Chapter Four
An Analysis of the Principle of Recognition of Somaliland
4.1 Introduction
The previous discussions in the above three chapters have laid down the groundwork for the right to external self-determination and that this right is limited by the principle of territorial integrity. It became clear that though self-determination right is threatened by putting much emphasis on the importance of territorial integrity. The confrontation between the two principles has created the dilemma of whether international law favors the right of peoples to self-determination or territorial integrity when the two collide. This dilemma is what calls the case of Somaliland into examination. A critical question here is in light of the above discussions, should Somaliland be recognized as an independent state. The next question is what justifies the non-recognition or the recognition of Somaliland. Chapter four answers these questions.
4.2 Justification for the Recognition of Somaliland
Though the main purpose of this study is to find out why the international community is so reluctant to recognize Somaliland. It is necessary first to determine whether in fact Somaliland deserves such recognition. Apart from fulfilling the criteria of statehood and being a de facto state for over twenty years. Somaliland has many other grounds that justify its recognition as an independent state. These grounds are discussed below.
4.3 Historical Difference of Somaliland from Somalia
It is extremely important to understand that Somaliland’s history is dramatically different from that of Somalia. This difference is in three dimensions. Firstly, prior to the colonial rule, there was not a Somali state which had sovereignty the territories inhabited by the Somali state. Rather there were nomadic tribes led by traditional chiefs known as the Sultans. Nevertheless, there was a substantive difference between Somaliland and Somalia in this regard. Whereas Somalia’s tribes were purely nomadic, the British colonizer arrived on Somaliland coasts while the features of the modern nation-state of Somaliland had already shaped itself.
An example illustrating this fact is that Somaliland’s traditional leaders signed formal treaties with the British Empire. These were not treaties merely by name but were such that shows the strong bargaining position of the Somaliland leaders at that time. The following quote gives us the essence of those treaties:
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 of 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 fuel that Somaliland leaders entered into such powerful treaties is sufficient to indicate that Somaliland was indeed a sovereign state before the colonial era. In contrast, history did not record that Somalia’s clan leaders attempted to sign such treaties when Italy came to colonize them. Secondly, during the colonization era, Somaliland had 80 years of self-governance experience. Because the British colonizer’s rule was indirect, local leaders ‘were able to continue autonomously with the societal structure they had been living with for centuries’.
Contrary to this situation, Somalia was under the Trusteeship of the UN from between 1950-1960. Thirdly, immediately after independence, Somaliland became an independent state before uniting with Somalia and many countries recognized Somaliland as such. Some scholars argue that Somaliland even became a member of the UN. However, only after 5 days of its independence, Somaliland united with Somalia through the Act of Union. In submitting that this Act was not legally valid, Somaliland remained dejure independent since I960.
4.4 Somaliland and the Right to Self-determination
A second argument that justifies the recognition of Somaliland as an independent state is the right to external self-determination. As discussed in the previous chapters, a right to external self-determination is granted either in a colonial context or exceptionally in a post-colonial context where internal self-detrimental is denied or gross violation of human rights is committed against those demanding such right. Interestingly enough, Somaliland argues on both grounds. These arguments are formulated below.
4.5 Self-determination from Colonialism
On this ground, the people of Somaliland argue that they did not achieve their right to self-determination from Britain yet. The unification with Somalia was not based on the true expression of the free will of Somalilanders. Rather, it was a conspiracy between few political elites who were fascinated by the ideals of the so-called ‘Great Somalia’ and Somalia taking advantage of the enthusiasm of the Somaliland political elites for Greater Somalia. The basis of the unification between Somaliland and Somalia was the Act of Union.
At the procedural level, the drafting process of the Act was totally contrary to what was agreed upon between the two sides. ‘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.’ Only after signing such treaty ‘the National Assembly should have elected a Provisional president’, following this procedure, on 27 June I960, the Somaliland Legislative Assembly passed an act known as the ‘Union of Somaliland and Somalia Law’.
However, Somalia’s Legislative Assembly did not sign this Law and consequently, it never came into force. In contrast, on 30 June I960, Somalia’s Legislative Assembly passed the so-called L’atto Dell’unione (the Act of Union) without the consent of Somaliland’s Legislative Assembly. On 31 January 1961, the National Assembly in which Somaliland representatives were outnumbered replaced the I960 Act of Union with a new Act of Union repealing the Union of Somaliland and Somalia Law which had a retroactive application from 1 July I960.
At the substantive level, the Act was also defect. It ‘was significantly different from the Union of Somaliland and Somalia Law‘. It did not recognize even the right to internal self-determination for Somalilanders. The Act was the product of Somalia’s representatives alone. This was because Somaliland representatives in the National Assembly were excluded from the drafting process. For these reasons, Somalilanders rejected the validity of the Act.
A referendum on the 1961 Constitution of the Republic of Somalia reflected this rejection. Approximately 90% of Somalilanders voted against the ratification of that Constitution. Therefore, the union between the two countries lacked any legally valid basis. It is clear then that the people of Somaliland did not exercise their right to self-determination.
Accordingly, the case of Somaliland is akin to that of Eritrea where Ethiopia illegally annexed it to its territory. This illegal annexation finally justified the secession of Eritrea and only after this secession. Eritrea exercised her right to self-determination and gained its independence from the original colonizer; Italy.
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