Calling A State A State

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CALLING A STATE A STATE: SOMALILAND AND INTERNATIONAL RECOGNITION

INTRODUCTION The Republic of Somaliland declared its independence in 1991,1 presenting the international community with the question of whether to recognize it as a state. Since then, the nations of the world have consistently answered that question in the negative.2 Yet, the Republic of Somaliland has survived to become a relatively stable and democratic state.3 Its endurance continually renews the question of recognition for Somaliland. Today, that questions answer must be in the affirmative: Somaliland meets the objective criteria of statehood and its separation from Somalia represents the dissolution of a state in conformity with international norms. Moreover, the international communitys refusal to recognize Somaliland threatens the survival of that state, and the modicum of stability and international security it representsa commodity that the international community cannot afford to treat cheaply in the Horn of Africa. While transitional entity after transitional entity has failed to take hold in rump Somalia,4 threats to international security have festered in its ungoverned space. For example, pirates based in rump Somalia have so proliferated5 that,
Ian Fisher, An Oasis of Peace in Somalia Seeks Freedom, N.Y. TIMES, Nov. 26, 1999, at A1. Somaliland declared its independence nearly twenty years ago on May 18, 1991. Id. It has not been recognized by any other state. Background Note: Somalia, U.S. DEPT. STATE (Nov. 8, 2010), http://www.state. gov/r/pa/ei/bgn/2863.htm#%201/10. In stark contrast, Eritrea was rapidly recognized by many states and admitted into the United Nations after its declaration of independence on May 24, 1993. See infra note 198 and accompanying text. Likewise, though not immediately recognized, Croatia and Slovenia were recognized by other states and admitted into the United Nations just two years after declaring independence. See infra note 207 and accompanying text. 3 Since 2000, Somaliland has held a national referendum on independence and a constitution, one parliamentary election, and two presidential elections. See infra text accompanying notes 98107. 4 The portion of a state left after partition or secession is referred to as the rump state. See WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 1987 (3d ed. 1993) (definition listing c). In this case, rump Somalia refers to the portion of Somalia excluding Somaliland. 5 According to the International Maritime Bureau, Somalia-based pirates were responsible for 20 attacks in 2006, 44 attacks in 2007, 111 attacks in 2008, and 218 attacks in 2009. Intl Mar. Bureau, Intl Chamber of Commerce, Piracy and Armed Robbery Against Ships Report, at 56 (Jan. 2009); Mark McDonald, For Somali Pirates, 2009 Is a Record Year, N.Y. TIMES, Dec. 30, 2009, at A9.
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in 2002, a multinational naval task force began patrolling the Gulf of Aden.6 Despite this international effort, pirates continue to attack ships and take hostages. In 2008, there were 111 attacks by Somali pirates.7 In 2009, pirates based in Somalia were responsible for 218 attacks.8 One ship, the Maersk Alabama, was attacked and hijacked in April 2009. It was freed later that monthonly to be attacked again in November 2009.9 Pirates are not the only security threat in rump Somalia, however. In 2006, Osama bin Laden declared his intent to make the Horn of Africa the next front in al-Qaedas global jihad.10 The al-Qaeda-affiliated group alShabaab now controls south and central Somalia, including most of Mogadishu.11 On July 11, 2010, al-Shabaab launched its first transnational terror operation: two suicide bombers killed seventy-six people in Kampala, Uganda.12 In Somaliland, though, pirates and suspected terrorists do not find safe haven. Instead, Somalilands nascent coast guard pursues pirates,13 and its police force investigates and captures terrorists.14 This Comment argues that Somaliland is a state and that the international community should recognize it. Part I briefly explores the background of Somalilands secession from the Republic of Somalia: its colonial history, its
6 The multinational naval task force is designated Combined Task Force 150. Australian Officer to Head Coalition Gulf Naval Task Force, BBC MONITORING ASIA PAC., Dec. 7, 2009, at 1, available at ProQuest, Doc. ID 1915974771. It operates in the Red Sea, the Arabian Sea, the Gulf of Aden, and the Gulf of Oman. Id. Naval vessels from the United States, the United Kingdom, and Australia, among others, participate in Combined Task Force 150. Id. 7 Piracy and Armed Robbery Against Ships Report, supra note 5. 8 McDonald, supra note 5. 9 See Alan Cowell, Somalia: Second Attack on U.S. Ship, N.Y. TIMES, Nov. 19, 2009, at A12. 10 Octavia Nasr, Tape: Bin Laden Tells Sunnis to Fight Shiites in Iraq, CNN (July 2, 2006, 3:10 PM), http://www.cnn.com/2006/WORLD/meast/07/02/binladen.message/index.html?iref=allsearch. (We swear to God that we will fight their soldiers in Somalia and we reserve our right to punish them on their lands and every accessible place at the appropriate time and in the appropriate manner.). 11 Mohammed Ibrahim, Rival Islamists Fight for Town in Somalia, N.Y. TIMES (Jan. 2, 2010), http://www.nytimes.com/2010/01/03/world/africa/03somalia.html; see also Bloody Fighting Grips Somali Town of Dhuusa Marreeb, BBC NEWS (Jan. 4, 2010, 9:12 AM), http://news.bbc.co.uk/2/hi/africa/8438645. stm. 12 Police Confirm Suicide Attackers in Uganda Bombing, ABC NEWS (July 18, 2010), http://abcnews.go. com/International/wireStory?id=11191831. 13 Edmund Sanders, A Small, Ambitious Corner of Africa, L.A. TIMES, May 17, 2009; Tristan McConnell, Somaliland: The Pirate Hunting Coast Guard, PULITZER CENTER (June 23, 2009), http:// pulitzercenter.org/blog/untold-stories/somaliland-pirate-hunting-coast-guard. 14 See, e.g., Andrew McGregor, Somaliland Charges al-Shabaab Extremists with Suicide Bombings, 6 TERRORISM MONITOR 7, 78 (2008), available at http://www.jamestown.org/uploads/media/TM_006_023_01. pdf.
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union with Somalia as the Republic of Somalia, that unions dissolution, and the recent history of both Somaliland and rump Somalia. Part II discusses the legal concepts that bear on Somalilands independence: statehood, recognition, secession, and uti possidetis. Finally, Part III applies these legal concepts to Somaliland and compares Somaliland to other instances of state creation. I. BACKGROUND This Part describes the history of British Somaliland, the unification and eventual dissolution of Somaliland and Somalia, and the experiences of both Somaliland and Somalia since the union's disintegration in 1991. A. British Somaliland British Somaliland had its origins in the British protectorate of Aden,15 a way station integral to the Empires position in India. At the end of the nineteenth century, Britain was unwilling to cede its domination of the Gulf of Aden by allowing another powerregional or globalto establish itself in the Horn of Africa.16 To secure its position in Aden, in 1881, Britain entered into treaties of protection with the Somali clans on the coast of what would become British Somaliland, across the Red Sea from Aden.17 The frontiers of British Somaliland were delineated by an 1888 Anglo-French treaty and by an 1894 Anglo-Italian Protocol.18 Finally, in 1897, an Anglo-Ethiopian treaty confirmed the British role in the Horn of Africa and established British Somaliland.19 The British administration of Somaliland was relatively light. In the words of I.M. Lewis, [T]he [a]dministrations aims were extremely modest, and restricted in fact to little more than the maintenance of effective law and order.20 Lewis notes that the homogenous character of the population of British Somaliland, comprised of only three Somali clans, facilitated the maintenance of law and order.21
15 Colonial Aden is todays Yemen. See WILLIAM L. CLEVELAND, A HISTORY OF THE MODERN MIDDLE EAST 454 (2000). 16 I.M. LEWIS, THE MODERN HISTORY OF SOMALILAND 4045 (1965). 17 Id. at 4549. 18 Id. at 4556. 19 Id. Despite the 1897 Anglo-Ethiopian treaty, the frontier between Ethiopia and British Somaliland was not finally established until 1934. Id. at 61. 20 Id. at 10405. 21 Id. The three Somali clans present in British Somaliland were the Dir, the Darod, and the Isaq. Id.
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At the outset of World War II, Italy conquered Ethiopia and captured British Somaliland.22 By 1942, Britain had liberated Ethiopia and British Somaliland, and captured Italian Somalia.23 While Britain established military administrations in both Italian Somalia and British Somaliland, the two territories were administered separately until Somalia was returned to Italy in 1949.24 After British Somaliland returned to civil administration in 1948, the gradual process of decolonization began.25 This process accelerated in 1956 after the British withdrew from contested portions of neighboring Ethiopia.26 Beginning in 1958, Somalilanders began replacing British expatriates in Somalilands administrative institutions.27 In the spring of 1960, Somaliland held elections introducing ministerial government.28 The new Somaliland legislative council passed a resolution requesting independence on April 6, 1960.29 Sixteen days later, representatives from British Somaliland and Italian Somalia agreed in principle that the two states should be unified upon independence.30 Despite the indigenous plans to unify, Britain focused on preparing British Somaliland for independence as a solitary state.31 On June 26, 1960, a British Order in Council set out the constitution of the independent state of Somaliland.32 That constitution entered into force at Somalilands independence and defined its governments structure.33 On June 26, 1960, British Somaliland became an independent state.34 It was recognized by thirtyfive states, including the United States and Israel.35
Id. at 116. Id. at 11617. 24 Id. at 11729. 25 Id. at 12931. 26 Id. at 152. The British withdrawal from disputed territories in Ethiopia angered Somalis in British Somaliland and Italian Somalia, as it had the effect of placing traditional grazing lands beyond their reach. Id. at 151. It also stoked the fires of pan-Somaliism, which sought to unify the Somalis in Djibouti, British Somaliland, Italian Somalia, Northern Kenya, and the Ethiopian Ogaden. Id. at 152. 27 Id. at 15455. 28 Id. 29 PAOLO CONTINI, THE SOMALI REPUBLIC: AN EXPERIMENT IN LEGAL INTEGRATION 6 (1969). 30 Id. at 7. 31 Id. at 6. 32 Id. 33 Id. 34 LEWIS, supra note 16, at 16264. 35 Intl Crisis Group, Somaliland: Democratisation and its Discontents, ICG Afr. Report, No. 66, at 4 n.9 (2003) [hereinafter Democratisation and its Discontents] (citing former U.S. Ambassador David Shinn).
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B. The Republic of Somalia: Union and Dissolution On July 1, 1960, five days after Somaliland became independent, Italian Somalia also emerged from colonial domination.36 That day, the legislatures of both states met jointly in Mogadishu to officially unite as the Republic of Somalia.37 Each states legislature enacted, separately, an Act of Union.38 Somalilands Act of Union consciously created a new state out of two distinct states: converting each citizen of Somaliland and each citizen of Somalia into a citizen of the Somali Republic.39 Likewise, the members of Somalilands legislature and the members of Somalias legislature were all made members of the National Assembly of the Somali Republic.40 While the constitution of the Republic of Somalia labeled Somalia a unitary state,41 separate British and Italian colonial administrations left Northern and Southern Somalia with distinct administrative regimes.42 The Republic of Somalia held its last presidential election in June 1967, bringing President Abdirashid Ali Shermarke to power.43 Shermarkes presidency was cut short when a member of his personal guard assassinated him on October 15, 1969.44 Following President Shermarkes assassination, a cadre of Somali army officers took control of the country.45 Ultimately, Siad Barre emerged as the leader of the newly renamed Somali Democratic Republic.46 President Barres rule brought huge works projects, modernization
Id. Id. 38 The two Acts of Union were not identical. The slight discrepancies between the two documents led the Parliament of the unitary Republic of Somalia to enact another Act of Union with retroactive effect in January 1961. Eugene Cotran, Legal Problems Arising Out of the Formation of the Somali Republic, 12 INTL & COMP. L.Q. 1010, 101114 (1963). 39 Act of Union, 3 (1960) (Somaliland), available at http://www.somalilandlaw.com/Somaliland_Act_ of_Union.htm. 40 Id. 6. 41 CONSTITUTION OF THE SOMALI REPUBLIC Dec. 31, 1963, pmbl., available at http://www. somalilaw.org/Documents/Constitution1960.pdf. 42 LEWIS, supra note 16, at 169; Democratisation and its Discontents, supra note 35, at 4 (Although officially unified as a single nation at independence, the former Italian colony and trust territory in the south and the former British protectorate in the north were, from an institutional standpoint, two separate countries. Italy and Britain had left them with separate administrative, legal and education systems where affairs were conducted according to different procedures and in different languages. Police, taxes, and the exchange rates of their separate currencies were also different. The orientations of their educated elites were divergent, and economic contacts between the two regions were virtually non-existent.). 43 LEWIS, supra note 16, at 202. 44 I.M. LEWIS, UNDERSTANDING SOMALIA AND SOMALILAND 37 (2008). 45 Id. at 38. 46 Id. at 38, 47.
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efforts, and attempts to unify the Somali administrations two components.47 It also brought a disastrous war with Ethiopia as Barre attempted to satisfy Somali irredentism.48 Heavy losses, an influx of refugees, and general discontent with Barre encouraged the formation of armed opposition groups.49 Between 1981 and 1988, several such groups emerged, forming generally along clan lines: the Somali National Movement (SNM), the Somali Patriotic Movement, the Somali Salvation Defense Front, and the United Somali Congress (USC).50 Despite their clan-based origins, these armed groups nursed national rather than parochial ambitions.51 Throughout the 1980s, the SNM and the other militant groups challenging the Barre regime pursued lowlevel insurgencies.52 These insurgent activities, particularly the SNMs activities, provoked reprisals generally directed at the civilian population of Somalia.53 As his regime weakened, Barre became more insular, relying more on his own clan and lashing out against the rest of Somalia.54 Barres efforts to secure his regime in 1988 contributed directly to the ultimate collapse of Somalia.55 Through a peace settlement, Ethiopia agreed to shutdown the SNM bases it harbored.56 Denied their safe havens, the SNM
