April 13 – 2013
On May 18 1991, the ex-British Somaliland Clan Representatives and Somali National Movement (SNM) leadership had collectively and enthusiastically proclaimed that Somaliland British protectorate restored its independence and political sovereignty. This dissolution of 1960 merger was nonviolent, accurate, applicable and timely. Therefore, this paper is very much arguing that Somaliland‟s case of rejection and withdrawal from the abortive and unrepresentative merger is historically, politically and legally justifiable. It also argues that the driving forces behind this decision included the need to achieve justice, equality, democracy, as well as, the creation of credible freedom for Somaliland citizens and durable peace in the Horn of Africa.
It is worth to mention that the Somali irredentism, and the whole concept of dreaming of Greater Somalia aborted immediately due to many obvious and valid reasons including but not limited to political miscalculation, lack of consultative dialogue between the two States, lack of proper preparation and analysis of the significance of the Union and inadequate investigation of all possibilities and contemplation of what is workable, that is why the process failed to create “Legitimate Union Platform” which could attract the rest of the three Somali regions, namely, the Northern Frontier District (NFD) of Kenya, the Haud and Reserve Area which is currently known as the Ogaden or region five of Ethiopia and French Somaliland which is now called Djibouti. It is now widely acknowledged that the unsuccessfully organized Union of the two States of British Somaliland and UN Trusteeship Territory of Somalia had only brought marginalization, injustice, inequality and relentless structural violence which forced the citizens of Somaliland to live in a brutal, impoverished and oppressive environment. The failed dream was to bring the five Somali speaking regions under one country and flag, that is what the five stars on the failed flag stood for. The Union scheme was initiated by the people of Somaliland on their own, whereby neither Somalia nor the international community had any primary influence on Somaliland‟s proposal of the failed dream. Somaliland was the first region to hoist the blue flag with the white star in the middle; four (4) days later Somalia adopted the same flag. When the two states merged on 1st July 1960, there were significant differences between the two states in terms of political attitudes and sentiments, the divergent colonial experience and backgrounds whereby Somaliland was under protectorate and Somalia was under UN trusteeship with Italy as “care taker”. Other important factors included the emotionally driven decisions of Somaliland, the absence of Union treaty registered at the UN Security Council and the short sightedness of the Somalia political leaders compared to Somaliland. Nonetheless, it is irrefutable that Somaliland had long standing legal argument against unification of 1960 including the fact that the majority of the people of Somaliland rejected the Union with Somalia during the Referendum of the Constitution in 1961. Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 4
It is regrettable to point out that there are some countries that have dogmatic view against Somaliland‟s case of independence; these include the Arab Republic of Egypt, as well as, other Arab League Nations, who played a fundamental role in order to retain at all costs the Union between the Republic of Somaliland and Somalia. There are also few African countries that hold similar positions to Arab world. As such, I would like to remind the Arab League particularly the new Egyptian government to take note of the Arab Awakening, which is heralding a new era and advice it to review its former policies and diplomatic relations in the Horn of Africa, particularly the case of Somaliland and Somalia. Instead of holding onto myopic notions, misapprehensions and dogmatic concepts that no longer hold in today‟s world, the realities on the ground should be viewed through proper lenses lest we stray from the right path (Barawaani 2012). In 1958 a Pan-Somali Conference was called in Mogadishu at the proposal of the Somali National League (SNL), which was the main nationalist movement of British Somaliland in order to discuss the unification process and terms. Soon after the Conference started its deliberation in Mogadishu, the Somali Youth League (SYL) – the main ruling party of the government of the UN Trust Territories of Somalia, who were alarmed by the trend and the flavor of the debates, as well as, the Agenda of the conference recommended to their government to stop the conference altogether. The Conference was deliberating and proposing the idea of establishing a gradual and systematic unification between the two territories that will take an interlude of years, as well as, preparing legal agreement to be signed by two main parties of the two territories namely SNL and SYL in order to agree to form a “Provisional Government” based on the arithmetic of “Equal Proportionality” between the states once the independence is achieved for both jurisdictions. Just before the second sitting in the following day was called to order and discussions started on the process of mapping out the legal methodology whereby the future unification of the two states may be contemplated, the police entered the conference hall were the meeting was taking place and evicted the gathered delegates and brought the conference to an abrupt end (Mohamed I. Egal 1997). As a result of this failed union the people of the North of Somalia encountered human rights violations, which many believe was at the scale of ethnic cleansing, whereby acts against humanity were committed from early 1980s up to 1990. During the course of the 1988 civil war, 50,000 people were killed and another 500,000 were forced to flee from their homes to Ethiopia. Government forces also laid over a million unmarked land mines in the Northern territory (Somaliland, 2001). In the light of these tragic historical events, the people of Somaliland revoked the illegal union which was the only viable option to pursue according to the overwhelming majority of the population. Ultimately the unilateral decision of Somaliland to assert its independence obtains extensive justifications in regards to international law, because of the fact that the union did not get ratification from AU and UN Security Council, in other word, no agreement or legislation signed by the two States that merged exists, which can serve as an international treaty to bind Somaliland or Somalia. The theory of unilateral secession requires three elements: namely, that Somalilanders are defined as “people”, that the Somali government subjected them to serious human rights violations, and that no other viable options exist (Aaron 2010) Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 5
