January 24, 2013 ·86 Comments
I. Introduction After a bloody civil war, in January 1991 Siad Barre’s Twenty-one-years regime was over thrown in Somalia. 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 independent states, the Northern Somaliland, a British Protectorate and Southern Somalia, an Italian 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 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 Hobbesian nightmare of inter clan 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, Hawiy e, and Darood, and the dynamics of interaction between them determines the distribution of political power in Somalia.
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 disparities 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 intended 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 a s 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 ab out this precipitate union. The first was the proposal by the British Foreign Secretary Mr. Bevin 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 th e 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 Somaliand “ 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 leg al 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 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 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, there is a right to secede from a state, if the political establishment engages in such gross and grave 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 Hargeisa 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.
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-determination claims lay in historical 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 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 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 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 “declaratory” 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 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 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 in stability on the Horn of Africa 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.
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 contributed 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 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 Somalia concept, and en able the people of Somaliland to reclaim their future.
ANIIS A. ESSA. DIRECTOR
SOMALILAND ADVOCACY GROUP