Id. at 3842. Irredentism refers to one states attempt to annex the territory of a neighboring state inhabited by the first states co-nationalists. Peter Radan, Secession: A Word in Search of a Meaning, in ON THE WAY TO STATEHOOD: SECESSION AND GLOBALISATION 17, 2223 (Aleksandar Pavkovic & Peter Radan eds., 2008). In the case of the Republic of Somalia, significant populations of Somalis existed in neighboring Djibouti, Ethiopia, and Kenya. LEWIS, supra note 16, at 18284. In pursuit of Greater Somaliathe unification of all the Somali people into one stateBarre prosecuted wars with Kenya in the 1960s and Ethiopia in 1977. MARK BRADBURY, BECOMING SOMALILAND 38 (2008). 49 ANNA SIMONS, NETWORKS OF DISSOLUTION: SOMALIA UNDONE 5556 (1995); Democratisation and its Discontents, supra note 35, at 56. 50 Democratisation and its Discontents, supra note 35, at 6. 51 Michael Walls, The Emergence of a Somali State: Building Peace from Civil War in Somaliland, 108 AFR. AFF. 371, 379 (2009) (It had never been SNM policy to establish an independent state in the north, and many members of the leadership were against the idea . . . .); International Crisis Group, Somaliland: Time for African Union Leadership, ICG Afr. Report, No. 110, at 6 (2006) [hereinafter Time for A.U. Leadership] (The SNM did not launch its campaign with independence as its goal; on the contrary, it sought to project itself as national in character and discussed with its Southern allies a plan to introduce a form of federalism.). 52 Walls, supra note 51, at 377 (dating the beginning of the Somali Civil War to 1982, when the SNM moved from London to Ethiopia). 53 Time for A.U. Leadership, supra note 51, at 5. 54 See id. at 5. 55 LEWIS, supra note 16, at 262 (In retrospect, the peace accord signed by the Ethiopian and Somali heads of state in April 1988, obliging each party to terminate support for the others Somali dissidents, can be seen as the final precipitant to the vicious civil war which, with the general collapse of governmental institutions . . . effectively destroyed Somalia . . . .); SIMONS, supra note 49, at 7576. 56 LEWIS, supra note 16, at 262; SIMONS, supra note 49, at 6970.
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launched an offensive in the north of Somalia.57 At the same time, Ogadeni Somali soldiersrecruited from within Ethiopia to pursue Greater Somalia mutiniedbelieving Barres peace with Ethiopia to be an act of betrayal.58 In 1989, two additional armed opposition groups coalesced out of the Dolbahante clan and Bantu peasants.59 The proliferation of opposition groups was emblematic of the Barre regimes declining control of Somalia.60 By January 1991, Somalias multifactional civil war had destroyed the institutions of the Somali state.61 While the SNM established control over former British Somaliland, the USC drove Barre from Mogadishu.62 Barres ouster did not return order to Somalia. On the contrary, the divided opposition groups were no more able to unite in victory than they had been during the anti-Barre struggle.63 In fact, on January 31, 1991, while Mohammed Farah Aideed, commander of the USC forces, chased Barre outside of Mogadishu, Ali Mahdi, USC financier, declared himself president.64 Not only did Mahdis declaration violate agreements between the USC and the SNM, it divided the USC in two.65 In May 1991, Aideed attempted to form a national reconciliation government at a conference in Djibouti, but the SNM boycotted the conference and it failed to produce a new government.66 While the USC hosted the reconciliation conference known as Djibouti I, the SNM hosted a gathering of northern tribal elders at Burao.67 The Burao inter-tribal conference resolved that Somaliland would revert to the sovereign status [it] held at independence from Britain on June 26, 1960 . . . .68 Thus, on May 18, 1991, an independent Somaliland re-emerged with the same territorial extent as
SIMONS, supra note 49, at 6970. Id. at 6976; LEWIS, supra note 16, at 130. 59 SIMONS, supra note 49, at 78. 60 See id. at 7894. As 1989 drew to a close, Barre began to be referred to as the Mayor of Mogadishu because he controlled so little of the country. Id. 61 JOHN DRYSDALE, WHATEVER HAPPENED TO SOMALIA 1419 (2001). 62 LEWIS, supra note 16, at 262; Democratisation and its Discontents, supra note 35, at 6. 63 SIMONS, supra note 49, at 7679. 64 DRYSDALE, supra note 61, at 1415. 65 Walls, supra note 51, at 380; LEWIS, supra note 16, at 264. 66 DRYSDALE, supra note 61, at 3132. 67 Walls, supra note 51, at 380. 68 Id.
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its predecessor some thirty years earlier.69 Unlike in 1960, though, no other state recognized the Somaliland that declared independence in 1991. C. Somalia Since 1991 Since Barres ouster in 1991, rump Somalia has had no effective government.70 The collapse of the Somali state has been described as complete and unique.71 At least fourteen separate attempts at national reconciliation have failed.72 Several of these reconciliation efforts have produced transitional governing entities sponsored by the United Nations (UN).73 While supported and recognized by the international community, these transitional governing entities have been wholly unable to establish control over Somalia. For instance, the Transitional Federal Government (TFG) never even entered Mogadishu.74 Instead, the TFG spent seven months in Nairobi, Kenya, where it was constituted, before decamping to Baidoa in Somalia.75 The TFG was never able to move from Baidoa to Mogadishu because Mogadishuand most of rump Somalia at the timewas
69 Fisher, supra note 1; Africa: In The Horn, Peace Hopes Evaporate, IPS-INTER PRESS SERVICE, May 20, 1991 (According to SNM radio, monitored in Nairobi, all the northern clans now want to put back the clock to 1960 and re-erect the colonial boundaries which demarcated British Somaliland.); Interim Government in North Somalia Promises Free Elections, GLOBE AND MAIL (Toronto), May 20, 1991 (Ceremonies have taken place at Burco, [N]orthwest Somalia, to proclaim a new state in the area that formed British Somaliland before it was merged with the adjoining Italian-administered area to form the Somali Republic in 1960.). See also CONSTITUTION OF THE SOMALI REPUBLIC Dec. 31, 1963, art. 2. 70 Ken Menkhaus, State Collapse in Somalia: Second Thoughts, 30 REV. OF AFR. POL. ECON. 405, 407 (2003). One interesting example of the absence of effective government is that Somalia has not issued any passports since 1991. Mohammed Adow, Somali Passports for Sale, BBC NEWS (May 12, 2004, 7:27 AM), http://news.bbc.co.uk/2/hi/africa/3704127.stm. This has not, however, prevented their distribution: Abdifatah Farah Yasin not only sells the passport but also authenticates it by putting a seal of the Somali ministry of foreign affairs and forging the signature of the last controller of passports before the break-up of the Somali state. Id.; see also IMMIGRATION AND REFUGEE BD. OF CAN., SOMALIA: PASSPORTS AND OTHER DOCUMENTATION THAT COULD ASSIST WITH IDENTIFICATION (2007). 71 Menkhaus, supra note 70, at 407. 72 Steve Kibble, Address at Kings College: Somalia/Somaliland: Territory, State, Nation (Feb. 13, 2007), available at http://www.somalilandtimes.net/sl/2007/275/0280.shtml; Somalia: Prospects for Lasting Peace and a Unified Response to Extremism and Terrorism Before the Subcomm. On Afr. And Global Health of the H. Comm. On For. Affairs, 111th Cong. 9 (2009) (testimony of J. Peter Pham). 73 Such efforts produced the Transitional National Government in Djibouti (TNG) in 2000 and the Transitional Federal Government in Kenya in 2004. Time for A.U. Leadership, supra note 51, at 2 n.4, 14 n.61. 74 Ken Menkhaus, Governance Without Government in Somalia, 31 INTL SECURITY 74, 74 (2007). 75 See, e.g., STEPHANIE HANSON, SOMALIAS TRANSITIONAL GOVERNMENT (2008), available at http://www.cfr.org/publication/12475/somalias_transitional_government.html (Formed in late 2004, the TFG governed from neighboring Kenya until June 2005. Parliament did not convene on Somali soil until February 2006, when it met in a converted grain warehouse in the western city of Baidoa because security concerns kept the legislature from entering Mogadishu.).
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ruled by the Islamic Courts Union, a loose collection of Islamists attempting to impose Sharicah on Somalia.76 In 2006, Ethiopia invaded Somalia to drive the Islamic Courts Union from power and install a newly reformed TFG.77 By 2009, the head of the reformed TFG was Sharif Sheikh Ahmed, the Islamic Courts Unions leader at the time of Ethiopias invasion.78 Though the new transitional government is based in Mogadishu, it does not control the city, let alone the rest of Somalia.79 The al-Qaeda-affiliated alShabaab,80 a radicalized offshoot of the Islamic Courts Union, controls most of Mogadishu as well as South and Central Somalia.81 Al-Shabaab recently called for jihad against Kenya,82 which neighbors Somalia, and launched an offensive that has embroiled both the TFG and the African Union (AU) peacekeeping force that props up the TFG.83 In July 2010, al-Shabaab launched its first transnational terrorist attacktwo suicide bombers struck Kampala, Uganda during the World Cup final.84 The failure of a series of transitional governments in rump Somalia over nearly twenty years has not only driven out international aid organizations,85 but has left rump Somalia a haven for pirates. Pirates based in Somalia have become such a threat to international shipping that the multinational Combined
76 Sharicah is the all-embracing sacred law of the Islamic community. CLEVELAND, supra note 15, at 29. The Islamic Courts Union determined in 2005 that Somalias chaos was due to a lack of adherence to Sharicah (also anglicized as Shariah). See Somali Conference Calls for Adoption of Shariah Law, BBC MONITORING AFR., Sept. 29, 2005. 77 Napoleon A. Bamfo, Ethopias Invasion of Somalia in 2006: Motives and Lessons Learned, 4 AFR. J. POL. SCI. & INTL REL. 55, 5565 (2010). 78 Sharif Sheikh Ahmed was elected by the Transitional Federal Parliament in 2009 at a meeting in Djibouti. Somalia: Sharif Returns to Power as Militants Advance, AFR. NEWS, Jan. 31, 2009. 79 See, e.g., Daniel Wallis, WFP Suspends Operations in Much of Southern Somalia, REUTERS, Jan. 5, 2010, available at http://www.reuters.com/article/idUSTRE6041GS20100105?pageNumber=1 (While there were hopes [Sharif Sheikh Ahmed] would be able to reconcile with the insurgents, he has made little headway and his government controls only a few blocks of Mogadishu.). 80 Huma Yusuf, Somali Militant Group Al Shabab Aligns with Al Qaeda, CHRISTIAN SCI. MONITOR (Feb. 2, 2010), http://www.csmonitor.com/World/terrorism-security/2010/0202/Somali-militant-group-Al-Shababaligns-with-Al-Qaeda. 81 Somali Threat Sparks Uganda Alert, BBC NEWS (Oct. 26, 2009, 6:52 PM), http://news.bbc.co.uk/2/hi/ africa/8326840.stm. 82 Bill Roggio, Shabaab Calls for Jihad Against Kenya, LONG WAR J. (Feb. 8, 2010), http://www. longwarjournal.org/archives/2010/02/shabaab_calls_for_ji.php. 83 Somali Rebels Pour into Mogadishu, BBC NEWS (Feb. 10, 2010, 4:01 PM), http://news.bbc.co.uk/2/ hi/8508176.stm. 84 Somali Link as 74 World Cup Fans Die in Uganda Blasts, BBC NEWS (Jul. 12, 2010, 9:02 AM), http://www.bbc.co.uk/news/10593771. Uganda contributes soldiers to the AU mission supporting the TFG. Id. 85 See, e.g., Wallis, supra note 79.
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Task Force 150 has patrolled the Gulf of Aden since 2002.86 Despite the presence of Combined Task Force 150, attacks by pirates based in Somalia nearly doubled from 111 in 200887 to 218 in 2009.88 The International Maritime Bureau noted that though overall attacks have increased, successful attacks have decreased mainly due to the employment of private security on board vessels,89 driving up international shipping costs.90 Underscoring their freedom of action, Somali pirates have established a stock exchange in Haradheere that allows investors to buy shares in various Somalia-based pirate crews.91 By September 2009, a UN report estimated that 1.55 million Somalis were internally displacedthe report noted that measuring internal displacement in Somalia is particularly difficult because most Somalis have been displaced at least once in their lives.92 An October 2009 Report on Somalia described Somalias refugee situation as the worst in twenty years.93 Hundreds of thousands of Somalis live in refugee camps in neighboring Kenya and Yemen,94 and nearly 70,000 have resettled in Somaliland.95 In the nineteen years since the state collapsed, Somalia has been in nearconstant conflict, producing an entire generation without the slightest clue of what a stable republic looks like.96
86 See, e.g., Deterring Piracy at Sea, NAVY.MIL (Jan. 15, 2009, 4:40 PM), http://www.navy.mil/search/ display.asp?story_id=41854; Jeffery Gettleman, Somalias Pirates Flourish in a Lawless Nation, N.Y. TIMES, Oct. 30, 2008, http://www.nytimes.com/2008/10/31/world/africa/31pirates.html?_r=1&pagewanted=all. 87 Piracy and Armed Robbery Against Ships Report, supra note 5, at 56. 88 McDonald, supra note 5. 89 See Intl Mar. Bureau, Intl Chamber of Commerce, Piracy and Armed Robbery Against Ships Report, at 23 (Oct. 2009). 90 Raymond Gilpin, Counting the Costs of Somali Piracy 1112 (U.S. Inst. of Peace Working Paper, 2009), available at http://www.usip.org/files/resources/1_0.pdf; John W. Miller, Piracy Spurs Threats to Shipping Costs, WALL ST. J. (Nov. 19, 2008), http://online.wsj.com/article/SB122701864743437147.html. 91 See Mohamed Ahmed, Somali Sea Gangs Lure Investors at Pirate Lair, REUTERS, Dec. 1, 2009, available at http://www.reuters.com/article/idUSTRE5B01Z920091201. 92 SOMALIA: Record Number of Displaced at 1.5 Million, IRIN (Sept. 7, 2009), http://www.irinnews. org/report.aspx?ReportID=86034; SOMALIA: Shift Aid Base to Safe Areas In-country, Urges UN Official, IRIN (Oct. 21, 2009), http://ww.irinnews.org/Report.aspx?ReportId=86676. 93 October 2009: Somalia, SECURITY COUNCIL REP., http://www.securitycouncilreport.org/site/c. glKWLeMTIsG/b.5471337/k.F4E1/October_2009brSomalia.htm (last visited Nov. 21, 2010). 94 Somali Refugee Conditions Appalling, CNN (Sept. 4, 2009, 5:46 AM), http://edition.cnn.com/2009/ WORLD/africa/09/03/somalia.refugee.conditions/; Some 74,000 Africans Cross Gulf of Aden to Yemen in Record-Breaking Year, UNHCR (Dec. 18, 2009), http://www.unhcr.org/print/4b2bac179.html. 95 Operation in Somalia: Fact Sheet: July 2010, U.N. High Commn on Refugees (July 29, 2010), http://www.unhcr.org/refworld/docid/4c566f202.html. 96 Robert Draper, Shattered Somalia, NATL GEOGRAPHIC, Sept. 2009, at 76.
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D. Somaliland Since 1991 Since Somaliland declared its independence in 1991, the Republic of Somaliland has evolved from a traditional Somali tribal mode of governance to a representative democracy.97 In 1993, a meeting of Somalilands clans at Borama approved a transitional charter.98 Another conference in 1997 established a provisional constitution.99 In 2001, ninety-seven percent of the ballots cast in a Somaliland-wide referendum approved the provisional constitution and approved Somalilands independence.100 In December 2002, Somaliland held its first local municipal elections, followed by its first presidential election in 2003.101 Notably, the winner of the 2003 presidential election was decided by just seventy-two votes and, while the opposition initially cried foul . . . after exhausting its appeals [it] accepted the result.102 Somaliland held its first parliamentary election in 2005.103 In June 2010, Somaliland finally held its long-delayed second presidential election.104 Judged free and fair by international election observers,105 the opposition candidate, Ahmed Mohammed Silanyo, defeated incumbent President Dahir Rayale Kahin.106 On July 27, 2010, power was peacefully transferred between Kahin and Silanyomaking Somaliland just the fourth state in Africa to witness a peaceful transfer of power from a defeated incumbent president to a victorious challenger.107 Since Somalilands declaration of independence, the militiamen that spent a decade fighting the Barre regime have been demobilized or incorporated into Somalilands armed forces.108 Somaliland has successfully resolved internal
