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Issue 469 -- 22nd-28th January 2011
Somaliland’s Recognition – Myths, Truths & Law
By Ahmed M.I. Egal
Several major, recent developments have brought the issue of Somaliland’s recognition as an independent nation to the top of the agenda in the politics of the Horn of Africa region (HOA). The first is the successful referendum in southern Sudan the result of which is widely expected to show a massive majority in favour of independence. This referendum marks a watershed moment in modern African history, since it will be only the second time that the people of a territory in an African country achieved independent statehood through their freely expressed wishes evidenced by voting – the first time was the referendum that presaged Eritrea’s emergence as an independent country in 1993. The second development is the increasing acceptance by the principal international sponsors/donors (both African and Western) that the TFG of Sheikh Sharif is incapable of bringing peace, governance and stability to Somalia, even as the expiry of its mandate in August 2011 approaches.
These facts have forced a new, more mature perspective upon the major, foreign stakeholders as well as Somaliland and Somalia’s neighbours regarding Somaliland’s claim to formal, de jure recognition of its independence. This is evidenced by several important, new factors in Somaliland’s relations with its neighbours, as well as foreign powers, which are outlined below:
· The willingness of Ethiopia to actively support Somaliland’s campaign for recognition, as confirmed publicly to the new government in Hargeysa. Previously, Ethiopia, while supporting Somaliland and opening a Consulate in Hargeysa, had shied away from open, vocal support of Somaliland’s campaign for international recognition to avoid being accused of seeking to break-up its historic enemy.
· The willingness of IGAD, grouping Somaliland’s neighbours in the HOA, to work with Somaliland’s Government officially, thereby accepting Somaliland as a de facto state. This was evidenced during a visit by senior IGAD officials (including the Secretary-General) to Hargeysa in December last year, as well as the SG’s recent statement, in the wake of the southern Sudan referendum, that IGAD was willing to play a major role in holding a similar referendum in Somaliland at the appropriate time.
· The improvement in relations between Somaliland and Djibouti heralded by the visit of Somaliland’s new President, Ahmed Mahmoud Sillanyo, in November last year. Previously the Guelleh regime in Djibouti had pursued a dual track policy regarding Somaliland of maintaining ‘good neighbour’ relations, while focusing its efforts upon nurturing and promoting the TFG. The advent of a new government in Hargeysa provided Djibouti with the opportunity to publicly acknowledge what it had been forced to accept in private – namely that the TFG was an abject failure and that the political tide regionally and internationally had shifted decisively in favour of engagement with Somaliland. Ever the canny politician, Ismail Omar Guelleh, jumped aboard the bandwagon and embraced President Sillanyo with a state visit with all the trimmings.
· The new willingness of major Western powers to engage more closely with Somaliland as evidenced by Washington’s announcement of its new ‘dual track’ policy for Somalia whereby it will continue to support the TFG (albeit grudgingly), while also dealing directly with Somaliland, Puntland and other self-governing areas opposed to Al-Shabaab. This closer engagement with Somaliland was also evidenced in the UK’s invitation to the Sillanyo administration which resulted in an official visit (minus the trimmings) during which the Cameron government promised increased aid in various areas. Finally, the new approach of these governments is evidenced in the closer intelligence and security cooperation between them and the Somaliland authorities.
· The interest of China in securing access to the potential hydrocarbon deposits in Somaliland (which are reported to be significant and potentially large) by establishing relations with the Somaliland government, as evidenced by the invitation extended to President Sillanyo to visit China with a high powered delegation including the Somaliland business community.
· Finally, in the Arab World, particularly the Gulf countries, there is also evidence of a new, more accommodative attitude towards Somaliland and its claim to recognition. In Saudi Arabia in November 2009 the government lifted the ban on livestock imports from Somaliland, despite intense lobbying from the TFG and its supporters among the Saudi business community. This has dramatically improved Somaliland’s economy since the Kingdom is the destination for some 90% of Somaliland’s livestock exports, which account for around 90% of the country’s export revenues. In addition, the government of Kuwait has significantly increased its aid to Somaliland and members of the ruling family are building vacation residences in the country which points towards improving contacts and relations for the future.