3. Historical Aspects:
Though many theoretical approaches explicitly tend to emphasis how the practical unification came about, the historical and political question is, whether the unification of the two countries legitimate and endorsed by both sides to ratify it. As lot of scholars, intellectuals, prominent international figures and those who witnessed the occasion verified that the merger between British Somaliland and Italian Trust Territory of Somalia on 1st July in 1960 was neither ratified mutually nor followed the mode of an International Treaty. Eventually these historical facts are all indicating the fact that the union that collapsed in 1991 constituted an invasion of Somalia over Somaliland, which was to last until Somaliland defeated and reversed this invasion. This took many years to accomplish, particularly, the 11 years from 1980 to 1991 whereby an armed struggle defeated the invasion militarily and led to the collapse of the union, which lacked legitimacy to exist, any. After, the failure to legitimize the Union; the representative Assembly of Southern Somalia approved the Atto di Unione (Act of Union) in principle, which was significantly different from the Union of Somaliland and Somalia law (Carroll and Rajagopal, 1993). Rationally, those who are advocating for the long dead slogan of Greater Somalia must review the political, social and historical evolutions commencing from the unbinding Union of 1960 up to 1991. It is quite obvious that the people of Somaliland will never, ever accept again the idea of the so-called Greater Somalia whether it comes in the disguise of unitary state, federal or con-federal State. The backslapping approach from Southern people and irrational unionists are under buoyancy of ignorance and imprudence. In contrast to the long held presumption that Somalis form a uniform society, the people of Somaliland consider themselves as a unique indigenous society who had a lot of distinct characteristics. There are specific cultural, social, economical and political attributes which people of Somaliland differ from those of Somalia. Even linguistically; there are a lot of dialect differences between Somaliland and Somalia, which means that the two nations have enormous dissimilarities based on social, cultural, political history, customs and language. Somaliland has shown itself to be a beacon of hope for the Somali speaking territories, the Horn of Africa and the African continent in general. Somaliland has also convincingly demonstrated and established the moral, legal and historical basis for its pursuit of gaining international recognition and political sovereignty. On the other side, there are baseless arguments suggesting that Somaliland‟s recognition will lead Somalia to further disintegration and civil wars; on the contrary, there are lots of evidence indicating that Somaliland‟s separation and de facto recognition is explicitly and fundamentally contributing to peace and stability in Somalia. For example, both in the past and currently Somaliland had hosted a lot of refugees, business people, ordinary families, Diaspora, elites, women, youth and children from Somalia. They are all protected, respected and welcomed to take advantage and utilize Somaliland‟s sovereignty and statehood. Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 6
It should be made clear that Somaliland‟s sovereignty and its anticipated international recognition is not a threat to anyone in the region but constitutes a peaceful option chosen and decided on by its people and political leaders. The Federal Constitution that is put together in Mogadishu in 2012 has ushered in a new fragmentation of Somalia which is a new political phenomenon that Somaliland cannot be associated with, since Somaliland was a solid entity with its borders and frontiers prior to merger in 1960. During the colonial era, the British Empire had been dealing with the traditional elders but later engaged the newly emerging political class. The Government of Great Britain and Northern Ireland had advised caution on the union and tried their best to dissuade the Somaliland leaders prior to the termination of the protectorate. In the discussions between the Government of Britain and Somaliland delegates on 12th May 1960 in a meeting held in London there was a significant advice against the union by the Government of Britain to the successor Government in Somaliland after the termination of the protectorate, but the delegates from Somaliland did not take this advice into account, and now Somaliland is committed to rectify the mistakes made in 1960. Moreover, the Somaliland people were not equipped to assume self-governance compared to the Trust Territory of Somalia, which had been receiving apprenticeship and training under the UN Trusteeship during the ten years of preparation. Of course there were political parties and civic movement against British administration in Somaliland. In this background most African statehood and governance structures were based on colonial and externally driven agenda and inherent notions of colonial Empire. One must acknowledge that regaining Somaliland‟s independence, sovereignty and statehood are pursuant to the historical experiences that began many decades under British protectorate and de facto statehood; as such no one can shroud and grind down this political and societal momentum.
