Somaliland's Quest for International Recognition
Introduction
Somaliland, a former British Protectorate, gained independence on 26th June 1960. Thirty-five UN Member States, including the five permanent members of the Security Council, immediately recognised it as an independent state. However, after only enjoying four days as an independent state, it joined a former Italian UN Trust Territory to form the Somali Republic on 1 July 1960. Somaliland’s twenty-one years of union with the former Italian UN Trust Territory has however not worked well, and has experienced economic and political marginalisation. After Somali state collapsed in 1991, Somaliland reasserted and reconstituted its independence on 18 May 1991. Despite the fact that, Somaliland enjoys a de facto statehood, it has not succeeded to obtain de jure recognition from the international community. It is important to note that, Somaliland meets the objective criteria of statehood and its separation from Somalia represents the dissolution of a state in accordance with international norms. The international community’s reluctance to offer de jure recognition to Somaliland threatens the very survival of the Somaliland state. This non-recognition status has a colossal impact on the Somaliland state and particularly on its people. In many ways, writing about Somaliland is quite challenging, but in a way, it is easy. The notion of Somaliland’s international recognition is not a well-researched topic among scholars, and there are very few studies with respect to the topic of Somaliland’s international recognition. Most of the literature on Somaliland is concerned about to the state building and reconciliation process, and only little focus on its international recognition from international relations perspective. One of the handful and important studies that discuss on Somaliland’s international recognition is Carrol and Rajagobo’s work, ‘The case for the Independent Statehood of Somaliland”, and Adam’s ‘Formation and Recognition of New States: Somaliland in Contrast to Eritrea. These works focus specifically on Somaliland’s statehood. Similarly, another interesting research is Iqbal’s monumental study on Somaliland’s international relations. However, these studies do not cover the impact of Somaliland’s non-recognition.
John Ahere’s study on Somaliland is also an interesting research, which touches some of the important legal and political issues concerning on Somaliland’s search for international recognition, but it does not specifically address the consequences of non-recognition to Somaliland government and its people. Another significant research is Scott Pegg’s most recent study on Somaliland’s long-term sustainability with de jure recognition, which provides some critical analysis on why would Somaliland continue to exist without international recognition. Nonetheless, the major weakness of this study is that, it does not try to examine the consequences of non-recognition of Somaliland. The Office of the Chief State Law Advisory in South Africa produced a highly significant legal opinion on Somaliland’s legal status but its analysis is mainly concerned about to Somaliland’s statehood. However, one exception is Schoiswohle’s comprehensive legal research on Somaliland, which mainly addresses Somaliland’s statehood and its human right obligations but also touches briefly on the impact of non-recognition to Somaliland. Having analysed the literature on Somaliland’s statehood and recognition, it is very important to note that, most of the literature focuses on Somaliland’s statehood and its international relations. Therefore, there is a great deal of room for further investigation on the impact of non-recognition on Somaliland government and its people. The study will fill that gap in literature and provide answers to the following questions.
Therefore, the research will attempt to answer the following questions:
To what extent, does Somaliland qualify as a state under the international law?
What is the impact of non-recognition on the Somaliland state?
What is the impact of non-recognition on Somaliland people?
These research questions are set out in the wider framework of discussing the international legal personality, statehood, and recognition of unrecognised states more generally. Somaliland is in this regard an excellent illustration of the plight suffered by unrecognized entities.
In order to answer these questions, the dissertation will employ a combination of doctrinal and socio-legal as a method and methodology, respectively. The research takes the form of a critical analysis of the international legal framework regulating statehood and recognition, and it is important to use doctrinal research for the purpose of examining the above existing international legal framework. Since, the research focuses on the impact of non-recognition on the Somaliland government and its state, it becomes imperative to adopt a methodology, which captures both the legal and social institutions. This makes the socio-legal methodology most appropriate for this research, as it looks at how the law functions and how it affects the relationship, attitudes, and actions of parties. Therefore, the socio-legal analysis is used to analyse academic and non-academic sources relating to the status of non-recognition and its impact on Somaliland people. For answering the above-mentioned research question Chapter 1 introduces the dissertation and offers the overview of the research as well as brief literature, objectives, and methodology of the dissertation. Chapter 2 discusses the concept of statehood and recognition in international law thereby providing theoretical legal background information, which is vital for the understandingof the thesis. The main objective will be to critically analyse the general legal framework and underlying theoretical premises regarding statehood. Chapter 3 addresses the legality of Somaliland's state. In doing so, the research will try to answer to what extent does Somaliland qualify as a state under international law? Chapter 4 then highlights some of the key aspects with respect to the impact of the non-recognition on the Somaliland government. In particular, it will explore the real challenges faced by the Somaliland government. Then, chapter 5 explores the potential challenges of non-recognition to Somaliland people. And finally the research concludes with conclusion.
Chapter 2
2.1 Introduction
The notion of ‘legal persons’ or ‘subjects’ within a given legal system demands, that those entities enjoy certain rights and have the duty to perform certain obligations. It was common practice traditionally for international law only to apply to states; individuals or other entities were not part of the international legal community. However, in recent times contemporary international law has witnessed the appearance of various groups of non-state actors. It is also argued that, insurgents and belligerents have been provided with the capacity to enjoy certain rights while at the same time taking on obligations to conduct hostilities in line with rules of international humanitarian law. Moreover, de facto regimes exist, which do not hold de jure recognition. However, they do possess a high degree of effectiveness, which raises issues of international legal personality. Notable examples of such de facto states are Somaliland, Kosovo, the Turkish Republic of Northern Cyprus and Taiwan. Somaliland is one of those de facto states, which present a stark explanation of the mismatch between international recognised sovereignty and what can be referred to as "stateness"- a de facto ability to exercise authority to employ control to its territory internally and guard it against external threats. This chapter will first deal with the concept of statehood in international law. In doing so, the traditional criteria of statehood will be discussed as well as the additional criteria. It will also explain the role of recognition in state creation. Finally, it will explain the notion of un-recognised states in international law.
2.2 Criteria of Statehood
Despite the richness of academic literature on statehood, there are very few authoritative sources that offer a practical, legal definition of it. At the beginning of the nineteenth century, Jellinek contended that a state must have three elements: a territory, a population, and public authority. Various criteria have been suggested for the determination of statehood. However, it is interesting to note that, Jellinek’s doctrine of three elements can be found in the Montevideo Convention on the Rights and Duties of States of 1933.
2.2.1 The Traditional Criteria of Statehood
The traditional criteria of statehood are stipulated in Article 1 of the Montevideo Convention on the Rights and Duties of States: ‘The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states.’ It is argued that these provisions have acquired the status of customary international law. Nevertheless, it has been questioned whether these criteria are adequate for statehood.
2.2.2 Permanent Population
The first criterion is the one of permanent population and it requires that people permanently reside on the defined territory of the State. The permanent population criteria are deemed as an aggregate of individuals who live together as a community though they may belong to different races or creeds or cultures, be of a differentcolor’. This prerequisite is considered weak as it does not offer any limitations or minimum number of people, but states that only the populace should have permanent residence. However, both Dixon and Grant support these criteria, and argue that for an entity to become a state, the international legal system does not require a minimum and a fixed number of inhabitants.A good example is Nauru, which has a population of 10,000 and is still a member of the United Nations.Alina also agrees with above argument, and notes that there is no prescribed minimum number of people making up populations. International law does not require the population of a state to be homogenous. For instance, it is not important that the population is made up of nationals; the decision of nationality is one of the attributes of state, but not an element of its definition. It is also argued that, it is important to emphasise the following considerations concerning the requirement of a permanent population: ‘First, the population must have the intention to inhabit the territory permanently. Secondly, the territory claimed has to be habitable.’ It is contended that, the latter point prevents territories like Antarctica from fulfilling this requirement.
