Although the British were active in colonising the Horn of Africa and the northern terri- tory of Somaliland, after occupying Egypt, Somalia’s previous colonising power, the integration of Somaliland into the state of Somalia is something of an anomaly. The southern part of the cur- rent state of Somalia itself was an Italian colony, and indeed, following the second world war, in which Italian Somaliland was briefly conquered from the British, the two territories became in- dependent within days of each other, and in 1960 were thereafter merged into the present terri- torial form, the state of Somalia. The state had a decentralised, weak governmental form from the outset, and by 1969, a coup d’état by the army commander Siad Barre was followed by a brief period of social development, particularly in the reaffirmation of the Somali ethnicity, but in- herent deficiencies in the state led to long periods of brutal military dictatorship, armed conflict with neighbouring Ethiopia, and eventual civil war. By the 1990s, a circumstance of perpetual conflict, without obvious reason or solution, had become the status quo, and Somalia became widely viewed as the sine qua non of a ‘failed’ state due to its anarchy in the complete absence of a government. Despite intervention by the international community through the United Nations
in particular,79 the anarchical situation prevailed under the difficult circumstances on the
ground. Although a transitional regime has been officially enacted since 2002, the effectiveness of the government is highly questionable, and clan-based violence continues to be perpetuated as a matter of course on Somali territory. As one commentator writes:
At the beginning of 2003, Somalia, after more than a decade, remains—and this is despite the last round of peace talks in Eldoret, Kenya, in October 2002 (where the [transitional gov- ernment] had the doubtful honour of being considered as merely one of many Somali fac- tions)—the “only country in the world totally devoid of a functioning central government and no less than twenty unsuccessful national-level peace initiatives since 1991” on its record. It appears that in the near future Somalia will remain a ‘black hole’ where ‘regional authorities’, armed factions, and warlords continue to create chaos and instability, as a result of their con- test for power.80
78 See discussion infra chapter five in this study.
79 See Security Council resolution 751 (1992), creating a United Nations Operation in Somalia (UNO- SOM), and Security Council resolution 814 (1993), which expanded the mission’s mandate.
This has led another commentator to note that:
[N]o entity—except for an entity within ‘Somalia’, namely Somaliland in the north—has claimed any Somali territories, and thereby effectively challenged its ‘undiminished’ statehood on the international plane. Somalia’s statehood has rather been presumed in accordance with international law doctrine, particularly since efforts for the reinstitution of effective (central) governance have not yet been abandoned and there remains some hope that central author- ity will eventually be re-established.81
Nevertheless, as Schoiswohl suggests, the territory corresponding to the former British Somaliland has manifested certain effectivités despite the chronic ineffectiveness of the Somali state and has set a clear pathway advocating its own existence as an independent state. This is
clear when considering Somaliland has drafted, implemented and revised a National Charter,82
which was overwhelmingly approved by a referendum held on 31 May 2001,83 and whereby ar-
ticle one of which proclaims the existence of a “sovereign and independent country known as ‘The Republic of Somaliland’. Furthermore, although Somaliland is not an ethnic monolith, it has been largely spared the warlord violence so prevalent throughout the rest of Somalia. In- deed, Somaliland appears to present most of the criteria for statehood as per the Montevideo Convention, including the ‘more fluid’ aspects of statehood related to governance. According to Schoiswohl, this includes a two-house parliament, political parties, periodic elections, central, regional and local government, a functioning judiciary, as well as both a police force and na-
tional armed forces.84 However, Somaliland undoubtedly finds itself firmly located within the
larger Somali state, following the post-independence merger of the former British and Italian colonies.
To remedy this circumstance through, conceivably, an act of postcolonial external self- determination would essentially imply a reversal of this merger. Schoiswohl initially posits that this would imply recognition of the very brief time—five days—in which Somaliland was an in- dependent state prior to the formation of the current state, a retroactive rejection of the merger, particularly in light of the absence of government elsewhere in the state and the invocation of the doctrine of rebus sic stantibus, in that the expectations of the merged states in terms of effective administration had not nearly been met and so constituted a fundamental change in circum-
stances from what was expected at the time of merger.85 However, Schoiswohl goes on to ob-
serve that any rebus sic stantibus argument is flawed, as the fundamental change of circumstances would be the remedy of 1969 coup d’état, which led to the tyranny of Said Barre being waged in both Italian and British Somaliland. By the time Barre went into exile, and subsequently died in 1991, “Somaliland’s alleged right to restoration thus could, if at all, only be asserted against the suppressive regime itself, but not against the south as such. Once Barre’s regime had finally been Crisis Group.
81 M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in Inter- national Law: The Case of ‘Somaliland’ 132 (2004) [hereinafter Schoiswohl].
82 Document available on www.somalilandgov.com, accessed May 2005.
83 See Schoiswohl, supra note 81, at 133, citing the Initiative and Referendum Institute, Final Report of the Initiative and Referendum Institute’s Election Monitoring Team, 27 July 2002, available on
www.iandrinstitute.org/international/FinalSomalilandReport7-24-01combined.pdf, accessed August 2004.
84 See Id. at 134-38.
85 See Id. at 152-54. He continues, Id. at 155, footnotes omitted: “[…] the Somali Republic, though lacking unambiguous legal foundation, proceeded on the basis of a ‘de facto union’. [A historical] observation is most crucial in evaluating the assertion that the act of unification was invalid and that Somaliland would thus have a (historic) title to restoration: despite any legal uncertainties and initial opposition manifested in the turnout and results of the referendum, no corresponding claim to independence had been advanced […].”
ousted in 1991, Somaliland lost its ‘oppressor’ and, with him, the only possible addressee of any
doubtful right to restoration”.86 The remaining legal options for effectuating Somaliland’s claims
for sovereignty would be principally through the self-determination pathway, as Somalia ac- ceded to the ICCPR on 24 January 1990. Although this may indeed lead to increased levels of autonomy within the Somali state, Somaliland’s referendum on its National Charter is purpose- ful and unambiguous and raises the question of Somaliland’s secession from the existing Somali state. The problem with collective groupings claiming postcolonial external self-determination is that the claimants most likely to achieve this ambitious goal are those that have demonstrably presented evidence showing they are, in fact, being harmed by the preservation of the status quo, generally due to being the recipient of targeted attacks by the state itself. The Somali situation, as it is relatively uncontroversial to observe that the Somali state is a ‘failed state’, presents a para- dox, because in view of the dominant declaratory theory of recognition, Somaliland does ap- pear to fulfil all relevant criteria of statehood, except for the most overarching of all: actual acts of recognition by peer states as an independent state per se. What this serves to demonstrate most clearly is that regardless of doctrinal theory, in practical terms new state recognition is driven primarily by the political motivations of states, and the non-recognition of a territorial entity, which would ‘otherwise’ effectively manifest sovereignty and uphold territorial integrity, is largely inconsequential as a compulsory matter.