Legal Case of Somaliland
Legal Case of Somaliland#
Legal Case of Somaliland#
‘Politically, Somalilanders entered the merger at a disadvantage. Despite Somaliland’s preference that a single Act of Union is agreed to by both governments prior to the merger, this fundamental step was never taken. A presidential decree entitled the “Law of Union of the State of Somaliland and Somalia” submitted to the combined legislatures failed to win their approval, and the matter was ultimately referred to the people in a problematic referendum. Somaliland’s Prime Minister was assigned the relatively junior post of Minister of Education in a cabinet heavily dominated by southerners. Likewise, Somaliland was allocated only 33 seats in parliament versus 99 for the south. The designation of Muqdisho as the remote national capital left the majority of Somalilanders estranged from their new government and alienated from the country’s social and economic nucleus’.
Somaliland officially attained its independence from Britain on June 26, 1960.
Prior to attaining independence on 26 June 1960, Somaliland was very much interested in pursuing the dream of a Greater Somali State encompassing all the territories inhabited by people of Somali ethnic origin. After discussions in 1960, Representatives of Somaliland and Somalia agreed that an Act of Union will be signed by both states on independence and that this document will be in the nature of an international agreement between the two states.
Pursuant to the understanding between the politicians of the two states of Somaliland and that of Somalia, the legislative assembly of Somaliland immediately signed an Act of Union and a Somalia Law on June 27 into law, a day after the state attained full independence, paving the way for a union with Somalia upon independence. This was to have been discussed with their counterparts, updated, amended and, after signature by both parties, should have been adopted as the new United States’ Act of Union to be submitted to a joint national assembly once the two separate council came together on their first sitting. Instead, the Somalia assembly convened on June 30 and passed an act of their own written in the Italian language called Atto di Unioni.
Starkly contradicting the understanding between the two sides, the two assemblies got convened without a signature of an Act of Union on 1 July 1960. A provisional president was elected by an Assembly whose members outnumbered the dissenting
voices of those from Somaliland by 3:1 - a step that presaged ‘what was to happen again and again in the relationship between Somaliland and Somalia, the newly elected provisional President than issued on the same day a decree-law aiming to formalize the union’ 44 in direct violation of all principles agreed upon before the two sides came together. This decree, too, was never presented to the joint, legally ‘unlawful’ assembly to turn into law.
Reference
- Self-Portrait of Somaliland: Rebuilding from the Ruins, Somaliland Centerfor Peace & Development 1999.- Somaliland & Somalia: The 1960 Act Of Union – An early lesson for Somaliland, Dr. Ibrahim Hashi, http://www.somalilandlaw.com/ Somaliland_Act_of_Union.htm
- Somaliland & Somalia: The 1960 Act of Union – An early lesson for Somaliland, Dr. Ibrahim Hashi, http://www.somalilandlaw.com/ Somaliland_Act_of_Union.htm
Contini stated that “the Union of Somaliland and Somalia Law did not have any legal validity in the South (Somalia) and the approval “in principle” of the Atto di Unione was not sufficient to make it legally binding in that territory.”
Eugene Cotran, in his book, The Law of Marriage and Divorce , writes that:
a. The Union of Somaliland and Somalia Law, and the Somalia Act of Union were both drafted in the form of bilateral agreements, but neither of them was signed by the representatives of the two territories.
b. The Union of Somaliland and Somalia Law purported to derogate in some respects from the Constitution of the Somali Republic.
c. The Somalia Act of Union was partially approved “in principle” but never enacted into law.
d. The decree-law of July 1, 1960, did not come into effect since it was not converted into law in accordance with the Constitution.”
Six months after a ‘union’ of the two states was forced – where one had a decided domination, supremacy, and with the other no where to back to, ‘a new Act of Union was put to the National Assembly, and promulgated on 31 January 1961. This Law entitled the “Act of Union” was made retrospective even though there is a generally accepted principle that laws should not be retroactive.’
More than 35 countries, besides Great Britain welcomed the new state immediately. Israel, Libya, the Unites States were among the first to either send in their congratulatory messages or declare diplomatic recognition.
These ‘states, including members of the permanent members of the Security Council acknowledged its independence immediately, and the United Kingdom signed several bilateral agreements with Somaliland which were deposited at the United Nations under article 102 of the UN Charter. The new state called the State of Somaliland was a fully-fledged sovereign state under international law.’
