The primary emergence of the principle of self-determination was materialized after the First World War (Shaw, 2003). It is possible to say that; self-determination was “the benchmark for peacemakers at Versailles”. The President of the United States of America Woodrow Wilson described the national self-determination as “an imperative principle of action” (Henry & Philip, 2000) .
The right to self-determination in the context of International Law is the right of the people to determine their own fate. Unless the inhabitants of a certain territory are recognized as a people, they are not entitled to enjoy their right to self-determination. In particular, the principle allows the people to choose their own political status and to determine their own form of economic, cultural and social development (Malcolm, 1986) . The right to self-determination can be exercised in a variety of different outcomes ranging from political independence through to full integration within a state. The importance lies in the right of choice, so that the outcome of a people’s choice should not affect the existence of the right to make a choice.
The principle of the right to self-determination is significantly included in Article I of the UN Charter . Before the issue was included under the UN Charter , it was explicitly embraced by the former US President Woodrow Wilson, Lenin and others, and became the guiding principle for the reconstruction of Europe following WWI6. Moreover, the principle of self-determination of people has been subject to a conceptual evolution which began in post-Second World War era and accelerated in the 1960’s due to the decolonization process. This evolution pertains to the transformation of self-determination which was firstly conceived as a political principal to a peremptory legal norm, i.e. jus cogens. Self-determination has many characteristics formulated on different legal platforms. However, the International Covenant on Civil and Political Rights (hereinafter referred to as “ICCPR”) and the International Covenant of Economic, Social and Civil Rights (hereinafter referred to as “ICESCR”) constitute perhaps the most crucial phase in the evolution of this right. The implementation of self-determination has always been more controversial than its content which has been laid down by the Covenants. In addition, the concept is also included in other international as well as regional human rights and other treaties and also in the decisions of the International Court of Justice in different cases
The inhabitants of Somaliland have the right to self-determination under international law. There are different legal grounds that justify the right to self-determination and independent declaration of statehood of Somaliland under international law from three different perspectives.
The Right to Self-Determination Is People’s Right
First, I argue that the inhabitants of Somaliland have the right to self-determination as they are considered to be a people under international law. In understanding the word what “people” mean, there are objective and subjective criteria. From the point of view of objective criteria “people” is defined from the context of having their own distinct language, ethnicity and religion (Markus, 2006) from the rest of the inhabitants living in a certain area. When we literally evaluate the case of the inhabitants of Somaliland from this objective criteria point of view, they may not deserve the status of “people.” Because, they speak Somali language, are ethnically Somali, and practice Sunni Islam as do almost all Somalis. But, this standard is overly broad and even doesn’t consider some practical cases in most of European and African countries. In Europe for instance, Norwegians, Swedes, and Danes are considered different “peoples” despite their shared language, ethnicity, and religion (Lars, 2000) . Moreover in Africa, Swahili serves as a national or official language of four African nations: Tanzania, Kenya, Uganda and the Democratic Republic of the Congo though they are considered as different “people” (Lambert, 1995) . The mere fact that the inhabitants of Somaliland are speaking the same language with the rest of Somalis, follow Sunni Islam and are ethnically Somali does not affect their status of being considered as people. As Somalilanders, they have their own identity, culture and they do consider themselves as Somalilanders not as the rest of Somalis.
When we see the subjective criteria, it is totally different from the objective one. To determine whether the inhabitants or groups of a certain territory to deserve what “people” mean, it only focuses on the perception of the inhabitants or the groups themselves as if they are a distinct people and existed there (Jean, 1948) . This standard gives a room for the inhabitants of certain area themselves in what context and what sense they identify themselves. As long as the inhabitants perceive themselves in a certain way, it is only their own business.
In addition to the self perception of the inhabitants themselves, the understanding of others towards the inhabitants has its own effect. Totally, the proponents of subjective criteria argue that group recognition may exist because the group perceives itself as existing and different, or because outsiders define the group as different from them, or some mixture of internal and external identification. Sartre, for example, argues that “the Jew is a man that other men consider to be Jewish… it is the anti-Semite that makes the Jew” (Jean, 1948) . That means anti-Semite attitude of others has contributed a lot for the recognition of Jew people. As long as the group identify themselves as a distinct and other groups consider them different, they should be considered as “people” based on subjective criteria.
The inhabitants of Somaliland, ethnic Somalis tremendously of the Isaaq clan, were singled out by the past administration for persecution because of their clan affiliation (Jean, 1948) . By committing murder against a segment of its own people, and by defining that section with an immutable and collective characteristic like clan affiliation, the state may have raised the Isaaq to the status of a “people” with rights of self-determination independent of the “greater Somali” community. The inhabitants of Somaliland have built the identity of Somalilander from common colonial history and their struggle against Siad Barre regime in their process of nation building since 1991. Based on the above arguments, I strongly argue that the inhabitants of Somaliland deserve and fulfill the status of “people.” As long as the inhabitants of Somaliland deserve the status of people, they are entitled to enjoy their right to self-determination as the other people who are enjoying the same right.