In light of this improved climate regarding the de jure recognition of Somaliland as a nation-state, it is worth discussing the legalities pertaining to this process of recognition. Much that has been written about Somaliland’s claim to international recognition, by Somalis and non-Somalis alike, has been simply inaccurate and misleading with respect to the actual facts, with respect to international law as it applies in this case and with respect to political theory and science. Thus, let us start with the salient facts which are listed below, before we proceed to a discussion of international law and politics as it applies in this case:
I. Somaliland came into existence as a modern, politico-legal entity in 1888 with the signature of treaties of protection between the Somali clans inhabiting the territory defined in the said treaties and Great Britain. The impetus behind Britain’s desire to enter into these treaties was the ‘Scramble for Africa’ occasioned by the Berlin Conference of 1884-85 during which the European Powers effectively carved up the African continent between themselves. Britain had no interest in the territory other than control over the strategic coastline on the Gulf of Aden and the Red Sea. The ‘Scramble for Africa’ effectively carved up the Somali people of the HOA between Britain (Somaliland & the Northern Frontier District [NFD] of Kenya which is Somali-populated), Italy (Somalia), France (Djibouti) and Abyssinia (the present eastern, 5th Province of Ethiopia), and the geographic boundaries drawn during the late 19th century continue to prevail today, as do the other colonial boundaries in Africa.
II. Somaliland secured its independence from Britain on 26th June 1960 pursuant to an agreement signed between the independence parties of Somaliland and Britain’s Foreign & Colonial Office on 12th October 1959. Upon independence, Somaliland was formally recognised as the Republic of Somaliland by the UN and 35 countries, including Britain, USA, Egypt and the Kingdom of Saudi Arabia.
III. Somaliland voluntarily united with ex-Italian Somalia to the south on 1st July 1960 through an Act of Union which merged the legislatures of the two countries to create the Somali Republic. This was the day the ex-Italian colony obtained its independence from the United Nations on whose behalf Italy had been administering the country as UN Trust Territory.
IV. The Act of Union was to be ratified by a new constitution which was to evidence the new Republic and adopted through a nationwide plebiscite encompassing both Somaliland and Somalia. The new constitution was put to a vote in July 1961, and it was overwhelmingly ratified by majority vote in the ex-UN Trust Territory, but was rejected by a solid majority in the ex-British Protectorate. Thus, the Act of Union was never ratified by the people of Somaliland, effectively rendering the Act of Union ultra vires. No remedy to this gaping hole in the legal establishment of the Somali Republic was ever subsequently attempted.
V. In 1991, after a decade long public insurrection and civil war against the dictatorship of Siyad Barre, the people of Somaliland evicted the Somali army and state officials representing the Mogadishu regime from their territory. Some 31 years after securing independence from Britain, Somaliland was once again in the hands of its people. At a conference of clan elders of all the clans living in the country held in May 1991 in Burao, it was decided to abrogate the unratified Act of Union of 1960 and re-establish Somaliland’s sovereignty.
VI. In 1997 the Government of Somaliland, headed by President Egal, put a new constitution before the people of Somaliland with the aim of establishing the country as a multi-party democracy with a Presidential executive system, a bicameral legislature and an independent judiciary. Foreign observers were invited to observe the referendum in order to guarantee that it was free and fair so as to evidence to the international community that its results represented the wishes of the people of Somaliland. This constitution clearly proclaimed the country’s independence and sovereignty over its affairs in Article 1 thereof, and it was overwhelmingly adopted by a ‘yes’ vote of 97% of the votes cast.
