Benjamin R. Farley, Calling a State a State: Somaliland and International Recognition

• Citation: Vol. 24 No. 2
• Publication year: 2010

CALLING A STATE A STATE: SOMALILAND AND INTERNATIONAL RECOGNITION

INTRODUCTION

The Republic of Somaliland declared its independence in 1991,¹presenting 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.²Yet, the Republic of Somaliland has survived to become a relatively stable and democratic state.³Its endurance continually renews the question of recognition for Somaliland. Today, that question's 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 community's refusal to recognize Somaliland threatens the survival of that state, and the modicum of stability and international security it represents-a 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,⁴threats to international security have festered in its ungoverned space. For example, pirates based in rump Somalia have so proliferated⁵that, 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.⁷In 2009, pirates based in Somalia were responsible for 218 attacks.⁸One ship, the Maersk Alabama, was attacked and hijacked in April 2009. It was freed later that month-only to be attacked again in November 2009.⁹Pirates 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-Qaeda's global jihad.¹⁰The al-Qaeda-affiliated group al- Shabaab now controls south and central Somalia, including most of Mogadishu.¹¹On July 11, 2010, al-Shabaab launched its first transnational terror operation: two suicide bombers killed seventy-six people in Kampala, Uganda.¹²In Somaliland, though, pirates and suspected terrorists do not find safe haven. Instead, Somaliland's nascent coast guard pursues pirates,¹³and 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 Somaliland's secession from the Republic of Somalia: its colonial history, its union with Somalia as the Republic of Somalia, that union's dissolution, and the recent history of both Somaliland and rump Somalia. Part II discusses the legal concepts that bear on Somaliland's 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,¹⁵a way station integral to the Empire's 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 power-regional or global-to establish itself in the

Horn of Africa.¹⁶To 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.¹⁷The frontiers of British Somaliland were delineated by an 1888 Anglo-French treaty and by an 1894

Anglo-Italian Protocol.¹⁸Finally, 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]dministration's aims were extremely modest, and restricted in fact to little more than the maintenance of effective law and order."²⁰Lewis 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

At the outset of World War II, Italy conquered Ethiopia and captured British Somaliland.²²By 1942, Britain had liberated Ethiopia and British Somaliland, and captured Italian Somalia.²³While Britain established military administrations in both Italian Somalia and British Somaliland, the two territories were administered separately until Somalia was returned to Italy in

1949.²⁴After British Somaliland returned to civil administration in 1948, the gradual process of decolonization began.²⁵This process accelerated in 1956 after the British withdrew from contested portions of neighboring Ethiopia.²⁶

Beginning in 1958, Somalilanders began replacing British expatriates in Somaliland's administrative institutions.²⁷In the spring of 1960, Somaliland held elections introducing ministerial government.²⁸The new Somaliland legislative council passed a resolution requesting independence on April 6,

1960.²⁹Sixteen days later, representatives from British Somaliland and Italian Somalia agreed in principle that the two states should be unified upon independence.³⁰Despite the indigenous plans to unify, Britain focused on preparing British Somaliland for independence as a solitary state.³¹On June

26, 1960, a British Order in Council set out the constitution of the independent state of Somaliland.³²That constitution entered into force at Somaliland's independence and defined its government's structure.³³On June 26, 1960, British Somaliland became an independent state.³⁴It was recognized by thirty- five states, including the United States and Israel.³⁵

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.³⁶That day, the legislatures of both states met jointly in Mogadishu to officially unite as the Republic of Somalia.³⁷Each state's legislature enacted, separately, an Act of Union.³⁸

Somaliland's 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."³⁹Likewise, the members of Somaliland's legislature and the members of Somalia's legislature were all made members of the "National Assembly" of the Somali Republic.⁴⁰While the constitution of the Republic of Somalia labeled Somalia a unitary state,⁴¹separate 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.⁴³Shermarke's presidency was cut short when a member of his personal guard assassinated him on October 15, 1969.⁴⁴Following President Shermarke's assassination, a cadre of Somali army officers took control of the country.⁴⁵Ultimately, Siad Barre emerged as the leader of the newly renamed Somali Democratic Republic.⁴⁶President Barre's rule brought huge works projects, modernization efforts, and attempts to unify the Somali administration's two components.⁴⁷It also brought a disastrous war with Ethiopia as Barre attempted to satisfy Somali irredentism.⁴⁸Heavy 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").⁵⁰Despite their clan-based origins, these armed groups nursed national rather than parochial ambitions.⁵¹Throughout the 1980s, the SNM and the other militant groups challenging the Barre regime pursued low- level insurgencies.⁵²These insurgent activities, particularly the SNM's activities, provoked reprisals generally directed at the civilian population of Somalia.⁵³As his regime weakened, Barre became more insular, relying more on his own clan and lashing out against the rest of Somalia.⁵⁴

Barre's efforts to secure his regime in 1988 contributed directly to the ultimate collapse of Somalia.⁵⁵Through a peace settlement, Ethiopia agreed to shutdown the SNM bases it harbored.⁵⁶Denied their safe havens, the SNM launched an offensive in the north of Somalia.⁵⁷At the same time, Ogadeni Somali soldiers-recruited from within Ethiopia to pursue Greater Somalia mutinied-believing Barre's peace with Ethiopia to be an act of betrayal.⁵⁸In

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 regime's declining control of Somalia.⁶⁰By January 1991, Somalia's multi- factional civil war had destroyed the institutions of the Somali state.⁶¹While the SNM established control over former British Somaliland, the USC drove Barre from Mogadishu.⁶²

Barre's 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.⁶³In 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 Mahdi's declaration violate agreements between the USC and the SNM, it divided the USC in two.⁶⁵In 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.⁶⁶While the USC hosted the reconciliation conference known as Djibouti I, the SNM hosted a gathering of...