See Democratisation and its Discontents, supra note 35 at 813. Walls, supra note 51, at 38284 (2009); Time for A.U. Leadership, supra note 51, at 6. 99 Time for A.U. Leadership, supra note 51, at 6. 100 Id. 101 Democratisation and its Discontents, supra note 35, at i. 102 Time for A.U. Leadership, supra note 51, at 8. 103 Id. 104 Democracy Triumphs with Somalilands Second Peaceful Election, USAID FRONTLINES (Sept. 2010), http://www.usaid.gov/press/frontlines/fl_sep10/p05_somaliland100911.html. 105 Somaliland Election Free and Fair: Observers, SOMALILANDPRESS (June 28, 2010), http:// somalilandpress.com/somaliland-election-free-and-fair-observers-16757; see also Somaliland Holds Credible Presidential Election, INTL REPUBLICAN INST. (June 27, 2010), http://www.iri.org/news-events-press-center/ news/somaliland-holds-credible-presidential-election. 106 William Wallis, Election Victor Takes Power in Somaliland, FIN. TIMES (July 27, 2010, 4:40 PM), http://www.ft.com. 107 Id. 108 Democratisation and its Discontents, supra note 35, at 6.
98
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conflicts without resorting to internal armed conflict.109 In 2003, the International Crisis Group reported that the government of Somaliland could boast basic civil administration across roughly eighty per cent of the territory.110 The UN High Commission for Refugees described Somalilands central administration as maintain[ing] functional control over the national army; the police force and courts maintain public order; customs officials collect taxes at the port; the two houses of the legislature convene and debate bills; and at least some of the ministries are making serious attempts to play a constructive role in their assigned sector.111 The government of Somaliland also issues currency and passports.112 In stark contrast to Somalia, Somalilands central government proactively confronts both transnational terrorism and piracy. In 2005, Somaliland interdicted an al-Qaeda cell trying to establish itself in Hargeisa.113 Following an investigation, the government of Somaliland tried members of that cell:
In December 2006, a major trial ended in Somaliland in which 15 suspects were charged (six in absentia) with conspiracy to commit terror, illegal importation of arms and explosives and the wounding of three policemen in September/October 2005. Most of the suspects were convicted and sentenced to 20 - 25 years in prison. . . . Surprisingly, both Shaykh Hassan Dahir Aweys and Aden Hashi Farah Ayrow, an Afghanistan veteran and military commander of 114 al-Shabaab, were acquitted due to a lack of evidence.
The government of Somaliland has also embarked on an anti-piracy campaign, establishing a small coast guard and arresting pirates caught in its waters.115 As part of a concerted effort to garner recognition, Somaliland has cultivated international relationships, including an agreement with Ethiopia,
109 110
Id. Id. at 7. 111 KENNETH MENKHAUS, SOMALIA: A SITUATIONAL ANALYSIS AND TREND ASSESSMENT 25 (2003), available at http://www.unhcr.org/refworld/pdfid/3f7c235f4.pdf. 112 See Somalia Country Specific Information, TRAVEL.STATE.GOV (Jan. 19, 2010), http://travel.state.gov/ travel/cis_pa_tw/cis/cis_1023.html. 113 Trying to Behave Like a Proper State: Breakaway Somaliland Has Impressed the Americans by Hitting al-Qaeda, ECONOMIST, Sept. 29, 2005, http://www.economist.com/node/4466050 [hereinafter Trying to Behave Like a Proper State]. 114 McGregor, supra note 14, at 7, 8. 115 See Sanders, supra note 13.
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granting Ethiopia overland access to Somalilands port of Berbera.116 That agreement also formalized trade relations between Somaliland and Ethiopia, and included an agreement to establish customs offices along Somalilands border with Ethiopia.117 Somaliland has opened liaison offices in Ethiopia, Djibouti, the United States, and the United Kingdom.118 It has hosted delegations from states like Pakistan, and from international organizations like the World Bank and the African Union.119 In 2005, Somaliland submitted its application for membership to the AU.120 Though the AU has yet to act on Somalilands application for membership, a 2005 AU fact-finding mission reported favorably on Somaliland, recommending that the AU find a special method for dealing with Somaliland and urging that recognizing Somalilands independence not be linked to the notion of opening a [P]andoras box.121 Yet, the AU has not found a special method for dealing with Somaliland, and no other state or non-governmental organization has recognized its independence. To understand whether Somaliland should be recognized as an independent state, the legal issues that concern secession must be examined. II. LEGAL ISSUES GOVERNING SECESSION Secession, when successful, results in the emergence of a new state recognized by the international community.122 The legal issues implicated by the creation of a state through its separation from a preexisting state are statehood, recognition, secession, and uti possidetis.
Trying to Behave Like a Proper State, supra note 113. Dilemma of the Horn: The West Pushes for Somaliland Recognition, 34 DEF. & FOREIGN AFF. STRATEGIC POLY 7 (2006). 118 See, e.g., Hassan Ali, Ethiopia Appoints New Representative to Somaliland, Upgrades Its Office, SOMALILANDPRESS (Oct. 30, 2009, 6:25 AM), http://somalilandpress.com/ethiopia-appoints-newrepresentative-to-somaliland-upgrades-the-office-9356; The Contacts and Addresses of the Somaliland Representative Offices Around the World, SOMALILAND OFFICIAL WEBSITE, http://www.somalilandgov.com/ contacts.htm (last visited Nov. 20, 2010). 119 See, e.g., Hassan Ali, Pakistani Delegation Arrives in Somaliland, SOMALILANDPRESS (Nov. 8, 2009), http://somalilandpress.com/pakistani-delegation-arrive-somaliland-9531; Isahaq Hashi & Abdiqani Baynah, Somaliland: International Donors Tour Hargeisas Main Water Storage, SOMALILANDPRESS (Oct. 12, 2010), http://somalilandpress.com/somalilandinternational-donors-tour-hargeisa%E2%80%99s-main-water-storage18680. 120 Time for A.U. Leadership, supra note 51, at 2. 121 AFRICAN UNION, AU FACT-FINDING MISSION TO SOMALILAND 4 (2005) (emphasis omitted); see also Iqbal Jhazbhay, Somaliland has Strong Case for Recognition, SUNDAY INDEP. (S. Afr.), Apr. 2, 2006; Time for A.U. Leadership, supra note 51, at 2 ([The AU fact-finding mission] reported favourably in 2005, on both the situation in Somaliland and the territorys sovereign status.). 122 DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 6062 (2d ed. 2006).
117 116
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A. Statehood Statehood is a notoriously vexing concept in international law.123 Though states have been the fundamental unit of the international system for nearly four hundred years,124 there remains no generally accepted definition of statehood.125 The classical criteria of statehood, enumerated in the Montevideo Convention on the Rights and Duties of States of 1933 (Montevideo Convention), declare that [t]he 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 other States.126 The so-called Badinter Commission echoed the Montevideo criteria in its opinions concerning the dissolution of Yugoslavia: [A] State [is] a community which consists of a territory and a population subject to an organized political authority [and] is characterized by sovereignty.127 However, the Montevideo Convention criteria are not exclusive. In practice, whether an entity is effective is central to the question of statehood.128 The effectiveness of an entity turns on whether the entity is in fact independent
123 See, e.g., JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 31 n.1 (1979); THOMAS D. GRANT, THE RECOGNITION OF STATES 8384 (1999). 124 The modern international system is usually described as being born with the Peace of Westphalia of 1648. See, e.g., DOUGLAS HOWARD & LUISE WHITE, THE STATE OF SOVEREIGNTY: TERRITORIES, LAWS, POPULATIONS 3 (2008). That treaty both ended the Thirty Years War and ushered in the European state system. See id.; see also THOMAS H. GREER & GAVIN LEWIS, A BRIEF HISTORY OF THE WESTERN WORLD 398 (2005). 125 CRAWFORD, supra note 123, at 31. 126 Montevideo Convention on the Rights and Duties of States, art. 1, Dec. 26, 1933, 165 L.N.T.S. 21031 [hereinafter Montevideo Convention]. 127 Conference on Yugoslavia, Arbitration Commission, Opinion No. 1, 92 I.L.R. 162, 165 (1991) [hereinafter Badinter Opinion 1]. See generally Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples, 3 EUR. J. INTL L. 178 (1992). 128 Gerhard Erasmus, Criteria for Determining Statehood: John Dugards Recognition and the United Nations, 4 S. AFR. J. HUM. RTS. 207, 215 (1988). In fact, Crawford considers the capacity to enter into international relations to be a conflation of the governance and independence criteria. CRAWFORD, supra note 123, at 4748. Crawford likewise considers effectiveness to embrace both governance and territorythat is, that a state has territory by exerting government control over it, thereby being effective. Id. at 42. Finally, Crawford writes:
It is clear that government and independence are closely related criteriain fact they may be regarded as different aspects of the requirement of effective separate control . . . . [G]overnment is treated as the exercise of authority with respect to persons and property within the territory claimed; whereas independence is treated as the exercise . . . [of] authority with respect to other international persons. Id. at 42 n.54.
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and whether its government exerts control over its territory.129 Entities that have not been in fact independent or entities that do not exercise effective control over the territory that purportedly constitutes the state have been denied statehood. For example, the League of Nations refused to recognize Manchukuo, the entity that the Empire of Japan established in Manchuria after Japans 1931 invasion, because it was a puppet of Japan and not formed through a genuine and spontaneous independence movement.130 On the other hand, failure to satisfy the Montevideo Convention criteria does not conclusively prevent an entity from achieving statehood. The process of decolonization in Africa resulted in the emergence of several entities recognized as states despite their failure to satisfy one or more of the Montevideo criteria.131 The former Belgian colony, the Democratic Republic of the Congo, provides the best example of a state emerging from colonial dominion that substantially failed to meet one or more of the Montevideo criteria.132 For example, at independence, the Congo did not possess an effective government.133 Instead, the UN and the states former colonial power propped up the new state.134 Despite its inability to govern itself and thus its failure to satisfy one of the four Montevideo criteria of statehood, the Congos application for United Nations membership was approved without dissent.135 Thus, while the statehood criteria, especially the governance and independence criteria, suggest that effectiveness is the primary determinant of statehood, effectiveness is not conclusively determinative.136 It is possible that an ineffective putative state will receive international recognition.137 Moreover, even effectiveness operates only as a predicate for the creation of a new state. A putative state must additionally conform to existing international norms of state creation.138 In the case of a state created by its separation from a prior existing state, this means that the putative states separation must conform to
129 Georges Abi-Saab, Conclusions, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 475 (Marcelo G. Kohen ed., 2006) ([For an effective state to exist,] the population and territory must be well-defined and ruled (or controlled) by a sovereign government that depends on no other.). 130 Report of Lytton Commission of Enquiry, League of Nations Doc. C.663M.320 1932 VII, at 97 (1932). 131 See, e.g., CRAWFORD, supra note 123, at 4244. 132 See id. at 4244. 133 Id. 134 Id. at 44. 135 Id. at 43. 136 Id. at 4344. 137 See id. at 43. 138 See id. at 42.
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state practice regarding secession or dissolution, including the principle of uti possidetis. B. Recognition Much of the literature dedicated to the question of statehood focuses on the legal effect of recognition.139 Traditionally, there are two schools of thought regarding the legal impact of recognition on a putative state.140 The constitutive school holds that recognition is a fundamental criterion of statehoodthat an entity only becomes a state once it has been recognized.141 The declaratory school, on the other hand, holds that recognition has no legal effect; recognition merely announces what is already factthat the entity in question is a state.142 However, there is another viewone that regards the traditional constitutive-declaratory dichotomy as overly simplistic.143 The question from this perspective is not when a state is a state, but rather to whom is a state a state. That is, a state may be a state internally but not externally:
Though political communities . . . can without recognition continue to operate as states within the four walls of their domestic (territorial) enclave, they cannot enter into relations with any other state unless that other state expressly, or by putting up with such relations, impliedly recognize[s] that political community as a subject of 144 international law.
A state may also be a state vis--vis one state but not the international community generally, as is the case with the Turkish Republic of Northern Cyprus.145 In some sense, this view treads a middle ground between the constitutive-declaratory dichotomy. Regardless of whether a state is a state with international personality absent recognition, unrecognized states suffer a disability in the modern international system:
139 See, e.g., JOHN DUGARD, RECOGNITION AND THE UNITED NATIONS (1987); GRANT, supra note 123; H. LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW (1948). 140 See LAUTERPACHT, supra note 139, at 3842. 141 Id. at 3841. 142 Id. at 4142. 143 See Johan D. van der Vyver, Statehood in International Law, 5 EMORY INTL L. REV. 9, 10 (1991). 144 Id. at 99. 145 Id.
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[R]ecognition is more than a mere formality in the contemporary international system. Its denial places real constraints on the capacity to function as a modern state, both domestically and internationally. The government has no access to international financial institutions or direct bilateral assistance; trade . . . is handicapped by the lack of recognised regulatory controls; foreign investorsamong them banks and insurance companiesare reluctant to invest in a territory that is 146 still legally part of a failed State and a designated war zone.
It is little wonder, then, that virtually every community lacking recognition between 1415 CE and 1987 CE lost its independence.147 Moreover, recognition is particularly important to secessionist entities.148 Recognition has been the primary pursuit of states newly created through secession.149 Failure to gain widespread recognition has consigned many secessionist entitiesincluding both Katanga and Biafrato failure.150 More than sixty years ago, Lauterpacht argued that recognition is of such import to states and the international system that there is a legal duty incumbent upon existing states to recognize qualifying entities:151
[E]xisting States are under the duty to grant recognition. In the absence of an international organ competent to ascertain and authoritatively to declare the presence of the requirements of full international personality, States already established fulfil that function in their capacity as organs of international law. In thus acting they administer the law of nations. This legal rule signifies that in granting or withholding recognition States do not claim and are not entitled to serve exclusively the interests of their national policy and convenience regardless of the principles of international law in the 152 matter.
