Somaliland’s Struggle for Statehood
A Shadow on Tomorrow’s Dreams:
Somaliland’s Struggle for Statehood
PREFACE
“Don’t let today’s disappointments cast a shadow on tomorrow’s dreams”
EXECUTIVE SUMMARY
For the past quarter of a century, Somaliland, formerly a British protectorate and later united with Italian Somalia in the Somali Republic, has governed itself as an independent State. Yet, it is not recognized as an independent State within the African Union or in the broader community of States; it is acknowledged as only an autonomous region of Somalia. Somaliland, an oasis of tranquility and order in a turbulent part of the African continent, and its peaceable and responsible people, deserve better.
Correction of that above narrative: Somaliland was British protetorate and gain independence as the Republic of Somaliland in 26th June 1960 then 5 days tried to united with fomer Italian Somalia in 1st July 1960. However, I emphasis “tried” since there are many loophole about the act of union: both countries wrote their own union, which neither signed including the union should be follow the process of treaty and again neither have done. Therefore, both countries were living together as “de facto: Somali Republic” an illegal marriage from 1960 to 1991. Until Somaliland liberated its territory from the fraud annexion of Somalia.
The Somaliland argument for recognition as an independent State has substantial merit in international law. Somaliland claims an historic title to statehood, having been a sovereign State after independence from the United Kingdom until its union with Italian Somalia five days later. The agreement for that union was arguably imperfectly concluded and therefore invalid. More tellingly, Somaliland satisfies the tests for statehood as set out in the 1933 Montevideo Convention on the Rights and Duties of States; it has a permanent population, a defined territory, a government and a capacity to enter relations with other States. Indeed, the Somaliland authorities have been effective and fully functioning in governing the country and its people, to the exclusion of any other governing authority, and in establishing (limited) contacts with other States, for 25 years. While the Montevideo Convention explicitly declares statehood to be independent of any recognition by other States, the reality is that it is only through recognition that an entity can be a full member of the international community, with its attendant benefits.
False narrative: The options available to Somaliland are, in essence, three in number. First, to remain in the shadow of non-recognition, the status quo, would leave Somaliland a de facto, but not a de jure, State, unable to join important international organizations and to access the inward investment and multilateral and bilateral aid that it needs. Secondly, Somaliland could seek formal status as an autonomous region of the Federal Republic of Somalia, along the lines already adopted for the neighboring region of Puntland. That option, while probably politically attainable, would not necessarily address Somaliland’s trade and investment requirements, and moreover would lose for Somaliland its hard-won and long-standing independence of action to the world’s leading failed State.
Correction of the above narrative: Somaliland were never a de facto country, that word has a lot of bagage: first, it stated Somaliland is a region and not a country, and that is false since Somaliland gained independence from Great Britain in 26th June 1960. Second, Somalia can never be a parent state for two reason: Somaliland gained first its independence from a European country and Somalia was Trusteeship from the UN under the colony of Italy. Therefore, two countries tried to united illegaly and not the common narrative of Somalia two regions united. The argument of Somalia expansionist fascist could be true if Somaliland was under Somalia before the British protectorate in the 1884. Mogadishu was under the Sultan of Zanzibar then sold to Italy during 1892, that proved Somaliland is a complete different country that shared no history with the rest of Somalia, except the annexion and occupation that happened in 1960 onward up to 1991.
As for Puntland: it is a construction of Darood and Hawiye in cahoots to hint Somaliland in its international relations. First, Puntland fantasy was created in 1998 then they wrote a copy of Somaliland constitution by stipulating Sool and Sanaag is part of a Somalia region of Puntland because there are minorite Harti living in a small areas. First, Somalia is in breach of international laws because of Puntland can NEVER claim in Sool and Sanaag or any parts of the Republic of Somaliland for two reasons: According to the confidential secret of April 1948, British proposal for rectification of the Anglo-Italian Somaliland boundary at Bender Ziada: “When two European countries contested before the decolonisation in the line of demarcation frontiers between Somaliland and Somalia: The protocol of 5th May 1895, between Great Britain and Italy provided that the boundary should follow the 49th meridian northward to the sea. When later observation determined that Bender Ziada was west of this meridian, contrart to the information available in 1894, a new Agreement was executed by the two powers on 19th March 1907, providing that Bender Ziada should remain Italian colony of Somalia. In 1929-1930, a mixed boundary commission surveyed and demarcate most of the line laid by the protocol of 1894.” Second, Somalia regional Puntland cannot claims any parts of Somaliland nor Ethiopia, which Harti living in both those countries as they are in breach of the AU, UN and the rest of the international laws but since this provocation is from the leadership of Somalia to embroil the Horn of Africa in warfare, the international community should support Somaliland and Ethiopia against this foreign aggressors stating: “ Somalia Hawiye and Darood own the lands and can do whatever they like and damn of the rest of the world.” Somaliland need to be protected at all costs from this Somalia expasionist ideology.
The third option for Somaliland is a continuation – but substantial intensification – of its existing efforts to seek recognition as an independent State. For that, it needs a clearly-focused and multi- faceted recognition-seeking strategy, mobilizing all its resources including the Somaliland diaspora. Central to securing recognition will be the role of a patron, a State or States with a special interest in and commitment to the recognition of Somaliland independence.
1. HISTORICAL CONTEXT
To understand the internal and international dynamics of Somaliland presently, its tumultuous history must be explained to contextualize the issues Somaliland has faced when seeking recognition. Like many of the countries with borders prescribed by colonial powers, Somaliland was established as one of five protectorates located on the Horn of Africa in 1884. At that time, Somaliland was adopted as a British protectorate.
Somalia, Ethiopia, Djibouti, Kenya, and Somaliland all share a similar cultural structure. This region, the Horn of Africa, supports six large clan groups: the Dir, Isaaq, Darood, Hawiye, Digil Mirifle, and Rahanweyn. Often the Digil Mirifle and Rahanweyn clans are considered similar to one another because of their cultivator lifestyles, while the other four clans are mostly nomadic pastoralists. Each clan has separate customs and culture, but each clan lineage also has dozens of sub-clans and follow different bloodlines through paternity. Tension exists not only between the larger clans, but also between these sub-clans. Geographically, Djibouti is made up of a variety of ethnic minorities and Somaliland is predominately populated by members of the larger Isaaq clan, while Ethiopia remains fairly diverse with clan members from Isaaq, Hawiye, Dir, and some ethnic minorities spilling over from Djibouti. Kenya is occupied by both the Haawiye and the Dir clans. The southern part of Somalia is a smorgasbord of all five clans.
Stability in the region is often related to the relationships among the clans and sub-clans. Clan lineage is stressed in the traditions of Somaliland and around the Horn of Africa, stemming from the fact that these clans claim to be traced from the Prophet Mohammed. While clan lineage is important, a member’s friends and foes can vary depending on the interests at hand. In other words, family lineage does not bind a member to any specific loyalty, but can be mutable depending on regional, religious, or political affiliations.