The separation of states that entered into unions but again reverted into their former states on time of independence has precedents in Africa: Egypt and Syria were joined as the United Arab Republic (1958 - 1971). Senegal and Mali were united as the Fédération du Mali (1959 - 1960). Senegal and Gambia were merged in the Séné-Gambia Confederation (1982 - 1989). Eritrea officially separated from Ethiopia in 1993, Sudan and South Sudan .2011.
Expert Opinion, Justification of Restoration of Sovereignty#
International law and expert opinion support the Republic of Somaliland’s legal case:
Somaliland comprises the territory, boundaries, and people of the former British Somaliland Protectorate defined and delimited by the provisions of the following international treaties: the Anglo-French Treaty of 1888; the Anglo-Italian Protocol of 1894; and the Anglo-Ethiopian Treaty of 1897.
As AU noted that Somaliland is not subject to opening the Pandora’s Box due to these comprehensive International Treaties entered during the formation of Somaliland British Protectorate adding the failure of both sides – Somaliland and Somalia to ratify Act of Union in 1960, rejection of Somali Republic constitution in 1961 by the people of Somaliland and other international instruments that promote selfdetermination of peoples as United Nations charter, Somaliland people have every right to reinstate their sovereignty lost in 1960.
The republic of Somaliland possesses all the main criteria for statehood as set by the 1933 Montevideo Convention, generally considered a norm of customary international law:
- The State as a person of international law should possess the following qualifications: (a). a permanent population; (b). a defined territory; (c). government; and (d). capacity to enter into relations with the other states.”
It is undeniable that Somaliland does indeed qualify for statehood, and it is incumbent on the international community to recognise it... Any efforts to deny or delay would not only put the international community at risk of ignoring the most stable region in the Horn, it would impose untold hardship upon the people of Somaliland due to the denial of foreign assistance that recognition entails.” - Legal opinion issued by the South African Department of Foreign Affairs (29 April 2003)
Somaliland fulfils all “the normative criteria of statehood as they have traditionally been applied in international law.” A Yannis
“Somaliland has a very good case for legal recognition under the rules of the Organisation of African Unity and, more recently, under those of the African Union.” Michael Walls & Steve Kibble
Somaliland’s independence restores the colonial borders of the former British Protectorate of Somaliland and therefore does not violate the principle of uti possidetis – that former colonial borders should be maintained upon independence – which is enshrined in the Consultative Act of the African Union.
- Moreover, the then provisional Somalia President of 1960, Adan Abdulle Osman, applied on 1 July 1960 for membership to the United Nations, through its Security Council, and subsequently registered as such by the General Assembly in September 1960, a ‘Republic of Somalia’ that ‘proclaimed independence on 1 July 1960’. This makes the registration specific to that country which became independent on that date alone - Somalia, and not binding on the state of Somaliland in any form or manner.
There are several propositions which illumine the grounds on which a lawful reclamation of the 1960 Somaliland independence rests – a situation that, also, makes a petition to the International Court of Justice (ICJ) to decide the case if all other avenues fail to meet the aspirations of more than five million citizens of Somaliland not only a viable alternative but an imperative and vitally unavoidable decision.
The report of an AU fact-finding mission to Somaliland, – which was appointed by a former president of Mali and chairperson of the AU Commission, Alpha Oumar Konare – between April 30 and May 4, 2005, had expressed the opinion that Somaliland had been made a “pariah region” by default. It strongly recommended the country’s recognition, saying that since its declaration of sovereignty in 1991, Somaliland has been steadily laying the foundations of a democratic “modern state.”
The AU mission stated that the ‘Union’ established in 1960 between Somaliland and Somalia brought enormous injustice and suffering to the people of the region. “The fact that the union was never ratified and also did not work to satisfaction while it lasted from 1960 to 1990, makes Somaliland’s search for recognition historically unique and self-justified in African political history. As such, the AU should find a special method of dealing with this outstanding case,” the report recommends.
The report noted that there was plenty to support that the plethora of problems confronting Somaliland in the political, socio-economic, military, humanitarian and other sectors stem from the legacy of a political union with Somalia, that malfunctioned, bringing destruction and ruin upon the population. The mission set out to assess the prevailing political, socio-economic, security, humanitarian and other related issues, as well as to listen to the concerns of the leadership and people of Somaliland, and duly report back the findings and the recommendations to the AU Commission for further action. It was led by the deputy chairperson of the Commission, Patrick Mazimhaka.
It was of the view that while it was the primary responsibility of the authorities and people of Somaliland to make efforts to acquire political recognition from the international community, the AU should be disposed to judge the case of Somaliland from an objective historical viewpoint and a moral angle vis-a-vis the aspirations of its people.