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The Unrepresented Nations and Peoples Organization (UNPO) submitted an Amicus Curiae briefing to the African Court on the issue of state responsibility to facilitate and protect the rights of the people of Western Sahara.

The UNPO amicus curiae offers an overview on Somaliland, Taiwan, Kosovo and the Turkish Republic of Northern Cyprus (TRNC) cases in which unrepresented states have had their right to self-determination promoted by member states of the UN without necessarily having their statehood claim recognized.

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This document was produced by the Secretariat of the Unrepresented Nations and Peoples Organization (UNPO), in collaboration with the Doctoral Clinic for International Human Rights Law at Aix-Marseille Université (under the coordination of Lorraine Dumont and Professor Ludovic Hennebel).

May 2020

Introduction

The right to self-determination is a fundamental human right. Those who are denied the right find themselves excluded from the institutions of national or international governance and, as a result, are deprived of enjoying their rights to civil and political participation and to control their economic, social and cultural development. Even worse, they are often subject to violence and persecution.

Because the right to self-determination is commonly associated with the idea of secession, states and other international actors often see it as a threat to territorial integrity and to the prevailing international order. Against this backdrop, UNPO campaigns to address the misunderstanding around the concept of self-determination, highlighting how its realization is, in fact, at the heart of true implementation of all other human rights. Through its international advocacy work, UNPO encourages practical solutions to ensure that disagreements over the implementation of self-determination do not create a negative human impact – for example, by encouraging the recognition of official documents issued by unrepresented states to guarantee freedom of movement and access to educational opportunities for its citizens.

As the global platform for non-violent self-determination movements, UNPO also serve as a safe space where indigenous peoples, minorities and states with limited recognition come together to learn from each other and to exchange best practices based on their experiences. Because UNPO members are denied equal representation in the mechanisms of governance, their ability to survive in an international system that is designed to reject them is remarkable. Particularly with regards to Application No 028/2018, some developments concerning some UNPO members may offer a valuable insight to the case of the Sahrawi Republic.

This document hopes to contribute to the Court discussion by offering an overview on four cases in which unrepresented states have had their right to self-determination promoted by member states of the UN without necessarily having their statehood claim recognized.

Somaliland, with a democratically elected government, a military and its own currency, enjoys no official recognition. Yet, it has engaged with different countries – included some of the Africa Union – in the same fashion as if they were a fully recognized entity.

Taiwan, also with a democratically elected government, a military and their own currency, has engaged with different international actors and is recognized as a state by 20 countries. Moreover, its government has engaged in trade and diplomacy with the EU delegation and, in Asia, trades billions of dollars with other states. Moreover, the Taipei Economic and Cultural Offices and Taipei Economic and Cultural Representative Offices both serve as “quasiembassies” and are stationed throughout the world.

Kosovo, in turn, is currently recognized by 108 states.  The EU has supported broader recognition of the country and has pushed for talks for Serbia to recognize its right to self-determination.  The International Court of Justice even supported Kosovo’s right to declare independence, even though it did not formally rule Kosovo was a state.  Kosovo has also successfully engaged in trade with countries throughout the world.

The Turkish Republic of Northern Cyprus (TRNC has not achieved the same success as Taiwan and Kosovo yet, but it has been able to exercise many of the powers that states have and has even established consulates in dozens of countries throughout the world.  The UN has advocated for other states to quit levying punishments against the TRNC for exercising its right to exist.

These examples show that despite the challenges of navigating on the fringes of the international system, states with limited recognition have successfully engaged with some UN member states through bilateral political, military, trade, travel and educational agreements. By drawing these parallels with the case of Western Sahara, UNPO hopes to encourage member states of the African Union to engage with the Sahrawi Arab Democratic Republic in order to ensure that the Sahrawi people have their fundamental rights protected and promoted.

In its legal analysis, this document reiterates that the continuing occupation of Western Sahara constitutes a violation of the right of the Sahrawi people to sovereignty, territorial integrity and independence. These rights are inextricably linked to the Sahrawi people’s right to self-determination and, by virtue of the specific nature of this right, particular obligations arise for the Defendants.

Finally, this document reminds that international law does provide an obligation to act to “refrain Morocco from further occupying parts of the territory of Western Sahara in any manner whatsoever and howsoever”. Additionally, it specifies measures that may be taken by member states of the African Union to comply with their obligation to act.

According to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States:

“[e]very State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination” and “peoples [resisting against forcible actions] are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.”

