Somaliland: shackled to a failed state.
Somalia lacks the basic characteristics that define a state in the international community. The rule of law has been obliterated by years of civil war and internal strife, leaving Somalia a "failed state." For the last decade and a half rival warlords have controlled Somaliland. The central government, elected by warlords at a conference in Kenya, does not have the capacity to exercise authority over its population. Somalia's beautiful beaches and historical city streets are largely inaccessible to the outside world, and the outside world is just as inaccessible to Somalis. In fact, while the national passport is sold at the public market in Mogadishu, it is no longer valid for international travel. The same public markets flood the country with machine guns and rocket propelled grenade launchers.
From the rubble of the civil war, however, the de facto state (1) of Somaliland has emerged. Somaliland has its own democratic government, police force, army, financial system, and currency. It was even briefly recognized as an independent country in 1960. Somaliland's calls for international political recognition as an autonomous nation State, however, are being ignored. In the words of British Parliamentarian Tony Worthington, the international community has consistently placed "the interests of the wrongdoers in the south ahead of those peace-builders in the north [i.e., Somaliland]." (2)
Unfortunately, stability is unlikely to be maintained in the face of the many obstacles that Somaliland faces. Some of these obstacles reflect Somaliland's status as one of the most impoverished countries in the world, while others are symptomatic of its lack of political recognition. As Scott Pegg laments, "barring the legal gates and denying the de facto state even an extremely limited legal competence does not seem to be the way to encourage compliance with the fundamental norms, let alone the desiderata of international law." (3) Worthington has asserted that "[t]he longer Somaliland is left to fend for itself without resources for schools, for example, the more willing will radical elements be to step in." (4)
Somaliland is a black hole for international law and at this stage is only accountable for violations of "peremptory norms from which no derogation can be allowed by agreement or otherwise." (5) There are already erosions of freedom of the press, and a report by the International Crisis Group found that the Somaliland Press Law may violate Article 32 of the Somaliland Constitution. That article "declares the press and other media to be 'part of the fundamental freedoms of expression' and states that 'all acts to subjugate them are prohibited."' (6) These continuing derogations of international law are actively hindering Somaliland's acceptance as a state in the international community.
By conditioning statehood upon the satisfaction of normative criteria, such as the protection of basic human rights and democratic governance, the international community can provide powerful incentives for improving the behavior of states and aspiring states. (7) In Somalia there are no such incentives; there is no rule of law and little infrastructure. Hostilities have persisted for sixteen years and assertion of authority will only come through force. Validating Somaliland's status and extending recognition can potentially preempt the conflict that would arise if a stable government does emerge in Somalia. In fact, "failing a negotiated settlement, any attempt to coerce Somaliland back to the Somali fold would entail a bitter and probably futile conflict." (8)
Even a hypothetically peaceful "reunification of two largely incompatible systems--Somaliland's embryonic democracy on the one hand, and Somalia's fragile transitional structure on the other--would run the risk of destabilizing both." (9) Integration through unification, for example, would jeopardize any fragile power balances that would have been struck to achieve stability in the south." (10) In fact, "what is clear is that any form of national institution will have only limited power and authority. The wounds and scars of the past ten years are too great at this point to think of a unified and centralized entity," (11) Recognizing Somaliland, however, would improve control and accountability over nomadic populations, (12) and allow the international community to intensify its efforts on the areas needed most. Somalia could even benefit from observing how Somaliland has utilized traditional Somali reconciliation procedures (13) to foster peace and democracy. (14)
The two halves of Somalia have distinct histories. According to a United States Government report:
[A]lthough officially unified as a single nation at independence, the former Italian colony and trust territory in the south and the former British protectorate in the north were, from an institutional standpoint, two separate countries. Italy and Britain had left them with separate administrative, legal and education systems where affairs were conducted according to different procedures and in different languages. Police, taxes, and the exchange rates of their separate currencies were also different. The orientations of their educated elites were divergent, and economic contacts between the two regions were virtually non-existent. (15)
The particular colonial, historical, and socio-economic paths forged distinctive national identities in the north and south and were critical in the emergence of the de facto sovereign state of Somaliland. (16)
One obstacle to recognition inherent in the international law on state recognition is that states can extend de facto recognition to Somaliland while denying meaningful political recognition. Article 74 of the Vienna Convention, for example, specifically states: "the severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States." (17) This provision allows the international community to benefit from the peace and stability achieved by Somaliland, (18) but de facto recognition without political recognition becomes a form of neocolonialism. Somaliland is left unrewarded. Recognized states can dictate terms to Somaliland from a position of unequal bargaining power. This non-recognition is why Somaliland refuses to negotiate with Somalia and is not a member of the major international non-governmental organizations. Somaliland "is too small to wield any muscle against the international organizations that ignore it, [and] it requires a country willing to be a facilitator for its cause of reconstruction and diplomatic recognition." (19) But so far Somaliland has not enjoyed such a champion and so has been unable to take part in myriad international institutions. "Qualified recognition, such as awarding both parties observer status in various international organizations (such as the U.N., A.U. and I.G.A.D.), would help to level the playing field and provide an incentive for both sides to come to the table." (20)
Because of the complicated political permutations the situation in Somaliland is unlikely to be resolved by pure legal analysis. There are too many countries and international governmental organizations (IGOs) that have shaped and influenced the current situation and find themselves irreversibly entwined in its resolution. These organizations' member states have their own interests, concerns, and fears that inevitably blur the strict application of the principles of international law. In fact, Ian Spears points out that:
[W]hile recognition is itself a legal procedure, it is the entitlements that it allows which are most attractive from the disputants' point of view. Formal independence is the only reliable means of defence because it provides groups with the right to take up arms to defend themselves. If the international community is not willing to intervene when political groups are threatened with violence, then it should come as no surprise that some groups should demand political independence." (21)
Somali groups have been fighting for such recognition since colonial times.
The United Kingdom was the colonial power in Somaliland, and Colonial Secretary Mr. Lennox-Boyd made a promise to Somaliland on the eve of independence:
[W]hatever the eventual destiny of the Protectorate, Her Majesty's Government will continue to take an interest in the welfare of its inhabitants, and will in the light of the circumstances prevailing from time to time, be prepared to give sympathetic consideration to the continuation of financial assistance within the limits of the amount of aid at present being provided to the Protectorate. (22)
Despite these promises of financial assistance, Great Britain has refused to go further and be the first country to recognize Somaliland. It fears that African states would construe this as neocolonialism and prefers instead to move 'inconspicuously.' Thus, though the United Kingdom has been willing to encourage African states to extend recognition, its promise of "enduring friendship" (23) has not amounted to recognition.
The Soviet Union and United States played their own role in the militarization of Somalia during the Cold War. More recently, Russia has been unsympathetic to calls for recognition because recognition of Somaliland would have direct implications on Russia's position on Chechnyan independence. The United States, on the other hand, has been more concerned with the threat of terrorism emanating from the region and the notion that terrorists could exploit the lawless territory in southern Somalia as a site for training camps than in supporting a new precedent for statehood. Greg Mills, for example, found that:
Somalia's porous borders and undefended coastline make it a prime concern for US policymakers in the war on terrorism. According to a UN report published in November, the 2002 terrorist attacks on a hotel and an Israeli aircraft in Kenya were planned and prepared in Somalia. The UN report produced evidence linking regional terrorism to the disintegration of the Somali state and alleges that the Kenya attacks were carried out by an Al-Qaeda cell, some members of which may still be at large in Mogadishu. (24)
A peaceful Somaliland would give terrorists less room to maneuver and less flexibility in their operations, but despite some shows of support for Somaliland, the United States has not recognized it as a state. In fact, "the lack of Arab support for Somaliland's cause makes the United States and the United Kingdom reluctant to risk damaging their ties with the Middle East." (25) The Arab states are anxious to exploit their own religious, socio-economic, and cultural ties. They focus on a perceived conflict between the Muslim world and Christian Ethiopia, underscoring that the motivations regarding recognition of Somaliland of some Arab states are predominantly ideological. Saudi Arabia, Yemen, and Egypt promote "Somali unity and a strong Somali state that can serve as a counterweight to Ethiopia." (26) Egypt is particularly concerned because eighty-six percent of the water that reaches Egypt's Aswan Dam comes from Ethiopia via the Nile River. The Nile is Egypt's lifeline, and Egypt seeks to maintain maximum leverage over Ethiopia by supporting a strong Somalia that could push Ethiopia for claims over Ethiopian territory. (27) In contrast, the Arab League has supported Somalia financially.
Somaliland's longest border is the one it shares with Ethiopia, and nomads frequently cross it for seasonal pasturage. Ethiopia, however, has been unwilling to become the first country to recognize Somaliland because Somalia would likely "attribute nefarious motives to Ethiopian recognition of Somaliland," (28) which would be deleterious to Somali-Ethiopian relations. Although Ethiopia has a strategic interest in the "expansion of the port and improvement of roads between Berbera and southeast Ethiopia," (29) it does not need to recognize Somaliland to secure that interest. The development of the port would be mutually beneficial to Somaliland and Ethiopia. Yet beyond its immediate neighbors, significant hurdles remain in Somali acceptance within Africa specifically and the international community generally.
A more promising option than Ethiopia would be for Somaliland to concentrate its diplomatic efforts towards the African Union (A.U.). A report by the Center for Strategic and International Studies (C.S.I.S.) encourages Somaliland to "focus its efforts on convincing several key African countries to support it within the African Union. Important countries like South Africa, Algeria, and Senegal, if convinced of the merits of Somaliland's case, could make an enormous difference." (30) The South African Department of Foreign Affairs, for instance, found that "Somaliland does indeed qualify for statehood, and it is incumbent upon the international community to recognize it." (31) Support has also come from Kenya, and the A.U. has been generally receptive. In 1964, the original members of the Organization of African Unity (a precursor to the A.U.) adopted a resolution declaring that "all the member states undertake to respect their existing boundaries at the moment they acceded to independence." (32) This declaration demonstrated the Organization's commitment to the territorial integrity of states, arguably including Somaliland since it only subsequently joined with Somalia. The challenge is in convincing the A.U. not to automatically dismiss it because some members see secession as a potential "Pandora's box." (33)
In this Article, I explore the legitimacy of Somaliland's secession from historical, political, humanitarian, and legal perspectives. I conclude that the political recognition of Somaliland as a sovereign state is warranted in the first instance because the original "union" between Somalia and Somaliland was inadequate to bind the two countries. Even accepting the legitimacy of the original unification, Somaliland has a right to unilateral remedial secession because Somalilanders have been denied their right to internal self-determination, and there is no means for recourse. The Transitional Federal Government (T.F.G.) in Somalia does not have the capacity to negotiate regarding secession nor the infrastructure to enforce a decision. Therefore, it is incumbent on the international community to recognize Somaliland.