There are historical and social facts and views that are instructive in the demise of the formation of greater Somalia once more: These include the memory of mass graves, deliberate domination, inequality, oppression, and injustice. People still remember how the union engulfed Somaliland‟s nationhood, statehood and livelihood, remember the loss of our independence in the exchange of bloodshed, atrocity, imbalance and mysterious circumstances. In the theoretical and historical dimensions, it should be rediscovered that the primary intention of the union was to attain the five geographic territories into which the Somali people were divided during the colonial carve up of Africa in the late 19th and early 20th centuries. The union between the ex-British Somaliland Protectorate (present day Somaliland) and the ex-Italian Administered UN Trust Territory of Somalia (present day Somalia) to establish the Republic of Somalia in 1960 was only the first step towards the realization of Greater Somalia, (which was to also include the Northern Frontier District [NFD],of Kenya, Djibouti and the Somali-populated 5th Province of Ethiopia).Unfortunate this notion had failed whereas two of them formed Somali Republic – Somaliland British and Italian Somalia in July 1960. In the aftermath of the failure of that union, as well, Somalilanders voluntarily established their own political system by utilizing their deeply rooted traditional institutions together with Islamic Sharia and colonial secular laws. During the Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 7
failed union the people of Somaliland not only encountered political marginalization but complete isolation, became the second class of citizens and finally experienced ethnic cleansing. Following the desire expressed by the political leaders in both countries, British Somaliland was hastily prepared for independence so that it could seek the union with Somalia when the latter became independent in 1960. The British protectorate became self – governing on 26 June, and on 1 July 1960 joined Italian Somalia to form the Somali Republic under a government constituted from those then in power in the two territories (Lewis, 2011). As Lewis has stated in this point, there were two countries or entities that formed the Somali Republic, whereby one of them after 32 years denounced and decided to withdrawal and revoke the union on the basis of self – determination and regain independence. In alignment with international norms Somaliland decisively demonstrated its compliance with and domesticated universally recognized human rights instruments and other binding regional and international accords, in order to institute good practices which are not contrary to Islamic principles. Today in Somaliland there is a sense of National Identity, Trust, Common Interest and Common Destiny. By and large, there are various hypothetical expressions about the failed merger which tend to overlook the essence of the union and its pro-longed negative consequence for Somaliland. In reality, Somaliland„s reassertion and proclamation of its sovereignty as an independent entity was a successful political exercise whereby the people of Somaliland moved to the right direction otherwise the region would have remained insecure and eventually end in disintegration. Despite many positive international scholarly views towards Somaliland search for international recognition, there are few pessimistic individuals or unionists who imprudently criticize Somaliland‟s withdrawal simply because either they do not know the history of the political union or ignore realities on the ground. There are some minority of the unionists who have explicitly indicated arguments based on regionalism without considering the history and political evolutions that Somaliland experienced for more than five decades. From this perspective, their argument is unduly supporting the integrity of the nation with the background of tyranny, injustice and gigantic blunders.