Furthermore, the ICJ affirmed the right to political self-determination of the peoples of the occupied territories, adding that UN member states had an obligation to recognize the illegality of the occupation. Therefore, under international law, a situation of violation of the right to self-determination imposes obligations on third states.

I. The Case of the Republic of Somaliland

Somaliland is a de facto state lacking international recognition. With a population of around 4.5 million, it has its own democratically elected government, as well as its own military and currency. The Government of Somaliland has been a member of the Unrepresented Nations and Peoples Organization since 2004. It achieved its full independence from the United Kingdom on 26 June 1960. Shortly after, it voluntarily entered a union with Somalia, but following a civil war and the collapse of Somalia, Somaliland unilaterally withdrew from the union and reclaimed its independence on 18 May 1991.

Somaliland wishes for the international community to recognize its decision to end the voluntary union with Somalia, in line with other African precedents and accordingly with the African Union (AU)’s principle of ‘respect[ing] the borders existing on (…) achievement of independence’ for it considers that ‘the borders of African States, on the day of their independence, constitute a tangible reality’. Somaliland applied for membership of the AU in December 2005, but its request is still pending.

Somaliland is by no means the first African state to have entered into a voluntary union with another state and subsequently withdrawn from that union intact. Egypt and Syria, Cape Verde and Guinea Bissau, Senegal and Mali, and Senegal and Gambia have all taken similar steps in their histories, with no effect on the status of their independence’.

In 2005, an African Union fact-finding mission stated that ‘the lack of recognition ties the hands of the authorities and people of Somaliland as they cannot effectively and sustainably transact with the outside to pursue the reconstruction and development goals’. Moreover, the 2008 mission recommended that ‘as a peace dividend, the international community should provide institutional capacity building support to Somaliland infrastructure and facilitate its access to the international and regional financial institutions and banking systems’.

Even without official recognition of Somaliland, some states of the international community and of the African Union have taken positive steps, engaging into diplomatic relations with Somaliland and ensuring stability and prosperity in the region. These examples show that Somaliland has the capacity to maintain foreign relations.

Positive steps taken by the United Nations

Somaliland was recognized by the United Nations (UN) right after its independence in June 1960. However, after its voluntary union with Somalia, the UN generally showed no intention of recognizing Somaliland, ‘leav[ing] the issue of [its] recognition in the hands of the African Union’. Nevertheless, in 2009, Ahmedou Ould-Abdallah, the Secretary-General’s Special Representative for Somalia ‘congratulated officials in the self-declared autonomous region of Somaliland (…) for striking an agreement to end a stalemate on delayed presidential elections, (…) [an] agreement [which] is a testament to the Somalilanders’ tradition of resolving internal conflict peacefully’, and which ‘should result in a free and fair plebiscite’.

In January 2020, the UN Special Representative of the Secretary-General for Somalia and Head of the UN Assistance Mission in Somalia (UNSOM), James Swan stated that ‘while the two countries remain divided politically, there are areas [in which] they can work together to benefit their people’. The UN thus pushes for ‘renewed talks between Somalia and Somaliland to improve security and promote economic growth’. Moreover, Swan said that ‘the United Nations remains a key partner to Somaliland’. In this regard, the UN has a fulltime office in Hargeisa, among 22 other UN agencies physically established in Somaliland, ‘cover[ing] a wide range of governance, security, development, and humanitarian programmes’. Another example is the education access programme launched by UNICEF and other partners in view of addressing the lack of access to education of children in Somaliland. On the other hand, due to the lack of international recognition, Somaliland is not able to receive financial aid from international financial bodies, such as the World Bank and the International Monetary Fund.

These examples show that the UN is aware and concerned about the economic, social and cultural rights of the people of Somaliland in the region, while to some extent acknowledging that Somalia and Somaliland do not constitute one single entity.

Positive steps taken by the European Union

In 2007, the European Union sent a delegation for foreign affairs to Somaliland to discuss future cooperation. The same year, MEP Annemie Neyts-Uyttebroeck, President of the European Liberal Democrat and Reform Party, called on all European Union member states to recognize Somaliland diplomatically.

In 2011, during a visit to Somaliland, EU Commissioner for Development Andris Piebalgs announced ‘more support for stability and regional cooperation’ and that as an ‘example of peace, democracy and stability’, the EU would ‘invest additional development funds as security and the socio-political conditions favor sustainable development’. An Urban Development Project in Somaliland has been launched between 2019 and 2020 by the EU. Lastly, the EU is pushing for negotiations between Somalia and Somaliland.