Incorrect narrative: This clan structure and culture should be taken into account when considering the region’s colonial history. From 1896 to the period before World War II, the partitioned sections of British Somaliland and Italian Somalia operated independently of one another. During the War, Somaliland was overtaken by the Italian army until its defeat. Following World War II and the defeat of the Italian army, Somalia was repartitioned with Somaliland reinstated as a British protectorate. At that time, the greater part of Somalia was returned to the Italian government for ten years, but was then adopted as a U.N. Trusteeship territory until it gained independence. On independence, it was united with the British protectorate of Somaliland into the Somali Republic
Correct History: From 1884 to 1960, Somaliland was a British protectorate, with no partition from Somalia. This was briefly interrupted by an Italian occupation from August 1940 to November 1941, until British and its allied forces liberated Somaliland and parts of Ethiopia and Somalia. Aside from the illegal annexation of Somaliland by Somalia from 1960 to 1991, there was no prior connection between the two entities before the colonial period.
In 1960, when the Somali Republic initiated its political structure was formed from Italian constructs of government, which unfortunately failed in all measures against Somaliland. Along with an illegal-fitting governmental system, Somaliland rejected multi-times as a people as politicians the whole notion of italian false act of union.
By 1961, the Somali government held an illegal referendum which Somalia approved and Somaliland rejected. In that same year, some Somalilander officers staged a coup, demonstrating the Somaliland’ disapproval of the administration and lack of integration between the two countries.
Following the complete overthrow of the Barre regime in 1991, the government and general State of Somalia descended into chaos. Simultaneously, the Republic of Somaliland declared its independence and subsequently convened the Borama Conference, which produced a peace framework and a national charter. Somaliland created its own government, with the former Prime Minister of Somalia, Mohamed Haji Ibrahim Egal, at its helm, and a bicameral legislature which consisted of non-elected elders and elected “representatives.” Somaliland continued to improve its economy, security, and relations with Ethiopia, though the U.N. disapproved of the nation-state and refused to engage with Somaliland. The Republic of Somaliland, unlike the remainder of Somalia, has managed to avoid continuous conflict between warlords and other militias. Despite the absence of international support, the Somaliland government has managed to thrive.
2. THE SOMALILAND LEGAL CASE
- Historical Title
There are a number of documents identifying the legal case for Somaliland, but these documents are remarkably similar in that they all identify Somaliland’s historical title to land and a fraudulent 1960 Act of Union with Somalia as foundational elements in making the case for independence from Somalia. Having gained its independence from Britain in 1960, Somaliland was an independent nation before voluntarily entering into a failed union with Somalia. 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. Additionally, “The official Act of Union was passed retrospectively in January 1960 by the new National Assembly in which Somalia was overrepresented, [and] in the referendum of the new Constitution of the Somali State held in June 1961, the Somaliland population did not vote due to discontent with its intent, method, and management. Only less than 17% turned out and an overwhelming majority of them voted against the so-called Act of Union.” 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.
Biggest scam in the history of the Horn of Africa, to annex Somaliland State: 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. Together, people of Somali ethnic origin inhabited these five territories, as symbolized in the five-point star on the Somali Republic’s flag. The goal in creating a Greater Somalia was to aggregate the political, economic and social power of the Somalis in these five regions as they gained independence from colonialism. On June 26, 1960, Somaliland gained its independence from Britain. A few short days later, on July 1, 1960, Somalia too gained its independence.
Upon both Somaliland and Somalia gaining their independence, representatives from both nations met and agreed to sign an Act of Union as a step toward a Greater Somalia. Subsequently, one day after its independence, on June 27, 1960, the legislative assembly of Somaliland enacted the Union of Somaliland and Somalia Law. The Law was immediately effective in Somaliland, but, as set out in the Union agreement, it was supposed to be signed by the representatives of Somalia as well. This never happened. Rather, on June 30, 1960, the legislative assembly of Somalia met and approved “in principle” an Act of Union significantly different from the Act of Union agreed upon and implemented by Somaliland. 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.
The legislative assembly of Somalia requested that its government and the government of Somaliland agree upon a definitive single text of the Act of Union and submit this single text to the legislative assembly for approval. Instead of comparing and negotiating the differing versions of the Act of the Union, on July 1, 1960, members of the Somaliland legislature and members of the Somali legislature met and drafted a Constitution for the Somali Republic. This Constitution was adopted on the basis of an acclamation and a provisional President was elected. This election of a provisional President was taken in direct contradiction to the Constitutional requirement that the Act of the Union be signed by both Somalia and Somaliland before the election of a Provisional President.
Subsequently, the unconstitutionally-elected Provisional President issued a decree to formalize the Union. Similar to the previous steps taken to formalize the Union, this decree did not meet the legal stipulations required for conversion into law. It was never presented to the National Assembly as is required under Article 63(3) of the new Constitution, but was nonetheless regarded as a de facto act joining the two formally-independent States of Somalia and Somaliland.
After much debate about the legitimacy of having two different versions of the Act of Union, the National Assembly approved a consolidated Act of Union on January of 1961. The Assembly, comprising 90 members of Somalia’s Legislative Assembly and 33 members of Somaliland’s Legislative Assembly, determined that this Act of Union should be applied retrospectively. This new Act of Union did not encompass many of the protections the Somaliland version of the Act provided for its citizens, and it went so far as to repeal all legal documents inconsistent with the 1960 Somalia Constitution, specifically “the provisions of the Union of Somaliland and Somalia (Law No.1 of 1960)” except for Article 11(4). A denial of recognition of the Constitution and Union was also expressed by an independent judiciary, when a British judge presiding over the Mogadishu Supreme Court of 1963 acquitted all the accused in a case of treason on the grounds that there was no Act of Union between the North and the South (the alleged offence took place in the North).
The “fraudulent” ground upon which the Act of the Union was built gives light to the turmoil around the unification of Somalia and Somaliland. Somaliland existed as a sovereign nation- State until the Act of the Union, which fell short of legal treaty requirements mandated by international law. Nonetheless, the two nations have been operating in the eyes of the international community under the premise that the Act of the Union unified the two States into one.
- Somaliland’s Statehood
The second limb to Somaliland’s case is the assertion of statehood: “a notoriously vexing concept in international law. Though states have been the fundamental unit of the international system for over 400 years, there remains no generally accepted definition of statehood.” Despite the lack of consensus on a definition, the Montevideo Convention on the Rights and Duties of States of 1933 is generally cited as the primary international legal instrument defining the concept of statehood. According to the Convention, “[t]he state as a person of international law should possess” a permanent population, a defined territory, a government, and the capacity to enter into relations with the other States. These classical criteria for statehood were built on the principle of effectiveness among territorial units—or stated differently, the effectiveness of the governing body. Notably, “[t]he political existence of the state is independent of recognition by the other states.” Thus, statehood is achieved when the four conditions are met, regardless of political recognition. Recognition of a State, in contrast, “merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law.”
