The MJIL Assoc. Editor Matthew Schaefer critiques the current legal framework for statehood and recommends a new standard for independence in “Somaliland and the Need to Update International Law on Statehood Recognition”
By Matthew Schaefer April 2023
The Situation in Somaliland and the Purpose of this Blog
Thirty years ago, in response to the deteriorating state Somalia found itself in after the fall of Said Barre’s military junta, the United Nations established the United Nations Operation Somalia (UNOSCOM II).[1] At the time, events such as the Battle of Mogadishu vividly illustrated Somalia’s precarious situation. Unfortunately, little has changed in the decades since.[2]
Amongst the chaos in Somalia, however, one region has meaningfully invested in peace, security, and stability. The northern subregion of Somaliland, previously a British colony and protectorate, merged with the former Italian-held region to its south following their respective grants of independence in 1960 to form a single state, Somalia.[3] However, a number of political and military conflicts, particularly the violent repression of the Barre regime, eventually pushed Somaliland to declare independence from Somalia in 1991.[4]
Thirty-two years later, Somaliland is still seeking international recognition as an independent state.[5] The quasi-state has taken a variety of steps to develop itself in that time: creating a democratically approved constitution, holding free and fair elections, printing its own currency, creating its own security forces, and issuing passports.[6] To many outside observers, it seems clear that “[u]nlike the remainder of Somalia and most of its neighbors on the Horn of Africa,…[Somaliland is] democratic and relatively secure.”[7] Building on that perception, Somaliland hosts diplomatic offices for six countries, including the United Kingdom, and it has started to take on foreign investment for development.[8]
With such a track record, why is Somaliland’s independence still denied by the international community? This discussion will attempt to explain the incongruencies in international law that have allowed this lack of recognition to continue, ending with a proposal that could address this problem.
International Law on Statehood and its Current Failures
The prevailing definition of a state in international law is outlined in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.[9] It asserts: “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.”[10] According to Professor Frederick Tse-shyang Chen, these four criteria seem to offer flexibility in how a state can satisfy them rather than providing rigid thresholds for acceptance.[11]
International scholarship largely considers Somaliland as having satisfied such criteria: “Somaliland’s territory has been unchanged from the times of the British Somaliland protectorate with 3.5 million permanent inhabitants residing in it and a functioning government that uses every opportunity to enter into diplomatic relations with other States.”[12] Ignoring the political arguments made against Somaliland’s recognition if operating by themselves, the Montevideo criteria, having been fulfilled, should make this case for international recognition open-and-shut.[13]
Professor Chen, however, also outlines another important and operative doctrine relevant to this case: “’Divided states [are] in fact admitted to the UN only after the conflicting claims of the two sides [have] been formally adjusted, either in favor of division…or in favor of reunification.’”[14] While not universally recognized as a formal requirement, “in practice, the admission of an entity as a Member State of the United Nations can be regarded as the approved seal of Statehood,” making such acceptance worth acquiring in order to externally solidify otherwise de facto statehood.[15]
At present, Somaliland is still a legal territory of Somalia and, while peace talks have occurred, Somaliland President Muse Bihi Abdi has indicated that his people are past the point of trying to reconcile and reunite with the rest of the country.[16] As long as this impasse remains, it seems as though Somaliland will be precluded from recognition under the current international law regime.
For Somaliland, this means that no matter how much stability and development the region continues to foster, its efforts towards recognition on the international level are futile as long as it is handcuffed to the southern region. Coming at the expense of people who have organized a functional system but will continue to be precluded from international resources like the World Bank, the current international order privileges an existing state that has been littered with problems for years.[17]
A Potential Solution: The “Unable or Unwilling” Standard
The situation in Somaliland shows that the existing system of recognition requires a new rule governing situations like this. In response, this blog proposes an unable or unwilling standard for state division. This rule would consider the totality of the present circumstances, comparing the facts present between the states that would exist following the separation of the existing state.
In evaluating the differences between the incubating states, there would have to be a clear and overwhelming disparity between the two and a record of that disparity existing for an extended period. The completion of some requisite conditions for the separating region would be required for this analysis to occur: (1) an open declaration of independence, (2) an extended period of time following the declaration of independence, (3) a genuine unwillingness or inability to rectify differences, (4) an otherwise peaceful coexistence with the region being separated from, and (5) fulfillment of the Montevideo criteria.
