g. Kosovo within a few days).

Somaliland also has clearly defined territory dating back to the colonial era when it was known as British Somaliland. The country is bordered by the Red Sea and the Gulf of Aden to the north, Somalia to the east, Ethiopia to the west, and Djibouti to the northwest. Second, in addition to having the capacity to maintain foreign relations, Somaliland routinely engages in “state-like” behaviour, such as negotiating agreements with other states.

Somaliland Under Declaratory Theory

The Republic of Somaliland meets the requirements set forth under the Montevideo Convention. It has a permanent population, a defined territory, a functioning government, and has the ability to enter into relations with other states. As a result, declaratory theory should recognize the Republic of Somaliland as a state within the international community.  Somaliland meets the first criterion with its growing, yet defined, population despite the nomadic nature of its inhabitants. Indeed, Somaliland‘s large nomadic population poses no impediment to recognition because a substantial number of permanent inhabitants remain.  The second criterion is met because the territorial boundaries of Somaliland stretch 68,000 square miles, corresponding roughly to its colonial boundaries. However, its eastern border has been the subject of constant dispute, but Puntland regional state of Somalia has no international legal since Somaliland frontier were defined during colonial area. As a result of this territorial conflict, Somaliland has a clearly defined territory.

Somaliland Under Uti Possidetis

The concept of uti possidetis underscores the complexity of the relationship between Somalia and Somaliland. If uti possidetis is strictly construed such that Somaliland‘s border is defined by that of its colonial past, the secessionist claims of Somaliland are strengthened: the Atto de Unione between Somaliland and Somalia altered colonial boundaries, in violation of uti possidetis. Despite this violation, a claim for independence under uti possidetis may prove illusory since unification occurred five decades ago. Moreover, the international community supports the legality of Somalia‘s and Somaliland‘s union, presenting a further obstacle to secession. Despite international support of the union, Somaliland‘s separation from Somalia would not be the first dissolution in Africa. The concept of state dismemberment is not new to the international community; in fact, the international community recently allowed the dismemberment of Yugoslavia into constituent republics. This strategy of dissolution appears even more applicable where a voluntary union has failed.

Unilateral Withdrawal Union

Under international law, the 1960 Act of the Union was deeply flawed. In June 1960, representatives from Somaliland and Somalia each signed different Acts of Union agreeing to different terms of unification. Although it was internationally recognized, the fraudulent “agreement” did not meet international standards for treaty recognition and did not reflect the will of the Somaliland people.

The fusion of Somaliland and Somalia into one State was based upon a mutual desire to create a Greater Somalia composed of French Somaliland, the State of Somaliland, the Trusteeship territory of Somalia, the Ogaden province of Ethiopia and the Northern Frontier Province of Kenya. Summarily, the Union of Somaliland and Somalia Law and the Somalia Act of Union were both drafted in the form of bilateral agreements, but neither of them was signed by the representatives of the two territories.

REMAINING IN THE SHADOW: THE STATUS QUO

The first potential pathway going forward for Somaliland is to leave things as they are now, maintaining the status quo. There are a variety of reasons that this path is at best undesirable, and at worst untenable.  First and foremost amongst these is that it goes in direct opposition to the will of the people of Somaliland.

Economy Handicap: Somaliland is ripe for investment.  Its mineral and oil deposits, history of livestock and agricultural trade, port and the high return on investment found in Africa make it an ideal location.  So why are investors not aggressively participating in Somaliland’s economy?  Somaliland’s access to loans, particularly with the World Bank, will be limited as long as Somaliland is not recognized as an independent State. Without statehood, Somaliland will likely be unable to compete in a realistic fashion with developing nations.

SOMALILAND’S VIEW ON THE UNION

Somaliland provides three main arguments why it is entitled to be independent. The first one is that the Act of Union with the Italian Trust Territory of Somalia immediately became invalid when the Southerners did not stick to the agreed terms of unification. For a document to be legally binding, all participants have to sign it ensuring everyone is subject to the same obligations and rights. Somaliland & Somalia union was illegal at start, which both created significantly differed two Act of Union

With the notably divergence between the two documents, none of them was legally binding. To overcome this obstacle the National Assembly of the Somali Republic proclaimed a new Act of Union, repealing the Union of Somaliland and Somalia Law. The new Act was made retroactive as of July 1st, 1960. However, Somaliland claims that it was never rightfully implemented as Somaliland rejected it in a referendum.