The second criterion for statehood, a defined territory, is a similarly flexible criterion: although a State must possess some amount of territory, there is no rule proscribing the amount of territory. Somaliland claims a rather vast territory on the Horn of Africa totaling approximately 68,000 square miles. The borders of this vast territory, according to Somaliland, have been clearly demarcated since the European colonization of the Somali people in the late nineteenth century. Concerned with establishing its territory to the exclusion of others, Britain signed colonial treaties with the French (1888), Italians (1894), and Ethiopians (1897), thus creating the British Somaliland Protectorate. The British maintained control over the region until June 26, 1960, when the nation declared its independence. “For the next five days, the United Nations and thirty-five other countries, including the United States, recognized Somaliland as an independent nation.” On July 1, 1960, Somaliland united with its neighbor to the south, Italian Somalia. After 31 years of being trapped in this regrettable union with Somalia, Somaliland revoked the Act of Union and reclaimed the colonial boundaries it inherited as a sovereign State in 1960.Specifically, Somaliland claimed, and continues to claim, the territory that stretches from the Red Sea and the Gulf of Aden to the north, to Puntland in the east, Ethiopia in the west, and Djibouti to the northwest.
In support of the claims to these borders, Somaliland’s Ministry of Foreign Affairs maintains that Somaliland “adheres to the colonial borders of the former British Protectorate of Somaliland and does not violate the OAU Charter or the Consultative Act of the African Union principle which require that former colonial borders should be maintained upon independence.” Crucially, the African Union’s fact-finding mission of 2005 affirmed these sentiments, noting that Somaliland was a unique case which should be judged “from an objective historical viewpoint and a moral angle vis-à-vis the aspirations of the people.” It should be noted, however, that the autonomous region of Puntland claims a portion of Somaliland. As a result of this territorial conflict, the existence of clearly-defined borders in Somaliland’s case could be contested. Nevertheless, international law does not require definitively-drawn boundaries. Rather, a State may exist despite other claims to its territory as long as it effectively exerts control over a certain coherent territory.
Somaliland unquestionably exerts control over most of its territory in a number of ways. It collects customs duties from ships that enter its port of Berbera, its coast guard patrols its territorial waters to prevent piracy, and its armed forces have even engaged in an armed conflict to defend its borders. The International Crisis Group supports this contention in a report that states Somaliland has “basic civil administration across roughly eighty percent of the territory.” Notably, the statement not only supports the assertion that Somaliland meets the second criterion by effectively controlling a coherent territory, but similarly satisfies the third criterion for statehood discussed below.
The third requirement for statehood under the Montevideo Convention is the requirement for a government, or more accurately, an effective government. This criterion is generally regarded as central to a State’s claim for statehood because an effective government is the basis for all the other criterion of statehood. Ultimately, “[t]he existence of functioning administrative and legislative organs will generally be a good indicator for effective governance.” Nonetheless, because “statehood is not simply a factual situation,” but rather, “a legally circumscribed claim of right” that is dependent on the facts of each case, government as a precondition for statehood is relative. In Somaliland’s case, its governing body has evolved over the years from a traditional mode of tribal governance in Somalia, to a representative democracy. It achieved this by constructing a set of governing bodies rooted in traditional Somali concepts of governance and through a series of clan-based conferences held since the late 1990s. By using its own customary norms, values and relationships, Somaliland has been able to successfully develop its own cohesion and legitimacy. Moreover, it has been noted that Somaliland has succeeded in building a democratic administration conducive to ensuring the respect and promotion of fundamental human rights.
In contrast to the Federal Republic of Somalia, Somaliland functions on the basis of an effective and working constitution. The National Charter, approved in 1997, defined the political and institutional structures of government for a transitional three-year-period, until a constitution could be adopted. After various amendments had been approved by the two Houses of Parliament in 2001, 97.1% of voters approved the provisional constitution and approved Somaliland’s independence. In accordance with the Constitution, Somaliland is administered by a democratically-elected government that includes an executive branch, a legislative branch and a judiciary. The executive consists of the President, the Vice President and the Council of Ministers appointed by the President. Pursuant to the Constitution, the legislative powers are vested exclusively in the Parliament, which consists of two Houses, the House of Representatives and the House of Elders (Guurti). The judiciary is independent and applies Sharia law as well as British and locally-enacted law. As to the administrative structure of Somaliland on the regional level, Article 109 of the Constitution reinforces the principle of a decentralized administration consisting of both district and regional government. The staging of local elections in 2002, presidential elections in 2003 and 2010, and parliamentary elections in 2005, provide strong evidence that Somaliland has maintained its commitment to the representative democracy it had in mind when it developed its Constitution. In its first presidential election, the 2003 winner was decided by just seventy- two votes, and yet, President Dahir Rayale Kahin was confirmed without violence.111 Moreover, in Somaliland’s second presidential election in 2010, power was peacefully transferred to the current president, Ahmed Mohammed Silanyo, making Somaliland “just the fourth state in Africa to witness a peaceful transfer of power from a defeated incumbent president to a victorious challenger.” Pursuant to Article 88 of the Constitution, the President is to hold office for 5 years. A third presidential election should therefore have occurred in May 2015. Nevertheless, in 2015, the upper house of parliament announced a postponement of presidential and parliamentary elections to April 2017. The delay contradicted the wishes of opposition parties which had previously agreed to a 12-month election postponement to allow more time for voter registration.114 They expressed concern that the government was delaying election preparation, especially voter registration, in order to extend Silanyo’s term.
In order to provide internal and external security, Somaliland has formed a regular police force, as well as a national armed force, consisting of approximately 12,800 men. The police and other forces in the security sector are often regarded as being “more respected, effective, and constrained than anywhere else in the eastern horn.” Moreover, in 2009, Human Rights Watch stated that Somaliland was largely peaceful and had generally avoided “serious internal conflict” since 1996. It also stressed that given the fact that “Somaliland is surrounded by the chronic instability and violence of Somalia, including Puntland, the long-running insurgency across the border in Ethiopia’s Somali region, and the interminable border dispute between Ethiopia and Eritrea,” Somaliland has been remarkably successful at preserving the peace. According to Somaliland’s Ministry of Foreign Affairs and International Cooperation, this peace and stability at home is all possible because of a culture of community self-policing.
In stark contrast to its Somalia, Somaliland’s central government also proactively confronts transnational terrorism and piracy. In 2005, for example, Somaliland pursued and intercepted an al-Qaeda cell trying to establish itself in Hargeisa. Ultimately, the judiciary tried fifteen alleged terrorists the following year. With regard to its anti-piracy campaign, Somaliland established a small Coast Guard that has seized numerous pirates that have passed through its waters. Working alongside coastal communities and other governments, the Somaliland Coast Guard continues to ensure that Somaliland’s maritime zones are free from piracy, trafficking and other criminal activities, thus allowing the Gulf of Aden to remain the main trade route linking Europe and the Middle East to Asia and Africa. Somaliland has also cooperated with neighboring States to implement the 2009 Djibouti Code of Conduct on Piracy. Accordingly, Somaliland works with U.N. member States and international organizations to address piracy, migration, maritime security and maritime governance issues.