African Union Member States

Ethiopia has been the ‘first country which officially referred to Somaliland as a sovereign state and her President as a Head of State during the 9th African Union summit in Accra, Ghana held between 25 and 29 June 2007’. Ethiopia ‘has gone the furthest of all States in its unofficial recognition of Somaliland by entering into bilateral agreements for cooperation in various arenas’. Moreover, Ethiopia has signed a strategic trade and infrastructure agreement with Somaliland, which is believed to ‘enhance the economy’, according to Ethiopia’s Minister for Finance and Economic Development, Sufian Ahmed. Moreover, a London-based organization behind the initiative launched a project in 2019 aimed at helping Somaliland further develop its trade relationship with Ethiopia.

Ethiopia and Djibouti have also permitted the opening of Somaliland liaison offices in their territories to engage in bilateral ties. During a visit in Djibouti in 2010, President Sillanyo ‘was awarded red carpet status as if he were a recognized head of state’.

South Africa, President Egal first visited Somaliland in 2002 and has since then maintained a close relationship with the latter, having also observed the four elections in Somaliland. Yemen has also engaged in relations with Somaliland, ‘largely for inter-regional political reasons’.

States of the wider international community

The United Kingdom and the United States leave recognition in the hands of the African Union. However, ministers and state representatives from both states have already received Somaliland government representatives.

In 2011, the former UK Minister for Africa Henry Bellingham visited Somaliland, where he met the President of the Republic of Somaliland Ahmed Sillanyo.

In 2018, an All Party Parliamentary Group, led by MP Stephen Doughty (Labor Party) visited Somaliland’s Vice President, Parliament and civil society among others. On 17 July 2019, an Early Day Motion (EDM) entitled ‘Recognition of Somaliland Independence’ was filed by MP Stephen Doughty. The EDM states that the House of Commons:

recognizes the 1991 declaration of independence from Somalia; applauds the cities and boroughs across the UK including Cardiff, Sheffield, Tower Hamlets and Birmingham that recognize Somaliland as independent; believes that the common interests of the UK and Somaliland in the region will be advanced by continued close cooperation; welcomes the strong cooperation between the UK Government and Somaliland through development aid, help in sustaining democratic institutions and promoting trade and business relationships in Somaliland (…) and calls on the UK Government to formally recognize Somaliland as an independent state (…) to help bring about a peaceful and lasting settlement in the region based on the self-determination of the people of Somaliland’.

The United States declared their will to strengthen their relationship with Somaliland and Puntland in 2010, albeit not recognizing Somaliland’s independence. ‘The assistant secretary of state for Africa said the US would send more aid workers and diplomats to Puntland and Somaliland and support the governments of both regions’.

Russia also shows interest in Somaliland and seeks to ‘send more military advisors (…) to assist the emerging Somaliland military as well as push forth a resolution to recognize the state of Somaliland as sovereign’.

Somaliland has opened liaison offices in Paris (France), Stockholm (Sweden), Addis Ababa (Ethiopia), Dubai (UAE), Pretoria (South Africa), Turin (Italy), Washington, D.C. (USA), and Nairobi (Kenya). Ethiopia, Djibouti and Turkey have consulate offices in Hargeisa, and Denmark has opened a liaison office.


Read the full Document: Amicus Curiae Document


About the UNPO

The Unrepresented Nations and Peoples Organization (UNPO) is an international membership-based organization established to empower the voices of unrepresented and marginalized peoples worldwide and to protect their fundamental human rights.

The peoples represented within the UNPO membership are all united by one shared condition: they are denied equal representation in the institutions of national or international governance. As a consequence, their opportunity to participate on the national or international stage is limited, and they struggle to fully realize their rights to civil and political participation and to control their economic, social and cultural development. In many cases, they are subject to the worst forms of violence and repression.

UNPO is a unique presence in the international arena in that it is built and primarily funded by its members. This gives it a strong connection to those suffering the consequences of the exclusion that the organization seeks to address. It also means that UNPO is able to address cases that often remain hidden because the organization has the freedom to raise issues that others cannot due to political or funding constraints.

The organization consists of a General Assembly of members, which serves as a deliberative body for decision-making, solidarity and standard setting among unrepresented nations and peoples, and a number of Foundations established to provide secretariat services for the General Assembly and to improve the respect for the rights of unrepresented peoples everywhere through research, education and public campaigns.

Website: www.unpo.org

Twitter: @UNPOIntl

Tel: +32 (0)2 513 1459

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