Such a legal doctrine is in accordance with a number of existing and accepted components of international law. For one, the declaratory conception of state recognition, in which recognition comes “as ‘a declaration or acknowledgment of an existing State of law and fact,’” supports this approach.[18] If the international community is to accept that some states exist even while lacking apparent foreign recognition, a point some scholars argue is implicit in contemporary examples like Bosnia and Herzegovina,[19] a natural extension of that logic is to create a threshold in which quasi-states’ internal conceptions of existence, acting appropriately relative to impotent actors, is accepted.
Moreover, if we are to genuinely uphold the concept of self-determination, a founding purpose of the United Nations,[20] the international community should not prevent those willing to work to become a successful independent state from separating from those who are not.
An “unable or unwilling” standard related to state formation is also conceptually rooted in a disputed and substantively debated doctrine related to the use of armed force.[21] By enabling states to intervene against individuals or groups operating in other states which are intransigent in their responsibility to prevent or address ongoing or previous harms, the unable or unwilling standard has created an effective exception to use of force prohibitions for those trying to maintain peace and order lawfully.[22]
With such a legal doctrine recognizing the differences in the capacity that obviously exist amongst the international community, it logically follows that such an approach can be successfully applied in other areas of international law outside of armed conflicts. Adopting such a solution in the case of statehood recognition, using prerequisites that are still difficult to fulfill, will ensure peoples can meaningfully aspire for and work towards a better way of life, without opening the floodgates to secession claims by territories of stable states.
One potential critique of this standard is the possibility that the remainder of the state being seceded from could negotiate in bad faith simply to stall or preclude the fulfillment of the third criterion and, ultimately, independent statehood. This risk could be reduced by a standard to assess what constitutes a “genuine” unwillingness to rectify differences. One such possibility could be a temporal test, establishing something like a statute of limitations which could be used to delineate when attempts at reconciliation are genuine and when they are pretextual.
Another potential critique, directed at the “otherwise peaceful coexistence” condition, may challenge the necessity of independence in cases where there is no violence. While a peaceful coexistence may make it seem as though there is much less at stake, warranting a preservation of the status quo, the aforementioned condition also exists to encourage and reward peaceful efforts of self-determination as opposed to violent ones.
History has shown that protracted periods of violence and civil war often serve as the precursors to secession and new statehood.[23] However, it is incumbent on the international community to maintain international peace and security.[24] This being the case, having such a condition as part of a larger system of enabling meaningful self-determination serves both of those goals concurrently.
I propose this standard not to destabilize states, but to stabilize the rules by which regions and peoples can become states. While this initial proposal is brief, I believe it can serve as a meaningful starting point for revising a system which, for those who have yet to achieve the same degree of control over their international destiny as others, still leaves much to be desired.
Footnotes
[1] Clayton Dos Santos & James Perdue, Battle of Mogadishu: The Mission Command Perspective, NCO J., Feb. 2022, at 1, 1; Di Markus Virgil Hoehne, Somaliland: 30 Years of De Facto Statehood, and No End In Sight, Italian Inst. for Int’l Pol. Stud. (May 7, 2021), https://www.ispionline.it/en/publication/somaliland-30-years-de-facto-statehood-and-no-end-sight-30363.
[2] Dos Santos & Perdue, supra note 1, at 1-2. See Claire Klobucista, Somaliland: The Horn of Africa’s Breakaway State, Council on Foreign Rels. (Feb. 1, 2018, 10:54 AM), https://saxafimedia.com/somaliland-the-horn-of-africas-breakaway-state/.
[3] Klobucista, supra note 2; Jessica Caplin, Failing the State: Recognizing Somaliland, Harv. Int’l Rev. (Mar. 16, 2009, 12:00 AM), https://saxafimedia.com/failing-state-recognizing-somaliland/.
[4] Temesgen Sisay Beyene, Declaration of Statehood by Somaliland and the Effects of Non-Recognition Under International Law, 10 Beijing L. Rev. 196, 202-05 (2019). https://saxafimedia.com/declaration-statehood-somaliland-international-law/
[5] Klobucista, supra note 2.