An effective government has to do more than just provide its people with security. “A State must play a decisive role in serving the vital human needs of people from their birth to their death. These needs include education and professional training, assistance in all the eventualities of life and the provision of subsistence allowances where necessary.” Quite apparently, in order to provide these services to its people from their birth until their death, a State must have the financial means to do so. As of 2012, the Somaliland Government had an annual budget of approximately 18 million dollars. An estimated 70% of that was spent on the salaries of the State’s 26,000 employees. This would suggest that Somaliland does not have an exorbitant amount of money to provide Somalilanders with services. Nonetheless, Somaliland has been diligent in its efforts to make strides in these areas.130 Illustrative of these efforts are Somaliland’s two universities and several vocational colleges.131 Moreover, “on a day-to-day basis, the government has effectively reconstructed large parts of the infrastructure, including the establishment of telephone lines, the installation of traffic lights and the expansion of the airport. It has also recently adopted a comprehensive health-policy framework.” Summarily, as the economy of Somaliland continues to improve, so will its social services.
After years of trying to obtain statehood through the satisfaction of the Montevideo Convention’s criteria, Somaliland’s development of an effective government has not gone unnoticed by the international community. The U.N. High Commission for Refugees described Somaliland’s central administration as “maintain[ing] functional control over the national army; the police force and courts maintain public order; customs officials collect taxes at the port; the two houses of the legislature convene and debate bills; and at least some of the ministries are making serious attempts to play a constructive role in their assigned sector.” When compared to the rest of the Horn of Africa, the international community seems to agree that “in many ways [Somaliland] is the strongest political entity within the internationally recognized borders of Somalia.” In addition, the U.N. Secretary-General described conditions in Somaliland as being “calm” in contrast to the rest of Somalia, which he described as being “anarchic.”135 Somaliland’s Ministry of Foreign Affairs intends to maintain the country’s sovereignty and territorial integrity by, amongst other things, sustaining its status “as a peaceful neighbor that properly manages its borders, shelters refugees instead of producing them, [and] denies safe haven to terrorists and pirates.”
The final criterion for statehood is the capacity to enter into international relations. This capacity is no longer, “if it ever was, an exclusive State prerogative.” It is based on the international community’s desire that States have sufficient and independent power to fulfil their obligations in accordance with accepted international law. A State thus needs to have “competence, within its own constitutional system, to conduct international relations with other States, as well as the political, technical, and financial capabilities to do so.” Despite the international community’s skepticism, Somaliland has made a concerted effort to garner recognition, and in doing so has exhibited the capacity to enter into relations with other States.140 Over the past 25 years, Somaliland has been scrupulous in its efforts to cultivate the formal and informal relationships it has with States such as Ethiopia, the United Kingdom, Denmark, Sweden, Kenya, Djibouti and Dubai. As a result of these relationships, Somaliland has been able to open liaison offices in Ethiopia, Djibouti, the United States and the United Kingdom, and has even “hosted delegations from states like Pakistan, and from international organizations like the World Bank and the African Union.”143 Yemen has engaged in increasingly warm relations with Somaliland, largely for inter-regional political reasons.144 The United States has transferred former Guantanamo detainees into the custody of Somaliland’s government. And “conveniently, in 2003 a German court recognized Somaliland as a State for purposes of asylum law.”
Ethiopia, however, has arguably gone the furthest of all States in its unofficial recognition of Somaliland by entering into bilateral agreements for cooperation in various arenas. One arrangement, for example, allowed Somaliland to open liaison offices in Ethiopia, in exchange for allowing Ethiopia opening a trade office in Hargeisa. This seemed to be a more lucrative arrangement for Ethiopia, as the agreement granted Ethiopia access to Somaliland’s port of Berbera with the expectation that as much as 20 per cent of Ethiopia’s trade would flow through the port. In addition, there were agreements formalizing trade relations between Somaliland and Ethiopia, and a plan to establish customs offices along Somaliland’s border with Ethiopia. Perhaps even more groundbreaking, though, was a recent 30-year deal with Dubai to develop and manage a cargo port in Somaliland. The agreement between the Dubai and the Somaliland government stipulates that Dubai will control 65 percent of the project. Ultimately, although Somaliland has struggled to establish diplomatic ties, this inability does not limit its capacity to enter into relations.
Somaliland clearly fulfills all the requirements of statehood as set out in the Montevideo Convention and developed by practice, and it could be convincingly argued that it has done so for all twenty-five of the years that it has been independent from Somalia. Virtually the entire international community agrees that Somaliland meets all four criteria of the Montevideo Convention. In addition to meeting the Montevideo Convention criteria, Somaliland has all the outward attributes of a State; it has a flag, a coat of arms, a constitution, currency, stamps and territorial boundaries. It also acts like a State: it issues passports, engages in formal and informal cooperative arrangements with a variety of states and intergovernmental organizations, and has a police and military. Somaliland even sounds like a State: it has its very own national anthem. Despite all this, it seems that Somaliland will not effectively become a State until it is recognized as one. It is apparent, therefore, that fulfilling the criteria of statehood, or even functioning as a de facto State, are not enough to be a full member of the international community.
- Self-Determination
Fundamental to statehood is self-determination. The right to self-determination is an established human right under international law. Somaliland asserts its right to self- determination when making the legal case for secession from Somalia. Under international law, the right of a people to self-determination is a core principle and a preemptory norm that may not be derogated from.
Self-determination as a human right is a relatively new concept in the international community, born of post WWI political movements in Austria-Hungary as it broke into separate states. “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.” International support for self-determination continued throughout the 1950s and can be seen through the efforts of various instruments to enumerate what constitutes a “human right”. Additionally, self-determination is the legal foundation of decolonization. The notion of self-government of peoples is the basic concept of self- determination, and means, “no people must be forced to live under foreign domination or under a constitutional system which it does not agree to.” The International Court of Justice has affirmed that the right of self-determination is applicable to all non-self-governing territories. The I.C.J. advanced this principle in the East Timor case, stating the assertion that the right of people to self-determination has an erga omnes, or “towards all,” character and is “one of the essential principles of contemporary international law.” Again echoing this stance, in its advisory opinion issued on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the I.C.J. stated that the obligation to respect the right to self-determination is an obligation erga omnes, even outside of the colonial context. The right to external self-determination extends beyond the colonial context where the group at issue is subject to “extreme and unremitting persecution” coupled with the “lack of any reasonable prospect for . . . challenge.” The I.C.J. has not directly addressed the legality of external self-determination beyond the colonial context. “[I]nternational law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their ‘parent’ state,” but it also does not explicitly deny such a right.