Beginning in 1885, the British began securing Somaliland as a protectorate territory through a series of agreements with traditional elders. These treaties guaranteed military support in the event of armed aggression by surrounding territories ruled by other nations. Clan elders accepted and ratified the treaties, establishing the British Somaliland Protectorate and securing trade routes for Great Britain. The British officially notified the signatory powers to the Berlin Conference of 1885, on July 20, 1887, that a British protectorate had been formed and participated in the demarcation of borders between Ethiopia, Djibouti (French Somaliland), Somaliland (British Somaliland), Somalia (Italian Somaliland), and Kenya. (34) The southeastern border followed the mountain peaks, but in most cases there was no discernable reason why the colonial powers needed to demarcate borders that divided the Somali population so abruptly. (35)
During the early twentieth century, the British worked to solidify their control and build infrastructure throughout Somaliland. Although the Italians temporarily occupied British Somaliland during World War II, British forces quickly reclaimed the area and took control of all the Somali territories except Djibouti. A full protectorate was reinstated in British Somaliland in 1948, and the next year the Bevin-Sforza Plan emerged for Italian U.N. trusteeship of Italian Somaliland. On December 2, 1950, the United Nations General Assembly officially adopted the plan for an initial ten-year period. The Ethiopians and Italians, however, opposed Bevin's proposal that British and Italian Somaliland eventually be unified. In Somaliland, the colonial authorities continued to exercise control "through a system of indirect rule that relied upon traditional leadership structures.... Very little political activity was either permitted or encouraged." (36) It has been too easily forgotten that, "for more than 80 years, British Somaliland was either a British protectorate or colony." (37)
As independence approached, Somalilanders were caught up in a frenzy of nationalist sentiment. Many Somalis saw the unification of all Somalis within a "Greater Somalia" as a way to overcome the inferiority implicit in colonial domination and exploitation. (38) Somaliland won its independence on June 26, 1960. At the time, Somaliland "possessed only a handful of university graduates and a single secondary school. Not a single sealed road linked the major towns. The principle natural resource of the territory was its livestock, and an industrial base was non-existent." (39) Parties like the Somali National League (SNL), the National Unified Front (NUF), and the United Somali Party (USP) served their limited purpose in securing independence and for the most part disappeared soon thereafter. (40) However, pro-unification sentiment was high, and the majority of Somalilanders clung to the illusion that a "Greater Somalia" would be attainable. This tide of emotion, a reflex response to independence, carried Somaliland into the next chapter of its history.
Only five days after gaining its independence, Somaliland unified with Somalia. The unification between Somaliland and Somalia arguably happened too fast and was poorly planned. Provisions laid out by Somali representatives from both territories at meetings held in Mogadishu in April 1960 were never even satisfied. The new republic, for example, was not "unitary, democratic, and parliamentary," and no genuine coalition government was formed. (41) Emperor Haile Selassie of Ethiopia claimed it was a "thinly-disguised move for the seizure of Ethiopian territories." (42)
The Legislative Assembly of Somaliland passed the Union of Somaliland and Somalia Law on June 27, 1960, but the document was never signed by authorized representatives in southern Somalia and remained without force. (43) The legislature of southern Somalia also approved, in principal, a similar law on June 30, 1960. However, this law, the Atto di Unione, (44) was significantly different from the one passed in Somaliland and therefore did not come into force because the Somaliland legislature had "insisted that the two governments agree to the text of a single act of union to be presented for the approval of the joint legislatures." (45)
The President of the Legislative Assembly (acting as provisional President of the Somali Republic), Adan 'Abdulle 'Isman, proclaimed the independence of Somalia on July 1, 1960 despite the absence of a valid Act of Union and the fact that Italian Somaliland was still technically under U.N. trusteeship. (46) Therefore, whether Adan 'Abdulle' Isman had the authority and legal capacity to declare the independence of the Republic of Somalia without popular mandate remains at best a contentious issue. An impartial analysis of Somaliland's claims for international recognition should not blindly accept the premise that there exists a legally enforceable union between Somaliland and Somalia.
The new constitution made ominous claims on Djibouti, the Frontier District of Kenya, and the Somali region of Ethiopia. In fact, it was not until January 31, 1961 that the Legislative Assembly attempted to rectify its blunder with regards to the missing Act of Union. It proclaimed, at that time, a new Act of Union that would be retroactive from July 1, but the accompanying repeal of the Union of Somaliland and Somalia law was not effective in all of Somalia. (47) No single, universally determinative Act of Union was ever taken, and "a presidential decree entitled the 'Law of Union of the State of Somaliland and Somalia' submitted to the combined legislatures failed to win their approval." (48) "It was not promulgated since it had not been passed by the National Assembly," and was ultimately referred for a referendum to be held in June 1961. (49) This referendum would determine whether the constitution was to be ratified. For now, Somalis and Somalilanders partied in the streets, and in their homes, because they believed the union had been made, but that was not the full picture. (50) Dr. Ahmed Esa explains that Somalilanders only supported the union because they wanted to see the realization of a "Greater Somalia." They would not have accepted a merger with Somalia without the expectation o f more. (51)
Signs of a distribution of power that was disproportionate in the eyes of many Somalilanders did not take long to exacerbate tensions. Somaliland's Prime Minister became only the Minister of Education "in a cabinet heavily dominated by southerners," and Somaliland received just thirty-three seats in Parliament, in contrast to ninety-nine seats for southern Somalia. The constitution did not adequately reflect the interests of Somalilanders because the southerners and the Italians drafted it and "northern politicians could make only marginal changes." (52) Mogadishu, significantly, was nominated as the national capital, and many Somalilanders felt alienated from the social and economic nucleus of the country. Hargeysa, which had been the hub of economic and political activity in Somaliland, was now an after-thought in Somalia.
Dissatisfaction with the unfavorable balance of power caused one of the major parties in Somaliland, the Somali National League (SNL), to boycott the referendum on the constitution in June 1961. In fact, "of the 100,000 recorded voters in Somaliland, over 60% opposed the constitution, 72% in Hargeysa, 69% in Berbera, 66% in Burco and 69% in Ceerlgabo." (53) The fact that Somalilanders constituted only 100,000 votes, out of a total of 1,952,660, (54) however, meant that there was something of a "southern veto." (55) There simply were not enough people in Somaliland to win a democratic vote. This artificially disguised the fact that there was still no popular mandate for union by the northerners, but the signs of dissatisfaction were there. The artisans in Somaliland, for example, produced "popular plays and songs critical of unification," and six months after the referendum, there was an unsuccessful effort by "Sandhurst-trained military officers to stage a coup d'etat in Hargeysa." (56) A British judge presiding in Mogadishu, however, 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. (57)
Parliamentary civilian rule in the Republic of Somalia was being built upon the dream of a "Greater Somalia," and many Somalis believed that the union had been predicated on the promise of a multilateral treaty that would encompass ethnic Somalis in Djibouti, Ethiopia, and Kenya. Great Britain, however, awarded independence to Kenya in 1963 and granted the Kenyan authorities control over the predominantly Somali Northern Frontier District (NFD) (and, it was of no consolation to Somalia that this was done in disregard of earlier assurances to respect the findings of an independent commission, which established that the majority of people in the NFD sought unity with Somalia). The next year, a frustrated Somalia failed militarily in its attempt to annex the disputed Somali-inhabited region of Ethiopia, and the dream of unifying the Somalis was, for the time being, laid to rest. (58) The Parliamentary government in the Republic of Somalia was not up to the task of realizing the dream of a "Greater Somalia," and the people knew it.
Internally, Mohamed Ibrahim Egal, an Isaaq, became the Prime Minister of Somalia. (59) In October 1969, the President Cabdirashiid Cali Sharmaarke, however, was assassinated by one of his bodyguards while he was touring the Las Caanood area. Siad Barre seized power on October 21, in a bloodless coup, and relations between Somaliland and Somalia rapidly deteriorated. "The new governing authority, the Supreme Revolutionary Council (SRC) immediately ... suspended the constitution, abolished the National Assembly, banned all political organizations, and arrested and detained leaders of the former government.... (60) The Prime Minister, Mohammed Ibrahim Egal was arrested, and he remained in jail until 1982. His only brief respite was in 1975 when he was appointed as an ambassador to India for six months. (61) Within Somalia, the fledgling socialist dictatorship met early support as an alternative to the failures of civilian rule. "Barre built his base of power around three clan groups (his own Mareehaan clan, the Ogaden clan of his mother, and his son-in-law's Dhulbahante clan) and rewarded these clans (referred to as the MOD Alliance), as well as other clans that showed their loyalty to his regime, with lucrative positions in the state apparatus." (62)
"The 'Revolution' quickly introduced the first official Somali script, launched massive literacy campaigns, and embarked on an ambitious program of self-help schemes and social development projects." (63) Strong state policies founded upon the doctrine of scientific socialism, and military support from the Soviet Union, convinced many that the realization of a "Greater Somalia" was now within their grasp. The vision, however, was unattainable within the existing social structure, and a program of "social engineering" (64) was introduced. The regime was "dismantling ... the traditional clan-based order, economic networks and political institutions upon which the majority of Somalis still depended." (65)
Unification around aspirations for a "Greater Somalia" became a means to reinvigorate political support for the Barre regime. In fact, by 1975 clandestine Somali military groups, with the assistance of the Soviet Union, were working within Ethiopia's Somali region. An all-out war between Somalia and Ethiopia erupted in 1977, but early Somali gains were reversed when the Soviet Union and Cuba withdrew support and switched sides. Somalia suffered heavy losses, and a comprehensive defeat in 1978. (66) The last realistic prospect of a "Greater Somalia" had virtually disappeared, however, when Djibouti rejected unification with Somalia by referendum in 1977. (67) The citizens of Djibouti had not been convinced by the rhetoric of the Barre regime, and within Somalia the people were beginning to ask their own questions.