Because it was a voluntary act in the first place, the second argument goes that with the failing of Somalia after the Barre regime, Somaliland is entitled to revert to its original state. It is rather the dissolution of a voluntary union between two independent states than secession where they reverted to their previously earned sovereignty. Sovereignty is here defined as the concept, which guarantees “the autonomy and independence of each state to determine its own affairs, regardless of the approval or disapproval of external actors, no matter how big or small it was in terms of size and regardless of its relative power and capacity.” Various African and European countries have to some extent accepted Somaliland’s sovereignty. They have not officially recognised the entity but established bilateral ties to its government. Examples are liaison offices in Djibouti and Ethiopia, and projects planned in Somaliland by companies amongst others from countries like Germany, Switzerland and South Africa. Lastly, the gross human rights violations of the dictator and the resulting ethnic cleansing against, the Isaaq amongst others, gives them the right to self-determination and hence separation.

LEGITIMACY OF SOMALILAND’S CLAIM OF INDEPENDENCE

Self-determination

The question arises whether or not the people of Somaliland have the right to self-determination. In international law, the right to self-determination is an essential principle and can be defined as the community’s or state’s right to sovereignty and independent relations. The International Covenant on Civil and Political Rights specifies in Article 1 Paragraph 1: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

In other words: if the inhabitants of Somaliland distinguish and perceive themselves as being different to the rest of Somalia it is an indispensable element of statehood. Nevertheless, the right to self-determination neither prohibits nor authorises secession.

The changing of borders, however, is still permitted under international law, either peacefully through negotiations or in case of oppression by rebelling against the tyrannical state; the latter is a central argument for Somaliland. As mentioned above, the Isaaq people faced severe atrocities 30 years & genocide 1988 under the Barre regime and therefore they provide adequate grounds for not only self-determination but also withdrawal from the state responsible for those crimes.

Statehood: The Arguments for Recognition

With all illusions of pan-Somalism gone upon Barre’s fall in 1991, Somaliland’s elders and the SNM’s central committee decided unilaterally to dissolve the union, and declared Somaliland independent. Many thousands of Somalilanders fled to neighbouring countries, notably Ethiopia, Djibouti, and Yemen. During this civil war, genocide, war crimes, and crimes against humanity were committed by the military regime against the people of Somaliland. The brutality of the civil war cemented Somaliland’s hostility toward Mogadishu and led to Somaliland withdraw from the union (Clapham, 2017). Since 1991, Somaliland and Somalia’s growth and development paths have diverged considerably as different state formation approaches were pursued in these states. Siad Barre’s regime killed, tortured and imprisoned thousands of Somaliland over the years prior to the genocide. His government looted and destroyed private property through the security apparatus established with the help of the former German Democratic Republic and the KGB. Barre unleashed the full fury of his regime’s thuggery against the wealthier and independent Isaaq clan in Somaliland. The human rights violations included summary executions, rape, torture, imprisonment, or detainment without charges or trial, and the theft of private property. The genocidal attack on the Isaaq clan intensified with the military bombing and shelling of the northern triangle cities, Hargeisa and Burao, Berbera. The government staged a selective campaign to bum down all Isaaq towns. Government forces also laid over a million unmarked land mines in Somaliland. These acts flagrantly violated not only human rights norms but also humanitarian norms relating to the protection of victims of non-international armed conflicts. The attempt to annihilate the Isaaq also had economic dimensions. The government diverted development investment and livestock trade from Somaliland.” The two territories Somaliland and Somalia were separated institutionally, linguistically and historically. As a consequence, the two territories qualified as two individual countries.

The Preamble to the Universal Declaration of Human Rights recognises the right to rebel against a government guilty of egregious violations of human rights. Various international instruments enumerate international human rights. These include the International Bill of Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, several regional instruments, and pieces of national legislation.’ These documents clearly set forth certain rights such as freedom from torture, detention without charges or trial and rights to life, liberty and security of persons; these rights are not to be violated under any circumstances. Accordingly, if the political establishment engages in violating these rights on a genocidal scale, the people may claim a right to self-determination through secession. Since Somaliland is entitled to exercise the right to self-determination, the appropriate mode of self-determination needs to be addressed. General Assembly Resolution 1514 provided for three legitimate methods of decolonization.  In addition a strong presumption exists in favour of independence and bestowal of statehood in self-determination situations.'” There is no reason to deny Somaliland statehood. Somaliland’s need for self-determination and independence is especially valid.

The Montevideo criteria for statehood: Is Somaliland a state?

Following arguments of other legal scholars who have discussed state secession and how it can be achieved, Roethke states that three procedural criteria must be met in order for international law to legitimate secession. First, the secession must occur without military aid from foreign states. Second, the population of the seceding territory must democratically approve of the secession. Third, secession must respect the principle of uti possidetis (Ibid.). The secession of Somaliland from Somalia indeed fulfils these criteria. The final point in Roethke’s discussion refers to the principle of respect for pre-existing borders (in the African context, the borders achieved upon independence). Even on this point, Somaliland’s secession is in order as the government of Somaliland, in seeking its international recognition, is merely exercising its right to control the borders the country received upon independence.