2.2.3 Defined Territory
Any entity claiming statehood needs a territorial base over which, it exercises exclusive authority. Nevertheless, international law does not set a minimum benchmark for such an area. However, it is very important that, there should be an effective establishment of a political community. It seems that, there is a common understanding that the geographic size of the state does not matter concerning creating an effective government and accommodating a permanent population For instance, Monaco territory is estimated to be less than 1.95 km2. Similarly, no rule or statutestipulatesthat the boundaries of a state should be undisputed. For instance, in 1913 Albania was recognised as a state by several states notwithstanding the lack of settled or agreed boundaries another good example is Israel, which was admitted to the United Nations on 11 May 1949, despite its territorial dispute with Arab states. A case in point is Deutsche Continental Gas-Gesellschaft Polish State. Nevertheless, Turkish occupation of Northern Cyprus is seen illegal since Turkish troops occupied the Republic of Cyprus and occupied part of its territory, in similar way as the Israel occupation to Part of Palestinian territory. Another case of note is North Sea Continental Shelf Cases, which were a series of disputes, over which the International Court of Justice confirmed that international law does not require the frontiers of a state to be fully delimitated. For instance, Albania into the League of Nations case outlined that State land frontier lack legal obligations to fully define and delimit rules for long periods and in diverse places. Therefore, it’s argued that, in order to be ‘defined territory’, it is not important that, all of the frontiers of the aspiring state are free from dispute.
2.2.4 Government
The third criterion requires there to be a government. This has been described as the most important single criterion of statehood; all other criteriadepend on it. Any aspiring state should have a sovereign government. However, the Montevideo Convention does not stipulate any particular type of government. The structure or form of government must not follow any specific shape. Moreover, the requirement of effective government has two dimensions in Crawford’s analysis; exercising authority and having the right to exercise authority. This is for instance significant when looking Iraq, where the recognised government authority is Baghdad, but it does not control over Kurdish state. The government should be ‘effective and functional, ‘enjoying internal and external independence, as well as effective power over its permanent population and the territory, over which it claims sovereignty. Concerning the above issue, the International Committee of Juristswasentrusted by the Council of the League of Nations with the task of examining the dispute over the Aland Islands. When deciding the exact date of the establishment of the Finnish Republic, it stated that it did not becomea sovereign state ‘until the public authorities had become strong enough to assert themselves throughout the territories of that state without the assistance of foreign troops’. Nevertheless, it is argued that recent state practice indicates that, other factors such as international recognition and admission to the UN could compensate for the lack of effective control over a territory.
2.2.5 Capacity to Enter into Relations with other States
This is the fourth requirement of statehood. It is believed that this criterion needs an entity to possess ‘competence, with its constitutional system to make international relations with other states, as well as political, technical and financial capabilities to do so.’ Some scholars contended that the capacity to enter into relations with other states is ‘a consequence of statehood, not a criterion of external independence.’ From another perspective, it is argued that this criteria as a external independenceis is where, States determine their political status and are free of alien domination that incorporates the formation of independent states. Indepdence can either be formal or actual. However, this criterion lacks specifity and its weakness is that, an entity cannot be refered as a state due to its capacity to enter in relations with other states, for instance some international organisations like the United Nations and sub-state entities like ‘ lander’ in Germany are competent to enter into relations. Neverthles, It is important to note that California can not be refered to as a state becouse it can not act indepedently from the United States. It is also important to note that, the capacity to enter into relations with other subjects of international law is sometimes considered to as independent component of statehood.
2.3 Other Criteria
There has been a debate about whether Montevideo definition is missing fundamental elements important to statehood. It is argued that, the criteria of additional did not come from directly in the law of statehood but are rather notions developed in other fields of international law which affects the law of statehood. Vidmar contends that, the traditional criteria of statehood have been complemented by a set of supplementary ones. The notion of the prohibition of the illegal use of force, respect of the right of self-determination and respect for human rights have been included in this criteria. The emergence of statehood, especially in the second part of the twenty century, is mainly tied to the principle of self-determination which has facilitated too many colonised territories to statehood and independence. Conceptually self-determination is regarded as the ‘the right of cohesive national groups "peoples" to choose for themselves a form of political organisation and their relation to other groups'.
2.4 Recognition of States: The Great Debate in International Law
It is argued that, international recognition is ‘a procedure whereby governments of existing states respond to certain changes of states in the world community.’ Recognition has been the subject of a great deal of doctrinal attention and political debate.There has not been any other branch of international law that has been as poorly misunderstoodas the recognition of states and governments. There have been a decades of debate and divisions between scholars, practitioners and lawyers with respect to who has the right to offer recognition to new states and under what circumstances new states get international recognition. This is because the recognition of states- a prerogative held only by other states, is still one of the most unregulated and de-centralised aspects of international system. One might argue in practice, legal doctrine governs the conferment of statehood and the relations of states; however, the process by which many entities receive de jure recognition is largely political. The two major traditional doctrines that dominated the debate of state recognition are the constitutive and the declaratory respectively associated with legal positivism and legal idealism. The declaratory theory which considers recognition as a ‘declaration’ of legal matter of a fact, i.e., the existence of an entity that fulfils conditions of statehood. From the other competing theory of constitutive with regards statehood to depend on entirely the recognition of other states. Therefore, this research argues that a state should be recognised immediately as soon as it fulfils the requirements of statehood. The following paragraphs will critically elucidate the competing theories of state recognition.
2.3.1 Recognition Theories
The notion of recognition is closely linked to the determination of statehood. Traditionally, there are two theories of recognition: constitutive and declaratory. The constitutive theory sees recognition as ‘a necessary act before the recognised entity can enjoy international personality, ‘whiles the declaratory theory observes recognition as ‘merely a political act recognising a pre-existing state of affairs.’
2.3.1.1 Constitutive Theory
It is argued that the constitutive theory originated in the nineteenth century and its notion is based on the positivist view of international law. Oppenheim notes that the constitutive theory holds that: ‘A state is and becomes an international person through recognition only and exclusively’. According to the theory, a state must possess all the formal characteristics and qualifications of statehood, but will not achieve international personality unless other states render recognition. This method is based on the shift from natural law to the positivist theory of international law which emphasises consent as an important and essential component of state creation.Thiswas adopted by positive scholars such as Oppenheim who contended that: The formation of a new state is … a matter of fact, and not of law… as soon as recognition is given, the new states’ territory is recognized as the territory of a subject of international law, and it matters not how this territory is acquired before recognition. Some practice in contemporary situations may show the application of the constitutive theory rather than declaratory. However, critics argue that recognition as a legal norm is at risk of being manipulated as a political tool by states for their interests. Furthermore, from theoretical perspective, the constitutive theory does not seem attractive since it allows states to ignore facts, for instance, an existence of a state.Another interesting criticism is that state practice does not show that states regardunrecognised states as terra nullius. For example, states have always extended to some sort of recognition to unrecognised states and yet treated these states as de facto states with many of the rights of de jure states.
2.3.1.2 Declaratory Theory
The declaratory theory argues that, an act of recognition has no critical legal consequences, and an entity becomes a state as soon as it fulfils the factual criteria of statehood. The declaratory theory of recognition is based on Article 3 of the Montevideo Convention which states that: ‘The political existence of the state is independent of recognition by the other states.’ With respect to the current doctrine and jurisprudence, it is argued that, the declaratory is the dominant theory, and the main reason attributed to this dominance is that it priorities objective legal norms over political decisions on statehood, and removes from the existing states the right to determine the legal status of an entity according to their political agenda. Nevertheless, there are a number of criticisms with respect to this theory. The first one concerns in the practical consequences of being a state according to the Montevideo criteria, which are slim without recognition, for instance, states do not get international rights on the international law until they are offered recognition by other states. Nonetheless, this research argues that if an entity full fills the requirements of statehood, as stated in declaratory doctrine, other states are putting themselves at risk if they disregard the state obligations of state relations.
