Creation & Dissolution of Somali Republic in the Light of Somaliland’s Quest for Recognition

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Present day Somaliland is a product of dissolution and not secession from the defunct Somali Republic.

Published by International Institute of Advance Scholars Development

Authored by Timothy Ubelejit Nte (PhD)
Department of Political and Administrative Studies
University of Port Harcourt, Nigeria

During the colonial era, Northern Somalia was administered by Britain as a British Protectorate (British Somaliland) while Southern Somalia was administered by Italy as an Italian Colony (Italian Somalia). The British Protectorate of Somaliland gained independence on 26 June 1960 after seventy-six years of colonialism – a period spanning from 1884 through 1960. At this time Southern Somalia was still a Trust Territory that has not gained independence.

The independence of Somaliland facilitated the liberation of Southern Somalia as well as the initiative for the Union. At the period before unification from 26 June 1960 through 1 July 1960, most African States including Nigeria have not gained independence and there was nothing like the Organization of African Unity which evolved into the African Union.

On attainment of independence, Somaliland received international recognition from thirty-five States including all the permanent members of the United Nations Security Council. They were also admitted into the United Nations. The United State sent a congratulatory message through Christian Herter – the Secretary of States – and Britain signed several bilateral agreements with Somaliland.

Somaliland enjoyed its independence for five days before it voluntarily joined the newly liberated Trust Territory of Somalia to form the Somali Republic on 1 July, 1960 through the Act of Union treaty. Unfortunately, this bilateral treaty was fraught with fraud and irregularities. In tandem with the Vienna Convention on the Law of Treaty (VCLT), Somaliland and Somalia ought to give their approval to a treaty of such magnitude and eventually ratify it. This was not however the case as separate treaties where drafted by them.

 

 

Act/Law of Union confirms that there was a union of two states, but more importantly, that Somaliland was an independent state before the union and has entered into treaties with Great Britain during that period.  This is of considerable legal significance because so many people, specially in Africa, still think of Somaliland as a region seceding from the now defunct Somali (Democratic) Republic rather than a former independent state withdrawing, albeit unilaterally, from a union of two states – a position which is currently unique in Africa as there is no other territory or even region in a similar position.  (somalilandlaw.com)

Somaliland forwarded its draft treaty to Somalia but this was neither reciprocated nor approved. Instead, Italian Somali drafted their treaty viz. Act of Union and the treaty was forwarded to Italian Somalia dominated national legislature for approval without going through the due process of consultation and approval by Somaliland. This makes the Act of the Union invalid under the spectacle of international law.

The bilateral treaty for the union was also in violation of international law of treaty and the VCLT because it was not signed by both parties. The Law of the Union – or the draft treaty for union by Somaliland – was exclusively signed by the authorities of Somaliland and the Act of the Union – or the draft treaty for union by Italian Somalia – was only signed by the authorities of Somaliland. There was no valid agreement for the union as both the Law of the Union as well as the Act of the Union was deficient in the approval of the other party.

The desire for a union hinged on the expectant benefits of a Greater Somalia made the people and authorities of Northern Somalia to ignore the illegality of the merger and forge ahead by voluntarily joining the union. But treaties are generally subject to reviews and amendments. Gross violations or breaches of a treaty can also lead to abrogation or dissolution.

The leadership and people of Somaliland have decided that the Act of the Union treaty that was not ratified is irrevocably terminated because of gross breaches caused by the military disruption and dictatorship of Siad Barre.

After 9 years of democratic government, the President of Somalia – Abdirashid Ali Sharmarke was assassinated in the October military coup that brought to an end the first Republic of Somalia.

General Barre became the Head of State and annulled the constitution as well as commenced a military dictatorial government. At the collapse of the military dictatorship of General Barre, the leadership and people of Somaliland took the decisive action of declaration of independence on 18 May,1991. The declaration of sovereign statehood was such that Somaliland “reverts to the sovereign status it held at independence from Britain on June 26, 1960″

 

 

The independence declaration by Somaliland is not remedial  secession or dismemberment of a sovereign state but “restoration of a previously independent and sovereign state to its former status”. Somaliland simply extracted itself from the failed State of Somalia by officially cancelling the Act of the Union that unceremoniously merged British Somaliland with Italian Somalia. Dissolution of union is not unprecedented in international relations. The Senegambia Federation between Senegal and Gambia was dissolved in 1989 after seven years. There was also the dissolution of the United Arab Republic between Egypt and Syria in 1961 after three years in existence.  A union existed between French Sudan and Mali Federation from 1959 through 1960 when it disintegrated.  In all the above cases of integration and disintegration the affected countries regained full independence and recognition.

Why should the case of Somaliland be different?

