The Case For The Independent Statehood Of Somaliland

2. The Argumentative Structure and Application

In 1920, a distinguished Commission of Jurists appointed by the League of Nations gave an opinion on a dispute between Finland and Sweden over the Aaland Islands. Finland objected to international jurisdiction, arguing that questions of territory were matters of internal jurisdiction, whereas Sweden argued that Aaland Islanders had shown their desire to be united with Sweden through their political and military struggles. The Jurists rejected Finland’s objections and set forth certain observations about the nature of self-determination.

While acknowledging the complementary nature of fact and law in sovereignty during normal times, they applied a distinction between fact and law during political upheavals. According to the Jurists, the “essential basis” of law is sovereignty during normal times, but at cataclysmic moments of a sovereign’s birth or death, the legal situation is “obscure and uncertain”, and there is a transition from fact to law.

During this transition, the right to self-determination of people may come into existence. To determine how the right can be exercised, the Jurists recounted the historical facts that indicated the nature of sovereignty over the Aaland Island. This argumentative pattern may be described as a mixture of subjective and objective views of “self”. In order to explain subjective facts, the Jurists employed objective criteria. This method is uniquely applicable to the crisis in Somaliland where there is a transition from fact to law.

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Verzijl remarked that the Somali protectorate enjoyed a quasi-international status. Such status derived from an inherent sovereignty in people, sovereignty that lies dormant until it expresses itself through the medium of self-determination. This argument is analogous to Judge McNair’s opinion in the International Status of West Africa, which discussed the nature of sovereignty over a mandated territory, Judge McNair declared that the goal of the mandate system is to revive sovereignty in the dependent peoples.

Since the ultimate goal of the mandate system was the self-determination and independence of the peoples effected, a fortiori, one can conclude that the denial of human rights leads to the people’s revival of their sovereignty through self-determination. In other words, the denial of a people’s internal self-determination leads to the revival of their external right of self-determination.

As discussed above, this analysis of self-determination can be usefully employed in the political vacuum created by former Somalia’s disintegration and Somaliland’s declaration of independence. Objective criteria reveal the people of Somaliland to be ethnically distinct, culturally separate, and historically unique. Subjective factors also exemplify the uniqueness of their battle, first against the British colonizers and then against Siyad Barre’s despotic regime. Both the objective and subjective factors combine to influence the discussion concerning the right of the people of Somaliland to determine their legal status.

Since Somaliland is entitled to exercise the right to self-determination, the appropriate mode of self-determination needs to be addressed. General Assembly Resolution 1514 provided for three legitimate methods of decolonization. In addition, a strong presumption exists in favor of independence and bestowal of statehood in self-determination situations. There is no reason to deny Somaliland statehood. Somaliland’s need for self-determination and independence is especially valid because nationhood may assist Somaliland in resolving longstanding regional disputes with Ethiopia and Djibouti.

C. INDIGENOUS RIGHTS

The U.N. Working Group on Indigenous Populations wants to declare 1993 as the Year of Indigenous Peoples. The current interest in indigenous rights is not a fad, but is traceable to Vitoria, and Grotius. The early decisions of Chief Justice John Marshall of the mass protests in cities around the U.S. against an executive order that would block millions of people from entering the United States Supreme Court also contained these broad and universalist conceptions. The wave of positivism that followed stifled interest in indigenous rights by stressing state-centered, consensual, sovereign bases of international law.

The positivist doctrinal tools used to exclude indigenous peoples included the recognition and occupation of terra nullius. The efforts to exclude indigenous peoples from the political decision-making process were contrary to earlier international scholarship and judicial decisions. The reemergence of interest in indigenous rights is an effort to restore international law to its roots.

The inclusion of self-determination in the international legal lexicon and the anti-colonialist drive in the 1960s are arguably the intellectual origins of this restorative process. As a result of increased activity by advocacy groups, indigenous rights began to emerge as a legal norm after 1972. The norm, as it emerged, emphasized cultural protection, aboriginal land issues, welfare programs, and self-determination. The International Labor Organization (ILO) amended an earlier 1957 Convention to reject that Convention’s assimilationist approach to indigenous populations.

Additionally, a Working Group on Indigenous Peoples by the Economic and Social Council was established in 1982. A recent United Nations study7″ defines an indigenous population as non-dominant sectors of society, distinct from minorities, who emphasize their ties to territories based on their original occupation and historical experience. The people of Somaliland fulfill all the criteria of an indigenous people.

Somaliland is mainly comprised of one ethnic group, Isaq that has lived there for more than 400 years. Members of the Isaaq clan possess a unique history and are culturally distinct. As a result, the people of Somaliland can exercise the right of self-determination that inheres in every indigenous group.

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