2.4 The Notion of Unrecognised States
Unrecognized political entities- often termed also as de facto states provide an interesting glitch in the international community of sovereign states. These entities have achieved effective independence but were not able to get external recognition. Examples of these de facto states include Somaliland, Abkhazia, Nagorno Karabakh, Palestine, Taiwan and Transnistria. These unrecognised states are cloaked in mystery and subject to myths and simplifications because they are not part of the international system of sovereign states. From a conceptual perspective, it is argued that, unrecognised states are those entities that have achieved de facto independence from their parent state, though the international community has failed to recognise these states legally. These de facto states have remarkably fostered strong internal sovereignty, despite lacking external sovereignty, owing to the highly effective nation-building measures deployed by the States. This implies that the polities concerned do not enjoy any recognition whatsoever. Case in point is Somaliland, which is a fully functioning entity that has achieved de facto independence from Somalia. From a historical perspective, unrecognised states have existed fora longperiod, but the reason for their lack of de jurerecognition has always varied. It is argued that it might be due to lack of empirical abilities, political reasons from other existing states or respect to territorial integrity. For instance, it is often cited that Somaliland is denied for de jure recognition from the international community because of the respect of the territorial integrity of Somalia. Most of these de facto states control and provide governance to their territories. However, there are several challenges facing de facto states. The most notable one is lack of de jure recognition. Without de jure recognition, they are at risk to be absorbed by their parent states. One might argue that, globalisation has provided a more flexible international platform in which unrecognised states have some space to play the game and engage with the rest of the world despite their lack of international recognition. However, they are still isolated from the decision making platforms of international system. Another significant challenge is that many de facto states do not have a patron state that supports politically, militarily and economically, for example, Somaliland does not have any patron state that can provide security guarantees and diplomatic support. However, it is also important to highlight that, there are several important issues that contribute to the sustainability of unrecognised states: symbolic nation-building; militarisation of society; the weakness of the parent state; and support from external patron. Nonetheless, without full international recognition, the sustainability and survivability of de facto states remain vulnerable.
In conclusion, Sovereign recognized state is always considered as fully-fledged under international law, while the de facto state is not. However, the declaratory theory states that recognition means the existing states are accepting to recognise de facto states, which has rights and obligations under international law. While most of the jurists go in favour of the declaratory theory, state practice tends to support the constitutive doctrine. However, the underlying issue is that unrecognised states are still part and parcel of many conflicts which pose major obstacles to the peace and stability of the world, and it is the interest of the international community to lay down a blueprint to engage with those entities.
2.5 Conclusion
This chapter has tried to offer an overview of the doctrine of statehood in international law. It has also discussed the traditional criterion of statehood, which there is continues debate for statehood. What has been very interesting to observe is that satisfying the Montevideo convention does not directly warranty an entity for de jure recognition and neither does failure to fulfil the Montevideo criteria prevent an entity from reaching statehood. It is submitted that the international law of recognition must be declaratory in nature. Also, the chapter looked at an exciting and perplexing phenomenon feature on contemporary international law and politics. These entities that have achieved de facto independence but failed to get de jure recognition deserve to be considered as full-fledgedstates. States that meet the standards of international systems as de jure states are deemed as sovereign states. Sovereign states have the permanent population and defined territory as well as a government which provides basic service to its people. Additionally, because the sovereign states are identifiable with international system legal character, they also can relate with other states. On the contrary, de facto states are considered as weak states because their government cannot provide basic services to the people independently. Worth noting the de facto states are achieved through several conflicts with their parent state subsequently, the de facto states lack both systematic and settled infrastructure and are characterised by a fragile economic structure.
Chapter 3
3.1 Introduction
Somaliland has been called Africa’s best-kept secret and a successful African story. Somaliland came into being as a modern state on 26 June 1960, and after five days was united with Italian Somalia. The Somali Republic was then formed on 1 July 1960. On 18 May 1991, Somaliland declared its independence following the collapse of the Somali state, ever since, Somaliland has been searching for international recognition. No state has yet offered de jure recognition despite its strong legal claim. It is argued in this dissertation that, Somaliland has met all the legal requirements for statehood, which are territory, population, government and the capacity to engage with other states as well as traditional criteria. In addition, it also has strong legal and historical justifications for its independence and statehood. Somaliland was an entity colonised by Britain from 1897 to 1960, and it came into existence as a modern state on 26 June 1960. Despite its non-recognition status, Somaliland has successfully embarked on locally-driven peace-building which resolved internal conflicts, and has laid the foundation for functioning system of governance It has become a non-violent and fully functioning democratic state that has earned internal legitimacy within Somaliland. The government has reconstructed all the cities devastated during the civil war, and created a democratic system where a multiparty system is at the centre- it has held series of democratic elections for the last two decades including two presidential elections. This chapter aims to critically explore the legal basis of Somaliland’s claim to be granted jure recognition. In doing so, the chapter will first analyse its historical background and the legality of the union between Somaliland and Somalia in 1960. Then it will move onto demonstrating that Somaliland fulfils the classic criteria of statehood. Finally, it will also look at Somaliland’s achievements with respect to peace and state-building, democratisation and international relations.
3.2 Historical Background of Somaliland
In order to understand the internal and external dynamics of modern Somaliland, it is necessary to elucidate its tumultuous history from 1884 to nowadays. The following paragraphs will elucidate Somaliland’s history.
3.2.1 The Colonial Past of Somalia and Somaliland
In 1884, the year of the Congress of Berlin, a British protectorate was proclaimed over the northern part of the territory inhabited by the Somali people in the Horn of Africa. This was prompted by Britain’s interests to feed its soldiers in Aden and its feat that another superpower could establish itself in the Horn of Africa. For that reason, Britain entered into treaties of protection with the Somali clans on the coast of what would later become British Somaliland in 1881. The frontiers of British Somaliland were delineated by an Anglo-French treaty and an Anglo-Italian Protocol in 1894. Despite the fact that the Somali peninsula had been partitioned during the European ‘Scramble for Africa’ in the period 1888-1908, the notion of Somali political unity was not considered until the early years of World War II. It is argued that the British civil service had time to investigate the difficulties of administration on the ground and so concluded that, there was a real need for the Somali provinces to be managed by a central authority applying the same policy across the provinces. The Conservative Foreign Secretary of Britain, Mr. Ernest Bevin, suggested that, the whole Somali peninsula, especially British Somaliland, Italian Somaliland and the adjacent part of Ethiopia, if Ethiopia agreed, should be brought together as a trust territory. However, this was rejected by Haile Selassie of Ethiopia, the French and the Italians. It is worth mentioning that from 1941 to 1950, the United Kingdom was busy creating local courts, planning committees, and the protectorate advisory council in order to prepare British Somaliland for self-governance. It was during this period that the UK as a protectorate to Somaliland started to decentralise governance and give political space to the formation of new political parties. In February 1960, British Somaliland held its first legislative assembly election. Four months later, on 26 June, the UK offered independence to Somaliland, ending 80 years of colonial rule. Five days after Somaliland’s independence, Somaliland united with the former Italian Trustee Territory of Somalia as the first move to unite all Somalis in the Horn of Africa, and the two Somalis formed the Somali Republic.
3.2.2 The Union Experience of the Two Somali States
On 1 July 1960, five days after Somaliland became independent from the UK, Italian Somalia also emerged from colonial domination, and the legislatures of both states met jointly in Mogadishu to officially unite as the Republic of Somalia. However, right from the beginning, there was a great deal of inequality and injustice with respect topower-sharing between the two former Somali states. This was elucidated by the prominent late Somali political scientist Adam: The de facto union has experienced a lot of problems. Right at the outset, the Somali sense of proportional balance was ignored. The south provided the capital city, the national anthem, the flag, and the constitution. The parliament elected a southern president who nominated a southern Prime Minister. His cabinet included four northern ministers out of fourteen. Southerners occupied key ministries such as foreign, interior, and finance. Many observers argue that, Somaliland blindly threw itself into a union without conditions, which later became a union on unequal terms. Another commentator shared the same sentiment and argued that Somaliland had entered the union at a distinct disadvantage. It is also important to note that the referendum constitution was a plebiscite on Somaliland’s statehood and cessation of the 1960 union between the two Somalis, and 97 percent of Somaliland people has voted for independence from Somalia.A referendum held on 20 June 1961 was overwhelmingly rejected by the regions in Somaliland. The main reason of the rejection of the referendum was due to the fact of the inequity power sharing between the two entities. Following the disputed unification between the two Somalis, northerners (former British Protectorate) felt they were abandoned economically, socially and politically. It is claimed this led to the failed coup of December 1961which took the form of an attempt by junior officers of Somaliland to overthrow the sitting government and reinstate Somaliland independence.
