Somaliland: Piracy and Recognition
19th December
by Lisa Magloff
The international attention on piracy in the Gulf of Aden has given the Somaliland’s search for recognition a new lease on life. Last week, the government of Somaliland again offered the international community use of its ports and coastline in launching anti-piracy patrols in the Gulf, once again highlighting Somaliland’s Quixotic quest for recognition as an independent state and the unusual situation which sees the one relatively stable proto-democracy in the region denied statehood.
Many people profess to be perplexed at this anomaly, but they should not be. Independence does not rely solely on whether it is deserved, but on the existing realpolitik. Sadly for Somaliland, they fall between the cracks in international law and cannot win the argument for de jure recognition while Somalia remains without a viable government, so they must instead push for de facto recognition – which no one is willing to offer.
Somaliland voluntarily joined in a union with Somalia (and was actually an independent State for five days) under Chapters XI and XII of the UN Declaration on the Granting of Independence to Colonial Countries and Peoples, but there is no such clear mechanism in international law for severing such a union or for recognizing the legitimacy of a unilateral declaration of independence from a non-colonial territory, or even for establishing the criteria under which a unilateral declaration of independence may be considered legal. The doctrine of continuity ensures that the predecessor state is considered the legitimate power until such time as it gives up its rights – no matter what condition that predecessor state may be in.
It is widely accepted that there exists a legal duty not to recognize as a state an entity which claims statehood on the basis of acts which are illegal. This principle, that an entity claiming statehood on the basis of unlawful acts must, as a matter of law, be denied recognition, has been supported in state practice. However, while international law regards the legal requirements for statehood as necessary prerequisites for recognition, there is no concomittant duty to recognize. This is left up to individual states to determine.
In fact, recognition has two aspects. Objectively, it takes note of the State’s existence as a subject of international law; subjectively, it implies that the conditions under which the State established itself are not contrary to the rights or interests of the recognizing state.
The situation is thus relatively clear—when the predecessor state still exists. Yet the situation is considerably muddied when the predecessor state has either ceased to exist or has completely lost control of the territory seeking to break away. The onus is entirely on the breakaway state to show that it has emerged in a lawful manner. International law presumes that an existing state, which was established legally, has the right to continue in its current form, no matter what events unfold inside its state boundaries.
The emergence of the sucessor states of the former Yugoslavia is the only case since 1971 in which new states have emerged in a non-colonial context against the continued opposition of an existing government and there are clear parallels with Somaliland.
The international response to the Yugoslav crisis was largely articulated through the Conference on Yugoslavia, established on 27 August 1991 by the European Communities. The Conference established an Arbitration Commission to advise it on legal issues in relation to the crisis. The Commission provided the underlying legal rationale for the positions taken by the members of the European Community and eventually by most members of the United Nations.
In 1991 the Arbitration Commission considered the question of whether Yugoslavia still met the criteria for statehood. In its Opinion No 1, dated 29 November 1991, the Commission expressed the view that the main legal questions in relation to the situation in Yugoslavia involved the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) and the consequent emergence of its constituent republics as independent states.
“Consequently, the Arbitration Committee is of the opinion:
- that the Socialist Federal Republic of Yugoslavia is in the process of dissolution;
- that it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law, with particular regard for human rights and the rights of peoples and minorities;
- that it is up to those Republics that so wish, to work together to form a new association endowed with the democratic institutions of their choice.”
Yet throughout 1991 the European Community refused to recognise Slovenia or Croatia and relied instead on finding a solution which would keep Yugoslavia as a single state.
The EC Guidelines on Recognition of New States in Eastern Europe and in the Soviet Union of 16 December 1991 contained a series of legal requirements, including the declaration by the new states aspiring for recognition that they accept various international legal obligations. Yet the guidelines disregarded the criteria of effectiveness of the governments of the states which were aspiring for recognition.
