3.2.2. Instance of Decolonization Justifies Somaliland’s Right to Self-Determination
The second ground that helps with establishing Somaliland’s right to self-determination is the instance of decolonization. Though political scientists and lawyers who are working in the area of self-domination are in agreement that the right to self-determination ensures colonized peoples may form states independent of their colonial rulers, the idea seems somewhat unclear concerning “secession” from post-colonial states. The Declaration on the Granting of Independence to Colonial Countries and Peoples is predicated on the principle of self-determination for the justification of decolonization. The use of colonial boundaries to form independent states was a principle supported by the Organization of African Unity, known today as the African Union. The then African Union continues to maintain the position that its member states respect the borders with which they achieved independence and in fact this principle works for Somaliland.
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Current Somaliland was under the colony of the British Empire and it was known as British Somaliland. In colonial administration, the northern part of Somalia, now Somaliland was separately administered with the Southern part Somalia. Like other African people, the people of Somaliland got their independence from Britain in 1960. When Somaliland was freed from British colonial rule and declared its independence, it was recognized by different countries including members of the Security Council. Northern Somalia, Somaliland was the first Somali territory that got its independence and that was recognized by the UN. The Southern Somalia, now the Somali Republic and Punt land got their independence after Somaliland. Though Somaliland declared its independence and got recognition by the UN as an independent state, its independence did not last long. The statehood of Somaliland stayed only for five days and later it agreed to join with the northern Somalia and establish the Somali Republic.
Five days later, the newly established Somaliland and the Italian Somali agreed to form a union through a bilateral treaty, though the treaty ended up with irregularities. These irregularities happened due to the act of authorities who were in Southern Somalia. Both states drafted separate treaties and Somaliland sent its treaty to the authorities in Southern Somalia. Yet authorities in Sothern Somalia did not send their own treaty to the authorities in Somaliland. The draft treaty sent by the Somaliland authorities was never approved by the Southern Somali authorities and rather they drafted their own, the Act of Union, and approved by the national legislature (Paolo, 1969). When all the process happened, the authorities in Somaliland were never consulted and did not give their consent for the newly approved Act of Union.
In July 1st, 1960 the Somali Republic was created by uniting the British Somaliland and the Italian Somali. The union created in this way did not get the consent of the people of Somaliland and in-fact violates the law of treaty under International Law. It is true that, initially the people of Somaliland consented to join Southern Somalia and form the Somali Republic. But the procedure that has been undergone to establish the republic was wrong and against the consent of the people of Somaliland. The Vienna Convention on the law of treaty clearly indicates that a treaty should get the consent of the other state to have a valid status. The bilateral treaties drafted by Northern Somalia and Southern Somalia to form the Republic were invalid because they never received consent from the opposite side. The Vienna Convention stipulates that states must express their consent to be bound by a treaty for the treaty to enter into force. The treaty drafted by Somaliland, the Law of Union between Somaliland and Somalia (Law of Union), was to enter into force after being signed by the “duly authorized representatives of the peoples of Somaliland and Somalia”. Although the representatives from Somaliland signed the treaty, the representatives from Southern Somalia did not. Instead, the Legislative Assembly of the Somalia Trust Territory (Italian Somalia) approved “in principle” a different treaty, the Atto di Unioni (Act of Union). The Act of Union differed substantially from the treaty drafted by Somaliland. The provisional President of the Republic, a southerner, then issued a presidential decree formalizing the Union of the two states. Six months later, the Atto di Unioni was approved by the National Assembly. As formal agreements between two states, both treaties of unification, therefore, appear to lack the consent of the other party to the agreement.
Though we assume that the Act of Union did form a legitimate treaty, however, Somaliland could reasonably argue in another way that material breaches of the treaty under the dictatorship allow the north to terminate the agreement. Accordingly, the new Somali state formed within a constitutional framework through the Law of the Union and the Act of the Union did not get the blessing of the northerners. Though the Union was formed and declared in whatever way, it did not last for long period of time. The constitutional order was overthrown and military dictatorship controlled all political powers in the Somali Republic in 1969 (Roethke). However the military dictator that breached the treaty was not a party to the treaty and non-civilian leader, Somaliland still maintains its right to terminate the agreement. The Prerequisites that instigated Somaliland to join with Southern Somalia no longer existed and Somaliland can claim termination of the treaty as the very objective of the treaty was not to install a military dictatorship. The treaties signed by the Italian and British Somaliland to form the Union were invalid. As long as the treaties were invalid and terminated due to the act of the Southern Somali groups, Somaliland’s claims to independence would not violate international law and territorial integrity of a “united Somalia”, since that union has ceased to exist. Somaliland’s unilateral declaration of statehood and decision to secede from the Union is justified as a “legitimate exercise of self-determination under the decolonization framework of the Declaration on the Granting of Independence to Colonial Countries and Peoples”.
Considering the violation of the bilateral treaty by the Southern Somali and invalidating those treaties, the secession or withdrawal of Somaliland from the Union or the Somali Republic doesn’t amount dismember a sovereign state, rather it is a restoration of a previously independent and sovereign state to its former status. That means, Somaliland still retain the right to secede as the reason that the Act of Union was invalid under the law of treaty.
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