Manufacturing territorial integrity with the International Court of Justice: the Somaliland-Puntland dispute and uti possidetis.

• Published date: 22 December 2012
• Author: Farrell, Michael
• Date: 22 December 2012

INTRODUCTION

"[T]he bias [in] existing law is towards stability, the status quo, and the present effective possession; the tendency of international courts is to let sleeping dogs lie. This is right, for the stability of territorial boundaries must always be the ultimate aim." (1) This sentiment asserted by Professor Jennings is certainly valid regarding internationally recognized nation-states. (2) In other cases, however, international courts must "devise a legal regime" to solve border disputes among unrecognized territories, (3) commonly referred to as "de facto states" or "quasi-states." (4) Yet, quasi-states are currently unable to procure declarative judgments from the institution that traditionally governs border disputes, the International Court of Justice ("ICJ"). (5)

Somaliland, being a quasi-state, is therefore unable to petition the ICJ for a resolution to its border dispute with Puntland. (6) The international community, however, has a demonstrated interest in resolving this quarrel, (7) as Somaliland and Puntland are fairly stable bourgeoning democracies, while their "parent state," Somalia, exists in utter disarray. (8) Somalia's internal government has been consistently marred with severe corruption, (9) resulting in an austere lack of international credibility (10) and pervasive bouts of civil violence. (11) This Note argues that the most logical resolution to the clashes between Somaliland and Puntland can be found in the ICJ's legal mechanisms for solving international border disputes, most notably uti possidetis. (12) The Court's jurisprudence can be applied to render a temporary ruling on the location of Somaliland's frontier, with the prospect of stabilizing the disputed territory until a permanent solution is developed for co-existence with a federalized Somalia.

Part I of this Note will begin by exploring the territorial history of Somalia. Part II will introduce quasi-states and their treatment within the international community. Part III will detail the legal regime used by the ICJ to solve border disputes, specifically the doctrine of uti possidetis. Finally, Part IV will apply the ICJ's border-resolving mechanisms to the Somaliland-Puntland dispute.

1. A BRIEF TERRITORIAL HISTORY OF SOMALIA

A. Colonial Somalia

In order to adequately examine Somalia's history of territory and politics, one must become familiar with its clan system. (13) There are five major clan families dispersed throughout several overlapping ethnic and administrative regions in Somalia. (14) The clans especially pertinent to this Note are the Isaq (15) and the Harti. (16) The territorial dissemination of these clan families inevitably resulted in their initial citizenship among the European powers that began colonizing African lands in the late nineteenth century through both peaceful and violent means. (17)

Following the battle of Adowa in 1896, (18) Britain, (19) France, (20) Italy, (21) and Ethiopia (22) demarcated colonial borders in Somalia. (23) These borders would essentially remain intact (24) until the conclusion of World War II. (25) Following the United Nations' post-war negotiations with Ethiopia, Great Britain, and Italy, it was agreed that Great Britain would retain its original territory in the Northwest as a separate entity (26) while Italy would control the remainder of its former colony in the East. (27) This demarcation and the subsequent colonial administrations (28) contributed greatly to the major conflicts between Somaliland and Puntland.

B. Temporary Independence, Civil War, and a New Somaliland

As the United Nations agreement required, (29) decolonization in Somaliland and Somalia was set to commence in 1960. (30) Due to administrative differences, the British Somaliland Protectorate was granted independence from Great Britain on June 26, 1960, (31) while the Somalia Trusteeship became independent from Italy on July 1, 1960. (32) For those five days, Somaliland and Somalia existed as separate entities. The two states then effectively merged and became known simply as Somalia. There is contention over the legality of this process, especially among the Somaliland population. In fact, half of northern Somali citizens (formerly of British Somaliland) voted in a provisional referendum against the new constitution that purported to unite the former colonies. (33)