Decolonization Justifies Somaliland’s Right to Self-Determination
The second ground that helps with establishing Somaliland’s right to self-determination is the instance of decolonization. Though political scientists and lawyers who are working in the area of self-domination are in agreement that the right to self-determination ensures colonized peoples may form states independent of their colonial rulers, the idea seems somewhat unclear concerning “secession” from post-colonial states. 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. The use of colonial boundaries to form independent states was a principle supported by the Organization of African Unity, known today as the African Union. The then African Union continues to maintain the position that its member states respect the borders with which they achieved independence and in fact this principle works for Somaliland.
The current Somaliland was under the colony of the British Empire and it was known as British Somaliland. In colonial administration, the northern part of Somalia, Somaliland was separately administered with the Southern part Somalia. Like other African people, the people of Somaliland got their independence from Britain in 1960. When Somaliland was freed from British colonial rule and declared its independence, it was recognized by different countries including members of the Security Council. Northern Somalia, Somaliland was the first Somali territory that got its independence and that was recognized by the UN. The Southern Somalia, now the Somali Republic and Punt land got their independence after Somaliland. Though Somaliland declared its independence and got recognition by the UN as an independent state, its independence did not last long. The statehood of Somaliland stayed only for five days and later it agreed to join with the northern Somalia and establish the Somali Republic.
Five days later, the newly established Somaliland and the Italian Somali agreed to form a union through a bilateral treaty, though the treaty ended up with irregularities. These irregularities happened due to the act of authorities who were in Southern Somalia. Both states drafted separate treaties and Somaliland sent its treaty to the authorities in Southern Somalia. Yet authorities in Southern Somalia did not send their own treaty to the authorities in Somaliland. The draft treaty sent by the Somaliland authorities was never approved by the Southern Somali authorities and rather they drafted their own, the Act of Union, and approved by the national legislature (Paolo, 1969) . When all the process happened, the authorities in Somaliland were never consulted and did not give their consent for the newly approved Act of Union.
In July 1st, 1960 the Somali Republic was created by uniting the British Somaliland and the Italian Somali. The union created in this way did not get the consent of the people of Somaliland and in-fact violates the law of treaty under International Law. It is true that, initially the people of Somaliland consented to join the Southern Somalia and form the Somali Republic. But the procedure that has been undergone to establish the republic was wrong and against the consent of the people of Somaliland. The Vienna convention on the law of treaty clearly indicates that, a treaty should get the consent of the other state to have a valid status13. The bilateral treaties drafted by Northern Somalia and Southern Somalia to form the Republic were invalid because they never received consent from the opposite side. The Vienna Convention stipulates that states must express their consent to be bound by a treaty for the treaty to enter into force14. The treaty drafted by Somaliland, the Law of Union between Somaliland and Somalia (Law of Union), was to enter into force after being signed by the “duly authorized representatives of the peoples of Somaliland and Somalia”15. Although the representatives from Somaliland signed the treaty, the representatives from Southern Somalia did not. Instead, the Legislative Assembly of the Somalia Trust Territory (Italian Somalia) approved “in principle” a different treaty, the Atto di Unioni (Act of Union)16. The Act of Union differed substantially from the treaty drafted by Somaliland. The provisional President of the Republic, a southerner, then issued a presidential decree formalizing the Union of the two states. Six months later, the Atto di Unioni was approved by the National Assembly. As formal agreements between two states, both treaties of unification therefore appear to lack the consent of the other party to the agreement.
Though we assume that the Act of Union did form a legitimate treaty, however, Somaliland could reasonably argue in another way that material breaches of the treaty under the dictatorship allow the north to terminate the agreement. Accordingly, the new Somali state formed within a constitutional framework through the Law of the Union and the Act of the Union did not get the blessing of the northerners. Though the Union was formed and declared in whatever way, it did not last for long period of time. The constitutional order was overthrown and military dictatorship controlled all political powers in Somali Republic in 1969 (Roethke). However the military dictator that breached the treaty was not a party to the treaty and non civilian leader, Somaliland still maintains its right to terminate the agreement. The Prerequisites that instigated Somaliland to join with the Southern Somalia no longer existed and Somaliland can claim termination of the treaty as the very objective of the treaty was not to install a military dictatorship. The treaties signed by the Italian and the British Somaliland to form the Union were invalid. As long as the treaties were invalid and terminated due to the act of the Southern Somali groups, Somaliland’s claims to independence would not violate international law and territorial integrity of a “united Somalia”, since that union has ceased to exist. Somaliland’s unilateral declaration of statehood and decision to secede from the Union is justified as a “legitimate exercise of self-determination under the decolonization framework of the Declaration on the Granting of Independence to Colonial Countries and Peoples”18.