It is now recognized that the union motive was fraught with thoughtlessness, impractical and emotional decisions that were driven by grandiose nationalism which far from the realities and beyond the facts on how a nation can be converted into state with a common destiny. Despite this gloomy history of the union, Somalilanders succeeded to establish a democratic State, created atmosphere of social services, built up internal solidarity, political platform and contributed to regional and international security, trade and international political debates on issues pertaining to piracy and security. Hence, the people of Somaliland finally jettisoned the false and unrealistic dream of Somali-weyn or what is termed as the union of the five regions of Somali speaking nations. On the other hand, it is quite apparent that Somalia now is as an international protectorate that extremely reliant on African Union Troops, United Nations Political Office for Somalia, regional organizations and international powers for its existence and support. However, Somalilanders are very optimistic that Somaliland and Somalia can establish political Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 8
and economic relationship as two independent states. They also believe that Somaliland‟s case of withdrawal is a breathtakingly legitimate evolution from erstwhile British Somaliland and its citizens‟ political aspirations. On the basis of this historical background and analytical views, both Somalilanders and non- Somalilanders must confess to the horrendous mistakes committed in the course of the Union of 1960. We must admit that Somaliland’s regaining of independence and sovereignty was a remedial and conscious decision that materialized out of the citizens of Somaliland prompted by their bitter struggle through military and political consensus. Somaliland‟s withdrawal from the failed Union of the Somali Republic was valid, original, credible, and unassailable. Today, anyone who appraises and tries to describe Somaliland instantaneously witnesses the encouraging facts of life that include significant human and economic development, free-market enterprise, political freedom and democratic space, civic participation and harmonization between the traditional indigenous culture and modern statehood structures. Looking at further illustration about Somaliland‟s political and territorial history, Somaliland‟s territory is defined by three colonial treaties signed between the British on the one hand, and French (1888), Italians (1894) and Ethiopians (1897) on the other. (Time for African Union Leadership, 2006) It is worth mentioning that this Union between British Somaliland and Italian Somalia was first and foremost on voluntary basis and without any conditions. It was an offer from British Somaliland thus the two state mergers had never, ever been endorsed by an agreement. Therefore, from this point of view, the people of Somaliland had serious concerns over the union from the onset and demonstrated their complete dissatisfaction over the power sharing process and the imbalance between the two states. It is because of this that the people of Somaliland have voted overwhelmingly against the referendum of the constitution of Somali Republic in June 1961. These events had revealed the level of resentment of the people of Somaliland. In the meantime, the demise of cold war era in1990 was an exceptional opportunity that caused the collapse of many dictatorships and communist regimes such as the Soviet Union. This political scenario offered Somaliland an opportunity to revoke deceptive and unbinding Union of 1960, whereby in May 1991 the Somaliland Traditional elders from all the clans of ex- British Somaliland declared the restoration of the independence of the Republic of Somaliland. It was a historical event that had saved the lives of many civilians and also prevented retaliation by the victorious forces against those that opposed them; it was a historical move that has laid the profound foundation of the State, as well as, nation building and the restitution of the sovereignty that was lost 32 ago. Thus the independence of Somaliland had ended 32 years of marginalization, unrepresentative and authoritarian, as well as, failed merger of the Somali Republic. Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 9
Throughout the cold war, secession was taboo in the state – centric international system. However, the breakup of the Soviet Union, Yugoslavia and Czechoslovakia, the independence of Eritrea and East Timor, as well as, the recent developments in Kosovo seems to have weakened the principle of inviolable state boundaries. From one point of view, these events may have far- reaching repercussions for Africa where borders are generally considered to be more arbitrary. However, there is no other area in Africa which is closer to possible secession than the northern region of Somalia – an area whose boundaries largely correspond to the former British Protectorate of Somaliland (The viability of Somaliland, 2002). Furthermore, Somaliland has made remarkable achievement in democratization process, leadership succession and nation building, maintenance of peace, security and promotion of social cohesion, and accommodating social and political difference in a pluralistic approach. To understand Somaliland‟s claim to independence it is essential to recognize that Somaliland is a legacy of European colonialism: before the colonial partition of the Horn of Africa region, Somalia did not exist. The present day borders of Somaliland follow the borders of the former British Somaliland Protectorate (Bradbury, 1997).
4. Political Aspects:
Somaliland‟s case of statehood is politically legitimate, based on the series of major political events that start with the 1991 Burao Traditional Elders Conference which officially declared that Somaliland British protectorate reassertion of its independent sovereignty; the 1993 Borame conference which reaffirmed that the independence and self determination made by people of Somaliland is irreversible and non-negotiable; and finally through constitutional democracy which was unanimously ratified through the referendum of 2001. This referendum legitimized the establishment of a democratic state with hybrid system based on power sharing, consensus building and political inclusiveness. Secondly Somaliland has successfully demonstrated all the necessary political attributes including diplomatic credence, bilateral relations, defined territory and contribution to regional and international security. There is a vast and growing interest by the international community to see Somaliland remain peaceful, separate, independent, and a democratic nation given that the neighboring countries in the Horn lack such open and free political competition based on multiparty system.
