On the Recognition of Somaliland by the UK: Practicing International Law Application by Jackie Pardue Scripps

Introduction Northwest and Southern Somalia have been in a dilemma in terms of negotiating succession due to an ongoing civil war. It seems as though Southern Somalia has lost control over its territory and no longer has effective legal or military institutions. Northwestern Somalia, on the other hand, has been able to avoid the problems the Southern Somalia faces and has been able to maintain a functioning government, increasingly more stable after seventeen years of being in place. This has caused the Northwest to want to succeed from the South in order to form its own state entity. Normally, succession requires approval of both entities involved, but the Northwest claims the South lacks personality to engage in a legitimate treaty agreement. While multiple states recognize Northwestern Somalia as Somaliland, numerous other states and the African Union do not recognize Somaliland as a legitimate state actor. There has been an established practice in the African Union of recognizing boundaries implemented at the time of state independence, thus this institution opposes recognition of Somaliland. The United Kingdom, on the other hand, has allowed representatives from Somaliland to make unofficial trips to the UK. Acting as a legal advisor for the United Kingdom I would persuade the United Kingdom to not recognize Somaliland claims to independent statehood. I would recommend this on the basis that Southern Somalia and the Northwestern Somalia have not agreed to succession through a treaty. Southern Somalia does not acknowledge Somalilands claims to sovereignty. Although other states have recognized Somaliland as a sovereign state, I would dissuade the United Kingdom from doing so until the two entities in question come to a mutual agreement. In the journal The International Law and Comparative Quarterly, Yemi Osinbajo writes, It is important immediately to discount the notion that Somalia may have lost its Statehood (a possible error especially given the scale and extent of UN intervention). The mere fact that a foreign legal order is imposed or imposes itself on a State does not necessarily terminate Statehood; neither does the absence of effective government or extensive civil strife obliterate Statehood (Osinbajo, 910). Accordingly, Somalia is still a legally recognizable entity with sovereignty over its territory, even if it is faced with a considerable lack of internal control.

Based on the fact that Somalilands desired succession was declared due to internal state conflict, it is a matter of dispute to be settled between the state and the second party. To say that a state is sovereign means that it decides for itself how it will cope with its internal and external problems (Waltz, 96). If the international community recognizes Somaliland, it will be disregarding the sovereignty of the whole of Somalia. This could lead to problems down the line if Somalia is able to regain effective control of its territory or rebuilds itself as a more powerful entity than Somaliland. In fact, because the state and the entity have conflicting ideas of territorial boundaries and legal status, this could be undermining Somalias ability to function as a state. Customary and Treaty Law In the case of Somaliland, it is necessary to review customary law in regards to partial succession, which occurs when a state assumes sovereignty over portions of territory formerly belonging to another state, when a new international personality is created by the succession of a territory from an existing state (Von Ghlan, 176). Customary law is an established pattern of conduct based on a sense of legal obligation and invites legal penalties if breached (Rochester, 40). Sources may include decisions made by states, historical accounts, newspapers and other means to determine evidence of legal customs (Von Glahn, 52). Only two conventions have come out of the United Nations to directly deal with succession issues: the Convention on Succession of States in Respect of Treaties (Vienna, 1978) and the Convention on Succession of States in Respect of State Property, Archives and Debts (Vienna, 1983). Even though these conventions deal explicitly with succession, there has been no coherent, generally accepted body of legal norms has emerged to provide guidelines for the varieties of change that have occurred in sovereignty (Von Glahn, 172). Because there has not been a standardized procedure for succession, it has become common for states to engage in codification of successions through treaties, written agreements between states, which create legal obligations for the governments that are parties to them (Rochester, 40). This allows states to establish greater judicial security in international relations (United Nations, 4). Treaties regarding the division of rights, obligations and property between two states engaged in succession are termed devolution agreements. Devolution agreements determine what rights and obligations will be pertinent to the new state and what right and obligations the predecessor state be obliged to follow under previous treaty agreements (Von Glahn, 173). These treaties usually include the transfer of property 2

titles. Experience has taught most states to specify how issues will be settled between them (Von Glahn, 177). This is overseen by the states involved in succession or international organization with authority to determine succession (Glahn, 177). According to the Vienna Convention on Succession of States in Respect of Treaties, which Somalia is party to, A bilateral treaty which at the date of a succession of States which was in force in respect of the territory to which the succession of States relates is considered as being in force between a newly independent State and the other State party when: (a) they expressly so agree; or (b) by reason of their conduct they are to be considered as having so agreed (United Nations, 15-16). Therefore, under United Nations law, states must be in joint agreement in order for succession to occur. De Jure/De Facto The explanation of de facto government means that governments exist, whether legally or not, because they have effective control over a territory. De jure existence means that a government legally exists under law. The state of Somalia would be the de jure entity because it is widely recognized as being a legitimate state and has been party to multiple multilateral treaties and organizations. In this case, Somaliland would be de facto since it has maintained effective control over an area and has a functioning government. The term de facto connotes, the recognizing government has doubts about the long-term survival of the putative state or government or has political or moral qualms about its origin, but has found it necessary to deal with its representatives on a formal and ongoing basis (Von Glahn, 154). The strongest argument made in favor of the succession of Somaliland is that it exists de facto as an entity and should be recognized for this reason. If a state recognizes a de jure entity as de facto, the state or government will have exactly the same international rights and duties as a de jure state or government (Von Glahn, 155). In the international community, currently recognition is left up to each individual state. Some states may choose to acknowledge de jure governments and some states may not. It is left up to a states individual policy decisions. Recognition of a new government means that one government recognizes anothers stability as well as its ability to honor obligations. The new government would operate under recognized international obligation and would have the ability to exchange 3