These then, in summary, are the facts of Somaliland’s history as a politico-legal entity in the modern era. From this history we can quickly dispense with several misnomers that frequently arise in many articles and discussions about Somaliland’s case for recognition. Firstly, the issue of contravening the AU’s core principle that the colonial borders of the continent be maintained in the interests of political stability, but which has been breached in the cases of Eritrea and southern Sudan. It is clear that Somaliland’s claim to statehood does not breach this unwritten rule, indeed Somaliland’s insistence upon its sovereignty restores that very rule by re-establishing the colonial borders with respect to the erstwhile Republic of Somalia. Further, it can be argued that since the people of Somaliland never ratified the Union Constitution in 1961, rendering the Act of Union ultra vires, the Somali Republic itself was an illegal state and that Somaliland’s recovery of its sovereignty in 1991 merely corrected a legal wrong. However, without splitting legal hairs, what is indisputable is that the Act of Union was never perfected legally and so cannot be considered binding upon a nation that resoundingly rejected the legal document that would have perfected it – namely the Union Constitution of 1961.
Secondly, the long held position of the international community has been that for Somaliland’s independence to be accepted, there have to be discussions between Somalia and Somaliland to dissolve their union. However, since the people of Somaliland never approved the union with Somalia, what union is there to dissolve? This position of the international community thus becomes akin to requiring of a kidnap hostage to secure the approval of the kidnapper to his freedom, once he has liberated himself from said kidnapper by force! The people of Somaliland have been legally hostage to successive governments in Mogadishu, and it was only their mistaken, if fervent, adherence to the cause of ‘Greater Somalia’ that kept them in those chains for some 20 years. Having decided that ‘enough is enough’ and secured their liberation through a savage and costly war, during which the dictatorship employed genocide as tactic, they are now required to seek the acquiescence of their erstwhile oppressors to their liberty. This position is morally indefensible and legally absurd and the people of Somaliland will not stand for it.
Thirdly, in international law it is an axiom that self-determination is the inalienable right of all peoples’ as set out in the Universal Declaration of Human Rights which is a founding document of the UN; equally it is also an axiom that the territorial integrity of nation-states shall be inviolable. However, in the case of Somaliland, the nation-state refers to the two nations that came into being on 26th June 1960 (the Somaliland Republic) and on 1st July 1960 (the Somali Republic) respectively. The former was established and voluntarily entered into an Act of Union with the latter, but the Act of Union was never ratified when the first blush of nationalism had cooled in Somaliland by July 1961 and the inequality of the proposed union became clear to its people. Legally, therefore, the marriage between Somalia and Somaliland was never consummated, and one party, namely Somaliland, considers the said marriage null and void. The issue is not one of violating the territorial integrity of the Somali Republic, but the right of the people of the Republic of Somaliland to self-determination. The question the people of Somaliland ask is this: ‘how can our exercise of our right to self-determination violate the territorial integrity of the Somali Republic, when the legal establishment the Somali Republic is itself incomplete and ultra vires?’
In conclusion, it is clear that the case of Somaliland is very different from those of Eritrea and southern Sudan in very important ways with respect both to international law and to political theory and science. This does not mean that Somaliland’s claim to recognition is either more or less compelling than either Eritrea’s or that of southern Sudan merely that the legal and political imperatives underlying Somaliland’s claim are different, and thus must be viewed from an alternative perspective. The requirement that both Eritrea and southern Sudan seek the acquiescence of their ‘parent’ government to the mechanism for secession makes sense in the light of the AU’s governing principle that colonial borders are sacrosanct. However, with respect to instances whereby the voluntary union of two independent states is abrogated by the freely expressed wishes of the people of one state a different calculus applies, as was the case in the union and split between Egypt and Syria which united to form the United Arab Republic in 1958 until Syria unilaterally withdrew in 1961.
In the wake of the independence referendum in southern Sudan, there has been much written about how this plebiscite will set a precedent for Somaliland to employ in its campaign for recognition. It is certainly true that the impending independence of Africa’s newest country will have major political impact upon how Somaliland’s case is viewed in Africa and beyond, and it will certainly have a major impact upon the prevailing attitudinal perspective of many within and outside the continent. Nevertheless, it is important to understand the facts, history and legalities underlying Somaliland’s claim to recognition in order to present it truthfully and cogently. Merely seeking to blindly ride the coattails of the experience of southern Sudan will not only be a mistake, it will short-change the legitimate and compelling right of the people of Somaliland to liberty and self-determination.