Counter-narrative analysis: I always wonder what make Somalia, the “parent-state”, first is it that Somaliland State at 1960s didn’t contested the illegal act of union since Somaliland gained earlier its independence from the Great Britain? When two countries merged, there is in the international laws, no parent state, including why this terms is used against Somaliland:
- Self-determination (Somaliland gained its Self-determinition during the decolonisation from Great Britain at 26th June 1960)
- Secessionist (Somaliland from above arguments, never united with Somalia but it was illegal marriage as de facto inside Somalia)
- De facto (Somaliland has from legal points still has its de jure from 1960s, but it was occupied or annex whatever you want to called it)
Even with international legitimacy and recognition, self-determination has definitional qualifiers that peoples must meet in order to invoke its principles. In order for self- determination to apply, the following must be identified:
- the group that is claiming the right to self-determination (the “peoples”);
- the nature and scope of their claim;
- the underlying reasons for the claim; and
- the degree of the deprivation of basic human rights.
Applying these elements to Somaliland shows that they meet all of the criteria for self- determination as a human right.
The first and second elements may be condensed into one in the case of Somaliland. The group claiming the right to self-determination is the Somalis within the Somaliland territory; the nature and scope of their claim is a call for recognition as an independent nation-state separate from Somalia, as Somaliland was before the Act of the Union joined the two sovereigns. The third qualifier of self-determination, the underlying reasons for the claim, requires knowledge of the historical, cultural, social and economic status of Somaliland. In international terms, the reasons for a claim to secede ought to be compelling. Somaliland must show that the positive impact of secession, also known as the “maximization of community values,” on its inhabitants outweighs any potential negative impact upon Somalia, the surrounding region, or the international community.
The fourth and last element to be considered for self-determination, the degree of deprivation of human rights, is an element that rings strongly in the hearts and minds of many Somalis. In the Quebec opinion, the Supreme Court of Canada stated that secession may be available as a last resort in exceptional circumstances, such as where internal self-determination is completely blocked, and recognized self-determination in situations beyond the colonial context. The court stated, “the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social, and cultural development.”
Siad Barre, President of the Somali Democratic Republic from 1969 to 1991, headed a government that killed, tortured, and imprisoned thousands of Somalis. The human rights violations inflicted by the government during his regime included summary executions, rape, torture, unlawful detainment, and theft. Barre directed his savagery towards the wealthy, independent Isaq clan in Somaliland. The genocide of the Isaq clan is exampled in the military bombing and shelling of the northern cities of Hargeisa and Burao, along with Barre’s selective campaign to burn down Isaq towns. The 1988 civil war resulted in over 50,000 deaths and 500,000 being forced to flee and find refuge in Ethiopia. In addition, over a million unmarked land mines were placed in the North. The Barre regime brazenly committed numerous violations of both human rights and humanitarian norms. In doing so, the regime’s repression of the Somalis in Somaliland led to their organization and unification. In 1991, Somaliland declared its independence from Somalia and invoked its right under international law to self-determination. As is evidenced by the context and history leading up to this secession, Somaliland has identified all four elements of international recognition of self-determination. Since declaring its independence from Somalia, Somaliland has been acting as its own sovereign territory.
Somaliland’s reluctance to make self-determination central to its case for recognition as an independent State may arise out of fear of being ostracized by the African Union, as many argue that the maintenance of the territorial status quo in Africa is seen as the wisest course. However, in some instances, such as the case of South Sudan, exceptional circumstances and specific historical contexts have allowed the A.U. to acquiesce to secession.173 Given the exceptional circumstances and historical context of Somaliland’s union with Somalia, the A.U. would, if it were so minded, have ample reason to accept the legitimacy of Somaliland’s independence. With the current attitudes shown by A.U. and the international community, though, the question remains: where does Somaliland go from here? Somaliland has a strong legal case that it never lost its independence through its assimilation into Somalia, that it is a fully-fledged State and that its people have, and have exercised, their right of self-determination.
Yet, despite all that, without international recognition Somaliland remains in the shadow cast by Somalia. Its options are essentially three: to continue as a de facto State without recognition; to become an autonomous part of Somalia, following the Puntland model; or to become a de jure State though recognition.
3. 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. When the people of Somaliland voted on the issue of independence, 97% of voters (it was estimated that about two thirds of eligible people voted) opted for independence from Somalia. It is important to note that, while there have been some concerns that the vote was not representative due to the lack of a census at the time and the fact that tribal elders were making the decision as to who was eligible to vote, independent observers from the Initiative and Referendum Institute, a U.S. based non-profit, were able to observe the process and conclude that the vote met international guidelines for election procedures.175 Beyond this, keeping things the way they are raises a number of concerns as regards the health of the country’s economy, its security and the security of the surrounding region, and the future of its government.
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? The 2016 World Bank Study, Somaliland’s Private Sector at a Crossroads, indicates that Somaliland is faced with major constraints in the world of finance, land, taxation, and transport.176 When looked at in conjunction with the government’s capacity to deliver key regulatory and promotional services, Somaliland has had a difficult time reacting to constant changes in economy, regional setting, and society as a whole.177 The Ministry of National Planning and Development has recognized many of these limitations in the Government of Somaliland publication, Somaliland National Development Plan 2012-16, stating that it would “pursue outward-oriented policies that encourage foreign investment and exports with high added value.” For Somaliland, this is crucial, as 85% of inputs for business are imported, compared to the region’s average of 39%. Critical imports include food, fuel, and manufactured goods. Somaliland is limited in many ways from addressing these concerns and creating economic prosperity. First, the government operates with a limited budget of about $250 million. This allows the government a spending of roughly $72 per person, 0.065% of the average spending per person of the United Kingdom. It has been estimated that about 60% of the budget is spent on police and security forces, leaving only $100M to spend on all other areas of governance. Without statehood, Somaliland has a much more difficult path towards increased foreign investment and trade. Access to economic development tools made available through the United Nations and its affiliate groups create a much easier approach but are only afforded to its members.
Somaliland’s private sector has thrived in many ways since the days of the Siad Barre regime. Much of this growth can be attributed to the entrepreneurial spirit of the people, coupled with informal governance arrangements, reliance of pluralistic legal systems and deals struck between political authorities and the private sector. Even with this private sector growth, investments for foreign investors have been limited with a majority coming from the Somaliland Diaspora who remit up to $400 million a year. The recent memorandum of understanding between the Republic of Somaliland and DP World has brought hope to the region. DP World is one of the largest port operators with over 77 marine and inland terminals in 40 countries. The memorandum of understanding is part of a larger government-to-government agreement including recognition of passports, strengths the countries ties. The project includes a free zone, increases to the port of Berbera’s capacity and construction of a road between the port and the city of Wachaale. This investment, while critical for Somaliland, could be restricted while under Somalia. Somalia’s Auditor- General, Nur Jumale Farah, has already called the deal illegal since “The [Berbera port] deal goes against national laws. It manifests a disregard to the country’s traditional socioeconomic system, especially when we speak of what we call public-private partnership.”189 While it is still questionable as to what actions Somalia may take to prevent the deal from happening, the friction itself gives rise to potential conflict. If Somalia prevents the deal, Somaliland, as an unrecognized entity, will be without any legal recourse. In addition to being called illegal, the deal has been criticized as being as being overly generous to DP World, which will be receiving 60% of revenues generated by the port. Without statehood, Somaliland’s ability to build and expand upon infrastructure is severely limited.