3.2.1.2 The legality of the Union
The union of Somalia and Somaliland was the cornerstone of a pan-Somali vision to establish a Greater Somalia on the Somali peninsula in the Horn of Africa. It is argued that, before its independence, Somaliland was very interested in unifying all the Somalis living in the five Somali territories. As soon as Somaliland got its independence, its legislative Assembly approved and signed the union of Somaliland and Somalia in law on 27 June 1960. However, prior to the union of the two territories, the representatives of Somaliland and Somalia had agreed that both parties would sign an Act of Union on independence, and that document would form an international agreement between the two states, but that arrangement never happened. However, the Southern Assembly passed their Atto de Unione, which was completely different from the northern text. At that time, many legal scholars questioned the legality of the union between Somaliland and Somalia. Rajagopal and Carrol contended that the union had no legal validity since the text was entirely different from the proposed legal document from Somaliland. Similarly, according to Contini, who was the first lawyer who studied the legal integration of the two Somali states: ‘the union of Somaliland and Somalia Law did not have any legal validity in the South (Somalia), and the approval “in principle” of the Atto Di Unione was not sufficient to make it legally binding in that territory’. In conclusion, it is a clear that the union between Somaliland and Somalia on 1 July, 1960 was illegal, given that the whole process was not transparent as well as the other important factors underlined. In the following section, the research will analyse Somaliland’s statehood under the Montevideo Convention.
3.3 Somaliland: A state under the Montevideo Convention
The concept of the stateremainsa significant component of the international system. Given its essential role, there should be a commonly accepted definition of statehood. However, there is still ongoing debate on the criteria of statehood. Despite the lack of consensus on the definition, the Montevideo Convention on the Rights and Duties of States of 1993 is mostly cited and referred to as the primary international legal definition of a state. Article 1 of the Montevideo Convention states that, ‘the state as a person of international law should possess a permanent population, a defined territory, a government, and the capacity to enter into relations with other states’. It is argued that, these traditional criteria for statehood were based on the principle of effectiveness among territorial units, whereby the political existence of the state is independent of the recognition of other states. One might argue that statehood is achieved when the four criteria are fulfilled, irrespective of political recognition. However, the traditional criteria have been supplemented by number of additional ones, and it is the contention of the author that additional criteria have been widely accepted in modern international law. In the following paragraphs, Somaliland’s statehood will be examined against the traditional criteria of statehood as well as additional criteria.
3.3.1. Permanent Population
This criterion states that a state should possess a permanent population. A state is not only composed of territory but also a specific group of individuals. This is important because not only are states generally referred to as territorial entities but they are alsoterritorial communities encompassed of individuals sharing a common allegiance. Even though it is required that a state should have a permanent population, international law has not explicitly defined the minimum populations that a state must have in order to achieve statehood. Somaliland has a population estimated to be around 4 million, and the official language is Somali as stated in its constitution. In addition, the only ethnicity in Somaliland is Somalis. With respect to size of the population, Somaliland has large population than many recognised African states, and throughout the history of modern states, it is evident that many tiny states have been recognised, for instance, Nauru with a population of 6500 has been accepted as a state. Somaliland’s permanent population has also continued to grow with the repatriation of many refugees back to Somaliland.
3.3.2 Defined Territory
The second criterion for statehood, a defined territory, is a flexiblerequirement because there is no minimum requirement of territory for a state to be considered a state. However, Somaliland has a vastterritortory which is 176,119 square kilometres (6,800 sq miles), and has a coastline which is 720 kilometres longSomaliland’s territory is defined by the three colonial treaties signed between the British, French (1888), Italians (1894) and Ethiopians (1897). Somaliland borders the Gulf of Aden to the north, Djibouti to the northwest, Ethiopia to the south and west, and Somalia to the east. Even though a portion of one region in eastern Somaliland is contested, international law does not require precisely drawn boundaries.
3.3.3 Government
The third requirement for statehood under the Montevideo Convention is government. This criterion is considered fundamental to a state’s claim for statehood because it is the basis of all other criteria of statehood. Somaliland has a well-instituted government which is effective, exercising full control over most of the territory that it claims. Somaliland’s governance system has progressed from a traditional system of governance to representative democracy. In 2001, Somaliland adopted a constitution that allowed a multiparty system and a democratic form of government. Somaliland’s Constitution calls for the separation of powers among the different divisions of government and is the fundamental law of the country. Somaliland has a strong police and military that provide security and human rights organizations that are operational.
3.3.1.4 Capacity to Enter into a Relationship with Other States
The final criterion of statehood is the capacity to engage in international relations. Even though Somaliland has yet to gain international recognition, diplomatic support for Somaliland has increased, and it maintains cordial relations with both its neighbours, such as Djibouti and Ethiopia, and external organizations. The United Nations Secretary-General commended it and described it as calm in contrast to the rest of Somalia, which he argued was anarchic. Over the past 25 years, Somaliland has succeeded in establishing formal and informal relations with neighbouring countries such as Djibouti and Ethiopia as well as international organisations.
3.4 Other Criteria: Self Determination
The question whether the traditional criteria of Montevideo are complete or not has been largely debated in international law. It is important to view traditional Montevideo criteria as a benchmark and common denominator rather than final and complete set of criteria of statehood. The additional criteria might include self-determination and democracy. In the following paragraphs, the research will explain in detail how Somaliland qualifies the additional criteria especially self-determination. It is argued that the concept of self-determination is new, and its legal emergence is attributed to the speech of President Woodrow Wilson in 1918. Since that time, there was no clear norm that widely defines the scope of the right self-determination. It is worthy to mention that there are several cases demonstrate this lack of clarity such as in Indonesia, Vietnam, Algeria and most recently, Kosovo and South Ossetia. Despite the different explanations of the right of self-determination, it is important to highlight three international legal principles which have come out with respect to state sovereignty- the most well-known of the three principles argues that a colonised territory has a right to self-determination. Notwithstanding the differing interpretations of the right to self-determination, three international legal principles have emerged in regard to nascent state sovereignty. The most established of the three principles holds that a colonised region has a right to self-determination—that is, a right to determine its future free from the interference of a colonizer. Somaliland bases its claim on self-determination that the people of Somaliland did not achieve their right to self-determination from Britain as British Protectorate, because unification with Somalia was not based on the true will of the Somali landers but rather it was a plot between few political elites who were interested to the idea of Greater Somalia. Another important point is that international law exceptionally grants external self-determination outside of colonial context. In the Quabec opinion, the supreme of Canada has stated, “the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social, and cultural development”. This exception is when a given state commits a gross violation of human rights against part of its population. During Somaliland’s 31 years of union, the people from Somaliland were subjected to extra-judicial executions, disappearances, arbitrary arrests, torture and massive rape of women and property confiscation. During 1988 civil war, more than 50000 were killed and half-million sought refugees in neighbouring countries. All these atrocities were committed by the government of Siyad Bare of Somalia.
3.5 Somaliland’s legitimacy
It is often argued that legitimacy as a social acceptance of the right to rule is an important and significant condition for effective governance of government. Similarly, it is also a major element and factor of both the structure and operation of the state. Although Somaliland may not have de jure recognition but it has empirical legitimacy which makes it easy to govern its territory. Diverging dramatically from the path taken by the Federal of Somalia over the past two decades, Somaliland has succeeded to establish a political legitimacy on its territory. Since 1991, Somaliland has gone through two decades of major transformations with respect to its security, economy and technological changes. During that process, Somaliland and its people have shown remarkable resilience and progress politically and economically. The modern Somaliland is totally different fromSomaliland in 1991, which was characterized as a war-torn environment. During that period, Somaliland encountered local conflicts in the mid-1990s but the government succeeded in ending the conflict and introduced peace. The road to these achievements was paved by many peace and reconciliation efforts which were aimed at reconciling and developing a common framework among the different Somaliland clans. Two external observers have eloquently summarised Somaliland’s incredible achievements against all the odds as follows: Under subsequent civilian governments, Somaliland has signed the Universal Declaration of Human Rights; overseen the restoration of peace; demobilized former combatants; brought about social and economic rehabilitation; and overseen the adoption of a constitution based on universal suffrage, decentralizationand multi-party elections. The remainder of this section is divided into three main areas. First, it will discuss Somaliland’s peace building and state building accomplishments. Second, it will highlight Somaliland’s tremendous democratisation achievements. The final section will outline Somaliland’s international relations achievements.