Thus, Slovenia which had fulfilled all traditional criteria since July 1991 remained unrecognized by the EC until mid January 1992, and by the USA until April 1992. Macedonia, which had fulfilled the criteria from the end of 1991, remained unrecognized for a much longer period (due to a dispute over its name with Greece). On the other hand, Bosnia and Herzegovina - while unable to fulfil the criterion of effectiveness - was admitted to the UN on 22 May 1992 (at the same time as Slovenia and Croatia, Macedonia was admitted on 8 April 1993).
Crucially, none of the constituent republics was admitted to the United Nations prior to the adoption by Serbia-Montenegro on 27 April 1992 of a new Constitution, which clearly implied renunciation of any territorial claim to the territory of the other republics.
While Somaliland clearly has the right to negotiate secession from Somalia, absent some form of government in Somalia willing and able to negotiate, the UN will be reluctant to recognize Somaliland as an independent State. As all players in the south have repeatedly stated they will not accept Somaliland’s claim to independence in the event they were able to form a viable government, Somaliland must therefore find another way to become a recogized State.
The case of Bangladesh is useful here. Despite overwhelming support for the plight of the people of East Bengal, India was the only country to recognize the state independence prior to the surrender of Pakistans troops. General Assembly resolution 2793 (XXVI) made no mention of the right of self-determination. In fact, the Security Council took no action at all until after December 16, 1971, when it called for a withdrawal of “all armed forces to their respective territories,” with emphasis on the “western theatre” (ie Pakistan).
What is clear is that the UN was unprepared to officially recognize the legality of Bangladesh without the agreement of the predecessor state, despite the fact that many individual states recognized Bangladesh’s independence prior to 1974. It was equally clear, however, that many states were willing to recognise Bangladesh before this. What led some states to recognize Bangladesh in advance of its being accepted into the UN while others did not? Largely Realpolitik—was the state an ally of India or Pakistan?
In absence of recognition by the UN, Somaliland must find a way to convince enough individual States to accept its status that it becomes a fait accompli. And it is here that Somaliland falters, because there is no compelling reason for anyone to yet recognize Somaliland.
While Somaliland has many supporters in the US government (particularly in Defense), the US cannot be the first to recognize Somaliland (although they have been supporting the government with small amounts of money to train parlimentarians and others involved in the democratic process). This would not serve Somaliland – which has already been painted as a Western stooge by Sheikh Hassan Dahir Aweys and his radical Alliance for the Re-liberation of Somalia. Further, the Arab League and the African Union are heavily invested in attempts to form a government in the south, and the AU is also terrified of wedging open the Pandora’s Box of self-determination.
While there are many excellent policy, defense and humanitarian reasons to recognize Somaliland, there are also many reasons for caution. One is Somaliland’s ongoing, and increasingly violent, dispute with Puntland, which claims part of Somaliland’s territory and opposes the breakup of Somalia. Placing foreign troops in Somaliland to engage in operations in Puntland places those troops in the middle of a territorial dispute they are not mandated to settle.
Another is that recognition by either the West or the African Union would play directly into the hand of Aweys, whose fatwa against Somaliland has already resulted in the suicide bombing of the presidential palace, the Ethiopian consular and trade mission, and regional offices of the United Nations Development Programme (UNDP) in Hargeisa. Analysts believe the attackers were sent by the al-Shabaab faction, led by Mukhtar Robow and Ahmad Abdi Godane.
No, Somaliland’s best bet is to convince the Saudis that they are best placed to bring stability to the region. But recognizing a secular, democratic State in their backyard may be a tall order for the Saudis. As long as Somliland continues on the path of democracy and continues to provide a stable port in turbulent Horn, they have a shot with the West, convincing their putative allies in the Arab world may be much more difficult.
“We are a de facto state," Foreign Minister Duale said. “We will stay the course. We know that one brave country will ... recognise our independence. History will put the Somaliland state where it belongs.”
Somaliland clearly has an excellent case to make for official international recognition. But until there is a workable international plan for a solution encompassing all of the former Somalia, the little country that could is going to have to work on recognition by the backdoor, and that is not likely unless the AU or the Saudis can be convinced that recognizing Somaliland is in everyone’s best interest.