The Government of Somaliland recognizes the need to build infrastructure and financial services. In the National Development Plan, infrastructure was the highest investment requirement out of the five main pillars for improvement requiring close to $490 million USD to achieve its goals. The DP World deal addressed some of the infrastructural and financial needs, but leaves Somaliland vulnerable to a private investor and potential threats from Somalia. The Government of Somaliland’s current reforms for improvement include changes to existing business laws regarding company, investment, mining, and taxes as well as a legislative framework for licensing and financial service institutions. While these improvements will certainly change Somaliland’s landscape for investors, it still will not cure the need for infrastructure necessary for the government to operate. This is not a new issue for developing countries, but, unlike Somaliland, typical developing countries have greater access to loans. Somaliland’s access to loans, particularly with the World Bank, will be limited as long as Somaliland is not recognized as an independent State. Currently, Somalia has borrowed over $500M USD from the World Bank. If recognized as its own State, Somaliland would have greater access to funds and would likely be more capable of paying them back than Somalia.
There is an argument that the lack of clarity in foreign investor law, especially the law pertaining to land rights, prevents investors from seeing Somaliland as a viable option. Somaliland authorities have recognized this and, through the National Development Plan, have begun addressing the issues found in the 2016 World Bank Study. Unfortunately, addressing these issues will not be enough to draw investors. China, one of the largest hubs for foreign direct investment, has attracted investors despite its lack of formality in law and in property rights. This can be partially attributable to China’s huge market, which is attractive to investors, but also to its infrastructure and ability to sign and negotiate multinational treaties where rules of law are established and formalized. Without statehood, Somaliland will likely be unable to compete in a realistic fashion with developing nations.
Somaliland recognizes the need for more international investment and trade, but options remain limited while Somaliland continues to be unrecognized. “About 70 percent of the population are younger than 30, and they have no future without recognition,” said Jama Musse Jama, a former mathematics professor who gave up his life in Italy to return to Somaliland and run the Redsea Cultural Foundation, which offers cultural and artistic opportunities for Hargeisa’s youth. “The world can’t close its eyes,” said Musse. “It should deal with Somaliland.”
The Horn of Africa is a region that, in general, is known for its conflicts.
Somaliland itself, on the other hand, has been relatively successful in maintaining security within its borders and waters, but that success is as fragile as the economy supporting it. Without recognition, Somaliland does not qualify for aid from many organizations, including the African Development Bank and World Bank. This is not to say that it is not receiving any aid at all. Rather, there are multiple NGOs struggling to provide funding to the beleaguered nation. The funding from these NGOs, however, is largely not reaching the places that it is needed. According to one report, only about 20% of aid money is being distributed where it is needed; the rest getting used up in overhead.
Somaliland is also a target for jihadist destabilization. Earlier in the century, parliamentary elections were targeted by a jihadi Islamist network objecting to both independence and the Western electoral system (the phrase that Al-Shabab used has been translated as “the devil’s principles”). In 2008, Somali Islamists bombed a U.N. compound and the Ethiopian consulate in Hargeisa. For now, Somaliland’s Coast Guard is able to combat piracy in their waters, and security forces have had some success in fighting Islamist operations, but the lack of funds is keenly felt.
Continued government operations, too, are suffering from a lack of aid. Poor funding has resulted in delays in the election process. In addition, the U.N. itself has proven unwilling in the past to send election officials to help establish polling stations and certify election results. This year, Somaliland was able to institute a new voter registration system, but funds are still needed to develop it and maintain an active and accurate database. With jihadist attempts to destabilize elections considered, the future of such elections in Somaliland is uncertain.
It should be noted that there are many issues that the international community has identified in Somaliland that will not necessarily be addressed by changing course. Amongst these is the local addiction to khat, a leaf that has been chewed in the region for thousands of years, and has been connected to problems in productivity (the World Health Organization identified khat as a drug of addiction in 1980, and many countries, including the U.S., have made its use illegal). An estimated 20% of the population uses this drug, pouring anywhere between 450 thousand to 3 million dollars into the industry every day.206 Another issue is the practice of female genital mutilation, which is performed on an estimated 95% of young women in the country. That having been said, however, there are still many advantages for Somaliland in altering course, and few benefits in keeping things the way they are. What’s more, these issues, having survived for centuries and endured multiple political changes over the years, show no signs of being addressed as things stand. Recognition, and the associated access to new forms of aid and access, may lead Somaliland to address these issues as it seeks to establish itself internationally and encourage support from the international community.
The case for leaving Somaliland in its current state of internationally un-recognized limbo is difficult to justify. The primary arguments for it, which seem to center around fears of a balkanization of the surrounding African region along tribal lines, belie the already- fractured reality of the area as well as the success that Somaliland has had maintaining a central government over a quarter of a century. In contrast, the disadvantages of staying the course and maintaining the status quo are many and varied, harming both the people of Somaliland and the stability of the region.
5. THE DREAM REALIZED: RECOGNITION
Somaliland sees itself now and in the future as a sovereign and independent nation. In any analysis of the Somaliland issue, that has to be a given, evidenced in many different ways. First, Somaliland emphatically declared itself independent from its thirty-one-year long union with Somalia in 1991. Secondly, Article 1 of the Somaliland Constitution enshrines a sovereign and independent nation of Somaliland. Thirdly, in 2011, the government of Somaliland released a report titled Somaliland Vision 2030, which is premised on the assumption of an independent Somaliland. Fourthly, over one million people voted to affirm the Somaliland Constitution, which enshrines independence, in a national referendum. Lastly, a clear demonstration of the heart-felt pride the people of Somaliland have in their country’s independence and the goal of eventual sovereign recognition was the outpouring of joy celebrating Somaliland’s silver anniversary of independence from Somalia in May of this year. While the desire and determination of the government and the people of Somaliland for recognition is clear, their route to that goal is less so.
- Intention and Will to be an Independent State
The 1991 declaration of independence is the starting point of Somaliland’s struggle to gain international recognition as a sovereign nation independent from Somalia. Since the declaration of independence, the next major step the government has taken towards promoting its independence and international recognition has been the publication of the Somaliland Constitution. The Constitution describes the structure of the three branches of government and sets forth individual rights and liberties.248 The Constitution also declares unambiguously the intent of Somaliland to be an independent and sovereign nation. This intent is shown by the Preamble and the first seven articles of the Constitution, which clearly establish the building blocks of an independent and sovereign State.249 The Preamble expresses a desire “to build together a state in which everyone has equal status.” Article 1
declares that the country “shall hereby and in accordance with this Constitution become a sovereign and independent country known as ‘The Republic of Somaliland’.” The Constitution, which was affirmed in a national referendum, is clear intent of the government and the people to remain independent today and, one day in the future, to secure international recognition of their sovereignty.