In the recent past, the international community seems to be very much realistic about the issues pertaining to Somaliland and Somalia, for instance the London Conference in Feb – 2012, outlined the status and political demarcation between Somaliland and Somalia and the international community encouraged both sides to talk as Somaliland and Somalia. Thus, both sides pursued negotiation meetings held in UK and Dubai in 2012. In regards to international community presence there are various diplomatic representatives such as Ethiopian Embassy, Demark bilateral Office, UK consultant Office, EU Office, as well as, other irregular personalities. The fact that the “union between Somaliland and Somalia was never ratified “and also malfunctioned when it went into action from 1960 to 1990, makes Somaliland‟s search for recognition historically unique and self- justified in African political history. Objectively viewed,Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 10
the case should not be linked to the notion of “opening a Pandora„s box” (AU Fact Finding Mission, 2005). It is worth noting, that the African Union fact finding mission has brilliantly discovered that Somaliland‟ case of independence is sensible, unique and would not lead to any political disintegration and new demarcation of bounders of African Union. The self-determination made by the people of Somaliland was a thoughtful decision to help the creation of statehood and conditions of political stability. All peoples have right to self determination by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development (UN Resolution 1514XV 1960). Moreover, it was a pragmatic step that helped Somaliland to tackle its internal political reconstruction, reconciliation and restructuring. Somaliland is a rare instance in the continent that managed its post – armed struggle and nation building process by pursuing indigenous cultural and traditional modalities that reflected on the domestic context and adopted a participatory approach based on grassroots engagements, rebuilding social solidarity and historic cultural ties among clan lines in Somaliland.
Somaliland is highly committed to the creation of cordial relationship with its neighboring countries of Ethiopia, Djibouti, Somalia and the Horn of Africa in general. Meanwhile, many Somalilanders travel to these neighboring countries and beyond with the Somaliland passport which signifies that Somaliland has managed to incorporate its solid identity into the international spheres. It is also clear that Somaliland is more than qualified to be a state based on the Montevideo1 Convention which codifies the customary international law for statehood and its requirements. Furthermore, Somaliland is located at strategic location in the Horn of Africa, and has shown political, economical, social and territorially sustainability. Somaliland has accomplished credible set of achievements which were all domestically driven by non state and state actors included Diaspora, business people, religious and traditional elders.
1 The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international law
As professor Hussein Tanzani notes, Somaliland has successfully established a power sharing system marked by balanced clan arithmetic proportionality, indirect caucus based elections and consociational practices from 1991 to 2001 in addition to this, Somaliland has successfully held five democratic, participatory and competitive elections in which the voter turnout confirmed the substantial public interests and without any significant post election violence, except during the last election of 2012 where some demonstrations caused the deaths of two young men and few injuries. Some of the core objectives of these democratic elections were to establish political climate free from all symptoms of dictatorship, one party rule as happens in many African countries, and lastly to promote national commitment, political pluralism and to eliminate the all elements retarding State – building. Muslims are often asked to choose between democracy and Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 11
stability. Somaliland shows that there is way to promote democratization without causing havoc and anarchy. It‟s the most democratic country in the Horn of Africa (Hussein Adam, 2008). Somaliland‟s pursuit of international recognition is based on an international obligation to “support good deeds in order to discourage bad deeds” meaning it is inhuman, immoral and intolerable for the international community to undermine Somaliland people‟s inherent rights, identity and political aspirations. Somaliland„s withdrawal from the abortive union is not an unprecedented case in the Africa and elsewhere, there are many comparable cases in Africa and the world in general. Furthermore, it is broadly believed that Somaliland has got the strongest justification to be recognized as State. Somaliland‟s quest for recognition is not different from that of Eritrea and South Sudan. It emerges as a variation of the theme of post – colonial African liberation struggles for self-determination and/or democratic autonomy from oppressive centralized power (Iqbal, 2007). Somaliland‟s search for international recognition will inevitably lay down all possible diplomatic measures to face complex issues surrounding it and create fresh interests from regional actors and international community as whole. The absence of international recognition of Somaliland is a great mistake by the international community and prevents state recovery through socio-economic and political development. Somaliland has a strong base for further progress and the construction of potentially viable economy, capable to play a positive role in a step-by-step economic and political process of reintegration in a democratic Somali society within, and only, within a larger Horn of African integration process (Adam Muse 2012). Somaliland has definitely contributed to regional and international political and security programmes by combating pirates and preventing them from operating in the long coastline of Somaliland. This is a pragmatic political commitment that deserves to be supported, recognized and rewarded. This growing nation has demonstrated many progressive characteristics including self-reliance, independence and community driven development. It is a wonder to see every day in the headlines that a new “Road is being constructing” by civilians with little contribution by the local and central government, this is a sign of civilization, cooperation and ownership that Somaliland citizens have achieved. Somaliland is a country rebuilt by its people without tangible support by the international community and this momentum has diminished the concept of dependence which many African nations rely on. Therefore, it is incumbent on the international community to recognize Somaliland. Any effort to deny or delay would put the international community at the risk of ignoring the most stable region in the Horn (Somaliland, 2001).