Therefore, when Somaliland seceded from Somalia and requested international recognition of its original colonial borders it was respecting Somalia’s territorial integrity and borders inherited at independence, and remains in complete conformity with Article 4 of the African Union Constitutive Act (ICG 2006, 16).Keeping this in mind, Somaliland’s secession from its union with Somalia (or its dissolution of that union) should not be seen as dismembering Somalia, but rather as restoring a previously sovereign state to its earlier internationally recognised status (Roethke 2011, 44).Since the joining of Somaliland and Somalia was a voluntary union, Somaliland’s secession and request for recognition of its internationally recognised pre-union borders hardly presents a precedent in itself.

Reason Somaliland and Somalia Talk is push by international community:

There was a consultation process between members before one state decided to terminate the union. The only problem with this criticism is that, in the case of Somalia, it is unclear who Somaliland should approach to discuss a dissolution of the union. The fact remains, that there is no effective Somalia state from which Somaliland could apply for secession. As the International Crisis Group, report on Somaliland concludes keeping discussion of Somaliland’s status in abeyance until the situation in Somalia is fully settled holds Somaliland hostage to events over which it has very little control. Furthermore, the EU has adopted extensive criteria for state recognition (complementing the Montevideo criteria) which include a political structure of democratic governance, respect for minority rights, and the upholding of the rule of law. If Somaliland is in general abeyance of these criteria, does this not also give it a strong moral right to formal recognition? Somaliland’s moral right to recognition is based on many aspects. Somaliland, in terms of political governance, security and order, and economic activity has the ability to function as a sovereign state. One needs to ask how many lives have been saved by the bottom-up locally owned process of reconciliation and governance that Somalilanders have developed since 1991. Somaliland’s democracy is not without its problems, but neither is that of the US. The good governance exhibited by authorities in Hargeisa is almost astonishing when contrasted to Somalia.

Somalilanders as a “peoples”

Going back to that question of self-determination vs. territorial integrity, it is also possible to argue that, for example, the declaration of Somaliland’s independence violates Somalia’s territorial integrity. In order to discuss self-determination, it should be first examined whether Somalilanders can be considered a “peoples”. The Preamble to the Universal Declaration of Human Rights recognizes the right to rebel against a government guilty of egregious violations of human rights. Furthermore, if the political establishment of a certain country engages in violating human rights on a genocidal scale, the people may claim right to self-determination through secession (Ibid.). This right to self-determination acquires even greater legitimacy “if the pattern of human rights violations indicates an attempt by the state to decimate a distinctly identifiable group”. Siyad Barre’s terror and violence unleashed against Somaliland based Issaq clan is amply documented and his particular targeting of Isaaq Somalilanders gives them cause for self-determination. Therefore, if the Somali government under Barre considered the Issaq a distinguishable group of people it could specifically target, then this gives the Isaaq grounds on which they can be considered a “peoples” worth self-determination. However, the status of Somalilanders as a “peoples” is not really key for the legal validity of their secession. We can plausibly argue that if Somaliland had achieved independence from Britain and become a sovereign state in its own right through the normal process of decolonisation, the question of whether Somalilanders were a “people” would therefore be a moot point”. Since Somaliland was an independent state for four days, Somalilanders as a “people” did exist.

Just Cause: Somaliland has a morally strong case for its recognition, fulfilling three out of five just-cause criteria: a long history since 1960 of systematic oppression and denial of constitutional rights that allows for a claim of self-defence against genocidal Somalia against Somaliland, as well as having a legitimate claim to its territory. 

Last Resort: Somaliland’s withdraw of the union represents an action of last resort following failed power-sharing negotiations and the utmost desire to survive, stemming from the ethnic cleansing of the Isaaq clan. With Somalia government oppression and genocide in Somaliland and thereby breaking the social contract with the union of 1960

Probability of Success: Although recognition has not been forthcoming mainly due to political agendas, Somaliland’s isolation has ironically contributed to its stability and nation-building efforts.

Rightful Intention: The events following Somaliland declaration of 1991 Independence such as reconciliatory peacebuilding and constitutional transfers of power – lead to the deduction that the intention of the withdraw party was to bring peace, stability and self-determination to the region, rather than consolidating power within different groups or any other hidden agenda.

Conclusion: The application of these criteria to the Somaliland case strongly suggests that Somaliland holds a moral ground for just recognition. In addition to this, from a legal standpoint, Somaliland also qualifies as a state based on the 1933 Montevideo Convention. Therefore, the question is not if Somaliland should be recognized, but rather why this recognition is not forthcoming? The main reason for this seems to be geopolitical.