Despite the impact that recognition or non-recognition has on a state, Lauterpachts view has not taken hold and recognition remains a political act at the discretion of existing states: Third-party states normally do not pronounce
Time for A.U. Leadership, supra note 51, at 12. GRANT, supra note 123, at 27 (quoting David Strang, Anomaly and Commonplace in European Political Expansion: Realist and Institutional Accounts, 45 INTL ORG. 143, 15458 (1991)). 148 Radan, supra note 48, at 20; CRAWFORD, supra note 123, at 252. 149 Radan, supra note 48, at 20. 150 Id. 151 LAUTERPACHT, supra note 139, at 6. 152 Id.
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on the issue [of recognition] until they perceive it in their national interest to do so, and then their pronouncements are colored by that interest.153 Nauru recently exemplified the political nature of state recognition. Nauru is a small, impoverished, island state in the Pacific Ocean.154 On December 15, 2009, Nauru became the fourth state to recognize the independence of Abkhazia, a breakaway province of the Republic of Georgia.155 Nauru, which had its national airlines only Boeing 737 repossessed in 2005,156 received $50 million in aid from Russia in exchange for recognizing Abkhazia.157 Nauru is an extreme example, but it should not be surprising that states decide to extend recognition to new states based on considerations of their own interests. The Cold War is rife with examples of states being recognized by the NATO bloc only to be denied recognition by the Warsaw Pact countries, or vice versa.158 Even today, the mostly East-West divide over whether to recognize Kosovo as an independent state is mirrored in the conflict over recognition for Abkhaziaa principled approach to recognition would likely dictate the same treatment for both territories.159 More recently, some scholars have argued that existing states have a duty of non-recognition.160 The duty of non-recognition obliges existing states not to extend recognition to putative states whose creation violated a peremptory norm of international law.161 Under this regime, recognition of a would-be state created in violation of the prohibition on aggression, the prohibition on the acquisition of territory by means of force, the prohibition of systematic racial discrimination or suppression of human rights, or the prohibition of the
153 Erasmus, supra note 128, at 21617; Alfred P. Rubin, Secession and Self-Determination: A Legal, Moral, and Political Analysis, 36 STAN. J. INTL L. 253, 261 (2000). 154 Ellen Barry, Nauru, a Pacific Island Nation, Establishes Relations with Faraway Abkhazia, N.Y. TIMES, Dec. 16, 2009, at A8. 155 Id. 156 Cameron Stewart, Nauru Begs US for Plane, AUSTRALIAN, Dec. 20, 2005. 157 Barry, supra note 154. 158 For example, the United States recognized Taiwan as a state until 1979. Gerrit van der Wees, Taiwan Is as Much a Nation-State as the US, TAIPEI TIMES (June 18, 2007), http://www.taipeitimes.com/News/ editorials/archives/2007/06/18/2003365794/2. 159 Kosovo has already been recognized by sixty-five states, including the United States. See Nicholas Kulish & C.J. Chivers, U.S. and Much of Europe Recognize Kosovo, Which Also Draws Expected Rejection, N.Y. TIMES, Feb. 19, 2008, at A10. 160 See, e.g., JOHN DUGARD, INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE 99100 (Lucienne Walters ed., 3d ed. 2005). 161 Id.
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denial of self-determination would be illicit,162 violating the duty of nonrecognition.163 Like the duty of recognition, the duty of non-recognition has been criticized for treading on what has traditionally been a states political prerogativeit is not yet widely accepted.164 C. Secession Secession is the creation of a State by the use or threat of force and without the consent of the former sovereign.165 Secession is characterized by the separation of part of the territory and population of an existing State.166 In general, secession results in the creation of one or more new states and the continued existence of the parent state from which those states seceded.167 Dissolution, like secession, is a non-consensual separation of territory and population giving rise to new states.168 However, unlike secession generally, dissolution is characterized by the extinction of the parent state and its replacement by two or more newly created states.169 Dissolution is also marked
162 Dugard uses Katanga and Rhodesia as examples of states created in violation of the right to selfdetermination. Id. at 101. Katangas establishment violated the right to self-determination because the right of self-determination is to be exercised within existing borders and that the United Nations will oppose the claim to statehood of an entity that comes into existence in violation of this principle. DUGARD, supra note 139, at 8990. Rhodesia offended the principle of self-determination because its regime systematically denied segments of its population the right to participation in its government. Id. at 97. 163 DUGARD, supra note 160, at 10001. 164 LAUTERPACHT, supra note 139, at 434. 165 CRAWFORD, supra note 123, at 247. Radan defines secession as the creation of a new state upon territory previously forming part of, or being a colonial entity of, an existing state. Radan, supra note 48, at 18. The original state from or on which the new state is created is referred to as the parent or metropolitan state. Cf. id. (referring to the originating state as the host state). 166 Marcelo G. Kohen, Introduction, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 3 (Marcelo G. Kohen ed., 2006). Many scholars distinguish secession, the non-consensual creation of a new state, with devolution, the creation of a new state with metropolitan consent. See id.; CRAWFORD, supra note 123, at 215, 247 (The crucial distinguishing feature is the presence or absence of metropolitan consent.). Some scholars also enlarge the concept of secession to include both consensual and non-consensual separation of territory. See, e.g., Johan D. van der Vyver, The Right to Self-Determination and Its Enforcement, 10 ILSA J. INTL & COMP. L. 421, 429 (2004). But see LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION 9799 (1978). 167 Kohen, supra note 166, at 3. 168 See id. Contra John Dugard, A Legal Basis for Secession: Relevant Principles and Rules, in SECESSION AND INTERNATIONAL LAW 89, 89 (2003) (defining [s]ecession as the unilateral withdrawal of part of an existing State from that State without the consent of the government of that State. Secession by agreement is better described as dissolution of a State). 169 KOHEN, supra note 129, at 3. For this reason, secession and dissolution are sometimes treated as distinct concepts. However, because both involve the non-consensual separation of territory and population from a prior existing state, resulting in the creation of one or more new states, the better view is to treat dissolution as a subset of secession.
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by the breaking apart of a composite state along the boundaries of its constituent units.170 Groups claiming a right to self-determination have frequently pursued secession, but self-determination and secession are not necessarily coextensive.171 Even a group that does not qualify as a people, and is therefore not vested with the right to self-determination, may pursue secession.172 When a putative secession does not implicate self-determination, however, the critical criterion of statehood is the maintenance of a stable and effective government to the exclusion of the metropolitan state.173 The secessionist entitys independence must also either not be disputed, or it must be manifestly indisputable.174 As a threshold matter then, secessionist entities must be, in fact, independent and effective. The international system is a state-centric system.175 As such, it is understandable that a community composed of States and a legal system that purports only to regulate the rights and duties of States would react adversely to any threat to the present State-centered order.176 Secession, because it results in the dismemberment of a previously unified, independent State,177 necessarily threatens the state-centered order. It is for this reason that secessionist entities are usually described as illegitimate when they attempt to secede.178 However, secession is not prohibited under international law.179
Rodoljub Etinski, Has the SFR of Yugoslavia Ceased to Exist as a Subject of International Law?, in INTERNATIONAL LAW AND THE CHANGED YUGOSLAVIA 3234 (Ranko Petkovic ed., 1995). 171 See, e.g., van der Vyver, supra note 166, at 427 (The right to self-determination vests in a people, while a new State created through secession is essentially territorially defined.). Often, secession is discussed in terms of a right to secession. Normally, the right to secession vests in a people denied self-determination. From this conception springs the notion of remedial secession. See generally SECESSION AND SELFDETERMINATION (Stephen Macedo & Allen Buchanan eds., 2003). 172 van der Vyver, supra note 166, at 427, 429. Bosnia-Herzegovina provides a good example of secession occurring outside the context of self-determination. Unlike Croatia or Slovenia, Bosnia-Herzegovina is a multiethnic state; its secession from Yugoslavia did not result in the creation of a national-state, and was not in pursuit of national self-determination. See PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND INTERNATIONAL LAW 187 (2002) (explaining that Bosnia-Herzegovinas successful plebiscite on independence required majority support of two of its ethnic constituencies). 173 CRAWFORD, supra note 123, at 266; RADAN, supra note 172, at 210 (What is crucial is the notion of control . . . which concerns the de facto authority exercised by the government over the people. (quoting M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia, 66 BRIT. Y.B. INTL L. 333, 367 (1995)). 174 CRAWFORD, supra note 123, at 266. 175 BUCHHEIT, supra note 166, at 13. 176 Id. 177 Id. 178 See id. at 1314.
170
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While Lauterpacht wrote that [s]uccessful secession from the parent State is a fact not contrary to international law,180 other scholars have gone further, arguing that [s]ecession is . . . sanctioned by international lawnot under the rubric of a right to self-determination but as a permissible political strategy in its own right.181 In the eighteenth century, a secessionist entity was regarded as valid only when the metropolitan state extended recognition to that secessionist entity under this regime, extending recognition to a seceding territory before its parent state recognized it as a state would be illegal or at least premature.182 From the nineteenth century though, secession was successful not when or if the metropolitan state recognized the secessionist entity, but merely when the metropolitan state gave up the struggle to retain the territory:
[W]hen a sovereign State, from exhaustion or any other cause, has virtually and substantially abandoned the struggle for supremacy it has no right to complain if a foreign State treat[s] the independence of its former subjects as de facto established; nor can it prolong its 183 sovereignty by a mere paper assertion of right.
Recently, secession generally has been described as valid in only two scenariosconsensual separation of territory (devolution) and the redrawing of national boundaries through a peace treaty following an armed conflict.184 Restricting secessions validity to secession through a peace treaty effectively restricts legitimate secession to instances of metropolitan accession, as was the case in the eighteenth century.185 Dissolution, however, requires no such metropolitan accession. The nature of dissolution is such that, unlike secession,
179 Dugard, supra note 168, at 91 (While international law does not, as Stated by U Thant, prohibit secession, it does recognize rules which put a brake on secession.); see Christian Tomuschat, Secession and Self-Determination, in SECESSION: INTERNATIONAL LAW PERSPECTIVES, supra note 129, at 2325; Jorri Duursma, Preventing and Solving Wars of Secession, in STATE, SOVEREIGNTY, AND INTERNATIONAL GOVERNANCE 352 (Gerard Kreijen ed., 2002). 180 LAUTERPACHT, supra note 139, at 6. 181 van der Vyver, supra note 166. 182 Mikulas Fabry, Secession and State Recognition in International Relations and Law, in ON THE WAY TO STATEHOOD: SECESSION AND GLOBALISATION, supra note 48, at 51, 54. 183 CRAWFORD, supra note 123, at 256 (citation omitted). 184 van der Vyver, supra note 166, at 42930. 185 Mikulas Fabry, Secession and State Recognition in International Relations and Law, in ON THE WAY TO STATEHOOD: SECESSION AND GLOBALISATION, supra note 48, at 51, 54 (According to [the eighteenth century] norm, the dominion of a legitimate monarchy was in principle inalienable. The only valid change of title to sovereignty or territory was through freely given consent of the affected monarch.); CRAWFORD, supra note 123, at 11.
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the former metropolitan state ceases to exist. Its extinction means that a parent does not continue to accede to its components newfound statehood.186 During the Biafran War, UN Secretary-General U Thant claimed that the United Nations attitude is unequivocable [sic] . . . . [T]he United Nations has never accepted and does not accept . . . the principle of secession of a part of its Member State.187 His declaration better reflects the general reluctance of states to admit secession in the abstract than it reflects actual state practice.188 In fact, since U Thant made that statement, at least forty states created through secession have become member states of the UN.189 These forty examples of secession provide a general survey of secession scenarios. They also provide a good guide to state practice regardingand therefore the norms governing secession. The experiences of Eritrea, Yugoslavia, and the United Arab Republic are particularly instructive. Whereas Eritrea represents a straightforward secession, both Yugoslavia and the United Arab Republic underwent dissolution.190 1. Eritreas Secession In the case of Eritrea, an armed movement prosecuted a thirty-year war of secession against Ethiopia, its metropolitan state. Eritrea was an Italian colony until the British occupied it during World War II.191 Following World War II, instead of gaining independence through decolonization,192 Eritrea became federated with Ethiopia by the United Nations.193 Ethiopia abrogated this UNimposed federal arrangement by annexing Eritrea in 1962, extinguishing
Radan, supra note 48, at 26. Dugard, supra note 168, at 90 (citation omitted). 188 See Kohen, supra note 166, at 3 (pointing out that states go so far as to refer euphemistically to the separation of part of the state in the 1978 Vienna Convention on State Succession); see also Dugard, supra note 168, at 91 (describing Thants statement on secession as a gross exaggeration). 189 Dugard, supra note 168, at 91; Kohen, supra note 166, at 2. Since the end of the Cold War, the constituent states of Yugoslavia and Eritrea have all successfully seceded and subsequently joined the UN. See Press Release, Department of Public Information, United Nations Member States, U.N. Press Release ORG/1469 (July 3, 2006). 190 See, e.g., Badinter Opinion 1, supra note 127, at 166 (determining that the Socialist Federal Republic of Yugoslavia is in the process of dissolution); Rep. of the Intl Law Commn, 27th Sess, May 2July 2, 1972, U.N. Doc. A/8710/Rev.1 (1972), reprinted in 2 Y.B. INTL L. COMMN 220, 28693 (1972); Kohen, supra note 166, at 2. 191 RUTH IYOB, THE ERITREAN STRUGGLE FOR INDEPENDENCE: DOMINATION, RESISTANCE, NATIONALISM 19411993 6163 (1995). 192 Id. 193 Id.