The new State of Somaliland was recognized by 35 governments and also registered by the UN. After only five days of independence, Somaliland merged with the former Italian colony, the Italian Trust spirit of pan – Somali nationalism. However, the northern region, as Somaliland is also called, was dissatisfied with the representation they gained in the newly formed government. Not only that the capital city was chosen to be in South, but also that both the president and the prime minister were Southerners (Harrier Gorka (2011). It was obviously noted that Somaliland Representatives and National Assembly members encountered memorable constrains and Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 12
inconsistent behavior. When Somaliland representatives entered the parliament they found neither apology nor explanation on the contrary, Somalia‟s ruling elite changed tactics to keep them in the dark __ they used Italian to continue their discussion, a language that Somaliland representatives did not speak. This parliamentary discussion scheduled on a holiday, failure to inform that Somaliland representative, and the use of Italian to exclude them from participation underscore for the Somaliland representatives that their presence in the National Assembly was unwanted and irrelevant not only on that day but also on all other days. (Bulhan 2008) However, there are some signs that the international community is taking Somaliland‟s case seriously. The U.S. Republican Party has revealed its interest in Somaliland whereby some specific proposals have clearly indicated how the U.S. is considering the Somaliland‟s case, such as the proposals which the Advisory Committee on Africa MITT ROMNEY Presidential Campaign recommended.
1. Press U.N. Security Council to remove Somaliland from U.N. arms embargo
2. Seek to wrest Somaliland from domain of the Somalia and Eritrea Monitoring Group
3. Open U.S. Interest Section Office in Hargeisa, Somaliland, in advance of recognition
4. Recognize Somaliland and then open U.S. embassy in Hargeisa, Somaliland
Sagaciously this proposal depicted the great political interest of U.S. towards Somaliland„s case of international recognition, likewise this proposal is paving the way for other countries to take a valiant political diplomatic decisions on Somaliland‟s recognition and accelerating viable diplomatic and economic relations with Somaliland. The international community, including the EU and the World Bank, has shown considerable interest in supporting the continued development of Somaliland. According to the Danish foreign office “It is important to support the positive progress in Somaliland” (Ministry of Foreign Affairs of Denmark 2011).
5. Legal Aspects:
As a matter of fact, examining and exploring the Union‟s legality has got clearest arguments of fallacy marked overall the historical dimensions of the Union between two states of Somaliland and Somalia. It was proved that no agreed Act of Union was signed by the two parts but the intention was there, since Somaliland legislature passed the Union of Somaliland and Somalia law, therefore, the merger in 1960 was indeed an impulsive and haphazard Union without solid foundation. No one was responsible for laying the legal foundation for the Union and consultations between the State of Somaliland and the Trusteeship Territory were, at best inadequate (Somaliland, 2001). It was emotional mode of constructing a Somali Republic from all Somali speaking territories, with the five points on the flag star representing the five Somali speaking regions namely, Trust Territory of Somalia, French Somaliland, Haud and Reserve Area, which is now is called Ogaden, under Ethiopia administration, the Northern Frontier District (NFD) of Kenya, and British Somaliland. It was a hallucination, miscalculation and Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 13
political immaturity to dream of and form an irrational and unworkable Union, whose crash is now clear from the example of the initial two territories that failed after having 32 years of Unitary State largely due to tyrannical leadership. Somaliland comprises the territory, boundaries and people of the former British Somaliland protectorate, defined by the following international instruments:
1. The Anglo – French Treaty of 1888
2. The Anglo – Italian protocol of 1894
3. The Anglo – Ethiopian Treaty of 1897
When the Northern leaders of the attempted coup of 1961 were brought to trial in Muqdisho before a British judge on charges of treason he acquitted the officers on the grounds that the court had no jurisdiction over the state of Somaliland in the absence of an act of Union (SCPD 1999). Somaliland clearly meets the standard criteria of statehood and conforms to the Montevideo Convention. Somaliland cannot be viewed as a new country or territory seceding from its parent state but it is essential to unreservedly understand that Somaliland was a independent country that had its solid political and colonial history of more than 84 years, whereby in June 1960 got its independent from British colony. Soon after independence around 35 countries recognized Somaliland as an independent state before it entered into the failed union with the Trust Territory of Italian Somalia. In the aftermath of cold war, there were a lot of new political trends that included self- determinations and revoking of failed administrations and authorities mostly in Africa, Europe and Asia. Thus the Somaliland people are among those nations that regained their political sovereignty and achieved self determination in the process. Somaliland‟s case is entirely different from many new territories and countries created over the past years, the fact that “the OAU consistently permitted states to retrieve their sovereignty following an unsuccessful union” , such as, Egypt, Gambia and Senegal, are the point of reference that Somaliland‟s leaders and supporters stress in arguing for recognition of its sovereign status (M.Iqbal 2007)