3.5.1 Peacebuilding, Security and State-building in Somaliland
After the Somali state collapsed and Somaliland reasserted its independence in 1991, Somaliland succeeded in restoring peace and building a state. It is important to note that the peace in Somaliland came from the people, led by civil society groups including business people, women and traditional leaders. A number of inter-clan reconciliation conferences were organised during this early period throughout Somaliland to solve clan conflicts and negotiate a political settlement. However, this process was not entirely successful since a number of conflicts arose but, in contrast to the crisis in Somalia, Somaliland’s success was noteworthy. It is also noteworthy to mention that the local people in Somaliland funded these conferences, and there was no external assistance from the international community or outside groups. Phillips, who is a prominent scholar on Somaliland’s state-building, further contends that Somaliland’s experience in peacebuilding disapproves the widely constructed idea that external assistance is vital in solving conflicts. A case in point is Somalia, where more than 16 externally funded peace conferences have been organised but all have ended in failure. It is important to note that Somaliland’s peacebuilding is a practical lesson which many African states can learn from. The question often asked is: why have Somaliland’s peacebuilding efforts been so successful? Ridout argues that five important issues have contributed to their success: shared identity, leadership, inclusiveness, local ownership and innovation.
3.5.2 Establishing Governance Institutions and Economic Recovery
It is argued that rebuilding a state after a prolonged conflict is more than constructing and repairing damaged buildings and creating public institutions. Critically, it is concerned with rebuilding relations at all levels in order to reinstall people’s confidence ingovernment institutions and hope for the future.Although Somaliland’s status is as an unrecognised state, it has undertaken quite a remarkable project of state-building. Somaliland’s second government led by President Egal succeeded in establishing governmental institutions, demobilised the former guerrilla’s veterans and created a government revenue system. Similarly, Farah further writes that after the Somaliland ‘government succeeded in disarming and demobilising former combatants, and establishing a national army and police force, this has facilitated Somaliland having a monopoly on legitimate control of Somaliland’s borders. He also posits that this made it possible for the government to focus on providing basic services. Bradbury also notes that Somaliland’s second administration has successfully established government authority and expanded bureaucracy: a constitution was prepared, the multiparty system was introduced,and economic development was started. Wilson writes that there is a strong indication that economic recovery contributes to peace building initiatives. Somaliland has chosen a free market economy, which represents the spirited culture of entrepreneurship of its people. Notwithstanding the adverse effect of civil wars on the economy, Somaliland has experienced impressive levels of economic recovery. It is argued that, between 1991 and 2000 Somaliland underwent sustained economic growth, notwithstanding it starting from a very slow base and the damaging Saudi ban on livestock during the 1990s. Remittances from Somaliland’s diaspora have hugely contributed to its economic recovery, and this has, in turn, helped the peace building efforts and institution-building.
3.5.3 Democratisation
Somaliland has adopted a presidential system in its 2001 Constitution. Article 9, paragraph 1 of the Somaliland Constitution states that, its political system should be based on peace, cooperation, democracy and plurality of political parties. Somaliland’s democratic transition started in May 2001 with a plebiscite on a new constitution that brought a multiparty electoral system. All elections since 1991 have been commended by international observers and found to be credible. However, it is also the case that these elections have not been without problems, and there have been election delays which have threatened the democratic process which Somaliland was promoting. It is also noteworthy that Somaliland has successfully become a non-repressive and democratic state that has earned widespread support within Somaliland and the region. While far from perfect, Somaliland’s democratisation deserves to be commended, and it has a far better democratic performance than any of its neighbours. Having said this, it is important to note that Somaliland has conducted all these elections with limited resources and without de jure international recognition.
3.5.4Somaliland’s diplomatic achievements
Caspersen contends that the absence of recognition does not make statehood impossible, but produces a different type of statehood. Similarly, it is argued that Somaliland is a de facto state, and statehood without international recognition is different in form. Although Somaliland is not internationally recognised as a sovereign state, it has succeeded in existing for more than two decades and is now considered the most stable and peaceful entity in the Horn of Africa. In fact, the government of Somaliland has always avoided any political confrontation that may adversely impact the peace and stability of the region and has always maintained cordial relations with its immediate neighbouring states. Another significant achievement is Somaliland’s attraction to investors. Dubai Ports (DP World), which is a UAE-based company and Somaliland’s government, signed a 30-year deal to upgrade the Berbera port in Somaliland estimated at $442 million. It is believed that the upgrade of the port will boost Somaliland’s economy and make Berbera port more competitive against Djibouti port for business in the Horn of Africa.
3.6 Conclusion
This chapter analysed Somaliland’s historical background as well as the legality of the union, between Somaliland and Somalia in 1960. Furthermore, it has also critically discussed the statehood of Somaliland and its quest for international recognition. While Somaliland has satisfied the traditional criterion of statehood as well as the additional criteria, it has not yet succeeded to attain international de jure recognition. The chapter also extensively examined Somaliland’s achievements with respect to peace building, state-building, democratisationand international diplomatic achievements with respect to recognition.
Chapter Four
4.1 Introduction
Somaliland is one of those unrecognised states, characterised by a weak economy and problems in ensuring the stability of its borders. Like many unrecognised states, Somaliland pays high costs for non-recognition. As a matter of fact, the lack of recognition has had various negative and serious effects on Somaliland’s ability to build and develop a fully functioning state. The challenges posed by the non-recognition take on a very practical perspective, including Somaliland’s inability to sign formal international agreements on a bilateral or multilateral basis, to receive direct State to State assistance and to become a member of international financial institutions and so accede to financial assistance programmes. While, Somaliland is widely considered to have, in the absence of external funding, achieved a great deal both in economic and political development terms, building effective state institutions without international recognition remainsa hugechallenge. This chapter aims to explain and critically analyse the impact and consequences of non-recognition on Somaliland. With this view, the chapter will first discuss the impact of non-recognition on Somaliland from the perspective of international engagement. It will then critically analyse the impact of non-recognition on Somaliland’s trade relations. Finally, using the two examples of the fight against terrorism and piracy, this chapter shows in details the very practical impact of non-recognition on the State of Somaliland.
4.2 Difficulties in Establishing and Maintaining Relations with other Subjects of International Law
It is argued that recognition of a state provides legal status, which is very important for the enforcement of rights and privileges, given to such entities in international law. For the state to function and participate in treaties and relations with other states, it should be considered as an independent state by other states. Nevertheless, independence alone is not enough; often recognition is a requirement too. Similarly, non-recognition affects the entity claiming statehood too. Even though Somaliland has a strong legal and moral validity for statehood recognition, it has, however, failed to receive de jure recognition. One of the major challenges that Somaliland has faced was to create a full diplomatic relation with its neighbouring states. These neighbouring countries- Djibouti, Ethiopia and Somalia were, and still are important for Somaliland’s survivability with respect to economically and politically. It took Somaliland eight years to open trade office in Djibouti, despite the fact that there are people to people relations between the two countries since both people hail from same ethnic Somali. Djibouti has been hesitant to allow Somaliland for diplomatic office in Djibouti. It is argued that, Djibouti considers Somaliland as competitor in the region, and for that reason, it is not willing to provide full diplomatic recognition to Somaliland. For instance, Djibouti’s main economic source is through its ports, and Somaliland has also very strategic port, which brings stiff competition to the market in Horn of Africa. Somaliland has been struggling to get diplomatic protection for its citizens in visiting in Djibouti. Similarly, Somaliland has also attempted to establish diplomatic relations with Ethiopia Despite the fact that Somaliland has been enjoying a good relation with Ethiopia for the last 20 years; however, this relation is confined to more on security and trade relations. Ethiopia has always argued that it will not be the first country to recognise Somaliland given Ethiopia’s history of mistrust and conflict with Somalia. Somaliland has been struggling to find full diplomatic recognition from Ethiopia, and that has impacted negatively to the government of Somaliland economically, for instance, Ethiopia exports Kat- which is (stimula chewed by Somaliland people) which it receives 600 million dollar revenue yearly. In contrast, Somaliland is not able to export its fish to Ethiopia because of lack diplomatic recognition, and it is often argued that the trade relations between the two countries are not balanced. Somaliland and Somalia relations were always shaky and tense since Somaliland re-asserted its independence from Somalia on 18 May 1991. The core bone of contention is Somaliland’s political status, because Somalia considers Somaliland as region of Somalia, while Somaliland considers itself as independence state which re-claimed its independence from Somalia. It is important to note that, Somalia is still one of the major obstacles which prevented Somaliland to get diplomatic recognition from Somaliland’s neighbouring countries and regional organisations. It is worthy to highlight that Somaliland cannot accede to any treaty nor is it invited to participate in any treaty negotiations, because it is not member of any regional organisations.