A more recent example of the government’s intent to be an independent and sovereign nation is found in its Somaliland Vision 2030. The report is a “road map for Somaliland’s long term development, aspirations and goals.” Woven throughout the document is the assumption that Somaliland will remain an independent nation. The document does not directly address whether (or how) Somaliland will achieve international recognition in the future, and the report is written to reflect the point that Somaliland’s future goals do not hinge on international recognition. The Somaliland Vision 2030 is revealing for several reasons. It shows that the government continues to envision itself as an independent nation in the future but, at the same time, recognizes that international recognition of its sovereignty may still be an elusive goal some years in the future.
In a democracy, a national referendum on the constitution is a strong signal of the will of the people because the people directly vote on a narrow issue. On May 31, 2001, Somaliland conducted a national referendum on whether to affirm the Somaliland Constitution. The referendum can also be viewed in the context of affirming independence because the Somaliland Constitution has a specified and explicit acknowledgement of an independent and sovereign Somaliland. In short, the question of constitutional affirmation of Somaliland’s independence and sovereignty was posed directly to the people of Somaliland.
It is estimated over two-thirds of eligible voters cast ballots, and the final referendum results were 97% voting in favor of affirming the Constitution.252 Even assuming that one-third of electorate who did not take part in the referendum were uniformly opposed to the Constitution and the inherent inclusion of independence, an overwhelming majority of the people of Somaliland supported an independent and sovereign Somaliland. An international non-profit organization monitored the referendum and declared it was conducted “openly, fairly, honestly, and largely in accordance with internationally recognized election procedures.” The referendum was peaceful and only minimal irregularities and a few procedural violations were noted by the observation group. The vote was free and fair, and is proof the people of Somaliland desire to be an independent and sovereign nation.
Finally, Somaliland recently celebrated the twenty fifth anniversary of declaring its independence from Somalia. In the capital city of Hargeisa, over 500,000 people filled the streets to celebrate 25 years of independence from Somalia.253 The number of revelers celebrating a festive occasion of this sort may not be dispositive in the legal case for Somaliland independence and recognition, but the half-million revelers in a city of only three-quarters of a million does offer evidence of the intense pride the people of Somaliland feel in their nationhood.
- The Recognition Handicap
There are several factors standing in the way of Somaliland achieving recognition. Somalia, arguably the parent nation in this situation, is opposed to recognition of Somaliland; there is opposition from the African Union, and western nations are thus far unwilling to make the first move on recognition because there seems to be a belief that any recognition of Somaliland should start in Africa. Further, the United Nations’ plan for Somalia is to bolster and support the creaking Federal Republic of Somalia, which in its current design includes Somaliland.
Under international law, Somaliland does not need the explicit permission of Somalia to gain recognition. In a very real sense, it would have been impossible for Somalia to give its approval because, for the vast majority of the time since Somaliland declared independence in 1991, Somalia had no functioning government. Yet, the continuing opposition from Somalia to Somaliland’s independence and recognition remains an impediment to Somaliland’s goal of recognition.
In sum, the African Union and the international community at large are hesitant to recognize Somaliland’s independence over the objections of Somalia. This hesitation pays absolutely no regard to the merits of Somaliland’s legal case for recognition. A settled agreement between Somalia and Somaliland on independence would, of course, allow recognition to take place without breaching the A.U.’s proclaimed stance on territorial disruption.
The African Union does not recognize any post-independence, self-determination claim that impacts the territorial integrity of a member State. The A.U. does not recognize secession primarily because secession does not promote African unity and it fears that any recognition of secession may spark a domino effect of further secession attempts. Though States that have unilaterally seceded can freely operate without A.U. assistance, the importance of A.U. recognition cannot be underestimated. Lack of A.U. recognition results in less aid and support from the region generally. Further, A.U. recognition is a growing requirement for being recognized globally. For example, the United States, Europe, and Canada have exhibited hesitance towards recognizing self-determined States that the A.U. does not itself recognize.
The Organization of African Unity, later replaced by the A.U., adopted a resolution in 1964 under which “all Member States pledge themselves to respect the borders existing on their achievement of national independence.” That is taken to mean that there can be no secession within existing, post-colonial States in Africa. Many argue that the maintenance of the territorial status quo in Africa is seen as the wisest course. The importance of stability for economic development and independence has induced African States to insist on the maintenance of colonial boundaries and to interpret the principle of self-determination accordingly. Neither the A.U. itself nor any of its 54 members has recognized Somaliland as an independent State. Somaliland separated from Somalia in 1991 after the collapse of the existing Somalian government. Though operating as a successfully independent country, Somaliland is not recognized within the A.U. because it unilaterally declared itself independent rather than constitutionally separating from its parent State.
In light of the A.U. determined stance on secession, States outside of Africa are hesitant to recognize Somaliland when there is no consensus to do so in Africa. Additionally, the international community wants to support the Somalia political process which calls for a federal Somalia that would include Somaliland. By Resolution 2012 (2013), the U.N. Security Council established the United Nations Assistance Mission in Somalia (UNSOM), whose mandate is to restore and governance, security and economic development in Somalia. According to its Preamble, this resolution is explicitly based on “respect for the sovereignty, territorial integrity, political independence and unity of Somalia.” This UNSOM mandate, approved by the U.N. Security Council, is directly opposed to the independence and recognition of Somaliland. The U.N. has never officially stated that it is opposed to Somaliland recognition, but it has also not changed course on its UNSOM mandate and support of the Federal Government of Somalia. In the eyes of the international community, the question of Somaliland independence and recognition is, in essence, an unresolved question between Somalia and Somaliland, for which solutions imposed from afar are disfavored.
However, in some cases, most notably South Sudan, exceptional circumstances and specific historical contexts have allowed a departure from the A.U.’s stance on secession. The A.U. recognized South Sudan because the split from Sudan was negotiated with the parent State. South Sudan’s secession in the face of A.U. opposition to breaking up colonial boundaries was only possible through the intervention of the international community, particularly through the patronage of the United States.
Starting in the 1960s, Sudan was embroiled in bitter and violent internal conflicts between Northern Arab Muslims and Southern Christians and animists. It was “the longest-running conflict in Africa, an estimated two million southern Sudanese lives were lost by the time the war ended in 2005.” In 2005, the Comprehensive Peace Agreement finally ended the war, declaring a ceasefire and allowing South Sudan the opportunity to eventually secede. In a 2011 referendum, 98.8% of South Sudan voters chose independence. Fulfilment of the South Sudanese desire for independence would not have been reached without American involvement.
