Somaliland: shackled to a failed state.

AuthorPoore, Brad
  1. INTRODUCTION

    Somalia lacks the basic characteristics that define a state in the international community. The rule of law has been obliterated by years of civil war and internal strife, leaving Somalia a "failed state." For the last decade and a half rival warlords have controlled Somaliland. The central government, elected by warlords at a conference in Kenya, does not have the capacity to exercise authority over its population. Somalia's beautiful beaches and historical city streets are largely inaccessible to the outside world, and the outside world is just as inaccessible to Somalis. In fact, while the national passport is sold at the public market in Mogadishu, it is no longer valid for international travel. The same public markets flood the country with machine guns and rocket propelled grenade launchers.

    From the rubble of the civil war, however, the de facto state (1) of Somaliland has emerged. Somaliland has its own democratic government, police force, army, financial system, and currency. It was even briefly recognized as an independent country in 1960. Somaliland's calls for international political recognition as an autonomous nation State, however, are being ignored. In the words of British Parliamentarian Tony Worthington, the international community has consistently placed "the interests of the wrongdoers in the south ahead of those peace-builders in the north [i.e., Somaliland]." (2)

    Unfortunately, stability is unlikely to be maintained in the face of the many obstacles that Somaliland faces. Some of these obstacles reflect Somaliland's status as one of the most impoverished countries in the world, while others are symptomatic of its lack of political recognition. As Scott Pegg laments, "barring the legal gates and denying the de facto state even an extremely limited legal competence does not seem to be the way to encourage compliance with the fundamental norms, let alone the desiderata of international law." (3) Worthington has asserted that "[t]he longer Somaliland is left to fend for itself without resources for schools, for example, the more willing will radical elements be to step in." (4)

    Somaliland is a black hole for international law and at this stage is only accountable for violations of "peremptory norms from which no derogation can be allowed by agreement or otherwise." (5) There are already erosions of freedom of the press, and a report by the International Crisis Group found that the Somaliland Press Law may violate Article 32 of the Somaliland Constitution. That article "declares the press and other media to be 'part of the fundamental freedoms of expression' and states that 'all acts to subjugate them are prohibited."' (6) These continuing derogations of international law are actively hindering Somaliland's acceptance as a state in the international community.

    By conditioning statehood upon the satisfaction of normative criteria, such as the protection of basic human rights and democratic governance, the international community can provide powerful incentives for improving the behavior of states and aspiring states. (7) In Somalia there are no such incentives; there is no rule of law and little infrastructure. Hostilities have persisted for sixteen years and assertion of authority will only come through force. Validating Somaliland's status and extending recognition can potentially preempt the conflict that would arise if a stable government does emerge in Somalia. In fact, "failing a negotiated settlement, any attempt to coerce Somaliland back to the Somali fold would entail a bitter and probably futile conflict." (8)

    Even a hypothetically peaceful "reunification of two largely incompatible systems--Somaliland's embryonic democracy on the one hand, and Somalia's fragile transitional structure on the other--would run the risk of destabilizing both." (9) Integration through unification, for example, would jeopardize any fragile power balances that would have been struck to achieve stability in the south." (10) In fact, "what is clear is that any form of national institution will have only limited power and authority. The wounds and scars of the past ten years are too great at this point to think of a unified and centralized entity," (11) Recognizing Somaliland, however, would improve control and accountability over nomadic populations, (12) and allow the international community to intensify its efforts on the areas needed most. Somalia could even benefit from observing how Somaliland has utilized traditional Somali reconciliation procedures (13) to foster peace and democracy. (14)

    The two halves of Somalia have distinct histories. According to a United States Government report:

    [A]lthough officially unified as a single nation at independence, the former Italian colony and trust territory in the south and the former British protectorate in the north were, from an institutional standpoint, two separate countries. Italy and Britain had left them with separate administrative, legal and education systems where affairs were conducted according to different procedures and in different languages. Police, taxes, and the exchange rates of their separate currencies were also different. The orientations of their educated elites were divergent, and economic contacts between the two regions were virtually non-existent. (15) The particular colonial, historical, and socio-economic paths forged distinctive national identities in the north and south and were critical in the emergence of the de facto sovereign state of Somaliland. (16)

    One obstacle to recognition inherent in the international law on state recognition is that states can extend de facto recognition to Somaliland while denying meaningful political recognition. Article 74 of the Vienna Convention, for example, specifically states: "the severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States." (17) This provision allows the international community to benefit from the peace and stability achieved by Somaliland, (18) but de facto recognition without political recognition becomes a form of neocolonialism. Somaliland is left unrewarded. Recognized states can dictate terms to Somaliland from a position of unequal bargaining power. This non-recognition is why Somaliland refuses to negotiate with Somalia and is not a member of the major international non-governmental organizations. Somaliland "is too small to wield any muscle against the international organizations that ignore it, [and] it requires a country willing to be a facilitator for its cause of reconstruction and diplomatic recognition." (19) But so far Somaliland has not enjoyed such a champion and so has been unable to take part in myriad international institutions. "Qualified recognition, such as awarding both parties observer status in various international organizations (such as the U.N., A.U. and I.G.A.D.), would help to level the playing field and provide an incentive for both sides to come to the table." (20)

    Because of the complicated political permutations the situation in Somaliland is unlikely to be resolved by pure legal analysis. There are too many countries and international governmental organizations (IGOs) that have shaped and influenced the current situation and find themselves irreversibly entwined in its resolution. These organizations' member states have their own interests, concerns, and fears that inevitably blur the strict application of the principles of international law. In fact, Ian Spears points out that:

    [W]hile recognition is itself a legal procedure, it is the entitlements that it allows which are most attractive from the disputants' point of view. Formal independence is the only reliable means of defence because it provides groups with the right to take up arms to defend themselves. If the international community is not willing to intervene when political groups are threatened with violence, then it should come as no surprise that some groups should demand political independence." (21) Somali groups have been fighting for such recognition since colonial times.

    The United Kingdom was the colonial power in Somaliland, and Colonial Secretary Mr. Lennox-Boyd made a promise to Somaliland on the eve of independence:

    [W]hatever the eventual destiny of the Protectorate, Her Majesty's Government will continue to take an interest in the welfare of its inhabitants, and will in the light of the circumstances prevailing from time to time, be prepared to give sympathetic consideration to the continuation of financial assistance within the limits of the amount of aid at present being provided to the Protectorate. (22) Despite these promises of financial assistance, Great Britain has refused to go further and be the first country to recognize Somaliland. It fears that African states would construe this as neocolonialism and prefers instead to move 'inconspicuously.' Thus, though the United Kingdom has been willing to encourage African states to extend recognition, its promise of "enduring friendship" (23) has not amounted to recognition.

    The Soviet Union and United States played their own role in the militarization of Somalia during the Cold War. More recently, Russia has been unsympathetic to calls for recognition because recognition of Somaliland would have direct implications on Russia's position on Chechnyan independence. The United States, on the other hand, has been more concerned with the threat of terrorism emanating from the region and the notion that terrorists could exploit the lawless territory in southern Somalia as a site for training camps than in supporting a new precedent for statehood. Greg Mills, for example, found that:

    Somalia's porous borders and undefended coastline make it a prime concern for US policymakers in the war on terrorism. According to a UN report published in November, the 2002 terrorist attacks on a hotel and an Israeli...

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