On a multilateral level, non-recognition means that Somaliland does not exist in international relations and is excluded from the cooperation and decision-making in international politics. For instance, Somaliland is denied full participation in various international organisations such as IGAD, the Arab League or the AU since it is neither a member nor an observer. This lack of access to regional organisations has negatively impacted on Somaliland government’s role in the region (see examples below). Somaliland has tried several times to get observer status at the African Union but to no avail. The problem was that the African Union (AU) was not interested in Somaliland’s search for recognition, since its troops were mainly engaged in assisting the Federal government in Mogadishu, Somalia. It is believed that, the African Union stand with respect to Somaliland has been inconsistent because of the different interests among its members. Similarly, President Egal, Somaliland’s second President from 1993 to 2002 has also written to the United Nations requesting a special interim status, similar to that Palestine in 2000, but unfortunately, that endeavour has failed. That status would have allowed Somaliland to engage with important international financial institutions, such as the World Bank and the International Monetary Fund. In 1999, Somaliland even tried to be granted special status as an autonomous territory like Kosovo or East Timor, so that it could enter into international agreements with World Bank or International Monetary Fund. However, the international community did not accept the proposal and preferred to keep the Somaliland status quo. This research highlighted that, owing to its non-recognition, Somaliland to a large extent sits outside in international mechanisms, and is thus unable to play a significant role in strengthening its government institutions and delivering the necessary services required to its citizens. It is very important that Somaliland should put more efforts into securing the observer status roles with respect to regional organisations such as the African Union (AU) Intern-government Organisation (IGAD) as well as the United Nations. These organisations are very important for Somaliland’s search for international recognitions because the western leading countries such as United Kingdom and United States have repeatedly argued that the question of Somaliland’s recognition should be first deal with African states through African union.
4.3 Difficulties in Relation to Trade, Foreign Investment, and Financial Services
Another important consequence of non-recognition on Somaliland is isolation from the international trade community as it cannot trade effectively with the outside world and so develop its economy. Somaliland has been trying hard to access the economic market in Horn of Africa and beyond despite its non-recognition status. However, there have been always obstacles with respect to Somaliland’s endeavours.The most high-profile issue and perhaps the most severe and widespread in its effect has been Saudi’s embargo on Somaliland livestock in 2000. The livestock comprises 60-65% of Somaliland’s GDP and has always played a significant role in its economic development. There are two key aspects of the ban related to Somaliland’s non-recognition status. First, Saudi Arabia justified the ban by pointing to Somaliland’s inability to certify the health of its livestock, because 1) Somaliland’s certificates are not internationally accepted and 2) Somaliland is not a party to any international agreements governing the health of livestock destined for export. Second, there was a widespread perception in Somaliland that the Saudi government’s imposition of the ban may in part be politically motivated and an attempt to push Somaliland toward political accommodation with authorities in Mogadishu, Somalia Interestingly, the FAO technical assessment had declared that Somaliland’s livestock is healthy and out of disease despite the fact that FAO do not recognise Somaliland, but that did not persuade Saudi Arabia to lift the ban. What has been very evident from that ban is that Somaliland had no diplomatic leverage to engage with Saudi Arabia because of its lack of recognition. Saudi Arabia has lifted the ban on Somaliland’s livestock in 2008. This came after Somaliland government succeeded to convince Saudi investors to come to Somaliland and invest modern livestock quarantine and health facility. This, in turn, convinced Saudi government to lift the ban. Non-recognitions mean that Somaliland, to a large extent, stays outside from the mechanisms and international systems created for regulating the flows of trade and goods. For instance, Somaliland is not a member of WTO, and that means Somaliland cannot fully enjoy non-discriminatory treatment with respect to its rights and obligations as a member. Similarly, other benefits that Somaliland could have include to trade facilitation which ensures the access to the markets of other members through the application of most-favoured nation (MFN) as well as accessing dispute settlement mechanism membership which will provide Somaliland the space and mechanism to settle its trade disputes. Somaliland should lobby to join to World Trade Organisation, because WTO membership is not restricted to recognised states only, for instance, Taiwan which its statehood has been contested by China has succeeded to join in 2002. With respect to Foreign Direct Investment, Somaliland has very limited foreign direct investment and is ranked roughly the 180th in the world for gross fixed capital formation as a percentage of gross domestic products. It is important to stress that, Somaliland has tried its best to attract foreign investment, and has created an environment for the investors by introducing policies favoring foreign investors, such as no tax for the first three years. In spite of this, Somaliland has not succeeded to attract substantial foreign investors due to its non-recognition status.Itis argued that international investors are skeptical by the lack of insurance and other investment protections.In particular, they contend that their interests are not protected under the international commercial law because of Somaliland’s unrecognised status; foreign vessels wanting to use Berbera port have to pay higher insurance charges. Even companies, which are serious about investing in Somaliland, face significant obstacles in terms of securing export funding and insurance coverage because of Somaliland’s unrecognised status.
Connected to the question of lack of foreign trade and investment is the argument that, if Somaliland does not receive international recognition, the economic condition in the state might worsen. This, in turn, could lead to an increase in youth unemployment, which is critical to the security of the region. However, as explained earlier, Somaliland has created quite significant investment protection policies, but it is clear that, the absence of formal political recognition is a significant challenge for Somaliland’s development and investment attraction. With respect to financial services, the absence of international commercial facilities that can issue letters of credit means that exporters send their livestock abroad without effective price guarantees, often being forced to accept lower prices than they might otherwise obtain. This, for instance, affects the local economy, as almost 70% of Somaliland high currency earning depends on livestock. Similarly, this non-recognition situation with respect to financial services also causes high inflation, thereby increasin the cost of living. Some research maintains that bilateral recognition of newly recognised states does not lead to an increase in trade or economic benefits. In contrast, when recognition is obtained at multilateral level, e.g. via United Nations membership, the trade relations of newly recognised states and the state of their economy could improve.This point is illustrated by Taiwan’s accession to the World Trade Organisation (WTO) as its international trade with the rest of the world increased, and this in turn greatly contributed to its economic development. Also, it is noteworthy to mention that Taiwan’s admission to WTO has enhanced its sovereignty and quest for international recognition. In short, without a doubt, Somaliland’s unofficial status hugely impacts on its crumbling financial services which have been struggling for some time now. There is widespread feeling both within Somaliland and among external observers that were Somaliland to be recognised by the international community it would stand to gain significant financial and economic benefits. The government of Somaliland would be able to attract foreign investment which will improve the overall performance of the economy and the government would be eligible for a boost in financial support to bolster its meagre budget.
