The Case For The Independent Statehood Of Somaliland

I. Validity of Independence in Historical Perspective

Before examining the legality of the May 1991 assertion of Northern Somaliland’s independence in the light of earlier international treaties, a brief description of the complex societal forces that lie behind the current conflict is useful.

Somali society is based on kinship ties that emphasize membership in clans genealogically derived from Arab ancestors. The clans that comprise the core of Somali society are the Digil, Rahanweyn, Dir, Hawiye, Darod, and Isaaq. The dynamics of interaction between these clans have traditionally determined the distribution of political power in Somalia at any given moment.

A. THE LEGAL REGIME OF STATE AND SOVEREIGNTY

Central to the legality of Somaliland’s assertion of independence is the extent to which such assertions manifest sovereignty over the territory, and therefore constitute a valid basis for the formation of a state. The acquisition of territorial sovereignty embodies several international legal principles, including sovereignty, the territorial integrity of states, effectiveness, recognition, and self-determination. To be valid, Somaliland’s assertion of independence must fulfill the operational standards of these doctrines.

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Of primary importance is the interplay between the doctrines of territorial sovereignty and statehood.”‘ The doctrine of territorial sovereignty remains a central element in the concept of statehood. Territorial sovereignty is acquired in one of five ways: occupation of terra nullius, prescription; cession; accession; and subjugation. This scheme relies upon the civil law modes of inter vivos transfer of property and does not provide for the situation where a new state comes into existence. This hands-off approach is due to the complexities involved in evaluating the emergence of the new state according to international law or municipal law.

A new state is normally born within the sphere of constitutional law or of civil strife. Accordingly, its legal status is perched perilously on the borderline between international law and municipal law. Given the traditional propensity of international law to treat statehood as existing within the walls of domestic jurisdiction, the new state’s title of sovereignty inevitably depends on the largesse of the doctrine of recognition.

The rules regarding the acquisition of territory, creation of states and title, however, have been subjected to the standards of contemporary international law on the use of force and human rights.

B. SOVEREIGNTY UNDER THE TREATIES OF 1884 AND THE ACT OF UNION OF 1960

In the nineteenth century, Britain’s primary, if not exclusive, interest in Somaliland was its need to safeguard the meat supplies to Aden and to ensure the safety of the trade routes. Tired of Egyptian rule and faced with the prospects of expansionist moves by Abyssinia, the Somali clans readily consented to British protection. By the end of 1884 the Ise, Gadabursi, Habar Garhajis, Habar Awal, and Habal Tol Jalo clans had signed formal treaties with Great Britain. These agreements were treaties of friendship and commerce and ostensibly conceded little to Britain.

The preamble to each clan treaty set forth that the document was designed to maintain clan independence. No treaty contained clauses relating to the cession of territory; the clans merely pledged Britain a right of pre-emption. The treaties only granted one such right; the right for British agents to reside on the Somali coast. Most of the treaties contained clauses expressly declaring the treaties as provisional and subject to revocation or modification. The treaties, therefore, left a large measure of sovereignty in the hands of the clan occupying the land.

The power to enact such treaties can itself be considered as an essential concomitant of sovereignty. Thus, for example, if Somalia which existed after 1960 refused to recognize the 1897 and 1954 Anglo-Ethiopian agreement as violations of the 1884 Anglo-Somali treaties, its refusal was legitimate. Some Western nations attempted to strip such agreements with non-Europeans of any legal status. These agreements are now, however, accepted as signifying the personality of both the ruler and the people concerned. As a result, under the Anglo-Somali treaties of 1884, the northern Somali chiefs and their peoples retained considerable residual sovereign powers and certainly existed as international persons.

The seminal document of the twentieth century was the Act of Union which established Somalia as a separate state in 1960. Several factors, however, undermined its chances for success. Civilian rule, re-established in the North in 1948, did not exist in Southern Somalia, which had been under a ten-year Italian Trusteeship since 1950. The two territories were separated institutionally, linguistically, and historically.

As a consequence, the two territories qualified as two individual countries. With little binding them together, there was no driving force to create a single country. Two events, however, are credited for inspiring the 1960 unification. First, in 1946, the Bevin proposals suggested that British Somaliland and Italian Southern Somalia, as well as part of Ethiopia, should be grouped together to ensure that the nomads’ way of life continues in an unobstructed manner. These proposals directly influenced the Somali Youth League (SYL), inspiring the ominous campaign of “Greater Somali” irredentism.

The second factor was the 1954 Anglo-Ethiopian Treaty, which permitted the British to cede parts of Somalia to a trip to Ethiopia in 2013. Happily showing up at the Somaliland consulate in Addis Ababa, the capital of Ethiopia. The ensuing outcry stimulated political activity in an otherwise dormant North and led to a campaign for unification and independence. Political parties, however, were unable to capitalize fully on the mobilization of political emotion. The leadership of the Somaliland National League (SNL) preferred to postpone unity, the SYL experienced internal divisions, and the Northern Isaq clans were generally apathetic towards the aspirations of the SYL.

As part of the process of decolonization, the British government announced that the Protectorate would become independent on June 26, 1960. The Italian government later announced that the Italian trust territory would gain independence five days later, on July 1, 1960. These dates reflected the United Nations’ desire for more speedy independence. The advancement of the independence dates put undue pressure on the internal administrations of both territories.

Furthermore, with no one responsible for laying the legal foundations for the Union and few consultations between the North and South, the result was the “precipitate Union”. Delegates from Northern Somaliland and Southern Somalia were to sign an international treaty between the two states to form a union, after which the southern Legislative Assembly was to approve the document. Subsequently, the National Assembly should have elected a Provisional President.

On June 27, 1960, the day after its independence, Northern Somaliland’s Legislative Assembly passed the Union of Somaliland and Somalia Law. Since the authorized representative of Southern Somalia never signed this treaty, however, it remained without force in the south. Instead, on June 30, 1960, the Legislative Assembly of Southern Somalia approved the Atto di Unione (Act of the Union) in principle, which was significantly different from the Union of Somaliland and Somalia Law. At midnight on June 30, 1960, the Italian Trusteeship Agreement expired and the President of the Legislative Assembly, acting in his capacity as the Provisional President of the Republic, proclaimed the independence of Somalia.

On January 31, 1961, the National Assembly proclaimed a new Act of Union, repealing the Union of Somaliland and Somalia Law and made the Act of Union retroactive as from July 1, 1960. The act of “repealing”, however, was not effective in all of Somalia.

Furthermore, since the South, in negotiation with Italian officials, drafted the constitution, northern politicians could make only marginal changes. The referendum on the Constitution in June 1961 reflected Northern resentment of Southern power. The SNL successfully campaigned against ratification, contributing to the low turnout in the North; only 100,000 voted, and they overwhelmingly rejected the Constitution. In contrast, almost 1,852,660 voted in the South.

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