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Supervised By Prof. Joshua Castellino, Irish Centre For Human Rights
July 2004 – Part IV
CHAPTER II – HISTORICAL BACKGROUND [cont..]
8. The Disintegration of Somalia and the Birth of the Republic of Somaliland
While the war continued to rage in southern Somalia, the north followed a different path. Until 1991, the SNM wished for a unified Somali State with guaranteed regional autonomy for the north. This aim, however, rapidly changed as from January to May 1991 countrywide traditional peace conferences (shir) were taking place in the north with an important involvement of clan elders (guurti). One of the key factors of these conferences was the integration in the peace process of all clans of the region, Isaaq, Harti and Dir, in order to create regional stability. This was not without difficulty, particularly as some of the non-Isaaq clans had aligned themselves, to a lesser or greater degree, with the Siyad’s regime before its fall. These “low-cost, local-clan based peace initiatives” contrasted sharply to the “high-profile, internationally sponsored and highly unsuccessful conferences” in southern Somalia. These striking differences in the peace-making process between north and south was further reinforced by the presence of numerous power-hungry fighters around and in Mogadishu and the divisive impact of foreign aid, which proved to be contributing to the continuity of the war in the south during the following decade.
The conferences in the north achieved relative peace and stability but they also, quite suddenly, led to the self-proclamation of the Republic of Somaliland on 18 May 1991, when the leaders of the SNM and the elders of northern clans, meeting at the “Grand Conference of the Northern Peoples” (Shirweynaha BeelahaWaqooyi) in the town of Burco revoked the 1960 Act of Union, thereby reverting to its status at independence on 26 June 1960. For the northerners, this proclamation of independence reflected the wishes of the overwhelming majority of the people and was fully justified in light of all the history of neglect and the human rights abuses that the north had suffered at the hands of Mogadishu. In the south, however, this was considered as an act of defiance which was strongly resented and as the end of any hope for the unity of the Somali nation. Mohamed Osman Omar commented that:
“Since 1960, when former British Somaliland and former Italian Somalia were united as one country, they had kept the candle burning for the eventual freedom and unification of all Somalis. With the recent secession of the northern region, and the celebration in 1991 of a separate Independence Day by northern Somalia, the Somalis’ national dream of uniting the five Somali regions under one flag lay totally shattered. It is truly ironic and indeed tragic, that if the policies of our colonial masters are compared with those pursued by our own leaders, we are left with serious disappointments, and a catalogue of missed opportunities and lost chances. We have committed atrocities - untold atrocities - against ourselves. It was the colonialist, Mr. Bevin, who once advocated the cause of uniting all the Somalis into a Greater Somaliland. Yet our leaders, since independence in 1960, successively, either gave away or created conditions to divide all the territories which we claimed ours.”
Since its auto-proclamation of independence Somaliland has committed itself to enhancing democratic principles and has maintained relative peace and stability within its territory. Southern Somalia, in contrast, has been unable to form any kind of government so far and to bring peace to its population. Therefore, what is a complete paradox today is that, while the Republic of Somalia, who de facto disintegrated in 1991 and whose southern part constitutes a perfect example of “failed State”, is still recognized as a State by the international community, Somaliland, who has a functioning and democratically elected government, remains unrecognized. In order to comment on this situation which represents a curiosity, it is necessary to explore the criteria of statehood in contemporary international law and examine whether Somaliland is a State and whether it should be internationally recognized.
CHAPTER III – CLASSICAL CRITERIA FOR STATEHOOD
Despite the evolution of international law and the increasing number of entities which fall within its scope, States remain the principal subjects of that discipline. However, in spite of their central role, “there is still no generally accepted and satisfactory modern legal definition of statehood” in international law. The classical criteria for statehood were laid down in article 1 of the 1933 Montevideo Convention, which reads as follows:
“The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.”
The above criteria are all based on the underlying principle of effectiveness, which can be defined as “the quality of a fact (here the exercise of power or territorial jurisdiction), which - according to international law - makes this fact suitable as a condition for the attribution of full legal personality.” In order to establish whether Somaliland has a valid claim for statehood in international law, it is essential to establish first whether it meets the traditional criteria.
1. Permanent population
Somaliland has a population of three to three and a half million, according to the Initiative and Referendum Institute. The precise number is unknown as there has never been a census. In this context, however, the exact number as such is not relevant as “no minimum limit is apparently prescribed” to qualify for statehood. More difficult is the question of whether a population which is over fifty per cent nomadic falls within the definition of permanent population, which seems to imply a notion of stability. It can be argued that the fact that a large number of nomads are moving in and out the country is not in itself a bar to statehood, as long as there is a substantial number of permanent inhabitants, as is the case in Somaliland. Furthermore, despite the movements of its population, a real common sense of identity among Somalilanders is emerging, enhanced by the fact that they are socially and politically organized, which is what seems to be required by the adjective “permanent”. In addition, although citizens as such do not always constitute a permanent population, it may be a good indicator of that population. In this regard, Somaliland has adopted clear rules of citizenship and incorporated them in article 4 of its constitution, which states that “any person who is a patrial of Somaliland, who is the descendent of a person who residing in Somaliland on 26 June 1960 or earlier, shall be recognized as a citizen of Somaliland.” Due to the comprehensible Somali clan lineage system, it is relatively easy to situate each individual within a clan or region, thereby facilitating the identification of Somalilanders.
