by Mohamed “Dudishe” Abdulle
Thursday, April 25, 2013
“…Power-mongers and cynical ethnic chauvinists would senselessly tear society apart in pursuit of self-aggrandizement.[1]”
In the wake of President Hassan Sheikh Mohamud’s meeting with President Ahmed Mohamud Silanyo in Turkey, I thought I revisit the discussion on Somaliland’s legal right to be independent from Somalia. The discussion will be divided in two parts. Part One will examine Somaliland’s legal right to secede from Somalia. Part two will present arguments against Somaliland’s secession.
Part One:
Right to Secession & International Law
The northern group claimed that since a) Somaliland was a separate entity during the colonial era and b) the northern people suffered injustices at the hands of southern leaders, secession from Somalia was the only choice. In 1991, the people of Somaliland drafted a new constitution and democratically elected a new president. The international community, however, did not recognise Somaliland as an independent state.
According to James Crawford, secession is illegal under international law, because it undermines the territorial integrity of the state from which it is seceding.[2] There is, however, no rule in international law that outlaws overthrowing a government or seceding from a state.[3] Crawford observes that the right to secession might exist under the principle of self-determination. The people of Somaliland expressed their right of self-determination when they declared their independence from Somalia.[4]
In international law, two theories address the question of recognition of states: constitutive theory and the declaratory theory. Constitutive theory maintains that states do not have any legal personalities until they are recognised by other states. Under the declaratory theory, however, states that fulfil the requirement of statehood are the subjects of international law.[5] Furthermore, Hersh Lauterpacht argues that “other states have an obligation to recognise an entity meeting the criteria of state.”[6] Since the constitutive theory does not support Somaliland’s case, it is necessary to look to the declaratory theory for support.
Does Somaliland fulfil the requirement of statehood? Article 1 of the 1933 Montevideo Convention on Rights and Duties of States requires that, “the State as a person of international law should possess a permanent population, a defined territory, government, and Capacity to enter into relations with other States.”[7] Somaliland has a permanent population, a government, and the capacity to enter into relationships with other states,[8] and thus satisfies all the requirements of the Montevideo Convention.
The Somaliland government has shown to be representative inclusive government. Multiple clans including Gadabursi and Dhulbahante are part of Somaliland’s governing body and have served in all levels of the administration. It is important to note, however, that there are clans within Somaliland expressing their right to self-determination and declaring their independence from Somaliland. Anthony Carroll and B. Rajagopal respond that Somaliland has effective control over its territory.[9]
Part Two:
Arguments Against the Secession
The secessionists argue that Somalia, which is the parent-state of Somaliland, does not have an effective central government. And since Somalia does not fulfil the requirements of statehood then Somalia is not a state.[10] If this is true, then the Somaliland secession should not be unlawful under international law, because it does not breach in any way the territorial integrity of a sovereign state. On the other hand, Peter Malanczuk asserts that “… a state does not cease to exist when it is temporarily deprived of an effective government as a result of civil war or similar upheavals.”[11]
Moreover, Carroll and Rajagopal note that the Universal Declaration of Human Rights recognises “the right to rebel against a government guilty of egregious violations of human rights.”[12] Secessionists point to Siyad Barre’s violation of human rights in Somalia and, in particular, of the human rights of the Isaaq clan. It is important to recall, though, that many Isaaq politicians were part of the Barre regime and that the regime oppressed not only the Isaaq clan in the north, but many clans from the south as well.[13] Given this, claims of secession based on Siyad Barre’s human rights violations against one particular clan should be dismissed.
Furthermore, if each Somali clan claimed secession because of suffering from the Barre regime, then there would be numerous secessionist states evolving from Somalia. For instance, the province of Awdal in the northwest of Somaliland declared its independence prematurely from Somalia in 1995.[14] Clans in northeast Somalia set up a regional government of Puntland state but, unlike Somaliland and Awdal, did not declare independence.[15] Somaliland and Puntland share borders, and there a dispute remains over where to draw the territorial boundaries.[16] In this disputed territory, Khatumo State was born. The birth of Khatumo State undermines Somaliland’s reliance on self-determination as a principle tool to break away from Somalia. If self-determination is a God given right and each group has the right to stand alone, then Somaliland must respect this same principle and allow the self-determination of each group within its borders to determine their destiny.