Most countries are waiting for the consent of Somalia before they accord recognition to Somaliland. The case of Somaliland should not be different because it is crystal clear that Somalia is not only a failed state but have remained the worse failed state in the world for decades.  Somaliland “lacked any form of government between 1991 and 2000”. How many more decades would Somaliland wait for Somalia to cease to be a failed State and have a recognized government that would endorse the dissolution. Also a recognized government for Somalia can emerge in the future shrouded with the   complex of failure and extended aggression mentality for past woeful failures. In such a scenario that government would likely want Somaliland to also fail by purposively denying the needful    endorsement of the dissolution of union which has been awaited by the African Union and the international community.

Referendum is a prerequisite on issues that border on sovereignty but this was not the case with the union between Somaliland and Somalia  obviously because of the very short duration of five days after the independence of Somaliland. A referendum was later conducted on 20 June, 1961 and the people of Somaliland voted against the union. The treaty for the union was neither endorsed nor ratified.

The Fact-Finding Mission of the African Union confirmed that the “union between Somaliland and Somalia was never ratified”

Voluntarily Somaliland joined because of perceived prospect; they should also voluntarily leave when there are perceived threats and problems.

There was a referendum by the people of Northern Somalia as part of the process for the 1991 independence of Somaliland. Another referendum was conducted in 2001 – a decade later; for the ratification of the independence of Somaliland and adoption of an independent constitution. The referendum was monitored by the   Initiative and Referendum Institute (IRI) which is a research and education group attached to the University of Southern California.

 

 

An overwhelming majority of eligible voters participated in the referendum of May 2001 and 97% voted in approval of an independence constitution and reaffirmed the 1991 restoration of   independence to Somaliland.

De jure statehood in the context of this study is the state that has international legal personality or exists in accordance with international law. The criteria or conditions to fulfill statehood under international law are enshrined in Article I of the 1933 Montevideo Convention of the Rights and Duties of States. Accordingly, four elements are specified as requirement for statehood and these are:

• (a) Defined territory
• (b) Permanent population
• (c) Government
• (d) Capacity to enter into relations with other states

Evidently, Somaliland fulfils the Montevideo criteria for statehood.

Somaliland has a defined territory of 137,600 square kilometers located between Latitude 8°00 ́ to 11°30 ́north of the equator and Longitude 42°30 ́ to 49°00 ́east; encompassing the regions of Maroodijeh, Awdal, Togdheer, Sanaag, Sool, and Sahil. This territory dates back to the Scramble for Africa when the border of British Somaliland was determined on the premise of international treaties  among colonial powers between1888 and 1897.

As is the case with other African countries this colonial boundary became the Republic of Somaliland upon independence in 1960. The northern fringe of Somaliland is very strategically positioned because    it  has a massive coastline along the Gulf of Aden – which is an indispensable sea route from the Indian Ocean to the Mediterranean and access to the Red Sea

How to get out of de facto status crisis 

Although recognition is an essential determinant of the ability of a new state to enter into relations with other states it is not an indispensable condition for statehood.

Recognition is a political act that can be explicitly or tacitly done hinged on the discretion of the state that is doing the recognition but has no significant position in international law.

The implication is that a state has the right to defend its territorial integrity and sovereignty, define the jurisdiction and competence of its courts, administer services, legislate upon its interests, provide for its prosperity, and organize itself as it deems fit for the good of its people even before recognition.

In spite of these, the advantages of recognition are overwhelmingly indispensable as unrecognized States are non-recipients of a myriad of international generosity and benefits such as: Political Influence, Foreign Direct Investment (FDI), Loans from IMF and World Bank, Multilateral and bilateral treaties

Somaliland is “a political entity which has all the attributes of a modern state except for international recognition”

Somaliland has remained a de facto State for the past thirty-two years because it has not received recognition from other States. African countries under the aegis of the African Union are reluctant to recognize Somaliland because of some factors.

The most pertinent impediment to the recognition of Somaliland by African States is the tenacious cling to the sanctity of territorial integrity as passed on by colonial masters at independence as well as working against actions that are perceived as capable of creating a dangerous precedent for secessionism in Africa.

We would at this point present sui generis factors that makes compelling the recognition of Somaliland:

The first factor is the inviolability of colonial State boundaries. Over the years, the international community has attached very high premium on the sanctity of territorial integrity and the inviolability of the borders of a State.

In the context of Africa, the Organization of African Unity engrained in its Charter some very laudable articles and resolutions viz. Resolution AHG/Res.16(1) on Border Disputes between African States – that sternly opposes the alterations of borders bequeathed by colonial masters at independence for reasons of eschewing secessionist movements as well as maintaining peace and stability.

This disinclination to intrude in territorial borders of African countries by the Organization of African Unity has been passed on to the African Union, whose Constitutive Act in Article 4 mandates members to respect borders inherited from colonial masters at independence for similar reasons. “The Declaration on the Granting of Independence to Colonial Countries and Peoples is predicated on the principle of self-determination for the justification of decolonization”.

