The Case For The Independent Statehood Of Somaliland

B. SELF-DETERMINATION

In light of these massive and egregious violations of human rights and the genocidal repression of the North, the people of the former state of Somaliland declared independence in 1991. By declaring independence, the people of Somaliland exercised their inherent right of self-determination.

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1. Nature of “Self” in Self-Determination

The difficulty in defining “self” in self-determination is evinced by a comment by I.W. Jennings who said that self-determination is nonsensical because the people cannot exercise the right to decide until someone else determines who constitutes the people. Such a claim stems from the positivist belief that membership in the international community is restricted to already-existing states in law and fact. The right to acquire legal status creates, in Fitzmaurice’s words, a “logical impasse” because such a right cannot vest in any extralegal entity.

As a result, the birth of a state lies outside international law until a new situation has been definitely established, and the situation is normal in terms of territorial sovereignty. Once such a definitive new situation has been established in law and fact, a state becomes a member of the international community. This view leads, in turn, to the constitutive view of recognition whereby the act of recognition determines temporally the birth of a state.

Despite the seemingly irrefutable logic of the positivist argument, the inevitability of a logical impasse is not readily apparent. If only entities that are already members have a right to become members, the existence of such a right becomes redundant. In other words, a right to acquire legal status – a right to self-determination – can by definition, vest only in an entity that lacks legal status.

Viewed this way, no logical impasse occurs and the positivist objections seem less relevant. Similarly, Lauterpacht argues, that the duty to recognize carries a correlative right that, although imperfect, can still vest in an entity not yet recognized.

At the other end of the spectrum lies the claim that the right to self-determination must be viewed as a distinct historical phenomenon, and that its validity depends on the extent of domination. The Fitzmaurice thesis views the international community along a horizontal axis, whereas the latter postulates a vertical approach. The historical approach, while conceding that people of a given territory could claim the right to self-determination, introduces “subjugation” as a prerequisite to self-determination.

Such a view suffers from the logical inconsistency that subjugation exists only in the context of colonialism and that colonialism no longer exists. If correct, using subjugation as the prerequisite for self-determination is pass unless subjugation extends to non-colonial situations.

These two theories about the nature of self-determination coincide with the competing definitions of “self”: one subjective and the other, objective. The subjective view considers factors internal to a people, and the objective approach depends on external criteria that apply to a new state whether or not the people consent. The Fitzmaurice thesis would seem to fit in well with the objective conception of self, since criteria such as territory, culture, recognition and the like, qualify a people for the right to self-determination.

On the other hand, a subjective theory would accept such factors as political struggle and domination. Yet, each category is not impervious to the other. There exists a complex dynamic in the tension between the subjective and objective theories. This tension suggests alternative solutions to controversies such as that of Somaliland where traditional law suspends its operation. Indeed, the debate about “self” contrasts alternative forms and bases of international law.

The concept of self-determination has been part of intellectual discourse for centuries. The French Revolution provides early examples of arguments over the principle of self-determination. Both Woodrow Wilson of the United States and Vladimir Lenin of the former Soviet Union popularized the concept around the turn of this century. After lying dormant during the period between World Wars I and II, the principle again acquired currency in the Atlantic Charter in 1941 and was incorporated in the Charter of the United Nations. Numerous U.N. General Assembly Resolutions, the International Bill of Rights, and many decisions of the International Court of Justice recognize the right of self-determination.

Despite the convincing argument that self-determination should be a general right, a penumbra of uncertainty still surrounds the concept. International jurists agree generally that peoples dominated by geographically distant powers have a right to self-determination. The traditional anti-colonial interpretation of self-determination, however, was inappropriate when colonialism disappeared even though claims to self-determination continue to arise throughout the world. In order to retain its place in the realm of international relations, self-determination doctrine must adopt to modem circumstances where local governments, not distant powers, repress independent peoples.

The subjective and objective notions of self-provide a basis for discourse. Neither notion of self-taken individually, however, explains the rhetoric and practice of self-determination, especially in the context of Somaliland. The following sections propose a three-tiered argumentative structure that accommodates the peculiarities of Somaliland.

First, even when a state forms through processes of severe international political dislocation, international law has the competence to determine the state’s status through the tool of self-determination.

Second, during such determination, the unit seeking international status is quasi-sovereign in nature.

Third, the subjective and objective theories of self are complimentary rather than mutually exclusive.

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