Following the Somali unification, former Somaliland citizens were not adequately represented (34) in the almost uniformly biased central government, (35) with northern political alienation intensifying after Major-General Mohamed Siyad Barre led a successful military coup in 1969. (36) in response, members of the Isaq clan in northern regions (37) formed a resistance party known as the Somali National Movement ("SNM"). (38) Clashes between government security forces and the SNM led to a Somali civil war that eventually drove Barre out of the country in 1991. (39) A rival faction quickly installed itself as the de facto Somali government, however, angering the Isaq clan and ultimately influencing the SNM's decision to secede. (40) The SNM and a collective of northern clans met in Berbera to discuss the idea of an independent Somaliland (41) and formally declared independence (42) in May 1991 at the Burco "Grand Conference of the Northern Peoples," (43) with a resolution (44) that based its territory on the original colonial borders inherited from the British. (45) The conference predicated the new territorial borders on the notion that the Act of Union was not properly passed, and thus, post-colonial British Somaliland and Italian Somalia were never truly a unified state, which provided a legal basis for their resolution. (46) Subsequent negotiations between the two states have since been futile. (47)

C. The Puntland State of Somalia

In 1997, the remaining factions in Somalia met to formulate a new Somali state structure. (48) The northeast territory, primarily composed of the Harti clan and the Somali Salvation Democratic Front ("SSDF"), was provisionally known as Puntland. (49) After observing the administrative disorganization in the southern Somali territories, (50) Puntland representatives instead sought to establish the territory as an autonomous regional state, though they did not seek independence or international recognition. (51) In slight contrast to the SNM in Somaliland, the SSDF was unable to cohesively install itself as Puntland's interim government, and as such, the State primarily relied on clan leadership. (52) Because "ethnic" clan borders do not coincide with territorial or administrative borders, the true extent of Puntland's western territory remains unsettled. (53) Finally, while Puntland vows to rejoin Somalia upon federalization, (54) its government quickly renounced the recent unilateral extension of Somalia's current parliament, (55) further weakening regional ties between the two polities. (56)

In summary, disparate territorial clan membership and relics of European imperialism have resulted in divergent identities among Somaliland, Puntland, and southern Somalia. These ethnic and regional differences grew to become the seeds of conflict that contributed to both the outbreak of the Somali civil war and the subsequent break-up of Somalia into three distinct political entities: a dysfunctional nation-state, a semi-autonomous regional state, and an independently governed quasi-state.

II. QUASI-STATES IN THE INTERNATIONAL COMMUNITY

Quasi-states (57) are states that are "not accepted by the international community as legitimate [because they have] seceded from a recognized state that does not accept this loss of territory." (58) The Montevideo Convention on the Rights and Duties of States sets forth four requirements for statehood: "a permanent population, a defined territory, a government, and a capacity to enter into relations with other states." (59) While quasi-states do generally have a fixed population and in many instances may have a functioning government, (60) their territorial boundaries are disputed as illegal, (61) and recognized states refuse to engage in normal international relations with them. (62) Because quasi-states are unable to engage in such diplomatic discourse with recognized states, including their parent states, they are unable to pass treaties that define and stabilize their boundaries.

According to the ICJ's governing statute, "only states may be parties in cases before the Court." (63) Because quasi-states are not considered proper "states," they are unable to participate as a legal party in the Court system. (64) As such, quasi-states are denied both contractual (i.e. treaty-based) and judicial remedies concerning border resolution. Recognized states, however, are able to petition the Court for an advisory opinion on any matter, and could therefore request an opinion regarding a quasi-state that has attempted to secede from its parent state. (65) If the Court accepted such an advisory opinion request, it could gather evidence through communication with political members of the quasi-state, (66) and in some cases, it could eventually rule on both the sovereignty of a newly formed de facto state and the integrity of its borders. (67)

III. BORDER-RESOLVING MECHANISMS IN THE INTERNATIONAL COURT OF JUSTICE

According to the ICJ Statute, the Court will analyze disputes based on several broad principles. The most important of these principles are treaties, and to a lesser extent, international custom. (68) No legally effective treaties recognized by international actors, however, pertain to quasi-states. Therefore, quasi-states must rely on other theories, namely uti possidetis and effective control. (69)

A. The Evolution of Uti Possidetis

The modern doctrine of uti possidetis derives from the ancient Roman law of jus civile, in which it was termed "uti possidetis ita possidetis," meaning "as you possess, so you possess." (70) Although the widespread utilization of the doctrine for border...