Lisa Magloff is a graduate of the MA in International Boundary Studies programme at King's College London and continues to maintain a keen eye on developments in the Horn of Africa
by Lisa Magloff
The international attention on piracy in the Gulf of Aden has given the Somaliland’s search for recognition a new lease on life. Last week, the government of Somaliland again offered the international community use of its ports and coastline in launching anti-piracy patrols in the Gulf, once again highlighting Somaliland’s Quixotic quest for recognition as an independent state and the unusual situation which sees the one relatively stable proto-democracy in the region denied statehood.
Many people profess to be perplexed at this anomaly, but they should not be. Independence does not rely solely on whether it is deserved, but on the existing realpolitik. Sadly for Somaliland, they fall between the cracks in international law and cannot win the argument for de jure recognition while Somalia remains without a viable government, so they must instead push for de facto recognition – which no one is willing to offer.
Somaliland voluntarily joined in a union with Somalia (and was actually an independent State for five days) under Chapters XI and XII of the UN Declaration on the Granting of Independence to Colonial Countries and Peoples, but there is no such clear mechanism in international law for severing such a union or for recognizing the legitimacy of a unilateral declaration of independence from a non-colonial territory, or even for establishing the criteria under which a unilateral declaration of independence may be considered legal. The doctrine of continuity ensures that the predecessor state is considered the legitimate power until such time as it gives up its rights – no matter what condition that predecessor state may be in.
It is widely accepted that there exists a legal duty not to recognize as a state an entity which claims statehood on the basis of acts which are illegal. This principle, that an entity claiming statehood on the basis of unlawful acts must, as a matter of law, be denied recognition, has been supported in state practice. However, while international law regards the legal requirements for statehood as necessary prerequisites for recognition, there is no concomittant duty to recognize. This is left up to individual states to determine.
In fact, recognition has two aspects. Objectively, it takes note of the State’s existence as a subject of international law; subjectively, it implies that the conditions under which the State established itself are not contrary to the rights or interests of the recognizing state.
The situation is thus relatively clear—when the predecessor state still exists. Yet the situation is considerably muddied when the predecessor state has either ceased to exist or has completely lost control of the territory seeking to break away. The onus is entirely on the breakaway state to show that it has emerged in a lawful manner. International law presumes that an existing state, which was established legally, has the right to continue in its current form, no matter what events unfold inside its state boundaries.
The emergence of the sucessor states of the former Yugoslavia is the only case since 1971 in which new states have emerged in a non-colonial context against the continued opposition of an existing government and there are clear parallels with Somaliland.
The international response to the Yugoslav crisis was largely articulated through the Conference on Yugoslavia, established on 27 August 1991 by the European Communities. The Conference established an Arbitration Commission to advise it on legal issues in relation to the crisis. The Commission provided the underlying legal rationale for the positions taken by the members of the European Community and eventually by most members of the United Nations.
In 1991 the Arbitration Commission considered the question of whether Yugoslavia still met the criteria for statehood. In its Opinion No 1, dated 29 November 1991, the Commission expressed the view that the main legal questions in relation to the situation in Yugoslavia involved the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) and the consequent emergence of its constituent republics as independent states.
“Consequently, the Arbitration Committee is of the opinion:
- that the Socialist Federal Republic of Yugoslavia is in the process of dissolution;
- that it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law, with particular regard for human rights and the rights of peoples and minorities;
- that it is up to those Republics that so wish, to work together to form a new association endowed with the democratic institutions of their choice.”
Yet throughout 1991 the European Community refused to recognise Slovenia or Croatia and relied instead on finding a solution which would keep Yugoslavia as a single state.
The EC Guidelines on Recognition of New States in Eastern Europe and in the Soviet Union of 16 December 1991 contained a series of legal requirements, including the declaration by the new states aspiring for recognition that they accept various international legal obligations. Yet the guidelines disregarded the criteria of effectiveness of the governments of the states which were aspiring for recognition.
Thus, Slovenia which had fulfilled all traditional criteria since July 1991 remained unrecognized by the EC until mid January 1992, and by the USA until April 1992. Macedonia, which had fulfilled the criteria from the end of 1991, remained unrecognized for a much longer period (due to a dispute over its name with Greece). On the other hand, Bosnia and Herzegovina - while unable to fulfil the criterion of effectiveness - was admitted to the UN on 22 May 1992 (at the same time as Slovenia and Croatia, Macedonia was admitted on 8 April 1993).
