Monday, February 20, 2006

Self-Determination And The Case For Somaliland

This paper was presented at a Seminar on Somaliland which took place at Northwestern University on Feb.13, 2006.

The issue of global recognition of the sovereignty of Somaliland is both a political question and a legal question. I argue that Somaliland ’s claim for international recognition of its sovereignty attracts considerable support in the legal realm. But until quite recently there were significant political reasons why other states have withheld their recognition. I argue that these political obstacles to recognition of Somaliland ’s sovereignty have weakened. Recent precedents in other regions of the world and closer to home in Africa have contributed to this change. Taken together, they make the recognition of Somaliland’s claim to global recognition of its sovereignty as a state separate from old Somalia more likely.

The legal question is straight-forward: The international community determines that Somaliland is an independent state in the fullest sense or that it is not. The Montevideo Convention of 1933 is a core element of international law that reflects the principles of full sovereignty. These principles appear in most agreements that followed and provide a defining basis for the United Nations system. These principles are thus: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states” (Article I). Somaliland possesses the first three attributes in abundance and has done so for quite some time now. The authorities in Somaliland have exhibited these attributes simply through their own everyday administration. The international community, which includes officials of foreign states, international organizations such as the UN, private international businesses, and the international non-profit sector (NGOs) affirm their acceptance of these three principles through their presence and interactions within Somaliland .

The obstacle to recognition of sovereignty lies in the fourth principle; that a state can be fully sovereign only if officials in other states say that it is such. This recognition is of critical importance. It would give authorities in Somaliland the “capacity to enter into relations with the other states,” in other words, the ability to exchange ambassadors. The real benefits follow the diplomatic niceties. Recognition would mean that people in Somaliland could carry their own passports and be assured that foreign governments will respect their documents. Recognition also brings with it the capacity to take out loans. It would simplify international commerce through giving business partners access to all sorts of international agreements and laws that help to make their transactions more predictable. This simple change would reduce risk premiums for everyone who does business in Somaliland , whether a citizen or a foreigner. Local banks would have access to new means to organize their relations with sister institutions overseas. They would be less bothered by the international organizations that monitor financial transactions, since credit could move into more “normal” channels. All of these changes would benefit the rest of the world, but of course they would be especially beneficial for people in Somaliland .

Since the end of the Second World War, however, officials in other states have been very reluctant to recognize the sovereignty of any new state. The experience of Nazi conquest and oppression made victorious Allied political leaders wary of recognizing any change of borders after the peace settlement. They feared that doing so would legitimize conquest. Saddam Hussein learned the hard lesson that the rest of the world rejected the very idea of conquest as he faced a diverse array of states in 1990-91 determined to end his army’s occupation of Kuwait . It was relatively easy to find a coalition to fight that war because it was in everyone’s interest to show that conquest does not pay, no matter whether they liked Kuwait or not, or what they thought of Iraq. This rejection of conquest has meant that irredentists have practically no chance of getting other states to recognize their conquests. That knowledge might have saved Siad Barre and others in Somalia from the troubles of 1977-78 and much that followed from it.

This reluctance has extended to the question of recognizing the division of existing states, even when this does not affect the territory of neighboring countries. While there was much talk of pan-African unity in the 1950s, when most leaders of new African states came to power in the 1960s, they saw that recognizing a separatist claim in another state might boost the claims of separatists in their own. Thus when the Organization of African Unity was created in 1963, its members agreed to keep the old colonial boundaries. In 1964, they pledged themselves “ to respect the frontiers existing on their achievement of national independence” Their real fear was that leaders in neighboring countries might try to stir up ethnic or linguistic divisions in their own. This does not apply to the case of Somaliland , because it is the heir to a state that has collapsed and its authorities make no claims on its neighbors. But precedent is important. Leaders in other countries may fear that outsiders could decide that their own state is somehow “too weak” and recognize new states from the parts that break away. One can imagine that leaders in Kinshasa or Khartoum might worry about such a precedent. Thus recognition for Somaliland really does involve a political determination on the part of other states.

The politics of recognition is undergoing change in Somaliland ’s favor, in spite of these concerns among African leaders. In 1993, the independence of Eritrea received recognition from the international community. This followed the Eritrean People’s Liberation Front victory in battle against the Mengistu government in Ethiopia . Together with their allies, the Tigrayan People’s Liberation Front, they were able to install themselves as the new government of Ethiopia . This coalition then granted the Eritreans the independence that they had sought for over 30 years. Once this happened, the international community’s recognition soon followed.

Other states, including in Africa, recognized Eritrea ’s sovereignty because this break from Ethiopia was a consequence of a mutual agreement. If all of the affected parties agree, argued diplomats, how could the rest of the international community stand in their way? This followed the recent dissolution of the Soviet Union . The 15 socialist republics of the USSR agreed among themselves in the Treaty of Alma-Ata in 1991 to allow peaceable separation and pledged to each other to recognize those that left the old federation. Likewise, the two main regions of Czechoslovakia agreed to separate peacefully in their 1993 “Velvet Divorce”. International recognition of the Czech Republic and of Slovakia followed almost immediately.