Invariably, colonial boundaries are the fulcrum for the recognition of the territorial parcels of independent States by the African Union. This principle is applicable to Somaliland in every ramification. The territory of Somaliland is in line with this criteria and it’s sanctity a product of colonial boundaries inherited at independence. It is a “legitimate exercise of self-determination under the decolonization framework of the Declaration on the Granting of Independence to Colonial Countries and Peoples”.

At the formation of the United Nations Organization after the Second World War, the conventional requirement for independent statehood was hinged on the right of self-determination predicated on decolonization process which revolved on the orbit of the existence of colonial borders.

Somaliland should be a de jure states by virtue of recognition since borders were clearly demarcated when it was a British protectorate and remains so till today.

The independence of Somaliland is not in violation of the sovereignty and territorial integrity of Somaliland because as a former British colony it has the statutory right to self-determination for independence. Somaliland was once an independent sovereign State that was recognized by the United Nations and more than 70% of the recognized independent countries of the world as at June 1960

The second factor is that Somaliland has been independent for the past thirty-two years and still progressing. The secession of Somaliland is uniquely in a class of its own and should be referred to as either disintegration or dissolution of union. Unlike Eritrea, Kosovo, South Sudan and other break away States; Somaliland has previously existed as an independent State and in 1991 chose to revert or return to her original status as an independent State within her colonial borders which is the acceptable standard in international law and the Constitutive Act of the AU. Resurrection of previous statehood at the dissolution of the union with Somalia rightly explains the action of Somaliland and not secession in the actual sense.

Undue marginalization and the absence of internal self determination is the third factor. Violation and denial of the internal self-determination rights of a people can legitimately trigger rebellion and propel the quest for external self-determination.

This was the case with Somaliland in their union with Somalia because they were marginalized in important positions at the executive, legislative and judicial arms of government.

Mogadishu in Somalia was made the State capital at the expense of Hargeisa and appointments into lucrative positions of authority were exclusively reserved for the population of Somalia to the detriment of the people of Somaliland. These blatant denials of right to internal self-determination made the population of Somaliland vote against the adoption of the referendum of 20 June, 1961.

“Also, within the first few years the enthusiasm for the unification waned as northerners began to realize how politically and economically marginalized they were becoming”.

The concentration of opportunities and investments in a centralized system that empowered Southern Somalia aggrieved the population of Northern Somalia as they felt politically and economically marginalized. It also instigated the search for legitimate modalities to dissolve the union and restore their independence.

Oppression and gross violation of human rights is the fourth factor. The disintegration of Somalia was sequel to oppression and gross violation of human rights which got to its climax in the regime of General Siad Barre who conducted brutal military campaigns against the territory and people of Somaliland including the bombing of strategic cities in 1988. Military forces loyal to General Barre killed about fifty thousand indigenes of Somaliland and compelled half a million people to flee to neighboring countries such as Ethiopia.

Major cities of Somaliland like Hargeisa and Burao were virtually destroyed with bombs and shells. There were cases of gruesome killings, wanton rape, confiscation and looting of private properties, unjust imprisonment and extrajudicial executions. There is provision for remedial right to secession based on gross and wanton violation of human rights.

Hugo Grotius and other renowned international law jurist are of the view that a ruler cannot exercise wills to govern and to destroy at the same time. “Among the various international human rights instruments, the Preamble to the Universal Declaration of Human Rights recognizes the right to rebel against a government which is guilty of grave violations of human rights”.

When the fundamental rights and freedoms of a people are under genocidal magnitude threat, they have the right to cling to self-determination for self-preservation.

Invariably, the violation of human rights at a genocidal level is a justification for seeking self determination. Somaliland declared independence in 1991 to forestall a repeat of the genocidal human rights violations it suffered

Anarchy in the failed State of Somalia is the fifth factor. General Barre fell in 1991 but violence and lawlessness persisted in a reckless form that has plunged Somalia into the archetype of a failed State.

Somaliland unilaterally broke away from the union for autonomy because there was no recognized government in Somalia that would legitimately facilitate the procedure for amicable dissolution.

Since the fall of Barre there has been no legitimate government for negotiations concerning dissolution of union or independence. At the time of writing in 2022, Somalia is still embroiled in anarchy wherein the Somali Transitional Government control a minute fraction of Mogadishu with the help of African Union Mission to Somalia (AMISON) in contention with Al-Shabab – an Al-Qaeda affiliate – as well as clans, pirates etc. who all jostle for power and influence.

The rivalry and tussle for power between the different clans is such that there is no end in sight for the anarchy of Somalia. There prevalent anarchy and lack of infrastructure made the United Nations to declare that “Somalia possessed none of the attributes which enabled it to be recognized as a state by the international community and United Nations”. For decades Somalia has remained the most failed state in the world.

The sixth factor why Somaliland should cease to be a de facto with the recognition of the international community is that a reunion with Somalia is impracticable if peace has to be sustained in the Horn of Africa. There is no sensible way of persuading the people of Somaliland to come back to Somalia for a continuation of the union that was fraught with overwhelming challenges.