While the U.S. was involved in attempting to ameliorate the Sudan conflict during the Clinton Presidency, the involvement gained momentum during the Bush administration.269 Bush’s “aides said the former president, pressed by evangelical activists, viewed ending the civil war in Sudan as a ‘legacy item’ for his foreign policy. Bush appointed a special envoy to focus on peace negotiations, which finally bore fruit in 2005.”270 The Bush administration was influenced by evangelicals who were concerned about Arab Muslims in Northern Sudan oppressing the Southern Sudanese Christians. With the U.S. backing, the South Sudanese people’s hard-fought goal was finally achieved. The U.S. was highly involved in every step of South Sudanese independence, and that involvement certainly did not end with the declaration of the peace agreement. A Sudan Caucus was formed, and along with brokering the peace deal, it “also secured over $6 billion in humanitarian aid, between 2005 and 2010, to the war-affected areas in Sudan. According to statistics from the U.S. Official Development Assistance database, Sudan has been the third largest recipient of U.S. aid since 2005, trailing only Iraq and Afghanistan.”
For Somaliland, there is much to learn from South Sudan’s triumphs and struggles. First, it seems that currently the most successful way to overcome the A.U.’s opposition to fragmentation of African countries is through patronage from a major world power. South Sudan accomplished recognition with the United States’ backing, largely due to the plight of the South Sudan Christians during the evangelical-influenced Bush administration. On the South Sudan precedent, it might be possible for Somaliland to attract patronage from an influential world power, especially considering the ways in which it contrasts with South Sudan. While South Sudan has been caught up in violence and instability, Somaliland has had a stable, functioning government for 25 years. Rather than facing the creation of a new regime upon independence, Somaliland generally operates on its own already. In other words, Somaliland is manifestly equipped for independence where South Sudan was horribly unequipped.
- Achieving Recognition
That Somaliland wants recognition of its independence and sovereignty and that there are substantial obstacles in the way of securing recognition are beyond debate. The question that remains is to identify whether there are means whereby Somaliland can realize its dream.
The President of Somaliland has taken an important and practical step towards achieving recognition by appointing a high-level National Recognition Committee (NRC), which is tasked with developing recognition strategies. One obvious strategy the NRC could adopt would be to follow the example of South Sudan and seek the patronage of a powerful existing State or States to support and advocate for Somaliland’s case in the international community. In this type of relationship, the patron would, one assumes, publicly recognize the unrecognized Somaliland and advocate for others to do likewise.
Any recognition-seeking strategy for Somaliland that involved seeking a patron State or States would have no difficulty finding obvious (though not necessarily willing) candidates. The options are wide-ranging, but might involve leveraging an existing relationship, transforming a commercial agreement, providing military facilities or pursuing an “amicable divorce” from Somalia.
One obvious option for Somaliland would be to turn an existing relationship into a recognition/patron relationship. Somaliland has a special and unique relationship with the United Kingdom because of the U.K.’s history as the one-time colonial master. Because of the U.K.’s colonial connections to Somaliland, starting in the 1880s and extending to 1960, Britain has a special responsibility to Somaliland. That responsibility is compounded by the U.K.’s pivotal role in uniting British Somaliland with Italian Somalia, a union that has palpably failed. Somaliland could present a compelling case that its special relationship with the U.K. involved, for the U.K., special responsibilities, and that among these responsibilities was support for recognition.
This possibility seems to be already in the thinking of the Somaliland government. The Foreign Minister has stated that the recent Brexit vote to withdraw from the European Union might “make it easier for the British government to make up its mind” in supporting recognition for Somaliland.274 This statement is a clear reference to the possibility that the U.K., post-Brexit, will not necessarily be tied into the E.U. support for a unified Somalia.275 Once Brexit is complete, the U.K. would, it is argued, be free to pursue a foreign policy on its own without regard to the consensus of 27 other EU members.276 When the U.K. and Somaliland were negotiating the end of colonial rule in 1960, the Somaliland delegation hoped it would be possible for the U.K. to continue to give advice and help after the end of the colonial period. Acting as Somaliland’s recognition patron would be just the help envisioned over 50 years ago.
Another option to secure a patron would be by leveraging or modifying commercial agreements. For example, Somaliland and DP World, which is majority-owned by the United Arab Emirates government through a series of holding companies, recently entered into a commercial agreement giving DP World management control over the port of Berbera for the next thirty years. Arguably, an agreement such as this involves a degree of “recognition” of Somaliland as an entity, if not as an independent and sovereign State. As Somaliland works to open up exploration and exploitation of its natural and other resources, it will enter into agreements with commercial undertakings abroad. One assumes that these agreements are beneficial to any undertakings’ home State; and Somaliland might leverage that perceived benefit to secure a patron.
A third option would be to offer potential patrons space to set up military bases within Somaliland. Its northern neighbor, Djibouti, currently hosts a permanent foreign military presence from the United States, Germany, France, Japan, and China. Neighboring Somalia and Puntland, host a permanent or semi-permanent military presence from the United States. As a region, the Horn of Africa is a particular hotbed of terrorist and pirate activity that many Western and Asian powers are interested in combatting. Somaliland has an opportunity to leverage its strategic location on the Horn of Africa to capitalize on the desires of these countries, and perhaps others, in seeking new locations or expanding their operations in the area.
Somaliland could also pursue an “amicable divorce” with Somalia, which would require an agreement on the terms of their separation. A patron might be found to facilitate these negotiations. Somalia and Somaliland have recently held several formal meetings. Since 2012, official representatives from Somalia and Somaliland have met in the U.K., the United Arab Emirates, and in Turkey. These meetings have largely centered on issues such as airspace management, movement of people, passports and trade, and have not been formal negotiations for recognizing the independence of Somaliland. A patron could be instrumental in transforming these meeting from discussions of administrative matters into substantive talks about separation and recognition. This is a realistic option, as evidenced by the “amicable divorce” between Eritrea and Ethiopia and South Sudan and Sudan, the latter largely facilitated by the United States. An “amicable divorce” would effectively overcome any A.U. opposition to separation and achieve recognition in Africa. Looking to recent international precedents, an “amicable divorce” is an important step in achieving international recognition.
The principal task of Somaliland’s recently-established National Recognition Committee is the elaboration of new recognition strategies. One such strategy could be the identification of possible patrons. In this, Somaliland is not pursuing its dream of recognition in a vacuum. Out of necessity and practice, it has, for a quarter of a century, operated as a fully- functioning State; it has already undertaken diplomatic and commercial relations with neighboring and more distant States; and it has a vibrant diaspora of 200,000 willing and able to promote the recognition agenda. The shadow will be lifted and the dream of recognition will be realized if Somaliland applies itself to its new priority as it did to establishing itself as a de facto State.
INTERNATIONAL LAWYERS FROM USA UNIVERSITY CREATED THIS REPORT
Editors: Demi Jacques, Dayna Jones, Neda Shahram, A. Lee Stone, Julie Sugano
Communications Officer: Neda Shahram
Graphic Designer: Marija Boise
Contributors: Marija Boise, Lekha Fernandes, Chris Huettemeyer, Demi Jacques, Dayna Jones, Julie Sugano,
Michael Thomas, Ashlyn White
COUNTER-ANALYSIS CREATED BY SOMALILANDERS