The Isaaq clan felt increasingly subordinated, and tensions rose throughout the 1980s as military losses caused an influx of ethnic-Somali and Oromo refugees into Somalia. More than one thousand refugees arrived daily, and by 1981 they represented forty percent of the total population. (68) Four hundred thousand refugees settled in the north and they were mostly Ogaden; their close connections with the Barre regime concerned many of the predominantly Isaaq Somalilanders, and there was a sense that the refugees were favored for aid resources and civil service positions because of their clan. (69) The dissatisfaction intensified when Siad Barre elected to form and arm a refugee militia there. This military assistance was often directed against Isaaq civilians in the Haud even though it was intended for use against the Ethiopian government. (70) "In a memorandum dated March 30, 1982, a group of twenty-one Isaaq elders enumerated the grievances of their community concerning the refugees, warning ominously (and prophetically) of 'the dangers facing us,' which included 'a real threat to the unity of the Somali people,' and 'the threat of disintegration.'" (71)
Somalilanders were concerned that foreign aid was misappropriated, diverted by the regime, and only reached Somaliland when it was earmarked for the refugees. (72) The perception grew that "the Isaaq clan had been singled out as a target for political, economic, social and cultural oppression." (73) These grievances were exacerbated when imported goods worth approximately fifty million dollars were confiscated from the port in Berbera in February 1982. (74) "Outright appropriation of Isaaq's private property by government officials and members of the security forces became commonplace." (75) Somaliland became like a "colony under foreign military tyranny," (76) and there was no means of recourse through the legal system.
Habeas corpus had been annulled in 1969, and the judicial system in Somaliland had ceased to function. "The country was effectively administered ... by the Hangash (military intelligence), the Dabarjebinta [sic] (military counter-intelligence), the Kofiyad 'Asta [sic] (red-berets--military police), the Barista Hisbiga [sic] (party investigators), and the Guulwadayaal (party militia)," while "imprisonment, torture, and execution were trial de rigueur." (77) In fact, the international community condemned the situation when ten (78) Hargeysa intellectuals were arrested, detained, and tortured for organizing self-help programs in 1981 . (79)
The Isaaqs responded to the persecution of their clan by creating the Somaliland National Movement (S.N.M.) after deliberations in Somalia, the Gulf, Saudi Arabia, and the United Kingdom. Bases for clandestine cross-border incursions were established within Ethiopia, and S.N.M. militiamen raided Mandheera Central Prison in January 1983. They released over one thousand political detainees and other inmates who had been condemned to death, (80) but Siad Barre retaliated:
"In the urban centers, arbitrary arrests, detentions and executions accelerated. In the rural areas, the regime sought to undermine the SNM's support among nomads by destroying their livelihoods. Water points were declared off limits, closed, destroyed, poisoned, and mined. Commercial trucks were grounded, starving the rural community of food, medicines, and other consumer goods. Villages were razed to the ground and soldiers allowed to confiscate livestock without compensation." (81)
A report written by Somali Major General Mohamed Saeed Hirsi, dated January 23, 1987 illustrates the systematic nature of the persecution of the Isaaq clan. In fact, the report was never intended for public release but was "leaked by emigre Somali dissidents in Norway and published there by the national newspaper Daghladet." (82) It advocated the destruction of homes and water supplies, as a means to render uninhabitable the lands between Ethiopian and Somali troops, and acknowledged that "the villages of Dibiile, Rabaso, Raamaale and Garanuugle (south of Hargeisa) had already been 'obliterated' in night actions." (83)
S.N.M. forces launched an all-out offensive against government troops in Hargeysa, and Burco in 1988, but the government responded more brutally than ever. Fighter planes took off from Hargeysa and dropped bombs on the civilians below them. "They continued until there were 50,000 dead in Hargeysa and hundreds of thousands dead in the rest of Somaliland." (84) This is the equivalent of four million people being killed in a country the size of the United Kingdom. (85) "Isaaqis who survived the bombings are said to have been rounded up in the streets by Somali troops and summarily shot. Mass graves have since been found as well as corpses which were left to rot in the streets where they fell." (86) In fact, this was "the most extreme attempt at genocide against the dominant Isaaq clan." (87) "Northern towns and villages ... [were] systematically destroyed by government forces, looted and strewn with hundreds of thousands of landmines." (88) No international tribunal, however, has convened for the victims of Somaliland, and in many cases the truth was buried with the victims.
The S.N.M. did, however, recapture all the major towns in the north after a lightning offensive in January 1991. The war for Somaliland was over, but S.N.M. bases in Ethiopia were still being used as a springboard for new guerilla groups in the south. (89) Somaliland's struggle for international recognition, meanwhile, was just beginning, and reconciliation was the first issue on the agenda. Fortunately, for the sake of reconciliation, the Isaaqs were not the only clan within Somaliland that had opposed Siad Barre. Moreover, when inter-clan conflict had occurred prisoners of war were generally treated well. Prisoner exchanges were common, inter-clan trade and commerce had continued, and clan leaders had maintained channels of communication. (90)
Civil inter-clan relations continued within Somaliland after the fighting, and the divisive influence of specific interest groups, utilized and manipulated by Siad Barre, was not determinative. Dhulbahante leaders in Las Caanood, for example, chose not to mobilize as a clan against the Isaaqs, or the S.N.M., despite pressures from senior Dhulbahante figures within the URC, and the S.N.M. reciprocated. For example, the S.N.M. forces "entered the Gadabursi town of Boorama, but were withdrawn in less than 24 hours on the orders of the S.N.M. command, which sought a speedy rapprochement with the Gadabursi leadership. In the east, the S.N.M. leadership decided against entering Dhulbahante territory and opted for dialogue instead." (91) Clans that had previously allied with President Barre "reached a critical amnesty with the SNM." (92)
Post-war progress was made through a series of reconciliation conferences after the traditional leaders (Guurti) of various clans initially met in Berbera in 1991. They established a formal cease-fire, fixing the dates for a grand conference of guurti to be held in Burco two months later and for a subsequent meeting for the S.N.M. Central Committee Meeting. The Grand Conference was attended by more than twelve traditional, titled elders, and their delegations, as representatives of the Isaaq, Harti, and Dir clans. "They were joined by participants from other sectors of society including artists, intellectuals, and business people ... as well as delegates from the diaspora." (93) The S.N.M. Committee Meeting upheld the decisions of the Grand Conference with respect to reconciliation and the declaration of independence for the Republic of Somaliland on May 18, 1991. It agreed to a two-year period of transitional S.N.M. rule, which allowed accommodations within the government structure to be made for the non-Isaaq communities and repealed the Act of Union of July 1961. It named Abdirahman Ahmed Ali "Tur" as interim President, and a separate reconciliation process was undertaken for the contentious Sanaag region of eastern Somaliland. (94)
Although the presidency of Abdirahman Ahmed Ali "Tur" did not face insurmountable obstacles, problems came to a boil in 1992 when a minority Isaaq sub-clan that controlled Somaliland's strategic port city of Berbera refused to share the port's revenue. As a result, the majority Isaaq sub-clan attacked the port. (95) In response, representation, originally limited to the 150 members of the Council of Elders, was extended to "some 500 persons representing elders, religious leaders, politicians, retired civil servants, intellectuals, businessmen, and others," who agreed on the establishment of a bicameral legislature with an executive president. (96) The resulting Borama National Charter served as the interim constitution for two years and provided for an unelected upper house of elders and an elected lower house.
Intermittent violence, however, plagued Somaliland from 1992 until 1997, and clan tensions and factional discord within the SNM erupted into full-scale war in 1994. The violence displaced "a considerable portion of Hargeysa's inhabitants and the entire population of Burco," (97) but traditional leadership reaffirmed their commitment to peace at the Hargeysa Conference of Somaliland Communities in February 1991. They agreed, after five months of deliberations, to the cessation of hostilities, increased representation of opposition groups in Parliament, and the re-election of President Egal for a period of five years. Dahir Riyaale Kahin was the new vice president. Meanwhile, specific accommodations were made for greater political representation for Somaliland's minority communities. They also created a new constitution, which would take effect provisionally for three years; (98) however, it would not come into full effect until the population of Somaliland had voted for it by referendum. (99)
The referendum, held in 2001, was the greatest indicator of how far Somaliland's reconciliation process had come. International observers found the referendum was overall "largely in accordance with internationally recognized election procedures" with very few voting irregularities or instances of fraud. (100) Ninety-seven percent of votes were in favor of the constitution, although it is possible that the vote was primarily for independence. Only two-thirds of eligible voters participated, however, and some that did not vote may have been indicating their disapproval. In the disputed Las Anod district of Sool region, for example, the turnout was only thirty-one percent. (101)
Somaliland's peace and stability might have been jeopardized when President Egal died of natural causes in May 2002. However, Vice President Dahir Riyale Kahin, a non-Isaaq, succeeded him peacefully and in accordance with the provisions of the constitution. In fact, President Riyale was reelected peacefully in 2003, despite only winning by two hundred eighty votes (102) In contrast, conditions in southern Somalia have continued to spiral out of control.
The Manifesto Group failed to reassert control in southern Somalia after the fall of Siad Barre. Later initiatives, including the Arta Process in Djibouti, were equally unsuccessful. In fact, the current transitional government, the Transitional Federal Government (TFG), was formed as the result of extensive meetings in Kenya, and Colonel Abdullahi Yusuf, "the self-styled leader of Puntland who lost an election, but decided that he would stay on," (103) was named as President. His appointment, however, did nothing to relieve tensions between Somalia and the breakaway Republic of Somaliland.
In fact, he had only managed to consolidate power in the autonomous region of Puntland by forceful opposition to Harti sub-clans in 2002 and was vocal about his rejection of Somaliland's claims to independence and sovereignty over its colonial borders. (104)
The reconciliation efforts in Kenya were the fourteenth attempt at consolidating power in Somalia and were no more successful than the previous thirteen. (105) In fact, "fifteen years later, fourteen peace conferences, five transitional governments and the world's most expensive peace keeping mission UNISOM, have not yielded any worthy results." (106)
In contrast, despite the reluctance of the international community to recognize its efforts or achievements, Somaliland has existed as a de facto state since 1991, and its path has diverged tremendously from that of southern Somalia. It has avoided "[m]uch of the political turmoil and civil strife that characterized much of the South ... through the use of traditional forms of governance." (107) For instance, although there were internal conflicts in Somaliland, in 1992 and 1994, these were the consequence of relations strained during the original civil war, and peace ultimately prevailed. (108) The various militia groups were successfully disarmed, and although outstanding grievances could still be exploited in the pursuit of individual or political agendas, (109) guns are no longer visible on the streets of Hargeysa. There is a risk that "kinship politics provide fertile soil for patronage, corruption, nepotism, and clientelism, while stifling the emergence of issue-based politics, meritocracy and professionalism" (110) in Somaliland, but so far the risk has not manifested itself in reality.