4.4 Difficulties in Securing Borders (Terrorism and piracy)
Despite Somaliland’s impressive state-building efforts for the last twenty-seven years as well as its effective territorial control, it has not succeeded to secure its borders fully. Somaliland shares borders with three different States- Ethiopia, Somalia and Djibouti, and borders the Gulf of Aden from the north of the sea. Terrorism and Piracy have been one of the major challenges facing the Horn of Africa region, in which Somaliland is situated. The following paragraphs will analyse the two issues in the following words:
4.4.1. Terrorism
After the 9-11 attacks against the United States, the Horn of Africa has come under the increased limelight as a strategic focal point in the war against terrorism. The United States and its western allies have considered the Horn of Africa a major hub of international terrorism, given Somalia’s failed state, Eretria’s support to extremism as well as the Islamic movement rise in Sudan. Somalia is still the longest case of complete state failure in contemporary times, and has been without effective central government for many years. The state collapse of Somalia has facilitated the emergence of terrorism organisations in Somalia. Since 2006, the successive Somali transitional governments along with African Union troops were combatting Al-Shabaab terrorist insurgency in Somalia. The terrorists in Somalia had a security impact on Somaliland. There have been several terrorist incidents in Somaliland, notably the 2008 attacks which targeted the presidential palace, the UN Development Programme compound, and Ethiopia’s diplomatic office, killing 19 people on the spot. However, Somaliland has struggled to prevent terrorism on its borders, given its lack of resources as well as lack of participation on regional organisations involved on counter terrorism. For instance, Somaliland cannot participate in IGAD security sector program of counter terrorism, which is aimed towards building national and regional capacity of the Horn of Africa states fight against terrorism because it is not member of IGAD. It is argued that terrorism has long been a controversial topic at the UN, and the members states has always struggled to agree on a definition of terrorism. But lack of agreement on a definition does not translate that the international community did not make tangible progress in the fight against terrorism. The United Nations Security Council has played a key role in the fight against terrorism, notably since passing Resolution 1373 (2001). This resolution, which is binding on all member states, imposes number of legal, financial, police and cooperation steps. It is argued that, resolution 1373(2001) has contributed to the betterment of an environment in which most of the states are cooperating in the efforts to fight and isolate terrorism and terrorists. Despite Somaliland’s goodwill in complying and applying the resolution 1373(2001), even though it is not bound by it, it has been unable to do so because, it struggles to secure its borders and this is mainly due to the lack of recognition.
Effective border security is the key to the proper implementation of counter-terrorism steps pursuant to Security Council resolution 1373 (2001). It is important to highlight that, Funding the fight against terrorism is clearly a problem for Somaliland. Even though it spends one-third of its budget on security, it is not able to fully secure its borders, because of lack of domestic facilities and funds. It is argued that the non-recognition of Somaliland as a State prevents other states and international organisations from offering the required assistance to Somaliland security sectors, such as trainings and weapons.
4.4.2 Piracy
It is generally argued that piracy started in the coast of Somalia in 1991. However, it was not until 2008 when the piracy incidents had dramatically increased. The Somali pirates are still considered one of the largest threats to maritime security in contemporary times. It is important to note that Somali pirates have boarded ships, taken hostages and received millions of dollars in ransom. In addition, Somali piracy had huge financial and security impact on Horn of Africa countries, for instance the insurance costs of cargos increased. Somaliland is one of those countries in Horn of Africa, which has a long coastline of 720 kilometres.Somali piracy is not only disruptive to Somaliland but also to the whole region, since it takes place on a route that is strategically significant for world trade, which is Gulf of Aden- the most important trading route where thousands of ships go through every year. One of the important areas that piracy has impacted with respect to Somaliland is on the sea shipping lane. Since Somaliland’s main economy depends on livestock export and import trade, there are hundreds of ships, coming to Somaliland every year through that sea line and because of piracy attacks insurance companies have increased their prices.Another highly important area for Somaliland and which piracy has affected is the fishery sector. As a result of piracy, many fishery companies operating in Somaliland have reduced their production. Yet, one must be careful when using the concept of piracy in international law. Indeed, piracy is defined in the United Nations Convention on the Law of the Sea (UNCLOS 1982) as follows: Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft and directed i. On the high seas against another ship or aircraft, or against persons or property on board such ship or aircraft; ii. Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; B) Any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a private ship or aircraft; C) Any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b). From this definition, piracy can be considered as a crime committed on or over international waters which include the high seas, and exclusive economic zones, contiguous zones, international airspace and other places beyond the territorial jurisdiction of any state. However, this definition has weaknesses with respect to modern piracy since it defines “piracy” as only for private ends, and piracy for political or other ends is not included from the above definition. Nevertheless, it seems that the international community at present has accepted this definition since there is no other legal definition of piracy at the international level.
It is important to note here that the majority of the piracy attacks take place within Somali territorial waters which means that legally these are not acts of piracy as understood under UNCLOS. Since the attack occurs in the territorial waters of a state this state, has jurisdiction over the act and can prosecute offenders. Despite the fact that Somaliland meets statehood requirements under the declaratory theory, however, it is clear that no state recognises Somaliland’s independence. As such, Somaliland is not considered to be a State that can prosecute such offenders. Non-recognition of its statehood impedes its legal ability to deal with a problem that fasters its territorial waters. What is more, it is a political fact of life that Somalia’s inability to mount prosecutions is because of its lack of state capacity, for instance both the ability to detain and the courts to prosecute are missing in Somalia. The irony is that, Somalia and Somaliland share a long border- both land and sea, and this further complicates Somaliland’s capacity to prevent piracy in its territory, because it is very difficult to Somaliland to patrol and secure a long coastal border. One might argue that, Somaliland has a higher institutional capacity-coast guard, police and court system than Somalia, and thus should be able to thwart maritime pirates from entering its territory, but that was not always the case, and it harmed shipping, coming to Somaliland as well as the fishery industry. It is clear that Somaliland struggles to fight piracy and this is mainly due to the fact that it lacks good facilities, financial support, training, etc. If Somaliland were recognised as a State it could receive the necessary financial support and technical assistance from the regional organisations as well as international bodies like United Nations. Also, owing to a lack of recognition Somaliland cannot be a State party to relevant organisations fighting piracy such as IGAD counter-piracy group and African Union Peace and Security task team, and is so hampered in collaborating with other States. In the meantime, Somaliland should be granted observer status to the newly established Red Sea monitoring group of which many of Somaliland’s neighbouring countries are full members.
4.5 Conclusion
This chapter first analysed the impact of non-recognition to Somaliland’s government, especially securing its borders from terrorism and piracy. The chapter realised the critical role that, non-recognition has played on piracy and terrorism in Somaliland’s borders. Secondly, the chapter discussed the non-recognition impact on Somaliland government’s international engagement. The chapter has critically emphasised Somaliland’s lack of membership of international organisations such as African Union (AU), Inter-Governmental Organization (IGAD) and Arab League. This lack of membership has hindered Somaliland government’s role in the region with respect development in its country as well as the region. Thirdly, the chapter looked the negative impact of non-recognition to Somaliland’s trade. Despite Somaliland’s tireless efforts in enhancing its regional trade, it was not able to overcome the devastating consequences that non-recognition has caused. Recognition of Somaliland would be the most cost-effective mechanisms to improve to Somaliland’s ailing economy. This does not mean that recognition will solve all the economic and trade problems that Somaliland is facing today, but at least, it will contribute to the betterment of the economic and trade development in Somaliland.
Dig deeper into Bridging Trust in Citizenship with our selection of articles.
Chapter Five
5.1 Introduction:
Unrecognised states are subject to very high costs of non-recognition brought by an international system enormously hostile to non-state territorial units.There are millions of people who live in territories that are not internationally accepted as full states. From Palestine to Somaliland to Taiwan, there are millions of people that struggle to do things that citizens of recognised states take for granted such as; making bank transfers, travelling abroad with a recognised international passport, studying in a foreign university. Citizens of de facto states always face the dilemma of how to travel internationally when they don’t possess travel documents acceptable to foreign countries. Somaliland is one of those de facto states struggling to cope with the status of non-recognition, and is an outlier in the international system- a de facto democratic state with limited international support. As the research argued and explained in chapter four, the non-recognition had a negative impact on Somaliland’s economy, its capacity to secure its borders from terrorism and piracy as well as its engagement with international community such as states and international organisations. Equally, this also impacts on Somaliland people who cannot trade with the rest of the world. The most enduring impact is that the people of Somaliland’s inability to travel due to most countries not accepting Somaliland passports. Similarly, non-recognition impacts the people of Somaliland from Socio-economic perspective, for instance lack of foreign direct investment in their country which would directly create jobs and indirectly create other jobs in the economy (i.e., a factory employing 200 people would also generate new restaurants, new stores, etc. to serve those people). Similarly, it has also impacted from social development perspectives, such as education and health. This chapter aims to critically analyse and explain the impacts and the challenges that non-recognitions poses to Somaliland people. In doing so, the chapter will first discuss the impact of lack recognised nationality to Somaliland people. Secondly, it will address the impact of non-recognition to the Somaliland people from socio-development perspective.