Furthermore, it is crucial to unmistakably appreciate that Somaliland has progressively domesticated its international obligations which are part of Somaliland‟s commitment to international duties in order to achieve international recognition in peaceful and nonviolent means. From this point of view, Somaliland‟s withdrawal is simpler than that of Eritrea and South Sudan and furthermore, Somaliland had not only been a separate colonial unit but actually a separate independent state for five days. This brief period of internationally recognized sovereignty is what makes the Somaliland‟s case unique and special and is a legal justification for dissolution of the union when things haven‟t worked out (PRETORIA 2003). Finally, the people of Somaliland might choose to exercise their right to self- determination by opting to secede from Somalia. However, the Republic of Somaliland has made it clear that Unity of 1960 was an offer from the North whose inspiration was to unite the whole Somali – speaking Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 14
territories into one unitary state. Perhaps, the people of Somaliland were anticipating this notion of the five regions of Somali territories to be established in a manner of Equal Political Representation under a Union legal framework. However, the outcome and impact of this unity was negative and deplorable at all levels. Somaliland‟s authorities argue today that they are dissolving an unsuccessful marriage rather than seeking secession, and that therefore, their case is analogous to the breakup of (Senegal and Gambia) and the United Arab Republic (Syria and Egypt). They also draw parallels with Eritrea and Ethiopia and which gained its de jure independence in 1993 (Kaplan, 2008) From this standpoint, it is essential to come to terms with this new political reality that Republic of Somaliland has dramatically and remarkably achieved by establishing pluralistic and participatory form of democracy that most African de jure countries failed to sustain. Given the current political, social, economic and territorial integrity, the Republic of Somaliland is gradually building economic and diplomatic relations which is part of its strategic efforts of gaining sound international bilateral and multilateral relations and rebuilding a viable economy. Under the declaratory theory of statehood, a region attains statehood by declaring itself a state, by having a permanent population, by having a defined territory, by having a government, and by having the capacity to enter into relations with other states. Considering each of these factors, Somaliland has a credible argument that it meets the theoretical requirements of statehood (Aaron 2010). As Aaron has mentioned under the international law spheres and as many international personalities commented or revealed the Republic of Somaliland has all functions and features of de jure state, according to some analysts Somaliland possess even better and stronger foundations than some de jure states in the world. Moreover, reclaiming Somaliland‟s independence which was lost in 1960 and constituting governance structure of Somaliland was a pragmatic resolution realized by the people of Somaliland in order to terminate what hadn‟t worked by exercising their inalienable and inherent rights. In addition, the people of Somaliland have established this bottom up state-building by skillfully combining traditional indigenous system and modern political structures. This new scenario has opened way for a new African political history. The failure of the Somali irredentism and 30 years of domination, killing, imprisonment and injustice in the name of Somali Republic had consciously signaled to the people of Somaliland to cease the unproductive union entered in 1960. It is generally believed that the decision made in 1991 has paved the way for rewriting Somaliland‟s political history by creating acceptable political, economic and social resilience.
Indeed it is the responsibility of the international community to pay great attention to the AU report of 2005 which marked Somaliland‟s case as unique and justifiable, and other reports produced by internationally recognized institutions such as International Crisis Group’s Time for African Leadership in 2006. No one can deny that Somaliland today is remarkable and Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 15
innovative story in the Horn of Africa due to its achievement of peaceful leadership succession, free, fair and peaceful elections and the pursuit of economic recovery. It was the North (British Somaliland) that had offered the political concessions to ensure the achievement of unity and indeed the Republic of Somalia and come about in 1960 because of the “generous offer“ of the North, propelling the two regions into unity for which the South was far from ready (Patrick 2003). In the meantime, the State building of the Republic of Somaliland is taking place before international recognition is obtained and every Somalilander seems to be very proud of being a Somalilander with and without recognition. More currently, the Republic of Somaliland has prevailed to resolve its internal challenges particularly Eastern regions of Buhoodle, some of parts of Sool and Sanaag, since the SSC leader was appointed as Minister of Rehabilitation, while other opponents have also disappeared. It is incumbent on the government of Somaliland to take a more aggressive position, especially before the African Union and its individual members, on the question of international recognition. As of this writing, the rest of Somalia remains a failed state. In conclusion, this embryonic state had afforded tremendous challenges over the past decades and it will conscientiously guard its sovereignty statehood and integrity.