B. De Facto Statehood
Somaliland has made a successful transition from the Beel system, or consensus politics, to multi-party politics, while Somalia remains socio-politically paralyzed by inter-clan tensions and distrust. (111) Somaliland's provisional constitution, furthermore, was adopted by popular vote (112) while Southern Somalia has been unable to approach anything resembling the rule of law.
Traditional Somali forms of democracy have evolved into a modern form of democratic governance that transcends clan politics and allegiances in Somaliland, but southern Somalia has descended into anarchy. The Somaliland president and parliament, for example, "must be directly elected by the people, and not indirectly via clan conferences and electoral colleges as was previously the case." (113) In fact, the aforementioned election of President Riyale Kahin by only 280 votes, out of a population of 3.5 million, shows how far Somaliland has come. Although Vice President Kahin belongs to a different clan from the previous president, he assumed the presidency smoothly and in a manner consistent with the Somaliland constitution. (114)
The absence of formal political recognition by the international community, however, remains a massive obstacle to development. (115) Uncertainty deters investors from developing Somaliand's mineral resources. The result is that "the annual budget of the country is only about twenty million dollars" and an estimated fifty to seventy percent of that goes to the military, primarily to pay salaries. (116) Members of the British Parliament have recognized how important recognition would be to Somaliland's economic health. (117) The irony is that the United Kingdom and other bi-lateral donors support Somaliland while not allowing it to support itself. (118) As a result, poverty is pervasive: seventy-three percent of Somaliand's population lives in poverty, forty-three percent in extreme poverty. Per capita GDP is $226 per year. Only twenty-two percent of adults can read, and eighty percent are unemployed. Adult life expectancy languishes at forty-seven years. (119)
International assistance from private sources has not been readily available because Somaliland "cannot enter into formal trade agreements with other nations and has understandable difficulty in seeking, and certainly securing, any sort of assistance from world financial organizations." (120) Prohibition from joining the World Bank and the International Monetary Fund, for instance, severely restricts Somaliland's economic options. As a consequence, Somaliland has become dangerously reliant upon remittances and foreign aid. The total figure for remittances "is between an estimated three hundred million dollars and five hundred million dollars a year." (121) In 2002, remittance money came from approximately two hundred fifty thousand Somalilanders living abroad, and the total far exceeded livestock export earnings. The danger is that successive generations of Somalilanders, living abroad, will feel less attached to their homeland, and remittances will decrease. Already "many Somalis with the financial means have sought education services abroad and have never returned to Somaliland, where their expertise is desperately needed to rebuild their homeland." (122)
The result is that Somaliland is one of the most impoverished states in the world. Its healthcare system was destroyed by the war and "is only slowly reviving with assistance from international nongovernmental organizations (NGOs), agencies of the United Nations, and private clinics." (123) Education has suffered, and eighty percent of Somalilander children were not in school in 2004. (124)
While there are some encouraging signs of development, (125) political recognition would empower Somaliland to accelerate its development through access to multilateral development aid, and it would enable Somaliland to "play a politically constructive diplomatic role in the political affairs of the Horn of Africa." (126) It would open new avenues of investment for Somaliland. Somaliland and Somalia could even enter an economic union comparable to that seen in Europe. It should not be forgotten, furthermore, that Somaliland has functioned, without political recognition, as a de facto independent state for sixteen years. Its credentials to function as an economically viable independent state should not be disregarded.
Human rights violations do give cause for concern. Female genital mutilation (FGM), for example, is a major problem and needs to be addressed through the appropriate channels. The preservation of human rights, however, is a task normally attributed to the state. In a failed state scenario there is no viable state to preserve or protect those rights. Thus, the action or inaction of a state is usually "subject to the overriding obligations on States under international human rights law." (127) A non-state is not bound by these obligations because even the most esteemed intergovernmental organizations (IGOs) lack significant influence over non-members. In essence, an unrecognized state may adhere to universal moral standards as a means to gain recognition, but the incentive will not last forever. After sixteen years, the Somaliland government must be wondering whether it can ever "earn" international recognition, and the most vulnerable minorities may suffer the most if it decides it cannot. The lack of recognition means that Somaliland cannot take advantage of its own material exploitation and becomes a "juridical black hole" that could be exploited by international criminals or international terrorists. (128)
Meanwhile, AIDS was declared an epidemic in 1998 but has not received sufficient attention. There has been virtually no testing, the stigma attached to contraction of the disease is huge, and "[b]lood donors found to be HIV positive are not informed of their status because there is no counseling service." (129) The prevalence rate in 1999, according to a UNICEF study, was about one percent, but the study warned that young men and women in Somaliland were very sexually active and condom usage was extremely low. Sexual education pertaining to the transmission of HIV/AIDS has been de minimis, and by 2002 it was estimated that the prevalence rate had risen to four percent. (130) The prevalence rates in neighboring Ethiopia and Djibouti, however, are far higher, and the threat to Somaliland must not be understated. (131) International recognition would alleviate some of the burden on government offices and allow more time to be devoted to combating HIV/AIDS and other infectious diseases.
Another problem that has already reached epic proportions in Somaliland is the consumption of khat. A chewable plant, khat contains cathinone, "an active brain stimulant that acts much like amphetamine." (132) "Ingestion results in decreased appetite, euphoria, and hyper alertness. Chronic use of khat often produces sleeplessness, nervousness, impotence, loss of appetite, constipation, and nightmares." (133) The average daily cost of using the drug was $5 per day in 2002, and the per capita GDP at the same time was about $223. It causes users to abuse, or ignore, their families and obligations and "impacts significantly economic productivity of the workforce and removes from the economy scarce capital that could be used for productive purposes." (134) In fact, "prolonged lack of food, associated with khat use, causes malnutrition and increased susceptibility to infectious diseases such as TB, hepatitis, and HIV/AIDS." (135) Restrictions on imports of khat, from Ethiopia and Kenya to Somaliland, however, have proved, for the most part, unsuccessful. In fact, the practice of chewing khat "is now a daily ritual for at least 90% of adult males in Somaliland" (136) and since it is "almost entirely imported, [khat] represents a tremendous hard currency drain on the economy, estimated in the hundreds of millions of dollars every year. But it is also a major source of revenue for the Somaliland government." (137) It will probably not be eradicated without international recognition and the promotion of a more vibrant economy.
Recognition would mean that intra-state problems and human rights abuses like FGM could be addressed, and inter-state disputes could receive more effective dispute resolution. Somaliland could enter into binding negotiations with Djibouti to resolve tensions over competition between ports and could address concerns pertaining to the disputed Sool and Sanaag regions in an international tribunal, which would otherwise be unavailable. Negotiations between two recognized nations would have greater legitimacy than informal talks between an unrecognized, secessionist Somaliland and the failed state of Somalia.
III. THEORIES OF RECOGNITION AND SECESSION
1. Theories of Recognition
The "declaratory" theory of recognition was created at the 1933 Montevideo Convention and reflects the perspective of South American former colonial countries. The United States, however, was a party, and the theory holds that a state exists when four conditions are met, regardless of political recognition. (138) It is a results-oriented theory, which stipulates that a state must have a permanent population, a defined territory, a government, and the capacity for relations with other states. (139) The problem is that the "declaratory" theory cannot be selectively applied. A state that violently seceded from a peaceful democratic nation is no less legitimate under the "declaratory" theory than a state that seceded from a brutal authoritarian dictatorship.
The "constitutive" theory of recognition says a state is only "constituted" by the recognition extended to it by others, and prior to recognition a new state cannot claim the rights that exist among the "family of nations." (140) This results in a situation where the decision whether to recognize an entity as a state is disproportionately weighted according to the political agendas of the great powers. That means a failed state may continue to be recognized as a state because other countries do not want to lose an existing ally. Foreign leaders, for example, will not want to disregard weeks, months, or years of diplomacy that forged prosperous and mutually beneficial connections with the political elite in the failed state. Conversely, a state that pursued and attained independence as a means to survive the oppression of a brutal dictator may not be recognized for fear of straining or fracturing relations with a dictator who may not be going anywhere any time soon. Therefore, within the "constitutive" theory of recognition the conflicting political goals of the major political powers become irreversibly intertwined in the process of state recognition. Lauterpacht, however, proposed a solution. This was a "bridge" between the "declaratory" theory and the "constitutive" theory that created a "duty to recognize" when a de facto state exists. (141) The result would be a system where the framework for the "declaratory" theory predominates, but the "rubber stamp" comes from the international community. This may be the most equitable solution because it would limit the discretion of the major political powers to withhold recognition unscrupulously. They could not deprive a nation of statehood for their own purely domestic reasons. At the same time they would conceivably retain the freedom to reject the political or de jure recognition of a state that had seceded immorally. The problem is that the major political players are unlikely to suffer any erosion of their discretion gladly.
2. Uti Possidetis
The principle of uti possidetis (142) "was appealed to in order to limit fragmentation of newly liberated European colonies, whose boundaries were usually arbitrarily drawn, and which included several, and in some cases many, distinct and conflicting ethnic groups." (143) And, in its simplest form it holds that the borders that a country had at the time of decolonization must be preserved. Thus, it was adopted by newly independent African states in the early 1960s as a means to legitimize the process of decolonization. The OAU charter, for example, specifically "affirmed the principle of respect for the sovereignty and for the territorial integrity of each State," (144) and the Cairo Resolution confirmed that "all the States undertake to respect the boundaries existing at the moment they became independent." (145) More broadly, however, it is a reflection of the international community's reluctance to alter, or recognize the alteration of, national borders.
The resolution of the Burkina-Faso-Mali boundary dispute, furthermore, endorsed a broad application of the principle of uti possidetis, despite its tendency to clash with the right to self-determination. (146) The court's reasoning was that uti possidetis is often "the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice." (147)
As a result, the norm of decolonization, advocating a return to the status quo prior to colonization, has been marginalized as a tool in international politics. This is because it would be difficult to establish and agree upon the precise situation in a region prior to colonization, and practically impossible to recreate such a scenario. Things have changed too drastically to pretend that the world today is the one it was--for better or for worse--prior to colonization.
