Issue No. 681

The Legal Case for Somaliland's Recognition 

Saturday, 18 May 2024, will mark the 33rd anniversary of Somaliland's 1991 declaration of independence from Somalia after a decade of armed struggle against Siyaad Barre's dictatorship. But Somaliland is one of a handful of countries around the world that celebrate two independence days. Increasingly, many Somalilanders prefer to commemorate 26 June 1960, the date the country received sovereign autonomy from the United Kingdom, as their 'Independence Day.' For this number, 18 May instead commemorates the "re-assertion of Somaliland's sovereignty" and the dissolution of its disastrous, short-lived merger with Italian Somaliland to form the Somali Republic. Most Somalilanders are hopeful that this year will mark another historic milestone—the occasion of their recognition as an independent state by Ethiopia.

On 1 January 2024, Addis Ababa and Hargeisa signed a Memorandum of Understanding (MoU), the text of which has never been made public, in which Ethiopia purportedly offered to recognise Somaliland in exchange for the lease of a naval base on the Gulf of Aden. For Somaliland, it is hoped the MoU will encourage a cascade of other like-minded countries to follow suit, eventually culminating in its ascension to the African Union (AU) and the United Nations. The Federal Government of Somalia (FGS) in Mogadishu virulently opposes this scenario and has instead sought to characterise the MoU as a violation of Somalia's sovereignty and territorial integrity – an argument that has found sympathy in foreign capitals. Less plausibly, Mogadishu has further alleged that Ethiopia's recognition of Somaliland would violate international law. Mogadishu's rejection of the MoU was hardly surprising; almost without exception, sovereign states are loath to cede territory and population. Secession and separatism are almost universally illegal, even treasonable, offences under national laws. That is also the case under Somalia's current Provisional Constitution and its archaic 1963 Penal Code, which remains in effect today.

However, Villa Somalia's assertion that the MoU violates international law is a different proposition altogether. Somalia's claim is principally based on Article 2(4) of the United Nations Charter, which prohibits "the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." The bulk of legal scholarship concerning this text, however, stresses the need for peaceful dispute resolution and the non-use of force in international relations rather than dwelling on the principle of territorial integrity - the interpretation of which must at least be moderated by the principle of self-determination (Article 1(2)). Indeed, the principle of territorial integrity is so permeable that since 1990, at least 30 new countries have emerged by breaking away from existing states. For the most part, their path to international recognition has been guided by a combination of self-determination and the "three-element doctrine" derived from the 1933 Montevideo Convention. The three elements referenced are a stable territory, a stable population, and the exercise of effective state power, both externally and internally, as an expression of sovereignty.

Arguably, the most notable legal caveat to international recognition of new states concerns 'premature recognition.' This typically arises when the breakaway polity does not yet meet the threshold of the three Montevideo elements, and the parent state still exercises a convincing degree of 'positive' sovereignty. In such cases, recognition by a foreign government may be considered a form of interference in the internal affairs of another state and may, therefore, be considered a breach of the United Nations Charter.

Characterising the Ethiopia-Somaliland MoU as a case of "premature recognition" is problematic. Somaliland has existed as a de facto state for more than three decades – two of which transpired in the absence of an internationally recognised Somali government. The international community's denial of recognition to Somaliland while embracing the secession of other states over the same period suggests that recognition of Somaliland is not premature, but long overdue.

The other legal consideration often invoked with respect to Somaliland relates to the Constitutive Act of the AU, which commits its signatories to "defend the sovereignty, territorial integrity and independence of its Member States." But Article 4 of the Act clarifies that the Union shall function according to certain principles, including "respect of borders existing on achievement of independence." Since Somaliland received independence with boundaries delimited by international treaties and was recognised by several dozen members of the United Nations at the time, it is perhaps uniquely qualified to meet the AU's criteria for statehood. Indeed, an AU fact-finding mission to Somaliland in 2005 acknowledged that "Somaliland has territory as defined by the colonial borders inherited from the British colonial rule on accession to independence in 1960." While the formation of the FGS in 2012 alters the political context for Somaliland's recognition, it has not altered these basic legal facts – particularly since the FGS still struggles to exercise any effective authority or positive sovereignty beyond Mogadishu and its immediate environs.

Moreover, the failure of the FGS to offer any political remedy for Somaliland's demands arguably reinforces Hargeisa's unilateral pursuit of recognition. Over more than 12 rounds of dialogue spanning more than 13 years, Mogadishu has steadfastly refused to discuss Somaliland's sovereign status. Under international law, when people are denied the exercise of their internal right to self-determination, they may opt for 'remedial secession' in pursuit of independent statehood. In the absence of a suitable political process to determine Somaliland's future status, the common argument that Somaliland should emulate Eritrea and South Sudan in seeking consent from Mogadishu is simply not practicable and, therefore, cannot be considered legally binding.

A final consideration for the international community may be the process of awarding or denying recognition. Each state ultimately has the sovereign right to decide whether recognition is appropriate, so Ethiopia's potential unilateral recognition of Somaliland would not be illegal. However, it is also inconsistent with favoured international practice, which typically involves internationally supervised referendums. Somaliland conducted a constitutional referendum in 2001, which observers described as credible, free, and fair, and overwhelmingly in favour of independence. Although a sizeable minority of eligible voters opposed to independence chose to boycott the ballot, their participation would not have altered the overall outcome. Given that foreign governments declined to send official observer missions, the time that has since elapsed, and the formation of a new government in Mogadishu, the international community may favour a new plebiscite.

A referendum would appear to be the most straightforward method to determine Somaliland's sovereign status. It would also, by definition, offer Somalilanders the option of unity with Somalia. The leadership in Hargeisa might also agree to conduct another single-issue referendum on independence if they were assured that the outcome would be decisive and respected by Mogadishu. But this would presumably require Mogadishu to make concrete proposals about how to make unity attractive, such as outlining what form unity might take and Somaliland's degree of autonomy within any future union.

That would likely necessitate Villa Somalia abandoning its current project of rewriting Somalia's constitution by fiat and re-engineering the process to make it more palatable to Somaliland. Realistically, though, Mogadishu is unlikely to consent to a referendum that would almost certainly oblige it to recognise Somaliland as a sovereign state. As the AU itself has concluded, Somaliland and Somalia's union "malfunctioned when it went into action from 1960 to 1990, [making] Somaliland's search for recognition historically unique and self-justified in African political history." The AU further acknowledged that "the lack of recognition ties the hands of the authorities and people of Somaliland as they cannot effectively and sustainably transact with the outside to pursue the reconstruction and development goals."

Since Mogadishu is clearly unwilling to remove those constraints on Somaliland's development, Ethiopia may now make the decision to do so. Somaliland has been acting like a state for decades, and Ethiopia may just be the first to recognise this reality.  If so, then this year – whether on 18 May or 26 June – Somalilanders will have something special to celebrate.