Crucially, none of the constituent republics was admitted to the United Nations prior to the adoption by Serbia-Montenegro on 27 April 1992 of a new Constitution, which clearly implied renunciation of any territorial claim to the territory of the other republics.
While Somaliland clearly has the right to negotiate secession from Somalia, absent some form of government in Somalia willing and able to negotiate, the UN will be reluctant to recognize Somaliland as an independent State. As all players in the south have repeatedly stated they will not accept Somaliland’s claim to independence in the event they were able to form a viable government, Somaliland must therefore find another way to become a recogized State.
The case of Bangladesh is useful here. Despite overwhelming support for the plight of the people of East Bengal, India was the only country to recognize the state independence prior to the surrender of Pakistans troops. General Assembly resolution 2793 (XXVI) made no mention of the right of self-determination. In fact, the Security Council took no action at all until after December 16, 1971, when it called for a withdrawal of “all armed forces to their respective territories,” with emphasis on the “western theatre” (ie Pakistan).
What is clear is that the UN was unprepared to officially recognize the legality of Bangladesh without the agreement of the predecessor state, despite the fact that many individual states recognized Bangladesh’s independence prior to 1974. It was equally clear, however, that many states were willing to recognise Bangladesh before this. What led some states to recognize Bangladesh in advance of its being accepted into the UN while others did not? Largely Realpolitik—was the state an ally of India or Pakistan?
In absence of recognition by the UN, Somaliland must find a way to convince enough individual States to accept its status that it becomes a fait accompli. And it is here that Somaliland falters, because there is no compelling reason for anyone to yet recognize Somaliland.
While Somaliland has many supporters in the US government (particularly in Defense), the US cannot be the first to recognize Somaliland (although they have been supporting the government with small amounts of money to train parlimentarians and others involved in the democratic process). This would not serve Somaliland – which has already been painted as a Western stooge by Sheikh Hassan Dahir Aweys and his radical Alliance for the Re-liberation of Somalia. Further, the Arab League and the African Union are heavily invested in attempts to form a government in the south, and the AU is also terrified of wedging open the Pandora’s Box of self-determination.
While there are many excellent policy, defense and humanitarian reasons to recognize Somaliland, there are also many reasons for caution. One is Somaliland’s ongoing, and increasingly violent, dispute with Puntland, which claims part of Somaliland’s territory and opposes the breakup of Somalia. Placing foreign troops in Somaliland to engage in operations in Puntland places those troops in the middle of a territorial dispute they are not mandated to settle.
Another is that recognition by either the West or the African Union would play directly into the hand of Aweys, whose fatwa against Somaliland has already resulted in the suicide bombing of the presidential palace, the Ethiopian consular and trade mission, and regional offices of the United Nations Development Programme (UNDP) in Hargeisa. Analysts believe the attackers were sent by the al-Shabaab faction, led by Mukhtar Robow and Ahmad Abdi Godane.
No, Somaliland’s best bet is to convince the Saudis that they are best placed to bring stability to the region. But recognizing a secular, democratic State in their backyard may be a tall order for the Saudis. As long as Somliland continues on the path of democracy and continues to provide a stable port in turbulent Horn, they have a shot with the West, convincing their putative allies in the Arab world may be much more difficult.
“We are a de facto state," Foreign Minister Duale said. “We will stay the course. We know that one brave country will ... recognise our independence. History will put the Somaliland state where it belongs.”
Somaliland clearly has an excellent case to make for official international recognition. But until there is a workable international plan for a solution encompassing all of the former Somalia, the little country that could is going to have to work on recognition by the backdoor, and that is not likely unless the AU or the Saudis can be convinced that recognizing Somaliland is in everyone’s best interest.
Lisa Magloff is a graduate of the MA in International Boundary Studies programme at King's College London and continues to maintain a keen eye on developments in the Horn of Africa