[6] Klobucista, supra note 2.
[7] Dave Lawler, Democratic, Self-Governing Somaliland Pleads with U.S. to Recognize Independence, Axios (Mar. 22, 2022), https://www.axios.com/2022/03/22/somaliland-independence-recognition-us.
[8] Lawler, supra note 7; Klobucista, supra note 2.
[9] Frederick Tse-shyang Chen, The Meaning of “States” in the Membership Provisions of the United Nations Charter, 12 Ind. Int’l and Compar. L. Rev. 25, 25 (2001).
[10] Convention on the Rights and Duties of States art. 1, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.
[11] See Chen, supra note 9, at 29-34.
[12] Sascha Dov Bachmann & Martinas Prazauskas, The Status of Unrecognized Quasi-States and Their Responsibilities Under the Montevideo Convention, 52 Int’l Law. 393, 417 (2019). It is worth noting that Somaliland continues to engage with Puntland, another quasi-state in northern Somalia, over disputed border regions. Abdiqani Hassan, Somaliland Agrees to Ceasefire After Five Days of Fighting in Disputed Territory, Reuters, Feb. 11, 2023, https://www.reuters.com/world/africa/somaliland-agrees-ceasefire-after-five-days-fighting-disputed-territory-2023-02-10; International Crisis Group, Averting War in Northern Somalia 1-2 (2018), https://icg-prod.s3.amazonaws.com/b141-averting-war-in-northern-somalia.pdf. However, such friction is a regular, and often longstanding, experience for new and emerging states that has not otherwise precluded their existence and international recognition. See Ctr. for Preventive Action, Israeli-Palestinian Conflict, Council on Foreign Rels., https://www.cfr.org/global-conflict-tracker/conflict/israeli-palestinian-conflict (last updated Jan. 17, 2023);
See also Edith M. Lederer, UN Chief: Sudan-South Sudan Dispute Will Keep UN in Abyei, Associated Press, Apr. 9, 2021, https://apnews.com/article/south-sudan-sudan-peacekeeping-forces-antonio-guterres-united-nations-d60645513958f441896723354dd83aea.
[13] Bachmann & Prazauskas, supra note 12, at 418.
[14] Chen, supra note 9, at 41 (quoting The Charter of the United Nations: A Commentary 166-67 (Bruno Simma ed., 1995)).
[15] Bachmann & Prazauskas, supra note 12, at 410-11.
[16] Bachmann & Prazauskas, supra note 12, at 417; Lawler, supra note 7.
[17] Lawler, supra note 7. See Vanda Felbab-Brown, Somalia’s Challenges in 2023, Brookings (Jan. 27, 2023), https://www.brookings.edu/blog/order-from-chaos/2023/01/27/somalias-challenges-in-2023.
[18] Bachmann & Prazauskas, supra note 12, at 397.
[19] Bachmann & Prazauskas, supra note 12, at 397.
[20] U.N. Charter art. 1(2).
[21] Craig Martin, Challenging and Refining the “Unwilling or Unable” Doctrine, 52 Vand. J. Transnat’l L. 387, 392 (2019).
[22] Id. at 390-91.
[23] See South Sudan: Ethnic Conflict and Civil War, U.S. Holocaust Mem’l Museum, https://www.ushmm.org/genocide-prevention/countries/south-sudan/case-study (last updated Oct. 2021); Off. of the Historian, Foreign Serv. Inst., The Breakup of Yugoslavia, 1990-1992, U.S. Dep’t of State, https://history.state.gov/milestones/1989-1992/breakup-yugoslavia (last visited Mar. 24, 2023).
[24] U.N. Charter, supra note 20, at art. 1(1).
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The Michigan Journal of International Law (MJIL) is a student-run law journal published by the University of Michigan Law School. MJIL is among the world’s preeminent international law journals. Established at the University of Michigan Law School, MJIL draws on the Law School’s world-renowned faculty, curriculum, and library in international legal studies to present cutting-edge articles and book reviews from leading scholars and practitioners in international law.
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