Considering the violation of the bilateral treaty by the Southern Somali and invalidating those treaties, the secession or withdrawal of Somaliland from the Union or the Somali Republic doesn’t amount dismember a sovereign state, rather it is a restoration of a previously independent and sovereign state to its former status. That means, Somaliland still retain the right to secede as the reason that the Act of Union was invalid under the law of treaty.
Grave Human Rights Violation during Barre’s Regime
The other legal ground that justifies the unilateral statehood declaration of Somaliland is occurrence of grave human rights violation against its inhabitants during siad Barre’s regime. The occurrence of this human rights violation justifies the right to declare their independence. As it is explained by Hugo Grotius, a well known international law jurist, the existence of human rights violation justifies rebellion and “the people can depose a ruler who openly shows him to be the enemy of the whole people because a ruler cannot simultaneously exercise both the wills to govern and to destroy” (Kelsey, 1925) . Moreover, P. Nanda argues that, if the fundamental rights and freedoms of the people are affected in a genocidal scale, the people have the right to claim their right to self determination through secession (Nanda, 1981) . This argument will consolidate properly my premises which says, the violation of people’s right is an adequate mechanism to declare once self-determination. When the violation of the right is manifested in a greater degree, genocidal scale, the people are entitled to enjoy their right to self determination under international law.
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 rights19. Since the people have the right to be protected against the violation of their right, the mere violation of the right will call the question of the right to self-determination to be free from this violation. This grave violation of human rights is well documented in the history of the people of Somaliland. During the regime of Siad Barre, thousands of people from Somaliland were killed, imprisoned, and their property was looted. There was also a targeted attack against the wealthier clan members of Isaq in Somaliland and this genocidal attack was done through the help of former German Democratic Republic and KGB (Omaar, 1992). The genocidal attack on the Isaq clan was intensified with the military bombing and shelling of the northern cities, Hargeisa and Burao. Due to this genocidal attack, around fifty thousand people were killed in Somaliland and around five hundred thousand people were fled to the neighboring Ethiopia from Somaliland.
The occurrence of such genocidal scale human rights violation against the people of Somaliland was the main reason that obliged them to declare their independence in 1991. Since they have an inherent right to be protected from such kind of grave violation of human rights, they declared their independence unilaterally.
Inability to Exercise Internal Self-Determination Right
Lastly, in addition to gross violation of human rights committed against the people of Somaliland during Siad Barre’s regime, they were also denied to exercise their internal right to self-determination. When there is a violation of an internal self-determination, people will be obliged to rebel against the regime to declare their own external self-determination for the sake of achieving the internal one. As Anthony J. and Rajagopal have rightly explained it, “the denial of a people’s internal self-determination’ leads to the revival of their external right of self-determination.” That is what clearly happened in Somaliland. The violation of their internal self-determination when they were part of the Somali Republic has instigated them to search for another alternative and to declare their external self-determination.
Moreover, in addition to the violation of their internal self-determination during their membership of the Somali Republic, a political vacuum was created when the Republic was disintegrated. When the Republic was disintegrated, the people of Somaliland had no other alternative than declaring their external self determination and proclaiming their independence as a nation state. Then, I argue that Somaliland still entitled to enjoy its right to self-determination and secede from the Republic of Somalia as it was not able to exercise its internal right to self-determination while it was under the Union and the solution provided under international law in such circumstances is secession which Somaliland properly did.
Somaliland is located in the conflict and war prone area of the Horn of Africa. The region has experienced various political turmoil since the beginning of the 1990s and the majority of countries in this region have experienced coup d’état. Following the scramble for Africa, this region, except Ethiopia that has successfully defeated Italy at the battle of Adwa, was under the colonial control of European powers.
The experience of colonialism at the hands of former colonial rulers, Britain and Italy, and the political instability that marked their departure, shape the main causes of Somalia’s current turmoil. After the end of the northern Somalia (British Somaliland) and the Southern Somalia (Italian Somali) rule, the state of Somalia came to existence in 1960 by merging the two independent northern and southern part of Somalia. After some years of civilian rule, the military regime of Siad Barre overthrow (Clarke & Geosende, 2003) the civilian government and since then the Somali National Movement (SNM) started its struggle till Somaliland declared its independence in 1991. Though Somaliland declared its independence before twenty five years, its statehood is not formally recognized by the international community including the United Nation (UN) and African Union (AU). Having unrecognized status of statehood, it is only Somaliland that has most stable and democratic government compared to other former “Somali Republic” territories. The al-Qaeda affiliated Al-Shabab controlled and became a threat to other Somalia territories except Somaliland
Temesgen Sisay Beyene
(LLB, LLM, Lecturer, BDU)