1. An Inalienable Right to Democracy
Case law does not support the idea that a secessionist region has an inalienable right to unilateral secession because a majority of the population in that region desires it. The Basque and Catalan regions in Spain and the Quebec region of Canada are cases in point. In fact, "to concede to minorities, either of language or religion, or to any fraction of a population the right of withdrawing from a community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would also be to uphold a theory incompatible with the very idea of the State as a territorial and political unity." (148) Thus, the population of a secessionist region cannot bestow upon itself a right to secede by virtue of a plebiscite alone; a vote cannot bestow legitimacy upon an otherwise illegitimate secession that has already occurred. The realization of a theory guaranteeing independence to any region that determines by plebiscite that it wants to be independent would be catastrophic. It would be a slippery slope, and judicial limitations would carry too much discretion. For example, could the same theory that would allow a state within the United States to secede prevent a county from doing the same? And what if a county or even a city democratically votes for independence? The distinction could not be drawn along population lines, because there are some cities that have a greater population than certain states or even countries elsewhere.
The "democratic entitlement" thesis (149) remains at the periphery of contemporary international law. This is because the majority of scholars today seem to endorse the theory that a minority group should not be able to "opt out" of a country whenever the group does not agree with the majority. Secession under such circumstances, observed Abraham Lincoln, "would vitiate the principle of majority rule." (150) In fact, even "the most cogent justifications for having democratic decision procedures within polities do not apply with the same force, if indeed they apply at all, to the decision to alter fundamentally the boundaries of the polity and the character of persons' citizenship." (151) This is because it is not possible to determine the boundaries of a polity by democratic values, because by definition the boundaries must be in place before those democratic values can be implemented. (152) The problem is that a regional government, not ordinarily enjoying the authority to amend the constitution and authorize secession, may be held captive by an authoritarian central government. In this case, the central government is unlikely to consent to secession by the portion of its population that it has persecuted. (153)
2. The Right to Remedial Secession
There may, alternatively, also be a case for "remedial secession" in cases where a population has been denied the right to internal self-determination. In this context internal self-determination reflects the ability of a state's numerical minority to participate effectively in the political and economic process of that country. Thirty years of secessionist politics in Quebec, Canada, for example, culminated in a 1998 opinion by the Canadian Supreme Court, subjecting "the potentially destructive issue of secession to the rule of law by constitutionalizing the secession process, but in the absence of an existing explicit constitutional provision for secession." (154) The decision held that "a clear expression of the democratic will of Quebecers to secede, presumably through a referendum, would confer legitimacy on their quest--though not a right to secede unilaterally." (155) When a "clear majority" favors secession (in response to a "clear question" concerning secession), then there is a duty imposed upon the government (and other "participants in the confederation") to negotiate the possible secession in accordance with four fundamental principles. (156) The principles are constitutionalism and the rule of law, democracy, federalism, and the protection of minority rights. (157) A region, therefore, may be able to secede unilaterally when it has been denied meaningful internal self-determination. This is the case "where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development." (158) Some scholars believe that "any national, linguistic, ethnic, racial, or religious group not 'represented' in the government would have had a right to self-determination.'" (159)
Remedial secession theory serves a significant function in the application of fundamental principles to the political process of recognition. However, politicians retain some discretion. They would define precisely the requirements of the four principles, and the definitions of "clear majority" and "clear question;" they would also decide whether to consent to the terms of separation that had emerged from the mandatory negotiations. (160)
The Canadian Supreme Court rejected the idea that "a secessionist entity becomes entitled to recognition in the system of states if and only if it secures effective control over the territory it claims." (161) It determined that "to suggest that a subsequent recognition of an initially illegal act retroactively creates a legal right to engage in the act in the first place ... is not supported by the international principle of effectivity or otherwise and must be rejected." (162) The primary concern was that the effectivity principle, which recognizes any state that controls the territory it claims, does not distinguish between legitimate and illegitimate secessions. (163) Therefore, an immoral secession could be legitimated because one region had the military muscle to secede from a fundamentally fair and democratic regime. A limited application of the effectivity principle would be feasible, however, in a case where the secession was unilateral, but necessary to preserve internal self-determination.
The Quebec case is not binding precedent, because it was a fact-specific analysis of a Canadian issue by a Canadian court. No international adjudicator would be bound by the decision or dicta of the Quebec case, and the decision does not amount to customary international law. This is because customary international law is established by consistent state practice, and the Quebec analysis reflects the theoretical practice of only one country. That stated, it would be premature to dismiss the extensive reasoning of the Canadian Supreme Court because it represents the most complete analysis available and it firmly grounded in international law. The textual support comes from Articles 1 and 2 of the U.N. Charter, recognizing a people's right to self-determination.
IV. SOMALILAND'S CLAIMS FOR RECOGNITION AND SECESSION
The legitimacy of the union between Somalia and Somaliland determines whether Somaliland is seeking a secession and international recognition or appreciation of the fact that there was no union. If there was no union, then Somaliland still exists as an independent entity, and discussions pertaining to secession are moot. But Somalia claims that Somaliland voluntarily merged with Somalia after five days of independence in 1961, dissolving the colonial borders demarcated by British treaties with Ethiopia, Italy, and France.
Even if the Somaliland administration made the decision to unify, the five days of independence provided insufficient time to determine the best course of action for the country as a whole. The population of Somaliland was not consulted, and the people were denied the opportunity to determine their own political identity by popular mandate. It should not be fatal to Somaliland's claims for international recognition that the general consensus (throughout Somalia and Somaliland) was allegedly in favor of unification. (164) This is because popular sentiment, a perception of popular sentiment that was never confirmed by plebiscite, alone cannot alter the boundaries between two sovereign states.
The eternal union of two sovereign countries requires something more than the "desire" of political leaders and the uncertain "will" of the people. In this case, however, there was little more.
The Act of Union of Somalia and the Union of Somaliland and Somalia Law were both drafted in the form of bilateral agreements, but neither of them was signed by the representative of Somaliland and Somalia. The Somalia Act of Union was approved 'in principle' but not enacted into law. The decree-law of July 1960 was signed by the Provisional President to deal with some of the legal effects of the union. However, in the absence of conversion into law in accordance with Article 63 of the Constitution, this decree-law never came into force. (165)
There was, therefore, no single Act of Union between Somaliland and Somalia, and a British judge presiding in Mogadishu held that the "alleged" union was insufficient to confer jurisdiction over Somalilanders. The normal political and constitutional channels, which would have stimulated a more substantial dialogue on unification, were bypassed and the people of Somalia and Somaliland have been living (and dying) with the consequences for the past two decades. In fact, "even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people--the very sine qua non of all decolonization." (166) The unification "fell short of the legal requirements mandated by domestic and international law," and there was "nothing more than the recognition of other states to testify to the existence of Somalia as a unified state." (167) There is, therefore, a strong case that there was no "marriage" between Somaliland and Somalia, and thus there is no need for a "divorce."
The fact that no country recognizes Somaliland, however, reflects a general consensus that there was a valid union, and Somaliland's de facto secession was illegitimate or "premature." But, that determination has largely been made without sufficient consideration, and most countries are not in a position to challenge the status quo even if they want to do so. Although one might fear that if the precedent for secession is established in one case, then states will become more vulnerable to secession movements within their own borders, one should be careful to avoid the conclusion that secession is per se illegitimate or fundamentally wrong. In Europe, for instance,
weak states routinely failed, very few have not experienced boundary changes in the last 100 years, and a large number of states have changed since the end of the Cold War. Yet Africa and the greater international community cling to the notion that, somehow, despite all evidence to the contrary, the current configuration of all African States can work. (168)
The underlying concern is that there could be a domino effect. The recognition of one secessionist state could lead to the balkanization of larger states into many smaller ones. This is because "over 90 percent of states contain significant, historically rooted minority groups (about a third do not even have a majority group)," (169) and many major political powers feel that the sovereignty of their own national boundaries could be jeopardized. Ethiopia, for example, would be concerned that the recognition of Somaliland could lend credence to secessionist movements within the Ogaden and Oromo regions. Ironically, the current reality of increased factionalization in Somalia is far more analogous to balkanization than the potential secession of Somaliland, and places the region in a far more precarious position.
The application of the principle of uti possidetis to Somaliland's secessionist claims is less than clear. In particular, "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." (170) The principle of uti possidetis, for example, appears to delegitimize the original union between Somaliland and Somalia because the new borders clashed with those delineated by Great Britain, France, Ethiopia, and Italy during the colonial period. The international community does not accept that conclusion. If the original union was legal, however, then the same principle presents an obstacle to Somaliland's secession.
Somalia-Somaliland would not be the first African union disbanded. Iqbal Jhazbhay cites as examples Egypt-Syria (1958-61), Mali-Senegal (1960), and Senegal-Gambia (1982-89). (171) In addition, Eritrea secured independence from Ethiopia. And then there was the (non-African) disembratio (dismemberment) of Yugoslavia. In the Yugoslavia case, the application of uti possidetis was extended to the internal boundaries that demarcated federal units. (172) "If federal structures could no longer be relied on, the political infrastructures of the constituent republics were the best bet for maintaining some semblance of order." (173) This analysis applies even stronger to the borders of two sovereign states that enter a voluntary union that ultimately fails, and the principle of uti possidetis is not controlling.
In fact, it would be ironic if the Somali Republic did call for the application of the principle of uti possidetis. It effectively rejected the principle when it denied the sanctity of the colonial borders established by the Anglo-Ethiopian Treaty of 1897, and the principle is incompatible with aspirations for the realization of a Greater Somalia. The norm of decolonization, on the other hand, was implicitly advocated by Somalia. If a latent desire for the realization of a Greater Somalia under the guise of the norm of decolonization resurfaces, however, then there would be "rather severe potential repercussions" (174) for Somalia, Somaliland, and their neighbors. Ethiopia, Kenya, Somaliland, and Djibouti would all be vulnerable to Somali expansionist claims.
1. A Right to Secession
Proponents of an independent Somaliland are not arguing for a general right to secede, but they do contend that recognition would in this particular case preserve the integrity of the existing state system better than the continuation of the failed-state situation currently destabilizing the region. Proponents believe Somaliand's case is distinguished from the overwhelming majority of secessionist claims, and its recognition would not open the door to an influx of secessionist claims. This is because Somaliland, a de facto state, has emerged from the failed state of Somalia and defines itself along well-established colonial borders. The situation, therefore, is unique and does not provide ammunition for less meritorious secessionist claims. In fact, "all they are asking for is the right to self-determination within boundaries that are long established" (175) and in accordance with the most stringent theories of remedial secession.
The issue is whether the vote for independence by ninety-seven percent of Somalilanders in the 2001 referendum was on its own sufficient to create a unilateral right to secede. International law says: "No." (176) The majority of Somalilanders who voted for independence from Somalia reflected only a minority of Somalis overall. This minority should not be able to dictate policy to the majority. In the case of a failed state the regional government must assume (or inherit) certain responsibilities that would usually be reserved for the national government because there is no feasible alternative when the central government ceases to exist. Somaliland thereby inherited the right to amend the constitution and legitimize a vote for secession. In fact, Somalilanders have been irreversibly deprived of their right to internal self-determination and should not be forced to remain shackled to the failed state of Somalia.