187
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Eritreas autonomy.194 Ethiopias annexation sparked the armed Eritrean secessionist movement.195 Ultimately, Eritreas secession from Ethiopia was facilitated both by the success of its armed struggle and by a revolution within Ethiopia.196 Rather than continuing the struggle to retain Eritrea, Ethiopias revolutionary government endorsed Eritrean independence.197 Eritrea emerged as an independent state within its former colonial borders on May 24, 1993, following a plebiscite conducted with the support of Ethiopia,198 and monitored by observers from both the UN and the Organization for African Unity (OAU).199 Eritrea was then rapidly recognized by governments around the world and admitted to the UN.200 Eritreas secession was thus legitimated when its parent state gave up the struggle to retain Eritrea and acceded to its independence. 2. Yugoslavias Dissolution In the case of Yugoslavia, the Socialist Federal Republic of Yugoslavia (SFRY) began the process of dissolution when two of its constituent republics, Slovenia and Croatia, declared independence in 1991.201 By the end of 1991, three of the SFRYs republics had held referendums approving independence and one had adopted a sovereignty resolution.202 The Badinter Commission emphasized the collapse of Yugoslavias federal apparatus in determining that the Socialist Federal Republic of Yugoslavia is in the process of dissolution.203 Specifically, the Badinter Commission noted that
Id. at 9497. Id. at 10405. 196 See TEKESTE NEGASH, ERITREA AND ETHIOPIA: THE FEDERAL EXPERIENCE 16668 (1997). 197 Id. at 168; IYOB, supra note 191, at 13839. 198 IYOB, supra note 191, at 143. Ethiopia had actually recognized Eritrea as an independent state on May 3, 1993, before Eritrea officially declared its independence. Ethiopia Accepts Eritrea Vote, N.Y. TIMES, May 4, 1993, at A3. 199 IYOB, supra note 191, at 137. 200 For example, Saudi Arabia, Algeria, and Denmark recognized Eritrea on May 4, 1993. Eritrea is Recognized by Saudi Arabia, Algeria and Denmark; Applies to Join OAU, BBC SUMMARY OF WORLD BROADCASTS, May 6, 1993, at 4(B). Israel recognized Eritrea on May 6, 1993. Israel Recognised Officially the Independence of Eritrea on 6th May, BBC SUMMARY WORLD BROADCASTS, May 8, 1993, at 4(B). The United Kingdom recognized Eritrea on May 19, 1993. Eritrea Recognized, GUARDIAN (London), May 19, 1993, at 8. The United Nations admitted Eritrea as a member state on May 28, 1993. U.N. Welcomes Monaco, Eritrea, L.A. TIMES, May 29, 1993, at A12. 201 Badinter Opinion 1, supra note 127. 202 Id. 203 Id. at 166.
195 194
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in the case of a federal-type State . . . the existence of the State implies that the federal organs represent the components of the Federation and wield effective power.204 Putting aside the type of government structure used in Yugoslavia, it becomes clear that the states existence is tied to its ability to wield effective power.205 Therefore, when the SFRYs constituent units began to exercise authority over their declared territory to the exclusion of Yugoslavias central government, the state of Yugoslavia began to dissolve. With dissolution came the emergence of Yugoslavias constituent units as independent states. Importantly, statehood for the component states of Yugoslavia was not dependent on recognition by the state claiming to be Yugoslavias successor.206 The non-Serbian constituent units of Yugoslavia were widely recognized as states and were even admitted to the UN well before they were recognized by Serbia.207 For example, Croatia was admitted to the UN on May 22, 1992,208 but it was not recognized by Serbia until 1996.209 Instead of metropolitanor purportedly metropolitanaccession, the validity of the secessions of Yugoslavias constituent units turned on their independence, effectiveness, and satisfaction of the objective criteria of statehood. 3. The United Arab Republics Dissolution The United Arab Republic provides another example of dissolution. In 1958, the total union of Egypt and Syria into a single state resulted in the creation of the United Arab Republic (UAR).210 The unification of Egypt
Id. at 165 (emphasis added). Craven highlights that the dissolution question turns not on representativeness of government but on whether the government can exercise control. Craven, supra note 173, at 367. 206 While the Badinter Commission determined Yugoslavia to be in the process of dissolution, Serbia maintained that it was in fact the successor state to the Socialist Federal Republic of Yugoslavia. See Oberster Gerichtshot [OGH] [Supreme Court] Dec. 17, 1996, docket No. 4 Ob 2304/96v (Austria), translated and reprinted in 36 I.L.M. 1520 (1997) (determining that the SFRY had dissolved and that it had been succeeded by five states, and not solely by Serbia as Serbia claimed). 207 Member states of the European Community and Canada recognized Croatia and Slovenia on January 15, 1992, while Croatia, Slovenia, and Bosnia-Herzegovina were admitted to the United Nations as member states on May 22, 1992. ANA S. TRBOVICH, A LEGAL GEOGRAPHY OF YUGOSLAVIAS DISINTEGRATION 28081 (2008). Admission to the United Nations followed a string of negotiations involving Yugoslavias component republics, the European Commission, the Badinter Commission, and various European states, particularly Germany. Id. at 23981. 208 Id. at 28081. 209 The Federal Republic of Yugoslavia did not recognize Croatia until 1996. Yugoslavia-Croatia Ties, N.Y. TIMES, Sept. 10, 1996, at A4. 210 CLEVELAND, supra note 15, at 314; Eugene Cotran, Some Legal Aspects of the Formation of the United Arab Republic and the United Arab States, 8 INTL & COMP. L.Q. 346, 34748 (1959) (The texts of
205
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and Syria was voluntary on the part of both states, was approved by the legislatures of both states,211 and was ratified by plebiscites held in both Egypt and Syria.212 A single executive branch and a single national assembly governed the UAR, drawing equal members from both formerly independent states.213 Additionally, within the UN, one mission singularly representing the UAR replaced the separate UN member states of Egypt and Syria.214 Similarly, the United States recognized the UAR and the United States Senate confirmed an ambassador to the United Arab Republic.215 In September 1961, a coup detat in the Syrian region of the UAR, led Syria to declare its independence.216 The UAR violently resisted Syrias nonconsensual separation from the unitary state.217 The Syrian coup forces quickly established their authority at the exclusion of the UAR.218 In doing so, Syrias secession dissolved the UAR, leading Gamal Abdel Nasser, the UAR President, to describe himself as the captain of a ship which has split in two in the middle of the sea.219 Despite Egypts persistent use of the label United Arab Republic in the wake of the UARs dissolution, Nasser remarked to the U.S. Ambassador that the dissolution would allow him to focus on Egypts affairs.220 Syria and Egypt resumed their separate representation at the UN and, by 1962, the Egyptian who held the post before unification in 1958 replaced the sole Syrian member of the UARs delegation.221
[the provisional constitution of the UAR and the unification proclamation] indicate clearly that there is now one State and one international person where formerly there were two.). 211 JAMES JANKOWSKI, NASSERS EGYPT, ARAB NATIONALISM, AND THE UNITED ARAB REPUBLIC 113 (2002). 212 Cotran, supra note 210, at 34748. 213 JANKOWSKI, supra note 211. 214 Cotran, supra note 210, at 348; see also ELIE PODEH, THE DECLINE OF ARAB UNITY: THE RISE AND FALL OF THE UNITED ARAB REPUBLIC 14546 (1999). 215 See PIERRE MICHEL EISEMANN & MARTTI KOSKENNIEMI, STATE SUCCESSION: CODIFICATION TESTED AGAINST THE FACTS 222 (1996). 216 Richard Young, State of Syria: Old or New, 56 AM. J. INTL L. 482, 482 (1962). 217 Within twenty-four hours of the coup detat, President Nasser launched an abortive armed mission to preserve the single state. Nasser called off the operation after it became clear that the coup forces had solidified their control over Syria. PODEH, supra note 214, at 15051. 218 PODEH, supra note 214, at 15051. Interestingly, Nasser immediately recognized the ramifications of Syrian secession, stating on September 28, 1961, as he deployed UAR forces to put down the coup, that it was not in his power to dissolve a union based on the will of the Arab people. JANKOWSKI, supra note 211, at 169. 219 JANKOWSKI, supra note 211, at 170 (quoting cABD AL-LATIF BAGHDADI, MUDHAKKIRAT cABD ALLATIF AL-BAGHDADI 124 (1997)). 220 Id. at 171. 221 L.C. Green, The Dissolution of States and Membership of the United Nations, 32 SASK. L. REV. 93, 109 (1967).
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Secession is the creation of a new state through the separation of territory and population from a parent state.222 Dissolution, though, occurs when components integral to a state secede, generating new states and extinguishing the erstwhile metropolis.223 A secessionist entity, like Eritrea, is valid once its parent state accedes to its independence.224 Products of dissolution, however, are validly independent not when the metropolis accedes to their independenceindeed, dissolution means there is no metropolis to accede to such independence225but when those products wield effective authority to the exclusion of the former metropolitan state and satisfy the criteria of statehood, so long as they do not violate the limiting principle of uti possidetis.226 D. Uti Possidetis Uti possidetis is a principle that governs the international frontiers of a newly emergent state.227 The principle evolved in the context of decolonization in South America and Africa.228 In Africa, uti possidetis has meant the conversion of colonial boundaries into international borders: [T]he primary . . . application of uti possidetis was . . . of securing respect for the territorial boundaries at the moment when [a states] independence is achieved.229 Thus, the boundaries that delineated separately administered territories became international frontiers at the moment of decolonization. The combination of uti possidetis and the principle of territorial integrity have worked to preserve Africas post-colonial territorial status quo despite many ethnically heterogeneous states, and tribal groups that straddle borders. Fears of territorial fragility drove the member states of the Organization for African Unity to pledge themselves to respect the borders existing on their achievement of national independence, because border problems constitute a
See Radan, supra note 48, at 18; supra text accompanying notes 16567. Radan, supra note 48, at 26 (noting the creation of the Federal Republic of Yugoslavia after the dissolution of Yugoslavia); see supra text accompanying notes 16870. 224 See supra text accompanying notes 197200. 225 Radan, supra note 48, at 26; see supra text accompanying note 186. 226 See infra text accompanying notes 22736 (addressing the proposition that uti possidetis is a requirement for secession). 227 RADAN, supra note 172, at 12122; TRBOVICH, supra note 207, at 269. 228 RADAN, supra note 172, at 12122. 229 Id. at 123 (quoting Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 565 (Dec. 22)).
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grave and permanent factor of dissention.230 Yet, the permanence of Africas post-colonial borders has not been absolute. Several states, including the Republic of Somalia, are amalgamations of former colonial possessions that achieved independence separately.231 Moreover, in at least two examples, the African Union has recognized states that, following decolonization, were amalgamated into larger states only to later re-emerge as independent states within their boundaries at decolonization.232 In the Frontier Dispute Case, the International Court of Justice elevated the principle of uti possidetis to a general principle of international law designed to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.233 Uti possidetis has since evolved into a limitation on the validity of secession. In its arbitration of the dissolution of Yugoslavia, the Badinter Commission not only applied uti possidetis in a European context for the first time, it used the doctrine to define which territorial units could legitimately emerge as new states through Yugoslavias dissolution.234 In this way, the Badinter Commission explicitly generalized the principle of uti possidetis from decolonization scenarios to dissolution:
[O]nce the process in the [Socialist Federal Republic of Yugoslavia] leads to the creation of one or more independent States, the issue of frontiers . . . must be resolved in accordance with the following principles: . . . [T]he former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in
230 Org. of African Unity [OAU]. Resolutions Adopted by the First Ordinary Session of the Assembly of Heads of State and Government Held in Cairo, UAR, from 17 to 21 July 1964, AHG/Res. 16(I) (July 21, 1964). 231 In fact, the word Tanzania is a portmanteau of its two parent states: Tanganyika and Zanzibar. Tanzania, INTL LABOUR ORG. (Oct. 24, 2010, 1:37 PM), http://www.ilo.org/public/english/region/afpro/ daressalaam/countries/tanzania.htm. 232 Eritrea was fused to Ethiopia in 1952 before it successfully concluded a war of independence in 1993. Senegal and Gambia were joined as one state from 1982 to 1989. For a discussion on Eritreas secession, see supra text accompanying notes 191200; for a discussion on Senegal and Gambia, see infra text accompanying note 344. 233 Frontier Dispute, 1986 I.C.J. at 565. 234 See Conference on Yugoslavia, Arbitration Commission, Opinion No. 3, 92 I.L.R. 170 (1993) [hereinafter Badinter Opinion 3].
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settling decolonization issues in America and Africa, is today 235 recognized as a general principle.
Despite criticism of its approach, the Badinter Commission has been described as creat[ing] a precedent by using the uti possidetis juris principle to select the territorial units that would become eligible for recognition.236 The Badinter Commission was not alone in its novel application of uti possidetis juris. A 1992 report on Qubcois secession commissioned by the government of Qubc found that
in the case of secession or dissolution of States, pre-existing administrative boundaries must be maintained to become borders of the new States and cannot be altered by the threat or use of force, be it on the part of the seceding entity or the State from which it breaks 237 off.
Scholars and modern state practice, then, suggest that secession is valid so long as the seceding territory is a distinct, cohesive, and recognizable unit. Support for this position is also found in the Aaland Islands Case. The Commission of Rapporteurs determined that Finland, even when subsumed within the Russian Empire, had retained its territorial integrity: [P]roperly speaking, from a geographic point of view, this State had possessed frontiers which were clearly defined for over a hundred years.238 Importantly, the Rapporteurs opinion demonstrates that an independent state might disappear into another state only to reappear at some later date within its historical borders. Ultimately, the Council of the League of Nations endorsed the Rapporteurs position, recognizing that Finland had seceded from the Russian Empire as a coherent territorial unit, within its original borders.239 Likewise, Eritrea resumed its distinct and separate character after having been subsumed within Ethiopia.240 Unlike Finland, however, Eritrea had not been an independent state before its subsumption within Ethiopia. Instead, it