2. Defined territory
As for the territory, Somaliland reverted to its colonial boundaries as delimitated in 1960, which were established by international treaties signed between 1888 and 1897. There is currently a dispute between Somaliland and the Puntland administration (which auto-proclaimed itself an autonomous region of Somalia in 1998) regarding the Sool and Eastern Sanaag regions. Notwithstanding the fact that both regions are included within the legally recognized boundaries of the former British Protectorate of Somaliland, Puntland has recently claimed them on the basis that they were mainly inhabited by members of the Harti clan (Dhulbahante and Warsangeli), a minority clan in Somaliland but a majority clan in Puntland. Most experts, however, are very sceptical about Puntland’s real motivations in relation to its claim and support the idea of some kind of special status for those two regions or an agreement to leave an open border between them. Legally speaking, Somaliland is in a position to assert that it has a defined territory despite Puntland’s claims over part of it. Indeed Crawford suggests that “a new State may exist despite claims to its territory, just as an existing State continues despite such claims,” the only requirement being that “the State must consist of a certain coherent territory effectively governed”, which leads us to the third criterion of statehood, an effective government.
3. Government
Crawford regards government as “the most important single criterion for statehood, since all the others depend upon it”. He identifies two aspects to this criterion: the actual exercise of authority, and the right or title to exercise that authority. For Warbrick, the requirement that the government be “effective” is a Weberian view of the State, where the public authorities have the monopoly of legitimate force within the territory. What is relevant is the “actual exercise of public power over the people and within the territory of the State.” It is undeniable that Somaliland has established a government which is effectively in control of its territory and that its population regards as legitimate. A point which could be raised, however, is the extent of the government’s control over the Sool and Eastern Sanaag regions. It has been previously indicated that these regions were claimed by the Puntland Administration on the basis of clan ties. Although tensions exist between Somaliland and Puntland and the dispute will need to be properly addressed through peaceful means in the future, both sides have so far managed to avoid major confrontation by pursuing their mutually exclusive claims in a “live and let live” spirit. Despite the uncertainty as regards the authority exercising effective control over the Sool and Eastern Sanaag regions, it seems to be sufficient, for the purpose of meeting the “effective” government criterion in international law, to demonstrate that a government controls the major part of its territory, which is undoubtedly the case in Somaliland. It can therefore be concluded that Somaliland meets the “effective” government requirement.
4. Capacity to enter into relations with other States
Capacity to enter into relations with States is no longer the exclusive prerogative of States. Although States pre-eminently possess that capacity, Crawford sees it rather as a consequence of statehood. Warbrick explains that instead, “the capacity referred to indicates a legal authority to do so - legal independence which permits the government to make arrangements it wishes with foreign States and to give effect to them domestically where that is necessary.” Judge Anzilotti’s definition of independence in the Austro-German Customs Union Case has become the locus classicus and deserves quotation:
“… [T]he independence of Austria within the meaning of Article 88 is nothing else but the existence of Austria, within the frontiers laid down by the Treaty of Saint-Germain, as a separate State and not subject to the authority of any other State or group of States. Independence as thus understood is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law … It follows that the legal conception of independence has noting to do with a State’s subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterize the relation of one country to other countries. It also follows that the restrictions upon a State’s liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these criterions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.”
Applying this definition to the case of Somaliland invites us to verify two elements: first, whether Somaliland is an entity with separate existence within reasonably coherent frontiers and second, whether it is subject to the authority of any other State of group of States. There is no doubt that Somaliland established itself as a separate entity from the Republic of Somalia in 1991 when the auto-proclaimed Republic, which used to exist as a separate entity as a British Protectorate, reverted to its colonial borders and declared itself independent. It has also been mentioned that since its proclamation of independence, Somaliland created its own system of government independently of any external influence, thereby being the only source of authority within its territory. In addition, although Somalia, backed by the international community, claims a right to exercise authority over Somaliland’s territory, it has not been in a position to do so, since it has itself been without any form of government for the last thirteen years.
As for Somaliland’s lack of international recognition, it could be argued that this factor can limit Somaliland’s freedom of action in relation to its external affairs, thereby affecting its independence. Although, in practical terms, this is true to a certain extent, the lack of recognition as such does not prohibit Somaliland into entering into relations with other States. Somaliland has the capacity to do so, the only difficulty residing in finding States who are willing to have relations with it. Therefore the lack of recognition is not sufficient to establish a lack of independence and to disqualify Somaliland in its claim for statehood.
Further to these traditional criteria for statehood, which are all met by the auto-proclaimed Republic of Somaliland, other criteria have emerged as a result of modern developments in international law. These modern criteria are based not on effectiveness but on lawfulness of the process as a result of which this factual reality came into being, and are examined in the next chapter.
To be continued.
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