2. Right to Remedial Secession
Somaliland argues that the original referendum, held in the Republic of Somalia in 1961, triggered a duty to negotiate (similar to that seen in Quebec).
In that instance, sixty percent of the one hundred thousand voters who turned out in Somaliland rejected the original unification with Somalia. That was analogous to the vote for secession in the Quebec case because it reflected the will of the people with regards to the determination of their own citizenship and the borders of their country. It carried more weight, however, because it reflected a desire to preserve the status quo, in accordance with the principle of uti possidetis. The problem was that the far greater population in southern Somalia voted in favor of the unification and effectively vetoed the internal self-determination of the Somalilanders. It would be the same if there were a referendum today to determine whether the United States should be ruled by China. If all the people in both countries were allowed to vote, then the United States would become a province of China, by virtue of the larger Chinese population alone. Thus, there was no popular mandate for unification in Somaliland and Somalilanders were denied the opportunity to exercise their right to self-determination. The "free and genuine expression of the will of the peoples concerned" (177) was callously disregarded.
The 2001 referendum was more directly in line with the Quebec case and triggered a duty to negotiate that the central government has ignored for six years. Reference Re Secession of Quebec, however, does not explicitly address what happens when a central government is unable (as opposed to unwilling) to negotiate, and in Somaliland the distinction is probably blurred. A lack of resources and public support has rendered successive Somali governments incapable of holding meaningful negotiations," (178) but President Yusuf is hostile towards Somaliland's independence as well. There is no indication that he harbors any desire to negotiate. In fact, an alteration of Somaliland's colonial borders would require a popular mandate (because that principle is enshrined in the Somaliland constitution), (179) but Somaliland has expressed its willingness to enter into negotiations when a legitimate government emerges in the south. (180)
The right of Somalilanders to self-determination, furthermore, has already been recognized, when Somaliland gained independence from Great Britain. The right is ongoing. There is no precedent to indicate that Somalilanders have lost their status as a "people" under Articles 1 and 2 of the U.N. Charter. In fact, "self-determination is not a one-off exercise. It cannot be achieved for any people by one revolution or one election. It is a continuous process. It requires that peoples be given continuing opportunities to choose their governments and social systems, and to change them when they so choose...." (181) That fact is not negated by the principle of uti possidetis because that principle is concerned with the preservation of boundaries, not the preservation of units of self-determination. (182)
Somaliland, however, can be distinguished from Quebec; the latter is a region within a stable, democratic state, and the former is a de facto state within a failed and undemocratic state. Quebecers were also active in the government and were major players in the national economy. They thereby exercised their right to internal self-determination, and for this reason the court determined that they were precluded from taking such drastic action as unilateral secession. The people of Quebec, however, were entitled to negotiations, and a fortiori Somaliland is entitled to the same. This is because there are no democratic channels open for the restoration of internal self-determination in Somaliland, and there have not been any for sixteen years. In fact, there is no chance of initiating meaningful negotiations. Even if Somaliland could negotiate with the Transitional Federal Government in Somalia, the TFG would have no means to enforce the agreement because there is no infrastructure that could ensure the internal self-determination of Somalilanders within a failed Somalia. Thus, the existence of a right to remedial secession is critical.
Article 1.1 of the International Covenant on Civil and Political Rights (I.C.C.P.R.), found again in the International Covenant on Economic, Social and Cultural Rights (I.C.E.S.C.R.), speaks to the subject of remedial secession. It states that "[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." And, the role of self-determination as an indispensable tool in the preservation of human rights is confirmed in General Comment 12 of the United Nations Human Rights Committee. Thus, the United Kingdom determined that this made the right to self-determination "both inalienable and indivisible. It is fundamental to international peace and security and to the protection of national integrity. As nation states all of us have a vital interest in it. We cannot be selective in its applications." (183)
The voice of Somalilanders was ignored, however, when they voted to prospectively reject unification in 1996. The political elite persevered with the merger, and the economic and political suppression of the Isaaq clan (184) by the Siad Barre regime began. Acts of genocide were perpetrated against the Isaaqs, and resistance culminated in the emergence of Somaliland as a de facto independent state. (185) Today's invitations to the numerous conferences for rebuilding Somalia do not constitute internal self-determination because they provide no prospect of economic, cultural, or political opportunity for the people of Somaliland. They were designed to establish leadership for Somalia, not to discuss secessionist claims, and they have ultimately proved to be fruitless endeavors. Power remains (officially in some cases) concentrated in the unworthy hands of the most powerful warlords.
Somalilanders, therefore, were never given the luxury of prospectively petitioning to a democratic government for independence, and they should not be punished for that fact. They are entitled to negotiations regarding their secessionist claims, and the fact that Somalia has been unable, or unwilling, to entertain them should not chain the two states together indefinitely.
The territorial integrity of Somalia is not determinative in matters concerning remedial secession. The Declaration of Principles of International Law Concerning Friendly Relations, adopted by the United Nations General Assembly in 1970, went so far as to limit the protections of territorial integrity to "sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples ... and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour." (186) This effectively broadened the scope of self-determination beyond its traditional application to colonial peoples, (187) "to peoples who suffer massive and systematic human rights violations, or have no means of representation or redress within their government." (188) A violation on a genocidal scale, as in Somaliland, would appear to meet the most stringent standard for remedial secession. (189) In fact, Judge Wildhaber of the European Court of Human Rights goes further. He asserts, "A consensus has seemed to emerge that peoples may also exercise a right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all...." (190)
Territorial integrity, therefore, is no longer an obstacle to the principle of self-determination in states where the government is oppressive towards a portion of its population. (191) As recognized in The Aaland Islands Question, "Secession might be available as a 'last resort when the State lacks either the will or the power to enact and apply just and effective guarantees' of minority rights." (192) The emergence of new states following the disintegration of the Soviet Union and Yugoslavia serves as a prime example.
Where a failed state is unable to provide internal self-determination, the default position should be a right to unilateral secession. This is particularly true in the case of Somaliland, where a de facto state already exists. The threshold of effectiveness required to conclude that a new state has emerged is necessarily lower when the parent state loses the power to consent or negotiate by virtue of its de facto dissolution. Moreover, in this case there is no risk of rewarding immoral behavior. Recognition would create a greater incentive for Somaliland to adhere to international expectations and moral standards, as opposed to continuing Somalia's legacy of failed government. The alternative will allow the cycle of violence in Somalia to spill over into Somaliland, which appears to already be the case in eastern Somaliland.
"Remedial secession" would protect Somaliland's right to develop economically and politically. It would allow Somaliland the freedom to decide to attempt reunification with Somalia in the future without impediments to negotiation. And, it understands that Somaliland should not remain bound to Somalia on the misconception that the principle of uti possidetis unequivocally places an
obligation on minority groups to stay part of a unit that maltreats them or in which they feel unrepresented.... The territorial rearrangements in the old Mali Federation, and in the Indian subcontinent with the birth of Bangladesh, are examples of new States emerging after initial decolonization. Where no principle of ex injuria [jus] non oritur applies, international law will recognize new realities. (193)
In weighing the right to remedial secession, the key must be to strike a balance between the disruptions caused by state creation and the immense harms that many states commit against their own peoples every day. (194) The Aaland Islands case observes that during "cataclysmic moments of a sovereign's birth or death, the legal situation is 'obscure and uncertain,' and there is a transition from fact to law. During this transition, the right to self-determination of people may come into existence." (195) Somalilanders would seem to have inherited a right to self-determination during such a "cataclysmic moment" when Somalia descended into anarchy, becoming a failed state.
There is a fear, however, that secession may create a volatile situation for "trapped minorities," which become the target for revenge attacks or politics in the secessionist state, as happened with Serbs and Roma in Kosovo after the dissolution of Yugoslavia. As Donald Horowitz points out, "By the time it is concluded that the majority in the undivided state is unalterably hostile to minority interests, thus in some formulations permitting the minority to secede, that group may have accumulated so many grudges that, in their turn, minorities in the secessionist region may be particularly vulnerable to the expression of violent hostility or the settlement of old scores." (196) If the minority in the undivided state received no meaningful political participation while part of the undivided state, then they arguably have no incentive to provide such internal self-determination to minorities in the secessionist state. This can mean that the problems of inter-group political participation are unresolved and now must be addressed in multiple arenas. (197) The fact that there are fewer clan groups in the secessionist state makes it easier for the majority to dominate and creates a legitimate risk of irredentist claims.
Somaliland, however, is the product of minority and majority clans coming together to overcome traditional grievances, and the modernization of democracy (beyond clan politics) in Somaliland is a testament to this fact. Minority clans were active participants in the reconciliation process, and they were instrumental in the creation of the government that exists today. The President was a colonel in Siad Barre's National Security Service." (198) A report by the International Crisis Group points out that a "garrison of several hundred southern soldiers and their families in Burco even chose to remain temporarily rather than face the anarchy and bloodshed that had consumed Mogadishu." (199) In fact, although irredentist claims over the disputed Sool and Sanaag regions appear inevitable, recognition of Somaliland would actually facilitate their resolution. An 1894 treaty between Great Britain and Italy clearly defined the border, which was later demarcated by an Anglo-Italian commission between 1929 and 1931. (200) Today, Somaliland's boundary position is in line with the A.U. and the U.N. International law regarding Sool and Sanaag would thus be considered determinative. Moreover, de jure status would open the door to otherwise inaccessible international tribunals and confer legitimacy on Somaliland's claims. It would also help even the playing field, as Somalia would no longer have the monopoly on the legitimate use of force. (201)
Recognition of Somaliland's statehood, furthermore, would be consistent with the declaratory theory because Somaliland meets the four conditions of statehood set out at the Montevideo Convention. Its borders are clearly delineated, it has a permanent population, a government, and the capacity to negotiate. In fact, concerning the final condition, Somaliland has the capacity to negotiate with other states while Somalia realistically does not. Somaliland, for example, has negotiated with Ethiopia regarding the use of its ports, but the government in Somalia does not have the capacity to enforce international agreements.