It is extremely indispensable for the international community to acknowledge the legitimate case of Somaliland‟s recognition and the AU needs to comprehensively review its policy position towards Somaliland‟s case by offering recognition and eligibility for membership in the AU. It is high time that the international community shore up Somaliland to attain international recognition, particularly the African Union which has the primary obligation to undertake all elaborate measures that can facilitate Somaliland to succeed in diplomatic recognition. The talks between Somaliland and Somalia included some of the imperative steps needed for the way forward, although Somalia still remains unpredictable after the country slowly disappeared over the past 21 years having been engulfed by civil wars and disastrous humanitarian conditions. Somaliland‟s side of these talks is entirely based on the will and aspiration of the people and Somaliland’s Constitution has already outlined the legitimate course of actions premised on the fact that Somaliland‟s sovereignty is nonnegotiable and cannot be revoked. This means that there are clear concepts and ideology that is propelling Somaliland‟s case to be accepted and that any other option may lead the region into renewed volatility. It should be remembered that the Republic of Somaliland has played a pivotal role in keeping the region relatively stable and peaceful especially the neighboring countries and even beyond the Horn of African.
Ultimately, it is no surprise that the merger of 1960 ended in failure, since there was no mutually agreed legal and political principles to be pursued by both sides, resulting in immediate dissatisfaction of the North and inequalities that had become a custom accepted as normal way of Article: Somaliland’s Case is Historically, Politically, and Legally Justifiable – April – 2013 16
doing government business, since all political positions where occupied by leaders from Italian Trust Territory of Somalia without any consideration for fairness or justice. In other words, the foundation of the Somali Republic is a good example of the Somali wisdom which says “Hal xaaraani Nirig xalaala madhasho” meaning “An unlawfully acquired camel will never give birth to a lawful baby-camel”.This is a classical insight which enriches some theoretical concepts and interpretations on the nature of the Union and its political and legal attributes. It is precisely these historical and legal references that admit the re-birth of the Republic of Somaliland which is definable and convincible on the Montevideo Convention on Rights and Duties of the states. The Republic of Somaliland has already demonstrated the attributes that can separate one state from another and it therefore seems incredible that Somalia blindly and invariably continues to claims the representation of what was once called the Somali Republic which the Republic of Somaliland has basically rendered null and void. There are some possibilities and anticipations that the fragility of Somalia, including its regional autonomous mini- states can indirectly affect Somaliland‟s security, but it is also prudent to acknowledge that Somaliland can handle and maintain its security. The Somaliland government and its people have been aware about the potential challenges and have put in place all necessary structures and milestones across the country. The people of Somaliland are very confident that Somaliland has explored ways and means to retain the country‟s security, deepen peace and stability; ordinary citizens are also the primary driving forces and constitute inexpensive security infrastructure which is present everywhere in the country. Another plus is the fact that Somaliland is located in a strategic location in the Horn of Africa that suits trade, business opportunities, tourism and can host those who are willing to invest Somaliland. According to many Somalilanders, the frank explanation is that the ending of the union of “the Somali Republic” that malfunctioned for 30 years, and the dictatorial regime that ruled the Somali Republic both scenarios concluded 30 years of invasion against Somaliland into an end. There are a number of questions arising that need analyses and proper understanding; these include (i) why and what caused the collapse of the union – which is known to have no legal basis? (ii) What are the factors that contributed to the collapse? (iii) Are factors that lead to the collapse still persisting? These and many other questions would shed light on the nature of opposing positions and forces. It is instructive to note that the endeavor of the union failed within 9 months from the date that two states merged in 1st July 1960, when a group of Somaliland‟s military officials made coup d‟état in 1961 in an attempt to end the union or to abolish the Somali Republic. Right from that moment, because of the failed coup, the imbalanced Somali Republic has become symbolic to domination, since one of the two merged states that formed “the Somali Republic” namely Somalia has begun to invade and occupy the other state “Somaliland.” _______________________________________________________________________________
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