diplomats (Von Glahn, 163). The community would only legally be recognized as a state if it successfully is recognized as a new entity or if it could put its representatives in place in the existing government (Von Glahn, 160). De jure governments might not appreciate when outside states recognize de facto governments. Technically a belligerent community still legally exists as a part of the state it is in. A belligerent community, lacks the right to send or receive diplomatic agents, to join international organizations, or to benefit from multilateral conventions concerned with international relations and activities of states (Von Glahn, 159). Many states therefore stay neutral in situations such as this to avoid generating conflict. In this specific case, the United Kingdom has remained neutral, but has hosted Somaliland representatives. Pruess writes, a conscientious performance of the obligations imposed by the traditional law of neutrality may enhance the possibility that a neutral state will be permitted to remain aloof from war; but it is no insurance against war if the military and political situation is such that a violation of its neutral position will be to the advantage of the belligerent (Preuss, 100). If the de jure government is able to regain control of the territory occupied by the de facto government, then there is a possibility that the de jure government will be hostile toward states that previously had recognized the de facto government. This is why many states stay on the fence about recognizing new states. They do not want to offend either the new state or the predecessor state. This can hamper resolution because in the court system outside states could possibly encounter a problem when determining which state is recognizable in their court of law. Thus, one of the entities vying for statehood should be recognized as the legitimate government. Provisional recognition may seem beneficial because it allows outside states to play to their best advantage, but overall it is detrimental because provisionally recognized states are in an ambiguous position in which they may have no rights since there may be conflicting opinions on existence. Unless there is a broad consensus across multiple foreign states not to recognize a community, nonrecognition can be ineffective. There are multiple disadvantages to nonrecognition regarding the protection of the unrecognized communitys citizens. By having multiple states split on the decision to recognize Somaliland, this could potentially interfere with the entitys agencies and court system and may cause the validity of documentation such as passports and marriage certificates to come under question (Von Glahn, 158). This is why collective action should be encouraged to identify Somalia as the legitimate state in this case and encourage both parties to sign a legal succession treaty or for Somaliland to return to Somalia. 4

Conclusion In response to the situation and the above considerations, I would encourage the UK to recognize Somalia as the existing sovereign state in this situation. Every state has the right to choose what foreign states it recognizes as legitimate. Because interaction with representatives of a government acts as state recognition according to international law, if Britain continues to host representatives from Somaliland as diplomatic entities, it will be encouraging recognition of Somaliland, which is not a legally valid state. Von Glahn says, Breaking diplomatic ties as a form of recognition does not mean withdrawal of recognition (Von Glahn, 163). Therefore the United Kingdom should explicitly express it will no longer be party to talks with Somaliland, should Somaliland continue to pursue independent existence, until a succession treaty has been signed between itself and Somalia. Van Glahn writes, If the foreign state withholds recognition, then it has a duty to refrain from assisting the rebel group but is free to grant or withhold aid to the lawful government (Von Glahn, 160). Withholding Somaliland recognition does not require the United Kingdom donate aid to Somalia or agree to Somalias legal policies. If the United Kingdom recognizes Somaliland as a separate state entity from Somalia, this would give other parties, be they governments or belligerent groups, a precedent to succeed from a sovereign state without signing legal documentation with the state they are succeeding from. A belligerent community, lacks the right to send or receive diplomatic agents, to join international organizations, or to benefit from multilateral conventions concerned with international relations and activities of states ( Von Glahn, 159). Even in cases of war, states have had to sign treaties clarifying their succession as a mutual agreement. Therefore, I would encourage the United Kingdom to cease hosting Somaliland and withhold recognition until a treaty agreement has been reached between Somalia and Somaliland. This will not only make rules for engaging with Somalia easier, it will encourage both entities to come to an agreement pertaining to legal rights. Jackie Pardue Scripps, Spring 2010 Works Cited Glahn, Gerhard, and James Taulbee. Law Among Nations. 9th ed. New York: Pearson, 2009. Osinbajo, Yemi. "Legality in a Collapsed State: The Somali Experience." The International and Comparative Law Quarterly. 45.4 (1996): 910-923. 5

Preuss, Lawrence. "The Concepts of Neutrality and Nonbelligerency." Annals of the American Academy of Political and Social Science . 218. (1941): 97-109. Rochester, J. Martin. Between Peril and Promise: The Politics of International Law. Washignton D.C.: CQ Press, 2006. United Nations. Nations Unies Recueil des Traits 1996.Vienna Convention on Succession of States in Respect of Treaties (with Annex) 1978. 1996. Waltz, Kenneth. Theory of International Politics. New York: McGraw-Hill Humanities/ Social Sciences/Languages, 1979.