The fact that the international community has extended formal recognition to Somalia, furthermore, does not amount to an ability for it to have meaningful foreign relations. Somalia "is generally incapable of delivering services to its population and the scope of its governance often does not extend beyond the capital city, if even there." (202) In fact, the TFG has extremely limited authority over its undisputed territory. The only vestige of statehood that Somalia has is the recognition extended to it by others. The existing state system, however, means that once a state has acquired statehood, it is almost impossible to lose it. (203)
Recognition is also reconcilable with the constitutive theory by virtue of a duty to recognize. The international community does not have unbridled discretion to deny political recognition to a fully functional de facto state, at least insofar as that state is a product of moral secession. In fact, the application of the duty to recognize should be limited by restricting its application to circumstances where a de facto state has legitimately emerged from a "failed state" by remedial secession. This would preserve the latitude of the international community to deny recognition to a state that has seceded immorally, while promoting recognition in cases where a de facto state and the global community could benefit, creating an incentive to adhere to international moral and legal standards.
In fact, the Somaliland case presents the global community with an opportunity to incorporate humanitarian considerations into the international legal framework without disregard for existing precedent and customary international law. It is a unique case, and it represents something of a Lotus (204) hole in international law because there is neither legislation, nor customary international law, that expressly prohibits or allows secession from a failed state as opposed to a democratic state. (205) The absence of a prohibition means that secession may be permitted. (206) In the instant case, the failure of Somalia as a nation state has made the deprivation of the right to internal self-determination of its people inevitable. The amicable solution is a narrow application of the remedial right to secession because, as British MP Tony Baldry recently put it, "How on earth one can expect there to be a reunion of those people is beyond credibility." (207)
Indeed, the absence of an international forum where Somaliland can raise its legal claims means that the determination of whether to recognize Somaliland is confined to the political realm. This confers a moral and humanitarian obligation on politicians to objectively evaluate Somaliland's claims in accordance with contemporary international law. In fact, Ian Spears confirms that "where a virtual state-within-a-state already exists and has an apparently irreconcilable rift with a dysfunctional or collapsed 'parent' state, the international community may have no choice but to consider some sort of recognition for the former." (208) This application does not advocate a reckless approach to secession but recommends an approach that recognizes its potential merits in conflict resolution and development. (209) The emphasis would be on extolling some of the virtues of a political determination grounded in judicial principles. These would be "impartiality, consistency, and the requirement that decisions must be supported by general principles." (210)
Are there even any viable alternatives to recognition? The forcible reunification of a de facto state with a "failed parent-state" is impracticable, and "forcing highly-mobilized populations with legitimate grievances and responsible leaderships to remain yoked to the likes of a Mengistu or a Siad Barre is extremely difficult to justify, even on the basis of international order." (211) It has been the contention of this Article that it is time for the international community to affirm the success of an African Renaissance and recognize the state of Somaliland. The traditional obstacles to secession have been overcome, and peace demands a proactive and creative response. "The interests of world peace and stability require that, where possible, the division or fragmentation of existing states should be managed peacefully and by negotiation. But where this is not possible, as is the case with Somalia, international law accepts that the interests of justice may prevail over the principle of territorial integrity." (212)
The unification of Somaliland and Somalia fell short of the requirements for a lasting unification under international law. Somaliland did not successfully announce its independence and thus remains a sovereign nation state. Even accepting original unification with Somalia, however, Somaliland has the right to unilaterally secede because it has been denied the right to internal self-determination. Sixteen years of "diplomatic purgatory" is too long. (213) It is time for the international community to recognize Somaliland and act proactively to circumvent further unnecessary violence in the Horn of Africa.
(1) Scott Pegg, De Facto States in the International System, 21 UNIV. OF BRITISH COLUMBIA INST. OF INT'L RELATIONS, WORKING PAPER 1 (1998) (defining a de facto state as a "secessionist entity that receives popular support and has achieved sufficient capacity to provide governmental services to a given population in a defined territorial area, over which it maintains effective control for an extended period of time").
(2) 417 PARL. DEB., H.C. (6th ser.) (2004) 273WH (statement of Tony Worthington).
(3) Pegg, supra note 1.
(4) 417 PARL. DEB., H.C. (6th ser.) (2004) 276WH (statement of Tony Worthington).
(5) Andreas J. Jacovides, Cyprus: The International Law Dimension, 10 AM. U. J. INT'L L. AND POL'Y 1221 (1995).
(6) Ibrahim Hashi Jama, Revised Constitution of the Republic of Somaliland: Unofficial English Translation, (June 2000), available at http://www.somalilandlaw.com.
(7) Allen Buchanan, The Quebec Secession Issue: Democrao,, Minority, Rights, and the Rule of Law, in SECESSION AND SELF-DETERMINATION 238, 250 (Stephen Macedo & Allen Buchanan ed., 2003).
(8) Jama, supra note 6, at ii.
(9) Matt Bryden, Feature: Somalia and Somaliland: Envisioning a Dialogue on the Question of Somali Unit),, 13(2) AFRICAN SECURITY REVIEW 28 (2004).
(10) Id. at 27.
(11) HUSSEIN ADAM & RICHARD FORD, REMOVING THE BARRICADES IN SOMALIA: OPTIONS FOR PEACE AND REHABILITATION (1998), available at http://www.usip.org/pubs/peaceworks/pwks24.pdf.
(12) George Joffe, Frontiers in North Africa, in BOUNDARIES AND STATE TERRITORY IN THE MIDDLE EAST AND NORTH AFRICA 24, 27 (G.H. Blake and R.N. Schofield eds., 1987); see also ABDOUL BA ET AL., L'ORGANISATION DE L'UNITE AFRICAINE DE LA CHARTE D'ADDIS-ABEBA A LA CONVENTION DES DROITS DE L'HOMME ET DES PEUPLES 122 (1984).
(13) David H. Shinn, Somaliland. The Little Country That Could, 9 AFRICA NOTES, CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES (2002).
(14) The possibility was discussed at the annual Kulmiye conference in London in January 2007. Kulmiye is one of the three major political parties in Somaliland.
(15) Harold D. Nelson (ed.), Somalia. A Country Study, UNITED STATES GOVERNMENT: DEPARTMENT OF THE ARMY 35.
(16) Anthony J. Carroll & B. Rajagopal, The Case for the Independent Statehood of Somaliland, 8 AM. U. J. INT'L L. & POL. 653 (1993).
(17) Vienna Convention on the Law of Treaties art. 74, May 23, 1969, 1155 U.N.T.S.; 8 I.L.M. 679 (1969).
(18) Somaliland has "maintained informal links with IGAD, the OAU and the United Nations. Ethiopia, Kenya, Yemen, Egypt, Italy, France and the United Nations have all welcomed official delegations from the government. The United Nations, European Community, and other international organizations working in Somaliland deal with the leadership as responsible authorities." A Self-Portrait of Somaliland. Rebuilding from the Ruins, SOMALILAND CENTRE FOR PEACE AND DEVELOPMENT, WAR-TORN SOCIETIES PROJECT 83 (Dec. 1999).
(19) Iqbal Jhazbhay, Essay. Somaliland: Africa's Best Kept Secret, a Challenge to the International Community? 12(4) AFR. SEC. REV. 79 (2003).
(20) Bryden, supra note 9, at 32.
(21) Spears, supra note 11, at 40.
(22) KEESING'S PUBLICATIONS, XII KEESING'S CONTEMPORARY ARCHIVES 16758 (1959-1960) (Keesing's Publications Ltd., 1986).
(23) 623 PARL. DEB., H.C. (5th ser.) (1960)
(24) Greg Mills, Somaliland's Pursuit of Independence, JANE'S INTELLIGENCE REV. (Dec. 1, 2003), available at http://www.sirag.org.uk/somaliland-pursuit-independ.htm.
(26) Shinn, supra note 13.
(30) Somaliland filed an application to join the AU in February 2007. Id.
(31) Jhazbhay, supra note 19, at 74.
(32) The resolution was adopted in July 1964. Ricciardi, supra note 12, at 366-67.
(33) Jhazbhay, .supra note 19.
(34) I EDWARD HERTSLET, THE MAP OF AFRICA BY TREATY 410 (3d ed., R.W. Bryant & H.L. Sherwood ed., Frank Cass & Co. 1967) (1908).
(35) The border to the southeast followed the mountain peaks. Id.
(37) 417 PARE. DEB., H.C. (6th ser.) (2004) 273WH.
(41) Keesing's Publications, supra note 22, at 16758, 17422.
(43) PAOLO CONTINI, THE SOMALI REPUBLIC: AN EXPERIMENT IN LEGAL INTEGRATION 8 (Routledge 1969).
(45) John Drysdale, Somaliland. 1991 Report and Reference, GLOBAL-STATS LTD. (1991).
(46) Contini, supra note 61, at 10; Victor Anant, The Colony that Rejected Freedom, HERALD TRIBUNAL, June 29, 1960.
(47) Contini, supra note 61, at 13.
(48) Somaliland Centre for Peace and Development, supra note 41.
(49) Drysdale, supra note 44, at 14.
(50) Discussion with Edward Mason, Attorney-at-Law, Independent Diplomat, at an All-Party Parliamentary Group Meeting at the Houses &Parliament. London, England (February 2, 2007).
(51) Email from Dr. Ahmed Esa, Director, Institute of Practical Research and Training (Apr. 6, 2007).
(52) Carroll & Rajagopal, supra note 16.
(53) JOHN DRYSDALE, WHATEVER HAPPENED TO SOMALIA? A TALE OF TRAGIC BLUNDERS 94 (1994).
(54) Id. at 14.
(55) Bryden, supra note 9, at 29.
(56) Somaliland Centre for Peace and Development, supra note 41, at 14.
(59) Shinn, supra note 13.
(60) Frushone, supra note 46, at 11-13.
(61) Shinn, supra note 13.
(62) Steven R. Hoffmann, The Divergent Paths of Somalia and Somaliland: The Effects of Centralization on Indigenous Self-Governance and Post-Collapse Reconciliation and State-Building, Presented at the Institutional Analysis and Development Mini-Conference (April 27 & 29, 2002).
(63) Somaliland Centre for Peace and Development, supra note 18.
(64) IOAN M. LEWIS, BLOOD AND BONE: THE CALL OF KINSHIP IN SOMALI SOCIETY (1994).
(68) ANNA SIMONS, NETWORKS OF DISSOLUTIONS: SOMALIA UNDONE (1995).
(69) Somaliland Centre for Peace and Development, supra note 18.
(70) AFRICA WATCH COMMITTEE, SOMALIA: A GOVERNMENT AT WAR WITH ITS OWN PEOPLE 31 (1990).
(71) Somaliland Centre for Peace and Development. supra note18.