Therefore, Somaliland’s problem can be seen as being unable to secure the consent of the government of Somalia to separate. Of course getting consent would be difficult, since no viable central government of Somalia has existed since January 1991! Ironically, the closest thing to a viable central government of Somalia is found in Somaliland . Even so, in international law the finer points of status and precedent count for a lot. But as I have argued in this essay, politics leads international law. Like a supertanker, international law is slow to change course. Eventually it does change course because it has to deal with the realities of political developments. Like any body of law, to enjoy widespread legitimacy, and therefore to be strong and effective, average people should see it as useful in their lives. They have to see it as helping them to solve problems, and not as an obstacle to progress.

A more important precedent appeared in Europe . In 1991, the international community decertified Serb-controlled Yugoslavia as a sovereign state. It was not a collapsed state like the Mogadishu-based Somalia has been since 1991 Instead, officials in the European Community (as the EU was then known) grew impatient with what they saw as Serbian sabotage of peace negotiations in the war that had recently broken out. The wider public in these countries also condemned the practices of Serb-controlled armies and militias. They saw that these armed groups committed grave abuses of human rights and committed crimes against humanity as part of their everyday military strategy. In the eyes of the international community, Serbia , the core of the still-existing Socialist Federal Republic of Yugoslavia, had lost the right to consider these areas where it committed these crimes as part of its own territory. Diplomats and international lawyers declared that Yugoslavia therefore had ceased to exist. Foreign states now were free to recognize Slovenia , Croatia , Bosnia , and Macedonia in 1991-92. Continued abuses in Kosovo resulted in the 1999 international intervention. Serbia eventually lost the right to consider Kosovo as part of its territory too. It is quite likely that Kosovo’s independence will be recognized in 2007.

Global recognition of the independence of East Timor , initially against the wishes of the Indonesian government, offers an important precedent too. The international community recognized the sovereignty of East Timor in 2002 largely on the basis of the oppressive behavior of the Indonesian government. But crucially for that case, a new government in Indonesia in 1998 consented to the separation. Moreover, people in East Timor had fought for their independence almost continuously since their territory ceased to be a Portuguese colony in 1975 and was forcibly seized by the Indonesian army in defiance of international law and the wishes of people there.

The Yugoslav case is more important for Somaliland because it involved the decertification of an existing state and international recognition of the portion of it that had stable authorities that respected basic norms and conventions of human rights. This precedent gives authorities in Somaliland a good basis for pursuing their claims for recognition. They can reiterate the following facts.

First, the authorities in Mogadishu forfeited their right to rule on the basis of their systematic and widespread violations of human rights and the commission of war crimes in their attempts to suppress the 1988 incursion of the Somali National Movement and the uprising that followed. This should not be seen as an internal affair; as an effort to simply reassert control over national territory. Prior to this event, the commission of human rights violations were integral to his political strategy. His treatment of the people of Somaliland as enemies of his state was evidence of this. His actions created a refugee crisis and internal turmoil to the extent that they posed a threat to the security of neighboring states and to the wider international community. Decertification of the sovereignty of Somalia on these grounds would follow the precedent found in Yugoslavia in 1991-92.

Second, Somaliland possessed a previous separate legal identity from the southern part of Somalia . As Somaliland authorities already point out, their country’s territory was a British colony. Then it was independent for five days before unification with the Italian mandate territory to the south. These facts are not contested, but alone they are not sufficient to gain recognition. The fact that Eritrea previously had been a colony separate from Ethiopia , and then was amalgamated against the wishes of many citizens, was not what won them their case. Certainly this history helped. It was mutual agreement in Asmara and Addis Ababa that won them their case.

Thus decertification of the old state of Somalia emerges as an important matter linked to the recognition of sovereignty for Somaliland . The abuses of the now-defunct government are in the past, so there is not the urgency that the international community faced in the Yugoslav case. But another principle can be taken from Yugoslavia . The international community solved a problem by recognizing the dissolution of the old state. In that time, it concerned how to end (or try to end) the turmoil and violations of human right that were causing so many problems to European countries around Yugoslavia . International law evolved to solve a problem—to remedy that situation. In the case of Somaliland, the benefit of recognition to the international community would be to equip an already successful alternative to the continuing lower levels of turmoil in southern Somalia . Decertifying the old Somali state would not prejudice the efforts of people in the south to construct a central government. In fact, it would more clearly define the territorial parameters of their efforts and would further dissuade them from entertaining the notion of adding to their realm a community that would likely resist that attempt. Recognition of sovereignty would lend the further commitment of the international community to the security and protection of the country that already exists, and would add to the prosperity of its citizens by extending to them the right to interact with the rest of the world just like other people do.

By William Reno

Department of Political Science

Northwestern University

Source: Somaliland Times

1 comment:

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