5.2 Lack of recognised nationality
Somali landers have been suffering one of the most difficult problems in contemporary times- that are lack of recognised nationality. Nationality is considered as a highly sensitive issue as it is an indicator of a state’s sovereignty and identity. No doubt that disputes about nationality usually cause tension and conflict, both within and between countries. Before further preceding the analysis of the lack of recognised nationality in Somaliland, it is important first to define nationality from international legal perspective. It is argued that the right to a nationality is very important to the realisation of other fundamental human rights. Consequently, the right to have nationality is further defined as the “right to have rights”. Similarly, Nationality is commonly defined as a ‘political-legal term denoting membership of state, a political entity conferred with the character of a subject of international law. In recognition of the significance of having a nationality, several regional and international human right mechanisms include the right to a nationality. The Universal Declaration of Human Rights had stated in 1948 that ‘everyone has the right to a nationality’, a belief repeated in the 1966 International Covenant on Civil and Political Rights, and the 1989 United Nations Convention on the Rights of the Child. Nevertheless, a part from few exceptions, such international instruments do not offer specific remedy for the aggrieved individual by way of external right of action against state, however, unrecognised states are not signatories to such conventions. From regional conventions perspective, it is worthy to mention that the Africa Charter of Human and Peoples Rights does not clearly address the right of nationality, however, Article 18 does state that the family shall be the natural unit and the basis of society and as such shall be protected by the state. From national law perspective, Article 4 of Somaliland constitution clearly stipulates the nationality of Somali landers in very clear language. In addition, Somaliland Citizenship Law No: 22/2002 also specifies the nationality of Somaliland people, even though it is argued that there are some ambiguities, and is discriminatory in some areas and contrary to Somaliland constitution. However, one thing which has been consistent and clear is that Somaliland’s citizens enjoy their nationality, and are not discriminated in obtaining travel documents. The notion of lack of recognised nationality has caused a major dilemma to Somaliland people in number of different ways. First, Somali landers are not able to travel to abroad for trading with the rest of the world, so that they can improve their livelihood. Secondly, they could not travel abroad for getting better education standards, and thirdly, they are not also able to go abroad for medical treatment. Nevertheless, it is important to note that the right to a nationality is a fundamental right international human right law,, and for example, Somaliland citizens are struggling without recognised nationality. Another important impact that the lack of recognised nationality brings to Somaliland people is what is termed as “the stigma of de facto states”. Somaliland people are stigmatised since the international society does not attribute their country any de jure recognition. This stigmatisation which deeply causes discrediting and incongruous stereotypes with respect to Somaliland people has attributed that many Somali landers cannot simple mention their nationalities.
Another interesting perspective to look at the impact of lack of recognised nationality is the passportisation issue of Somaliland’s neighbouring countries. The notion of passportisation to unrecognised states has been started by Russia in order to ramp up its influence over the de facto states. This passportisation of Russia to de facto states of South Ossetia and Abkhazia is termed as something between two extremes of Stalinist social control and humanitarian benevolence. While Passportisation might be useful for the people of unrecognised states, however, it also undermines the authority and the power of those states. Somaliland’s neighbouring states such as Djibouti and Ethiopia have been providing passports to Somaliland nationals for the last 15 years. While many Somali landers have welcomed this passportisation, nevertheless, it is argued that many Somali landers have shown their criticism with respect to the policies behind this strategy. The research recommends that Somaliland needs to put a lot of efforts in engaging with IGAD member states, which is indeed the key regional foci attention for Somaliland’s international recognition, so that its citizens would be able to have a recognised nationality. It is also paramount important that Somaliland lobbies the United Nations Human Right Council, so that Somaliland’s case of lack of recognised nationality- which has a huge consequence on Somaliland people, should be heard from the International community, and this will in turn help to put this challenge in global platform.
5.3 Social Development
The effect of non-recognition to Somaliland people with respect to social development is huge, and devastating. It affects badly all the important social issues such as education and health. The right to development is an important human right which entitles every human person and all peoples to participate and enjoy development. Unfortunately, the people of Somaliland are denied this right because of non-recognition status. The following will explain the impact of non-recognition to health and education services.
5.3.1Health
The notion of non-recognition status impact of some states might suggest the absence of diplomatic privileges of embassies, of VIP rooms and Limousines. However, to the average Somali lander, lack of recognition means no class rooms for children, no health facilities to ward off avoidable illnesses and pregnancy –related deaths, and no street lighting. It is argued that, Somaliland has one of the worst health indicators and a health system plagued by problems at both institutional and individual levels.For instance, Somaliland’s populations is estimated to be around 4 Million, 70% are estimated to be under 30 years, while 40% of that populations have access to public health care. The right to health is clearly stipulated in international treaties as well as statement of policies from the United Nations such as Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economics, Social and Cultural Rights (ICESCR). The International Covenant on Economic, Social and Cultural Rights (ICESCR)—the so-called Economic Covenant—is the most important with respect to the right to health, as Article 12 states that the right to health includes "the enjoyment of the highest attainable standard of physical and mental health."It is quite noteworthy that despite the right to health, the people of Somaliland do not enjoy this right because of the status of non-recognition. Even though one might argue that the International community supports Somaliland health systems, however, that support goes to local NGOs.Aid is typically channeled through NGOs and not given directly to the government. It has also largely limited Somaliland to humanitarian aid and prevented it from receiving larger-scale development assistance that could address major social problems in the country.
Despite the fact that Somaliland is not recognised, it is noteworthy that Somaliland has small budget which it generates from the taxes of its own people, however, much of this budget goes to security rather than social development projects such as health and education. Therefore, it is imperative that the government of Somaliland needs to re-assess its budget allocation, and assign part of its small budget to health services. It is also important that the government of Somaliland also approach World Health Organisation and other international health support organisations, and request a special arrangement program- which Somaliland can directly engage and receive health support from these organisations, so that it will be able to address directly the health challenges caused by non-recognition status.
5.3.2 Education
Somaliland has adapted what educationists call enterprise-oriented education system which is based on the notion of economic rationality. Somaliland’s main objective with respect to this system is the assumption to produce students for the world of work. However, that has not been the case, and Somaliland education system has been broken for some time now, given of number of reasons, notably the status of non-recognition. From international law perspective, several international legal instruments contain provisions referring to the right to education. The International Bill of Human Rights such as the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966 and the International Covenant on Economic, Social and Cultural Rights of 1966 have all covered the right of education. Both Article 13 and 14 of the International Covenant on Economic, Social and Cultural Rights recognise the right to education, and offers general obligations of states in reaching the realisation of the right to education. Despite the fact that the people of Somaliland have a right to have education as enshrined in international law, the non-recognition has had negative impact on the education system in Somaliland in a number of different ways. Firstly, the quality of education in Somaliland is very low compared to the other countries in the region due to the fact of lack of sufficient resources such as funding and qualified teachers. This in turn affects negatively the quality of education in Somaliland. In addition, this low-quality education causes that many youth goes for education in abroad. Secondly, Somaliland’s educational certificates are not recognised by the Universities and colleges in foreign countries, for example the General Certificate Examination is not recognised by most of the countries. Thirdly, non-recognition has also had negative impact on Somaliland’s development on education policies, for instance, Somaliland has failed to attract educational expertise from the world, given its international status.
5.2.3 Conclusion
Chapter five analysed some of the key factors relating to the impact of non-recognition to the people of Somaliland with respect to social development in Somaliland, especially health and education. The chapter recognised the negative impact that non-recognition had on Somaliland’s health services, which has hugely affected negatively the well-being of Somaliland. Secondly, the chapter discussed the negative effect that non-recognition had on Somaliland people with respect education. Non-recognition status in Somaliland had devastated the standard education as well as the Somaliland’s educational relations with the rest of the world.
What Makes Us Unique
- 24/7 Customer Support
- 100% Customer Satisfaction
- No Privacy Violation
- Quick Services
- Subject Experts