235 236
Id. TRBOVICH, supra note 207, at 272. 237 T.M. Franck et al., The Territorial Integrity of Qubec in the Event of the Attainment of Sovereignty (May 8, 1992), reprinted in SELF-DETERMINATION IN INTERNATIONAL LAW: QUEBEC AND LESSONS LEARNED 241, 273 (Anne Bayefsky ed., 2000). 238 Report Presented by Comm. of Rapporteurs on the Aaland Islands Question, League of Nations Doc. B7.21/68/106, at 24 (1921). 239 See JAMES MINAHAN, ENCYCLOPEDIA OF STATELESS NATIONS: ETHNIC AND NATIONAL GROUPS AROUND THE WORLD: S-Z 71 (2002). 240 See supra text accompanying notes 19596.
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had been a separately administered colonial possession.241 Still, because independent Eritrea emerged within its colonial boundaries, its secession conformed to the African application of uti possidetis.242 Uti possidetis, therefore, applies not only to decolonization but to secession and dissolution. In the post-colonial period, uti possidetis has functioned to deny validity to entitieslike Katanga or Biafrathat sought independence without regard for colonial boundaries.243 In this way, uti possidetis is a limiting principle that restricts the creation of new states in Africa. A new African state may only be valid if its territorial extent matches that of a colonial unit. III. THE REPUBLIC OF SOMALILAND The Republic of Somaliland is a state. It meets the objective criteria of statehood and its emergence through the dissolution of the Republic of Somalia conforms to international norms. Here, the legal concepts described in Part II are applied to Somaliland. A. Somaliland and Statehood Somaliland meets the statehood criteria set out in the Montevideo Convention. It has a permanent population, defined territory, a government, and the capacity to enter into relations with other states. Somaliland claims a population of approximately 3.5 million people.244 Since its secession in 1991, hundreds of thousands of refugees and internally displaced [Somalilanders] have returned home.245 In contrast, persons displaced by ongoing conflict in rump Somalia have taken refuge in Somalilands capital.246 Somaliland has fixed and clearly determined borders, satisfying the territory criterion of statehood.247 At secession, the Republic of Somaliland explicitly declared its territory as that comprising the British Protectorate of
See supra text accompanying note 191. See RADAN, supra note 172, at 127; supra text accompanying note 198. 243 See supra text accompanying notes 150, 162, 187. 244 Republic of Somaliland: Country Profile, SOMALILAND OFFICIAL WEBSITE, http://www. somalilandgov.com/cprofile.htm (last visited Oct. 18, 2010). 245 Time for A.U. Leadership, supra note 51, at i. 246 AMNESTY INTL, HUMAN RIGHTS CHALLENGES: SOMALILAND FACES ELECTIONS 10 (2009). 247 Cf. CRAWFORD, supra note 123, at 3640 (It is suggested then that a new State may exist despite claims to its territory, just as an existing State continues despite such claims.).
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Somaliland.248 Though there are examples of states satisfying the defined territory criterion by exerting control over only a portion of the territory they claim,249 this is not the case for Somaliland. Somaliland exerts control over the whole territory it claims: Somaliland collects customs duties from ships that enter the port of Berbera; Somalilands coast guard patrols its territorial waters to prevent piracy; and Somalilands armed forces have even engaged in an armed conflict to defend its borders.250 It is true that the semi-autonomous region of Puntland claims a portion of Somaliland.251 However, competing territorial claims and boundary disputes historically have not denied a states satisfaction of the territory prong of statehood, so long as the state effectively governs a certain coherent territory.252 Somaliland possesses an organized political authority,253 satisfying the government criterion of statehood. It is responsible for national defense.254 It maintains law and order. It even engages in those auxiliary activities of government such as the printing of currency, operating a central bank, and issuing passports.255 Somalilands central government is so effective that several Western nations refuse to grant Somalilanders asylum because Somaliland is safe and secure.256 Somalilands government has even managed to demilitarize its population without outside support or funding.257 Additional indicators of the effectiveness of Somalilands government are found in its dealings with pirates and Islamist militants. In stark contrast to rump Somalia, where pirates operate with impunity,258 Somalilands
248 Fisher, supra note 1; Interim Government in North Somalia Promises Free Elections, GLOBE & MAIL (Can.), May 20, 1991 (Ceremonies have taken place at Burco, northwest Somalia, to proclaim a new state in the area that formed British Somaliland before it was merged with the adjoining Italian-administered area to form the Somali Republic in 1960.). 249 See, e.g., CRAWFORD, supra note 123, at 4243 (discussing the ineffectiveness of the Congo). 250 McGregor, supra note 14, at 89. Like Somaliland, Puntland is autonomous. Regions and Territories: Puntland, BBC NEWS (Apr. 28, 2010, 10:15 AM), http://news.bbc.co.uk/2/hi/africa/country_profiles/ 4276288.stm. Unlike Somaliland, Puntland does not claim outright independence. See id. Also unlike Somaliland, Puntlands secession would not conform to international normsit would fail the test of uti possidetis. See Time for A.U. Leadership, supra note 51, at 810. 251 Time for A.U. Leadership, supra note 51, at 8. 252 CRAWFORD, supra note 123, at 40. 253 Badinter Opinion 1, supra note 127, at 163. 254 Time for A.U. Leadership, supra note 51, at 11 (noting the criteria of army and police forces). 255 Id. at 7, 11. 256 Id. at 12. 257 LEWIS, supra note 44, at 9394 (2008) ([T]he UN made no contribution to Somalilands tough and largely successful demilitarisation programme. Instead it supported the essentially fantasy demilitarisation campaigns in Mogadishu.). 258 See, e.g., Gettleman, supra note 86 (discussing Somali pirates based in Puntland).
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government operates a coast guard that actively pursues pirates,259 freeing hijacked ships and capturing pirates based in rump Somalia.260 For example, in February 2010, a Somaliland court sentenced eleven pirates captured in December 2009 to fifteen years imprisonment for piracy and kidnapping.261 Moreover, while rump Somalia is overrun with al-Qaeda-affiliated militants,262 Somaliland exerts sufficient control over its territory that, in 2005, it successfully disrupted a terrorist cell in Hargeisa.263 Somaliland then tried fifteen individuals accused of involvement with that terrorist cell, convicting and punishing thirteen of them.264 Further, when two British nationals were shot and killed by Islamic militants in 2003,265 those responsible were tried and convicted of murder.266 In contrast, at its emergence from the dissolution of Yugoslavia, the government of Bosnia-Herzegovina, deemed effective, did not control its territory; even its capital, Sarajevo, was under siege by sniper and artillery firethe longest siege in modern historyat the time of its recognition as an independent state.267 Over its nearly twenty years of self-rule, Somalilands government has transitioned from a traditional, clan-based system to a representative democracy.268 The people of Somaliland have gone to the polls four times this
259 Sanders, supra note 13; McConnell, supra note 13; Pirates Aboard Libyan Vessel Fire on Somaliland Forces, SOMALILANDPRESS (Feb. 4, 2010), http://somalilandpress.com/pirates-aboard-libyan-vessel-fire-onsomaliland-forces-11411 (A shoot-out erupted Thursday between pirates who seized a North Korean-flagged, Libyan-owned ship and coast guards in Somalias breakaway Somaliland region, leaving one soldier dead, police said.). 260 Somaliland Forces Help Free Yemeni-Flagged Ship, XINHUANEWS (Jan. 11, 2010, 4:47 AM), http://news.xinhuanet.com/english/2010-01/11/content_12787234.htm; McConnell, supra note 13 (noting that Somalilands coast guard has captured three dozen pirates); Daniel Howden, Somaliland: Africas Best-Kept Secret, INDEPENDENT (May 6, 2009), http://www.independent.co.uk/news/world/africa/somaliland-africasbestkept-secret-1679731.html. 261 SOMALILAND: Somali Pirates Get 15-Year Sentences: Official, SOMALILANDPRESS (Feb. 14, 2010), http://somalilandpress.com/somaliland-somali-pirates-get-15-year-sentences-officials-11721. 262 Supra note 11 and accompanying text. 263 Trying to Behave Like a Proper State, supra note 113. 264 Id. 265 Two Britons Killed in Somaliland, BBC NEWS (Oct. 21, 2003, 7:59 PM), http://news.bbc.co.uk/2/hi/ africa/3210432.stm. 266 LEWIS, supra note 44, at 98 (2008); Gus Selassie, Supreme Court Passes Death Sentence Against Suspects for Murder of Aid Workers in Somaliland, GLOBAL INSIGHT, Apr. 20, 2007; Foreign Office Statement on the Sentencing in Somaliland of the Eyeington Familys Murderers, SOMALILAND TIMES (Apr. 23, 2007), http://www.somalilandtimes.net/sl/2007/275/0280.shtml. 267 Charlie Connelly, The New Siege of Sarajevo, TIMES (Oct. 8, 2005), http://www.timesonline.co.uk/tol/ news/world/europe/article575571.ece. 268 See CATHOLIC INST. FOR INTL RELATIONS, VERY MUCH A SOMALILAND-RUN ELECTION, March 2003 (grading the December 2002 local Somaliland elections); INTL REPUBLICAN INST., SOMALILAND
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century: once for local municipal elections; once to elect a parliament, and twice to elect a president.269 Those elections have been graded absent of undue influence,270 free of systemic fraud,271 and largely free and fair by observers and monitoring organizations.272 Finally, though it remains unrecognized by any other state, Somaliland not only has the capacity to enter into foreign relations, it in fact enters into foreign relations. Somaliland maintains a Minister of State for Foreign Affairs currently, that post is held by Abdirahman Osman Aden.273 Somaliland also operates diplomatic missions in the United States, the United Kingdom, Italy, and Ethiopia.274 Somaliland has even entered into agreements with Ethiopia. For example, in 2006, the Republic of Somaliland and Ethiopia agreed to give Ethiopia access to the port of Berbera.275 That agreement also called for the formalization of trade relations and the establishment of customs offices at the Ethiopia-Somaliland border.276 In the last year, Somaliland has hosted delegations and from Pakistan and Djibouti,277 and had ministerial meetings with the World Bank.278 The United States has even transferred former Guantnamo detainees into the custody of Somalilands government.279
PARLIAMENTARY ELECTION ASSESSMENT REPORT, Sept. 29, 2005 (grading the September 2005 parliamentary elections); Kibble, supra note 72. 269 Kibble, supra note 72. 270 INTL REPUBLICAN INST., supra note 268, at 3. 271 CATHOLIC INST. FOR INTL RELATIONS, supra note 268, at 21. 272 Kibble, supra note 72. 273 New Minister of Foreign Affairs Appointed, SOMALILAND TIMES (Jan. 23, 2010), http://www. somalilandtimes.net/sl/2010/417/8.shtml. 274 The Contacts and Addresses of the Somaliland Representative Offices Around the World, supra note 118. 275 Trying to Behave Like a Proper State, supra note 113 ([A]greement was concluded between the Ethiopian Customs Authority and its counterpart in Somaliland on the use of the Port of Berbera on the basis of international conventions. They added that any business organization, governmental and non-governmental office can now safely use the port.). 276 Somaliland, Ethiopian Officials Upbeat About Launch of Trade Corridor, BBC MONITORING AFR., Nov. 22, 2005. 277 Djibouti Delegation Visits Somaliland in Bid to Establish Better Ties, BBC MONITORING AFR., June 20, 2009; Somalilands Minister Meets Pakistani Delegation to Discuss Bilateral Ties, BBC MONITORING AFR., Nov. 17, 2009. 278 Somaliland Delegation Leaves for Djibouti to Attend World Bank Meeting, BBC MONITORING AFR., May 20, 2009. 279 Adam Brickley, Gitmo Detainees Sent to Country that Does Not Exist, WKLY. STANDARD (Dec. 21, 2009, 9:57 AM), http://www.weeklystandard.com/weblogs/TWSFP/2009/12/gitmo_detainees_sent_to_countr. asp.
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Somaliland qualifies for statehood even if the measure is effectiveness rather than the Montevideo Convention criteria. The question of the effectiveness of a putative state turns on whether that putative state is independent and exercises control over its territory.280 Somalilands government exercises control over the territory it occupies.281 Somaliland is likewise independent. Unlike Manchukuo, Somaliland was not an entity established by a foreign invader to serve as the invaders alter-ego or puppet. Rather, Somaliland is an indigenous creationestablished by the clans of Somaliland in the wake of the Somalias civil war.282 Those clans came together for a reconciliation conference at Borama without outside assistance or funding.283 That conference produced an interim constitution and set out the process that, in 2001, resulted in a national referendum approving both independence and a permanent constitution.284 Indeed, in stark contrast to entities like Manchukuo and arguably the Turkish Republic of Northern Cypruswhich enjoy recognition solely by the foreign state responsible for the entities creationSomaliland is not recognized by any other state. B. Somaliland and Recognition Somalilands independence and statehood are not recognized by any other state.285 When a state or non-governmental organization explains its nonrecognition of Somaliland, its reasons are typically that it prefers the preservation of a unitary Somali state,286 that the peace process in rump Somalia must take precedence,287 or that the African Union should determine whether Somaliland is an independent state.288 Given the political nature of
Supra text accompanying notes 12338. Supra text accompanying notes 24558. 282 LEWIS, supra note 44, at 7374. 283 I.M. Lewis notes, UNSOM [the United Nations mission in Somalia] . . . did not provide any assistance, despite its proclaimed concern for democracy. Id. at 93. 284 Id. at 94; Time for A.U. Leadership, supra note 51, at 6. 285 See, e.g., LEWIS, supra note 44, at ix; Kibble, supra note 72. 286 See, e.g., LEWIS, supra note 44, at 93 (UNOSOM [was] committed to a unified Somali state.). 287 Time for A.U. Leadership, supra note 51, at 19. 288 See, e.g., Time for A.U. Leadership, supra note 51, at 1 (The broader international community is largely willing to follow the AUs lead. Whether the organisation does engage, and how it chooses to do so, will have profound consequences for peace and security in the Horn of Africa.); US Department of State: Taken Question Office of the Spokesman January 17, 2008, M2 PRESSWIRE, Jan. 18, 2008, available at ProQuest, Doc. ID 1414702731 (While the United States does not recognize Somaliland as an independent State, and we continue to believe that the question of Somalilands independence should be resolved by the African Union, we continue to regularly engage with Somaliland as a regional administration and to support programs that encourage democratization and economic development in the Somaliland region.).
