4.6 Self-determination Based on Cross Violation of Human Rights
As indicated earlier, international law exceptionally grants external self-determination outside of colonial context. One of these exceptions is where a given state commits a gross violation of human rights against some part of its population. This was what happened in Somaliland when a military coup led by Siyad Barre destroyed any hope of democratic rule on 21 October 1969. From that day until its collapse in 1991, this military junta committed all sorts of human rights atrocities in Somaliland. The government denied Somalilanders any form of participation in political decision-making and excluded them from sharing in the country’s wealth.
What was worse, when Somalilanders attempted to challenge the regime and demanded for their rights, they were subjected to degrading and dehumanizing treatments ‘including extra-judicial executions, disappearances, arbitrary arrest and detention, torture, harassment, massive rape of women, and confiscation and destruction of prosperities that worthy billions of dollars if not trillions.
We have a moral obligation to be recognized. In Europe a number of countries with no previous experience of statehood have been recognized… and international lawyers tell us any nation, which has been victimized by a state of which it was part, has the right to secede (Egal; a former president of Somaliland).
For the above reasons, some have argued that what happened in Somaliland was in fact genocide or at least was an attempt of genocide. This specifically is the case when one looks at how the regime specifically targeted the Isaaq clans who constitute the majority of Somalilanders. The International Crisis Group observed that “the government’s simultaneous practice of repopulating Isaaq communities with refugees from other clans was analogous to ethnic cleansing, and there were widespread and credible reports of war crimes. Consequently, the Somali National Movement (SNM) – primarily from the Isaaq clans ventured an armed struggle that ended up with the successful separation of Somaliland and the collapse of the military regime.
4.7 Dissolution of the Act of Union
A third reason, which justifies the recognition of Somaliland, is that the union between Somaliland and Somalia has been dissolved. This is with the assumption that the Act of Union was legally valid. Under this assumption, the Act had a contractual nature and as we know, whenever one of the contracting parties fails to fulfill its obligations under a contract or acts contrary to it, such contract automatically terminates. This is exactly the case of Somaliland and Somalia.
The Act of Union was terminated because of three reasons. Firstly, the purpose of the Act was to achieve the ideals of ‘Great Somalia’, which did not happen to date. Secondly, the Union presupposed respect for human rights and the rule of law. Somalia acted contrary to this obligation when it violated various fundamental rights of thousands of Somalilanders. Finally, Somalia failed to exist as a functioning state and therefore cannot any more fulfill its obligations under the contract of the union because if one of the contractors dies, the contract terminates.
Mazrui rightly described the status of the Act, raising the question ‘what if the marriage included spouse abuse? In a union between two individuals, wife-beating can be grounds for divorce. Is it not about time that partner-abuse became grounds for divorce in a marriage of states also?’
Moreover, the dissolution of union states is not a stranger either to Africa or to international law. In Africa, many unions were dissolved. Examples are the unions of Senegal and the Gambia. Senegal and Mali and Egypt and Syria. Internationally, the dissolution of the federation of Yugoslavia is sufficient as previously discussed in this study. Therefore, rejecting the Somaliland claim on the ground of secession is a baseless argument.
4.8 Justifications for the Non-recognition of Somaliland
The reasons behind the non-recognition of Somaliland are complex. They are mixture of political considerations and legal dimensions. The reason is that the law itself is often used as a political tool. In fact, Somaliland argues that the question of recognition remains unsettled merely for political considerations. However, one cannot disregard the legal aspects as well. In the following paragraphs let us deal with both legal and political questions which may constitute a bar of the recognition of Somaliland.
4.9 The Legal Question on Non-recognition of Somaliland
The legal question relating to the non-recognition of Somaliland is primarily based on the assumption that the case of Somaliland is about secession. This assumption raises two interrelated questions. Firstly, whether Somaliland fulfilled the statehood criteria and therefore qualities for recognition. Secondly, whether the secession through which Somaliland seeks independence is legitimate in the first place. Answering these two questions in the negative clearly blocks Somaliland from gaining international recognition as an independent state. In this sense, Somaliland lacks any legitimate claim. These two questions are answered in the following chapters.
4.10 Fulfilling the Statehood Criteria
The Convention of Montevideo sets out the classic criteria of statehood, which determines whether a newborn state can be recognized as such. Article I of this Convention, provides that “the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.’ Accordingly, it is only when these conditions are met, that an entity can be called a state. There is no dispute that Somaliland completed these four criteria and more.
Somaliland has a permanent population of 3.5 million. Somaliland restored and controls the same territory in the time of the independence, which covers an area of 137, 600 square kilometers. To fulfill the third criteria, Somaliland does not have only a government but a sufficiently effective and truly democratic government like which is rare in the Horn of Africa. Finally, Somaliland has the capacity to enter into diplomatic relations with other states both in Africa and outside of Africa.
Somaliland has liaison offices in Westgate Mall siege in Nairobi, Kenya, in 2013. In recent weeks, they have carried out a spate of attacks in Kenya, Djibouti, Ethiopia, France, the Republic of Ireland, and Yemen. Somaliland has also a good relationship with the Republic of South Africa, Ghana, Uganda, the mass protests in cities around the U.S. against an executive order that would block millions of people from entering the United States of America, the United Kingdom, Sweden, and Denmark.
In addition, the European Union supports Somaliland financially. Though the Arab countries oppose Somaliland’s separation from Somalia, a number of these countries recently expressed their interest in building new relations with Somaliland. Among these are Qatar, Kuwait, and the United Arab Emirates. These examples are some of the few when it comes to Somaliland’s capacity of entering into relations with the outside world.
Additionally, apart from the Convention of Montevideo, modern international requires other criteria for statehood such as respect for human rights, the assurance of minority rights and democratic rule of law. Human Rights Watch has observed this fact stating that:
Somaliland has done much to build the foundations of democratic governance grounded in respect for fundamental human rights. In 2003 and 2005 – in June 2010 -it held competitive and credible national elections, including parliamentary polls that put the territory’s House of Representatives firmly in the hands of the political opposition. There is a vibrant print media and an active and independent civil society.
The Constitution of Somaliland is founded on a number of noble principles that sufficiently addresses the above requirements. Amongst these principles: separation of powers, multiparty system, free and fair elections, respect for the rule of law and the promotion of fundamental human rights.
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