The Case For The Independent Statehood Of Somaliland

III. The Arguments for Recognition

Recognition is one of the central elements of a consensual international order. As a tool of international relations, recognition has played a critical part in the history of colonization by providing an exclusionary mechanism for European states. In contemporary international law, the role of recognition is much less significant and is pertinent only insofar as it allows people to internationalize their claims.

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A. THE ROLE OF RECOGNITION

Traditionally, two theories of recognition exist. Under the constitutive theory, new states derive their existence in accordance with the will of those already established, so a state becomes an international person only through recognition. The declaratory theory, on the other hand, holds that once a state satisfies the criteria of statehood it becomes a subject of international law, and recognition merely serves as a political act of no legal significance.

The constitutive view as formulated suffers from several defects. State practice seems to contradict the view that prior to recognition no legal person exists, and the constitutive view does not cope with the status and obligations of an unrecognized state. The main weakness of the declaratory view is that it relegates the act of recognition to that of a mere act of political will and makes it superfluous. Other variants of these theories exist. Lauterpacht suggested that once a state satisfies the criteria of statehood, a legal duty to recognize arises, but state practice does not evidence this duty.

Nevertheless, as long as recognition remains discretionary, it remains outside the scope of law and, as a result, the characterization of recognition as constitutive or declaratory lacks utility. Nonetheless, even though a duty to recognize may not exist, if an entity possesses attributes of statehood, other states may put themselves at risk if they fail to recognize the entity.

This discussion of recognition leads to the question of whether Somaliland possesses the indicia of statehood. The 1933 Montevideo Convention on the Rights and Duties of States provides the classic definition of a state. Under this convention, a state should possess a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. One may also add the qualification of self-determination to this definition. Somaliland clearly possesses all of the above qualifications.

Finally, one must consider the question of whether the recognition of Somaliland constitutes premature recognition. Many states consider premature recognition an unfriendly act amounting to intervention. The situation in Somaliland defies even a consideration of premature recognition, because a mother state does not exist to reassert control, and the SNM clearly has effective control over the territory.

B. CONFORMITY WITH INTERNATIONAL LAW

Given Somaliland’s strong claim for recognition under international law, one must briefly consider the possible objections to such recognition. For example, dismemberment of an existing state violates the Organization of African Unity’s (OAU) policy of adherence to colonial boundaries for recognition may trigger a Balkanization which would completely upset the existing boundary arrangements.

Such a fear, however, is unfounded for many reasons.

First, the OAU doctrine seeks to preserve colonial boundaries; the 1960 Somaliland “colonial” boundaries do coincide with the boundaries of Somaliland as it exists today.

Second, the OAU doctrine concerns itself with the preservation of boundaries and not with units of self-determination. In other words, as long as there is no threat to interstate peace, OAU policy remains irrelevant to the discussion.

Third, even if the colonial boundary policy is relevant, Somalia had rejected this OAU doctrine by its irredentist policies regarding the French Territory of the Afars and Isaas (Djibouti), the Ogaden (Ethiopia) and the North-Eastern region of Kenya. Somaliland’s emergence conforms with the OAU policy and could contribute to much-needed regional stability, cooperation and economic development.

Some experts argue that the recognition of Somaliland may violate the territorial integrity of Somalia, an act that international law prohibits. Such an objection also seems to have no basis.

First, the question of whether recognition will violate territorial integrity is necessarily bound with the issue of whether such recognition will be premature, and the previous section answered that question in the negative.

Second, when claims of territorial integrity clash with those of self-determination, United Nations practice allows the latter to trump the former. This means that in self-determination situations, the wishes of the people concerned are the only relevant factor. Therefore, it is incumbent upon the international community to recognize Somaliland. Any effort to deny or delay would not only put the international community at the risk of ignoring the most stable region in the Horn, but it would also impose untold hardship upon the people of Somaliland due to the denial of foreign assistance that recognition entails.

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