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recognition, it is unsurprising that the reasons underlying Somalilands nonrecognition are political rather than legal. The desire to see rump Somalia and Somaliland reunified is driven in part by fears of opening a Pandoras box289 and in part from the African Unions internal politics.290 Since decolonization, Africa has been preoccupied with the fragility of its inherited borders:291 most African states are ethnically heterogeneous,292 and tribal and ethnic groups, like the Somali, straddle many of Africas borders.293 Recognizing Somaliland would encourage ethnic conflict and irredentism across the continent, or so goes the argument against recognition.294 It is not clear, however, that recognizing Somaliland will inspire ethnic separatist movements or encourage the widespread disruption of African borders. It is worth noting that Somalilands separation from rump Somalia is not ethnically driven. The now-defunct Republic of Somalia was one of the most ethnically homogenous states in Africa.295 The majority of the populations of both Somaliland and rump Somalia are Somali.296 Somalilands independence would therefore not provide justification for ethnic separatist movements. Further, one need only look to Eritreas secession from Ethiopia in
289 The Pandoras box that the African Union fears is the unlimited fragmentation of its heterogeneous states, whereas, in Europe, [n]ations defined borders . . . . [i]n Africa, borders defined nations. Kathryn Sturman, New Norms, Old Boundaries, in ON THE WAY TO STATEHOOD: SECESSION AND GLOBALISATION, supra note 48, at 67, 70; see also Matt Bryden, State-Within-a-Failed-State, in STATESWITHIN-STATES 167, 17879 (Paul Kingston & Ian S. Spear eds., 2004). 290 Bryden, supra note 289, at 17879. 291 AFRICAN UNION, AFRICAN UNION CONSTITUTIVE ACT art. 4(b) (2000); ORG. OF AFRICAN UNITY, CAIRO DECLARATION ON BORDER DISPUTES AMONG AFRICAN STATES (1964); ORG. OF AFRICAN UNITY, CHARTER arts. 3(2)3(3) (1960). 292 See, e.g., Sturman, supra note 289; Pierre Englebert & Rebecca Hummel, Lets Stick Together: Understanding Africas Secession Deficit, 104 AFR. AFF. 399, 400 (2005). 293 Case Concerning Arbitral Award of 31 July 1989, 83 I.L.R. 2, 408 (1989); see, e.g., Pierre Englebert, Stacy Tarango & Matthew Carter, Dismemberment and Suffocation, 35 COMP. POL. STUD. 1093 (2002); David Newbury, Irredentist Rwanda: Ethnic and Territorial Frontiers in Central Africa, 44 AFR. TODAY 211 (1997); Ali Mazrui, The Bondage of Boundaries, ECONOMIST, Sept. 11, 1993, at 28. 294 Dan Simpson, The Ghost of Somalia, PITTSBURGH POST-GAZETTE (July 12, 2006), http://www.postgazette.com/pg/06193/705096-108.stm (The argument against recognition of [Somalilands] independence is that to accept its successful separation is to accept the dissolution of Somalia as a country. Africa and the world do not wish that to happen. Not only is it messy, worst of all from the point of view of other African countries it risks encouraging separatist movements across the continent to seek independence for their own pieces of real estate. Countries vulnerable in that regard are numerous.). 295 David Carment & Patrick James, Third-Party States in Ethnic Conflict: Identifying Domestic Determinants of Intervention, in ETHNIC CONFLICT AND INTERNATIONAL POLITICS 11, 28 (2004). 296 See, e.g., MARK BRADBURY, BECOMING SOMALILAND 9 (2008).
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1993 for an example of African secession unaccompanied by rampant dissolution of African states.297 Moreover, unlike Somaliland, Eritreas secession was ethnically driven298 and therefore more likely to inspire the dissolution of Africas ethnically heterogeneous states. Eritreas example notwithstanding, Somalilands independence is unlikely to encourage the forcible alteration of post-colonial borders because Somaliland conforms to the borders it inherited at decolonization. In this way, Somaliland is distinguishable from entities like Katanga or Biafraentities that, had their secessions been successful, would have offended principles of territorial integrity and violated uti possidetis.299 In 2001, though, the African Union (then, the Organization for African Unity) gave the Republic of Somalias seat to the Transitional National Government.300 Both the Transitional Federal Government and the TNG before it have asserted claims over Somaliland.301 In admitting the TNG as the representative of Somalia, the AU has implicitly recognized the TNGs claims to Somaliland.302 It is understandable, then, that a body so concerned with the territorial integrity of its member states would be loath to endorse what it views as the carving up of one of those states.303 However, deference to rump Somalias claims has not alone prevented AU action. A number of African states have an interest in delaying resolution of the Somaliland question. For example, Egypt has an interest in supporting any strongly nationalist Somali entity likely to pursue irredentism.304 Such an entity would threaten Egypts historic rival Ethiopia, which possesses a large Somali population.305 Somaliland, given its amicable relations with Ethiopia and its explicit opposition to involvement in rump Somaliaand its apparent lack of
See IYOB, supra note 191. Id. at 13446. 299 See supra text accompanying notes 22743. 300 Bryden, supra note 289, at 176. 301 Id. 302 Id. at 173; David H. Shinn, Somaliland: The Little Country that Could, AFR. NOTES, Nov. 2002, at 4 5. When the Transitional Federal Government replaced the Transitional National Government, it took over Somalias representation in both the African Union and the United Nations. Bryden, supra note 289, at 176. 303 J. Peter Pham, The U.S. and Somaliland: A Road Map, WORLD DEF. REV. (Feb. 28, 2008), http://worlddefensereview.com/pham022808.shtml (The AU is simply unable to actually address the matter as long as it continues to seat the utterly ineffectual Transitional Federal Government . . . which asserts sovereignty over the entire territory of the defunct Somali Democratic Republic despite being unable to so much as safely police its putative capital.). 304 Bryden, supra note 289, at 176. 305 Id. See also supra note 49.
298
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interest in Greater Somali claimsdoes not satisfy Egyptian strategic goals in the Horn of Africa. Ethiopia, on the other hand, worries that recognition of Somaliland will antagonize its Somali population and damage its relations with the Arab League.306 The parochial strategic interests of these two states are just examples of the interests that prevent both the states themselves and the AU corporally from recognizing Somalilands independence. In contrast to state-specific strategic goals, treating reconciliation in rump Somalia as a necessary predicate to resolving the Somaliland question stems from the international communitys earnest desire to see peace and stability in Somalia.307 Yet, as the International Crisis Group points out, it is not apparent that raising the Somaliland issue could destabilise the peace process in the South. . . . The Somaliland government has not participated in any Somali peace talks since 1991, including the conference that led to the formation of the TFG.308 Nor is it clear that any disruption to the peace process in rump Somalia would be measurable. The current product of international reconciliation efforts has not brought peace or stability to Mogadishu, let alone to the rest of Somalia. Western aversion to preempting the AU stems from a desire not to meddle in Africas affairs. During a visit to Somalilands capital in 2000, a French diplomat asked Somaliland government officials to consider what might have happened had African states rushed to recognize Croatia, Slovenia, or Bosnia before European states were ready to [do] so.309 The United States has explicitly relegated the Somaliland question to the African Union.310 Likewise,
Bryden, supra note 289, at 177. See, e.g., Ahmedou Ould-Abdallah, Op-Ed., The Worlds Duty to Somalia, WASH. POST, July 20, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/19/AR2009071901759.html; Khadija O. Ali, Force Wont Bring Peace to Somalia, FOREIGN POLICY IN FOCUS (Jan. 19, 2007), http://www.fpif.org/ articles/force_wont_bring_peace_to_somalia (The United States and the international community have a moral obligation to play a positive role in helping Somalis help themselves.); Speedy Financial Support for Somalia Vital to Give Peace a Chance, UN Warns, UN NEWS CENTER (Oct. 8, 2009), http://www.un.org/apps/ news/story.asp?NewsID=32463&Cr=somali&Cr1. 308 Time for A.U. Leadership, supra note 51, at 19. 309 Bryden, supra note 289, at 175. 310 USA Reportedly Concerned About Political Deadlock in Somaliland, BBC MONITORING AFR., Sept. 5, 2009 ([Former Ambassador Yamamoto] said the United States has nothing to do with the issue of recognition adding that it concerns the United Nations, the African Union, and even Somalis. The envoy said the United States would like to have relations with Somaliland but that it is most appropriate that Hargeysa first of all focuses its efforts on the African Union and the United Nations.); U.S. Department of State: Taken Question Office of the Spokesman, supra note 288 (While the United States does not recognize Somaliland as an independent State, and we continue to believe that the question of Somalilands independence should be resolved by the African Union, we continue to regularly engage with Somaliland as a regional administration
307 306
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the United Kingdom has stated that it is waiting for African countries to recognize Somaliland.311 While it is admirable that non-African states, particularly former colonial states, are reluctant to impose political changes on Africa, the African Union and the Organization for African Unity before ithas had nearly twenty years in which to resolve the Somaliland question.312 In 2005, Somaliland officially applied for membership in the African Union.313 Yet, despite its application, and despite a favorable report from an AU fact-finding mission,314 the African Union has not acted on Somalilands application.315 In that period, though, rump Somalia has only become more unstable and more of a threat to international security: a haven for both al-Qaeda-affiliated Islamists that threaten transnational terrorism and pirates that disrupt international shipping in the Red Sea, Gulf of Aden, and Indian Ocean.316 Continued non-recognition has deleterious consequences for Somaliland. Non-recognition denies Somaliland access to bilateral donor development assistance or the support of international financial institutions.317 It also imperils Somalilands survival.318 The goal of non-recognition may be the termination of the secessionist entities that seek recognition.319 In this case, however, non-recognition ignores the benefits generated by Somaliland. As discussed above, Somaliland does not share rump Somalias instability or rump Somalias abundance of Islamic militants and pirates.320 The most probable outcome of extinguishing Somaliland is an increase in the threats to international security that Somalia currently represents: pirates currently kept at bay by Somalilands coast guard would be able to expand their base of operation around the Horn of Africa; Islamist militants affiliated with al-Qaeda would find even more lawless territory in which to hide, train, prepare, and eventually launch transnational terrorist acts.
and to support programs that encourage democratization and economic development in the Somaliland region.). 311 Lobbyist Urges UK to Recognize Somaliland, BBC MONITORING AFR., Jun. 20, 2009. 312 Sturman, supra note 289, at 78. 313 Id. 314 Id. at 7879; See Time for A.U. Leadership, supra note 51, at 20. 315 See Sturman, supra note 289, at 8182. 316 See supra text accompanying notes 514, 8591. 317 Kibble, supra note 72. 318 See supra text accompanying notes 11417. 319 See, e.g., DAVID RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 114 (2002). 320 See supra text accompanying notes 25866.
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On the other hand, recognizing Somaliland would afford it access to bilateral aid, international financial institutions, and development assistance. Recognition would likely encourage foreign direct investment, including the development of offshore oil and gas fields.321 Outside investment and economic development are in turn likely to contribute to Somalilands survival, preserving the international security largesse it provides. In light of the political nature of recognition, states can be expected to choose recognition when it serves their interests. With regard to Somaliland, its contribution to international security as a bulwark against piracy and al-Qaeda-affiliated militants suggest that it is in the interest of Western states to see it preserved, irrespective of the interests of regional actors like the African Union, Ethiopia, or Egypt. Western states should therefore extend recognition to Somaliland. Additionally, recognition of Somaliland would not violate the proposed duty of non-recognition. Somalilands creation, and its statehood, does not offend the four peremptory norms that impose on the international community a duty to decline to recognize a state. Somaliland is not the product of an illegal act of aggression or the acquisition of territory by means of force. It is not the product of, or subject to, a racist regime. Its creation does not disrupt existing frontiers or principles of territorial integrity like both Katanga and Biafradisruptions that violated the peremptory norm of self-determination within existing borders, imposing a duty of non-recognition on the rest of the international community.322 Nor does Somaliland violate norms of selfdetermination by denying segments of its population participation in government.323 Because Somaliland declared independence unilaterally, without a Somalia-wide referendum approving its separation from the rest of Somalia, Somaliland arguably violated the right of self-determination.324 However, it is not clear that such an approval requirement attaches to instances of dissolution, which Somaliland surely represents.325 Certainly, in the case of Yugoslavia, there was no requirement that the whole population of Yugoslavia approve the independence of Croatia, Slovenia, or Bosnia-Herzegovina. It was sufficient
321 See M.Y. Ali, Hydrocarbon Potential of Somaliland, 24 FIRST BREAK 49 (2006). Currently, foreign investors are reluctant to invest in Somaliland because of its uncertain status and the risk that its potential demisedue to non-recognitionposes. See, e.g., Sturman, supra note 289, at 82. 322 Cf. DUGARD, supra note 139, at 8990. 323 Cf. id. at 97. 324 See generally Franck, supra note 237. 325 Supra text accompanying note 249.
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that the polity of each territory emerging as an independent state from Yugoslavias dissolution approved of that individual territorys independence.326 The population of Somaliland has already approved independencein fact, it has done so at least twice: in 1993, the traditional clan-based structure approved independence and then, in 2001, 97% of Somalilanders approved independence in a referendum.327 C. Somaliland and Secession There is no right of secession in international law. However, there is likewise no prohibition against secession. Accepting this, and recognizing that secessions do occur, we are left to compare Somalilands secession with those secessions that have been successfulthat is, those secessionist entities that have been recognized by the international community and admitted into the community of nations. Like Yugoslavia, the United Arab Republic, and Ethiopia, from 1960 until 1991, the Republic of Somalia was the product of the merger of multiple independent states.328 Whereas in the case of Ethiopia and Eritrea, Eritrea did not achieve statehood through decolonization, Somaliland briefly enjoyed statehood before voluntarily merging with Somalia.329 In this way, Somaliland is more like Croatia and Syria in that those two states also enjoyed independent statehood before subsumption within another state.330 Further, whereas Ethiopia was a state unto itself before it subsumed Eritrea,331 Yugoslavia and the United Arab Republic were created by the merger of their constituent states.332 Likewise, the Republic of Somalia was the product of the merger of independent Somaliland and the newly decolonized Italian Somalia.333 It was