If Somaliland’s secessionist state succeeds in its efforts to break away, then other regional states could demand secession as well. Puntland has a president, a constitution, an effective government, a permanent population, and the capacity to enter into relationships with other states.[17] Should Puntland be recognised as an independent state? Clans in central Somalia have formed Galmudug State, which also has a president, a constitution, an effective government, a permanent population and the capacity to enter into relationships with other states. Should Galmudug be recognized as an independent state? Clans in the south Somalia have completed drafting a state constitution and are currently in the process to set up a Jubaland State. Should Jubaland be recognized as an Independent State? President Bill Clinton argued against the idea of secession. In his October 1999 Federalism Speech, he claimed
“that if every racial and ethnic and religious group that occupies a significant piece of land not occupied by others became a separate nation—we might have 800 countries in the world and have a very difficult time having a functioning economy or a functioning global polity. Maybe we would have 8,000 …”[18]
On the other hand, Somaliland’s secessionist claim contradicts the Organisation of African Unity’s (OAU) policy to maintain African borderlines without any alterations.[19] The concern behind the OAU policy is that recognition of any secessionist ethnic group would set a dangerous precedent and lead to the division of many more sovereign African states. Objections have been raised against this OAU policy. Many argue that the policy focuses on the maintenance of existing colonial boundaries and not the rights of self-determination. Another objection holds that Somalia had previously rejected the direction of this policy by pursuing the unity of the greater Somalia.[20]
The first of these objections concerns the issue of self-determination and was discussed in Part Two. The second objection is clearly unfounded, because Somalia previously rejected the OAU policy to pursue a greater Somalia and not to dismember Somalia, as is the aim of Somaliland. Moreover, Somalia’s previous rejection of OAU policy does not give Somaliland legitimate grounds for secession or for demanding recognition from the OAU.
In short, the temporary absence of Somalia’s statehood should not be an advantage for any secessionist movements. Somalia has started to regain its international standings. The United States of America has recently recognized the current Somali government. International institutions such as the IMF declared their recognition and willingness to work with the current Somali government. Somali clans should resolve their political arguments collectively and restore the state of Somalia. Secession should not be an answer for political conflict, because secession is unlawful in international law. Any successful secessionist would be a precedent for another secessionist, thereby threatening the stability of the international community. Regional organizations such as the OAU have an obligation to safeguard the sovereignty of its members, even when they temporarily cease to exist.[21]
Mohamed “Dudishe” Abdulle lives in Canada and is part of Toronto’s vibrant Somali community. Follow me on Twitter @MDudishe
Endnote
[1] Dr. Makau Wa Mutua, “Why Redraw The Map of Africa? A Moral and Legal Inquiry,” Michigan Journal of International Law Vol. 16, No. 4 (Summer 1995): 1175.
[2] James Crawford, “State Practice and International Law in Relation to Secession,” The British Year Book of International Law Vol. 69 (1998): 86.
[3] Peter Malanczuk, Akehurst’s Modern Introduction to International Law (London and New York: Routledge, 1997), 84.
[4] Carroll and Rajagopal, 666.
[6] Hersh Lauterpacht, “Recognition in International Law” 30 (1947), in Akehurst’s Modern Introduction to International Law (London and New York: Routledge, 1997), 83.
[8] Carroll and Rajagopal, 678.
[9] Carroll and Rajagopal, 679.
[10] Carroll and Rajagopal, 679.
[12] Carroll and Rajagopal, 664.
[15] “A Failed State that is Succeeding in Parts,” The Economist, 28 August 1999, 34.
[19] Carroll and Rajagopal, P. 679.
[20] Carroll and Rajagopal, P. 679.
[21] Malanczuk points out that the allied occupation in Germany and Japan did not terminate their statehood. See Akehurst’s Modern Introduction to International Law, 78.