(73) JAMA MOHAMED GHALIB, THE COST OF DICTATORSHIP (1995).
(74) Africa Watch Committee, supra note 70.
(75) Somaliland Centre for Peace and Development, supra note 18.
(76) Lewis, supra note 63, at 58.
(77) Somaliland Centre for Peace and Development, supra note 18.
(78) Dr. Ahmed Esa says that the number was closer to twenty, and fourteen were transferred to southern Somalia. Email from Dr. Ahmed Esa, Director, Institute of Practical Research and Training (Apr. 6, 2007).
(79) Ghalib, supra note 73.
(80) Govt. of Somaliland: Background to the Republic of Somaliland's Quest for Recognition. (Hargeysa, 1994).
(81) Somaliland Centre for Peace and Development, supra note 18.
(82) Paul Vallely and Thomas Samstag, The Times, Scorched Earth Bid to Destroy Somali Border Clan, OVERSEAS NEWS, July 2, 1987, at 7.
(84) 417 PARE. DEB., H.C. (6th ser.) (2004) 273WH (statement of Tony Worthington).
(85) 417 PARE. DEB., H.C. (6th ser.) (2004) 293WH (statement of Hillary Benn).
(86) Michael Simmons, Thousands of Somalis 'hit by genocide raids ', GUARDIAN, Jan. 7, 1989.
(87) 417 PARL. DEB., H.C. (6th ser.) (2004) 273WH (statement of Tony Worthington).
(88) Somaliland Centre for Peace and Development, supra note 18.
(91) International Crisis Group, supra note 6, at 8.
(92) Frushone, supra note 46, at 13.
(93) Somaliland Centre for Peace and Development, supra note 41, at 19.
(94) Shinn, supra note 13.
(95) Frushone, supra note 46, at 15.
(96) Shinn, supra note 13, at 2.
(97) Somaliland Centre for Peace and Development, supra note 41.
(99) Shinn, supra note 13, at 2.
(102) 417 PARL. DEB., H.C. (6th ser.) (2004) 274WH (statement of Tony Worthington).
(103) 417 PARL. DEB., H.C. (6th ser.) (2004) 273WH (statement of Tony Worthington).
(104) Shinn, supra note 13.
(105) Jhazbhay, supra note 19, at 78.
(106) Jhazbhay, supra note 33.
(107) Mohamed Barud Abdi, Political Economic and Social Context, http://www.hargeysa.org/Barud-politicaleconomic.htm
(108) Somaliland Centre for Peace and Development, supra note 41, at 20-21.
(109) Id. at 22.
(111) Abdi, supra note 135.
(112) Anton Christen, From Clan Conference to Multiparty State." Somaliland Seeks Modernity, SOMALILAND TIMES, June 8, 2008, available at http://www.somalilandtimes.net/Archive/Archive/00002100.htm.
(115) 417 PARL. DEB., H.C. (6th ser.) (2004) 276WH (statement of Tony Worthington).
(116) Shinn, supra note 13.
(117) 417 PARE. DEB., H.C. (6th ser.) (2004) 287WH (statement of Quentin Davies).
(119) Frushone, supra note 46, at 7.
(120) 417 PARL. DEB., H.C. (6th ser.) (2004) 291WH (statement of John Bereow).
(121) 417 PARE. DEB., H.C. (6th ser.) (2004) 289WH (statement of John Barrett).
(122) Frushone, supra note 46, at 20.
(123) Shinn, supra note 13.
(124) 417 PARL. DEB., H.C. (6th set.) (2004) 279WH (statement & Tony Baldry).
(125) For example, "[t]he construction industry is prospering with the repair of war-damaged businesses, government buildings, and homes. Private telecommunications companies, business technology centers, hotels, and financial institutions are emerging and becoming successful. Smaller businesses such as restaurants, bakeries, grocery stores, and dry good and clothing wholesalers are also earning better profits." Frushone, supra note 46, at 7.
(126) Id. at 34.
(127) Robert McCorquodale, Self-Determination. a Human Rights Approach, 43 INT'L & COMP. L.Q. 857 (1994).
(128) Andrew Borowiec, Russian Syndicates Gain Hold in Israel; Political Influence Latest Crime Threat, WASH. TIMES. Apr. 29, 1996.
(129) Shinn, supra note 13.
(131) The rates in Djibouti and Ethiopia may be as high as twelve to eighteen percent. Id.
(136) United Nations Development Programme (UNDP), Nairobi, Human Development Report (1998).
(137) Id. at 66.
(138) Convention on Rights and Duties of States (Montevideo Convention), art. 1, Dec. 26, 1933, 49 Stat. 3097, 3100, 165 E.N.T.S. 19, 25.
(140) JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 15 24 (Oxford University Press, 1979).
(141) HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 6 (Cambridge University Press 1947).
(142) Ricciardi, supra note 12, at 307.
(143) See ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL (Cambridge University Press 1995); Ian Brownlie, The Rights of Peoples in Modern International Law, in THE RIGHTS OF PEOPLES (James Crawford ed., Clarendon Press 1988); Hurst Hannum, Rethinking Selfi-Determination, 34 VA. J. INT'L L. 1 (1993).
(144) Charter of the Organization of African Unity, art. 3(3). May 25, 1963 479 U.N.T.S. 39, 74.
(145) O.A.U. Res. AHG/16(I), July 21, 1964.
(146) Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 566-67 (Dec. 22).
(148) Rapporteurs of the Aaland Islands Question (1920).
(149) Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46 (1992).
(150) Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, VOL. 6 1789-1897 9 (James D. Richardson ed., 1898).
(151) Buchanan, supra note 7, at 246.
(152) Id. at 247.
(153) Id. at 242.
(154) Id. at 239.
(155) Reference re Secession of Quebec,  2 S.C.R. 217 (Can.).
(159) Cassese, supra note 180, at 331-33.
(160) Buchanan, supra note 7, at 259-60.
(161) Id. at 248.
(162) Reference re Secession of Quebec,  2 S.C.R. 217 (Can.).
(164) Buchanan, supra note 7, at 246.
(165) Dr. Haji N.A. Noor Muhammad (Advocate of the Supreme Court of India, Member of the Madras Bar, and Ex-Vice-President of the Supreme Court of the Somali Republic), The Development of the Constitution of the Somali Republic, United Nations OPEX Programme at 30-31.
(166) I.C.J. Rep. 1975, n.18, at p.81.
(167) Carroll & Rajagopal, supra note 16.
(168) Mills, supra note 24.
(169) WALKER CONNOR, ETHNONATIONALISM: THE QUEST FOR UNDERSTANDING 29 (1994).
(170) 2005 African Union Fact-Finding Report on Somaliland.
(171) Jhazbhay, supra note 33.
(172) Buchanan, supra note 7, at 251.
(173) Id. at 252.
(174) Ricciardi, supra note 12, at 430.
(175) 417 PARL. DEB., H.C. (6th ser.) (2004) 288WH (statement of John Barrett).
(176) Frederick G. Whelan, Prologue. Democratic Theory and the Boundary Problem, in J. ROLAND PENNOCK AND JOHN W. CHAPMAN, LIBERAL DEMOCRACY (1983).
(178) Western Sahara Case, ICJ Reports, 1975 at 32. Bryden, supra note 9, at 25.
(179) Id. at 26.
(180) Id. at 25.
(181) Statements by the United Kingdom's representative to the Third Committee of the General Assembly (Mr. R. Fursland), Oct. 12, 1984 (1984) 55 B.Y.I.L. 432 n.32.
(182) S.K.N. Blay, Self-Determination Versus Territorial Integrity in Decolonization, 18 N.Y.U.J. INT'L L. & POL. 441,472 (1986).
(183) Statements by the United Kingdom's representative to the Third Committee of the General Assembly (Mr. R. Fursland), Oct. 12, 1984 (1984) 55 B.Y.I.L. 434. RCC
(184) Somaliland Centre for Peace and Development, supra note 41.
(185) 417 PARL. DEB., H.C. (6th ser.) (2004) 273WH (statement of Tony Worthington).
(186) G.A. Res. 2625 (XXV), at 124, U.N. Doc. A/8082 (Oct. 24, 1970).
(187) G.A. Res. 1514 (XV), at 66-67, U.N. Doc A/4864 (Dec. 14, 1960).
(188) Amardeep Singh, The Right of Self-Determination: Is East Timor a Viable Model for Kashmir?, 8 No. 3 HUM. RTS. BRIEF 9 (2001).
(189) See JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 247-70 (1979); Ved P. Nanda, Self-determination under International Law--Validity of Claims to Secede, 13 CASE W. RES. J. INT'L L. 257 (1981).
(190) Singh. supra note 206.
(191) See McCorquodale, supra note 167, at 857-85.
(192) The Aaland Islands Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B7.21/68/106 (1921), 27.
(193) ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 125-26 (1994).
(194) See JEFFREY HERBST, STATES AND POWER IN AFRICA 267 (2000).
(195) See Carroll & Rajagopal, supra note 16.
(196) Donald L. Horowitz, A Right to Secede?, in SECESSION AND SELF-DETERMINATION 50, 54 (Stephen Macedo & Allen Buchanan eds., 2003).
(198) International Crisis Group, supra note 6, at 20.
(199) Id. at 8.
(200) J.H. Stafford, The Anglo-Italian Somaliland Boundary: Discussion, 78(2) THE GEOGRAPHICAL JOURNAL 121, 121-25 (1931).
(201) Bryden, supra note 9, at 31.
(202) Pegg, supra note 1, at 1.
(203) See Robert H. Jackson, Quasi-States. Dual Regimes. and Neoclassical Theory: International Jurisprudence and the Third World, 41 INT'L ORG. 519, 531 (1987).
(204) SS Lotus (Fr. v. Turkey), 1927 P.C.I.J. (set. A) No. 10 at 18 (ruling that in the absence of a prohibitive international law, a nation-state was free to do as it pleased).
(205) Buchanan, supra note 7, at 258.
(206) Cf. id. at 257.
(207) 417 PARE. DEB., H.C. (6th ser.) (2004) 279W.
(208) Spears, supra note 11, at 45.
(210) Buchanan, supra note 7, at 262.
(211) Pegg, supra note 1, at 21.
(212) Jhazbhay, supra note 19, at 80.
(213) Id. at 77.
BRAD POORE, J.D. Candidate, University of California, Davis; B.A. University of California, Davis. Thanks to Dr. Ahmed Esa (IPRT), Professor Anupam Chander, Ms. Lulu Farah (SIRAG), and my family.
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|Date:||Jan 1, 2009|
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