See Badinter Opinion 1, supra note 127, at 16566. Time for A.U. Leadership, supra note 51, at 6. 328 See supra text accompanying notes 3639. 329 LEWIS, supra note 16, at 16062. 330 See JANKOWSKI, supra note 211, at 7378; TRBOVICH, supra note 207, at 8388. 331 While Ethiopia and Eritrea were initially federated in 1952, Ethiopia annexed Eritrea in 1962. IYOB, supra note 191, at 8286. This annexation did not result in the creation of a new state; rather, Ethiopia swallowed Eritrea. Id. at 8788. Eritreans were so dissatisfied with this arrangement that it sparked an armed secessionist movement. Id. at 98101. 332 See supra text accompanying notes 20121. 333 That fact is plainly demonstrated by the history of unification. Somalia and Somaliland came together in an act of unificationSomaliland did not cede itself to Somalia nor did Somalia annex Somaliland. In fact, to underscore that the Republic of Somalia was a new creation and not the continuation of the newly decolonized territory of Somalia, the Act of Union set out, inter alia:
327
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only through the Act of Union, passed by the legislative bodies of both Somaliland and Somalia, that the Republic of Somalia was born.334 It is clear, however, that at least since Siad Barres ouster in 1991, the Republic of Somalia has been without a government able to wield effective authority over its territory. The various transitional governing entities which claim the Republic of Somalias former territory have not been able to exercise even the most basic authority over Mogadishu, let alone the rest of the territory ascribed to them.335 If the Yugoslav state apparatus could be described as unable to wield effective power even though it functioned sufficiently
The State of Somaliland and the State of Somalia do hereby unite and shall forever remain united in a new, independent, democratic, unitary republic the name whereof shall be the Somali Republic. . . . All persons who upon the date of this Union possess the citizenship of Somaliland and Somalia respectively shall by this Union now become citizens of the Somali Republic. . . . All persons who hereafter would, but for this Union, have become citizens of Somaliland or Somalia respectively under the law of either of the two uniting States as presently subsisting, shall hereafter become citizens of the Somali Republic. . . . Upon this Act being made the presently subsisting Legislative Assemblies of Somaliland and Somalia respectively shall cease as such to subsist: but the existing elected members of the said Legislative Assemblies shall constitute the first National Assembly of the Somali Republic. Immediately upon the National Assembly of the Somali Republic being constituted under these provisions, the members thereof shall each before the person presiding over the National Assembly make an oath of allegiance to the Somali Republic. Act of Union, supra note 39, 1(a), 3(1), 3(2), 8(1). By way of comparison, consider M.C. Setalvads discussion of secession with regard to India: The real distinction may lie not in the use of the word Union but in the antecedent, historical background which establishes that the constituent states were at no time independent or autonomous states which entered into a voluntary compact to surrender some of their powers to the general government. The States constituting the Indian Union were thus at no time indestructible states. Having no existences as states anterior to the Constitution they could never claim a right to secede. BUCHHEIT, supra note 166, at 98 n.220. 334 The Act of Union also required a popular referendum confirming unification. This referendum took place on June 20, 1961 and was approved by more than 90% of the vote. LEWIS, supra note 16, at 172. Notably, only 100,000 people voted in former Somaliland and, of these, half rejected unification. LEWIS, supra note 44, at 35. For this reason, some have argued that the Union between Somalia and Somaliland was defective and, therefore, Somalilands secession should be given effect and it should be recognized as an independent state. See, e.g., Brad Poore, Comment, Somaliland: Shackled to a Failed State, 45 STAN. J. INTL L. 117, 140 (2009). However, the Republic of Somalia operated as a unitary state from 1960 until 1991. See supra text accompanying notes 3669. It was also recognized as a state by both the United States and the United Soviet Socialist Republic, among others, and seated as a member state in the United Nations. Press Release, United Nations, United Nations Member States, U.N. Press Release ORG/1469 (July 3, 2006) (reporting Somalias date of admittance to the UN as September 20, 1960). 335 See supra text accompanying note 74.
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enough that its Constitutional Court was still able to issue opinions,336 then certainly the Republic of Somalia, described as an example of complete state collapse, is unable to wield effective power. When forces loyal to the coup plotters took control of the stateby arresting officials loyal to the UAR, taking control of Radio Damascus, and securing its territory to the exclusion of any other authoritythe UAR ceased to wield effective power over Syria.337 The government of Somaliland, however, exercises control and effective authority over the territory that it claims. Somaliland maintains a police force, a judiciary, armed forces, and a civil administration,338 in contrast toand to the exclusion ofthe Transitional Federal Government, or any other entity laying claim to the former Republic of Somalia. In so doing, Somaliland has re-emerged as an independent state. Its re-emergence has, therefore, necessarily dissolved the Republic of Somalia. Dissolution of the Republic of Somalialike the dissolution of Yugoslavia or the dissolution of the United Arab Republicextinguished the Republic of Somalia. As such, as was the case in Yugoslavia and the UAR, there exists no metropolitan state to recognize the re-emergence of Somaliland and Somalia. Moreover, following Yugoslavias example, no such recognition is needed for Somaliland and Somalias independence to be valid. In contrast, Eritrea seceded from EthiopiaEthiopia did not dissolveand it was only with Ethiopias accession that Eritrea became independent.339 From this viewpoint, statements by the various transitional governments of rump Somalia rejecting Somalilands independence are best viewed in the same manner as Serbias claims to be the SFRYs successor state.340 Those transitional governments could only claim Somaliland if they were in fact
TRBOVICH, supra note 207, at 261. See supra text accompanying notes 21621. 338 See supra text accompanying notes 10812. 339 Crawford holds that secession is valid when the metropolitan state has ceased struggling for control of the seceding territory and the state cannot prolong its sovereignty by a mere paper assertion of right. CRAWFORD, supra note 123, at 25657. 340 See, e.g., Somalia: Government Urges Arab League to Reject Somaliland Referendum, BBC WORLDWIDE MONITORING, June 13, 2001, available at ProQuest, Doc. ID 74075035; Somali Leader Denies Plan to Recognize Somaliland, BBC MONITORING AFR., Sept. 5, 2009, available at ProQuest, Doc. ID 1853756061 (Speaking to the media in UAE, President Sharif dismissed the report, saying that Somaliland is a region in Somalia and cannot be recognized as independent state. The president described the report as baseless and stressed that the country cannot be divided, adding that Somalia is one country. He said that both Puntland and Somaliland regions are part of the TFG.); Three Somali Groups Against Secession of Northern Somalia, XINHUA GENERAL NEWS SERV., Jan. 11, 1993, available at 1993 LEXIS 0111009.
337
336
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successors to the Republic of Somalia. However, since the Republic of Somalia dissolved in 1991, those claims, like Serbias, must be rejected. Even if the transitional governments could claim succession from the Republic of Somalia, their claims over Somaliland amount to mere paper assertion[s] of right341insufficient to preserve title over the secessionist entity and prevent dissolution. Somaliland has in fact maintained its independence for nineteen years and no transitional government has even attempted to establish control oflet alone wield effective power overSomaliland. The Republic of Somaliland must therefore be regarded as an independent state. Somalilands re-emergence as an independent state following the dissolution of the Republic of Somaliland follows the pattern laid down by both Yugoslavia and the UAR. Its secession is therefore in line with modern state practice. D. Somaliland and Uti Possidetis Somalilands independence conforms to the doctrine of uti possidetis as it has been applied in Africa. Though uti possidetis began as a principle defining which territories could gain independence through decolonization, in the postcolonial era it has defined what territorial units could emerge as new states through secession or dissolution.342 In Africa, uti possidetis operates to limit emergent states to those territories that existed as colonially administered units.343 Somaliland, like Eritrea and in opposition to Katanga or Biafra, existed as a separate colonial possession.344 Somalilands independence, therefore, conforms to uti possidetis. In fact, Somaliland has an even better claim to satisfaction of uti possidetis than its neighbor Eritrea. Unlike Eritrea, Somaliland underwent the process of decolonization before losing its international personality to a larger entity.345 In this way, Somaliland is more like Syria following the UAR or, arguably, Senegal following the dissolution of Senegambia.346 Each of those states
CRAWFORD, supra note 123, at 25667. See supra text accompanying notes 23343. 343 See supra text accompanying notes 18589. 344 See supra text accompanying notes 2236. 345 See supra text accompanying notes 2236. 346 Senegal and Gambia were briefly united as Senegambia from 1982 to 1989. Henry Hale, DIVIDED WE STAND: Institutional Sources of Ethnofederal State Survival and Collapse, 56 WORLD POL. 165, 184 (2004). Though intended to produce unified administration of the two states, including a single currency, market, and military, perennial Gambian reticence to consummate the union eventually led Senegal to
342
341
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existed as independent states by virtue of decolonization before losing their international personality to some larger entity. In both cases, the larger entity subsequently dissolved and the component states re-emerged within their colonial boundaries, satisfying uti possidetis. There is no question that both Senegal and Syria are independent states. Further, both Senegal and Syrias UAR cognate, Egypt, are member states of the African Unionas is Eritrea.347 Somalilands adherence to its colonial boundaries, then, satisfies the doctrine of uti possidetis as it has been applied in Africa, in post-colonial secessions. CONCLUSION Somaliland is a state that merely lacks recognition. Recognition, however, is a political act and its validity turns on whether the creation of the state to be recognized satisfied norms of international law. Somalilands creation conforms to those norms: it satisfies the four Montevideo Convention criteria of statehood; it gained its independence through dissolution, a species of secession; and its secession conforms to the limiting principle of uti possidetis, requiring territorial adherence to colonial boundaries. Recognizing Somaliland would not violate any imagined African norm that precludes secession. Africa has already witnessed a handful of secessions and dissolutions in the post-colonial era. Moreover, because Somaliland regained its independence in the context of dissolution and in adherence to uti possidetis, its recognition would neither set a new precedent nor justify tribal fragmentation of African states. The only groups that could possibly point to Somaliland as precedent or justification would be those that seek independence for former colonies currently amalgamated in larger states. Such groups, if they exist at all, would hardly open the feared African Pandoras box. Rather, the greatest impact they could have is to return Africa to its status at the very instant of decolonization. Another rejoinder may be that recognition for Somaliland will legitimize an entity like al-Shabaab or another radical al-Qaeda affiliate that exercises de facto control over rump Somalia. Yet, there is little reason to worry over this outcome. The only indigenous Somali entities that have exercised anything approximating de facto control over rump Somalia in the last decade have been
unilaterally withdraw from the project, dissolving Senegambia in 1989. Tijan M. Sallah, Economics and Politics in the Gambia, 28 J. MOD. AFR. STUD. 621, 63944 (1990). 347 AU Member States, AFR. UNION, http://www.africa-union.org/root/au/memberstates/map.htm (last visited Nov. 7, 2010).
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these sorts of al-Qaeda affiliates, but they have not gained legitimacy. Instead, the international community has sanctioned the Transitional National Government and Transitional Federal Government with legitimacy irrespective of their abilities to exercise de facto control over Somalia. It is likely that after recognizing Somalilandand thereby acknowledging that rump Somalia is a separate statethe international community will continue to spurn radical indigenous groups operating in rump Somalia, granting legitimacy to its moderate groups that work with the international community. On balance, then, recognizing Somaliland is likely to contribute to international security and stability by preserving the Republic of Somalilands bulwark against piracy and terrorism without encouraging either ethnic separatism or legitimization of al-Qaeda affiliates. On the other hand, nonrecognition threatens the modicum of international security that Somaliland provides in the Horn of Africa. It does the international community no good to allow rump Somalias lawlessness to spread. Doing so would only exacerbate piracy that already harries international commerce and afford al-Qaeda affiliates yet more freedom of action. These, though, are the likeliest fruits of non-recognition for Somaliland. BENJAMIN R. FARLEY*
* Editor-in-Chief, Emory International Law Review; J.D. Candidate, Emory University School of Law (2011); M.A., The Elliott School of International Affairs, The George Washington University (2007); B.S., cum laude; B.S., University of Massachusetts, Amherst (2005). The author would like to thank Professors Johan D. van der Vyver and Laurie R. Blank, as well as the staff of the Emory International Law Review, for their help and guidance throughout the comment-writing process. The author additionally thanks his family and friends for their support, particularly Parul Nagar, Jason S. Kennedy, Steven J. Merrill, and Brett E. Sterling.

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CALLING A STATE A STATE: SOMALILAND AND INTERNATIONAL RECOGNITION

EMORY INTERNATIONAL LAW REVIEW

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

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CALLING A STATE A STATE

EMORY INTERNATIONAL LAW REVIEW

CALLING A STATE A STATE

EMORY INTERNATIONAL LAW REVIEW

CALLING A STATE A STATE

EMORY INTERNATIONAL LAW REVIEW

CALLING A STATE A STATE

EMORY INTERNATIONAL LAW REVIEW

CALLING A STATE A STATE

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