Calling a State a State - Print

FARLEY GALLEYSFINAL 4/6/2011 7:48 AM

CALLING A STATE A STATE: SOMALILAND AND

INTERNATIONAL RECOGNITION

INTRODUCTION

The Republic of Somaliland declared its independence in 1991,1 presenting

the international community with the question of whether to recognize it as a

state. Since then, the nations of the world have consistently answered that

question in the negative.2 Yet, the Republic of Somaliland has survived to

become a relatively stable and democratic state.3 Its endurance continually

renews the question of recognition for Somaliland. Today, that question’s

answer must be in the affirmative: Somaliland meets the objective criteria of

statehood and its separation from Somalia represents the dissolution of a state

in conformity with international norms. Moreover, the international

community’s refusal to recognize Somaliland threatens the survival of that

state, and the modicum of stability and international security it represents—a

commodity that the international community cannot afford to treat cheaply in

the Horn of Africa.

While transitional entity after transitional entity has failed to take hold in

rump Somalia,4 threats to international security have festered in its ungoverned

space. For example, pirates based in rump Somalia have so proliferated5 that,

1 Ian Fisher, An Oasis of Peace in Somalia Seeks Freedom, N.Y. TIMES, Nov. 26, 1999, at A1.

2 Somaliland declared its independence nearly twenty years ago on May 18, 1991. Id. It has not been

recognized by any other state. Background Note: Somalia, U.S. DEPT. STATE (Nov. 8, 2010), http://www.state.

gov/r/pa/ei/bgn/2863.htm#%201/10. In stark contrast, Eritrea was rapidly recognized by many states and

admitted into the United Nations after its declaration of independence on May 24, 1993. See infra note 198 and

accompanying text. Likewise, though not immediately recognized, Croatia and Slovenia were recognized by

other states and admitted into the United Nations just two years after declaring independence. See infra note

207 and accompanying text.

3 Since 2000, Somaliland has held a national referendum on independence and a constitution, one

parliamentary election, and two presidential elections. See infra text accompanying notes 98–107.

4 The portion of a state left after partition or secession is referred to as the rump state. See WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 1987 (3d ed. 1993) (definition listing c). In this case, rump Somalia

refers to the portion of Somalia excluding Somaliland.

5 According to the International Maritime Bureau, Somalia-based pirates were responsible for 20 attacks

in 2006, 44 attacks in 2007, 111 attacks in 2008, and 218 attacks in 2009. Int’l Mar. Bureau, Int’l Chamber of

Commerce, Piracy and Armed Robbery Against Ships Report, at 5–6 (Jan. 2009); Mark McDonald, For Somali

Pirates, 2009 Is a Record Year, N.Y. TIMES, Dec. 30, 2009, at A9.


778 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

in 2002, a multinational naval task force began patrolling the Gulf of Aden.6

Despite this international effort, pirates continue to attack ships and take

hostages. In 2008, there were 111 attacks by Somali pirates.7 In 2009, pirates

based in Somalia were responsible for 218 attacks.8 One ship, the Maersk

Alabama, was attacked and hijacked in April 2009. It was freed later that

month—only to be attacked again in November 2009.9 Pirates are not the only

security threat in rump Somalia, however.

In 2006, Osama bin Laden declared his intent to make the Horn of Africa

the next front in al-Qaeda’s global jihad.10

The al-Qaeda-affiliated group al-

Shabaab now controls south and central Somalia, including most of

Mogadishu.11

On July 11, 2010, al-Shabaab launched its first transnational

terror operation: two suicide bombers killed seventy-six people in Kampala,

Uganda.12

In Somaliland, though, pirates and suspected terrorists do not find

safe haven. Instead, Somaliland’s nascent coast guard pursues pirates,13

and its

police force investigates and captures terrorists.14

This Comment argues that Somaliland is a state and that the international

community should recognize it. Part I briefly explores the background of

Somaliland’s secession from the Republic of Somalia: its colonial history, its

6 The multinational naval task force is designated “Combined Task Force 150.” Australian Officer to

Head Coalition Gulf Naval Task Force, BBC MONITORING ASIA PAC., Dec. 7, 2009, at 1, available at

ProQuest, Doc. ID 1915974771. It operates in the Red Sea, the Arabian Sea, the Gulf of Aden, and the Gulf of

Oman. Id. Naval vessels from the United States, the United Kingdom, and Australia, among others, participate

in Combined Task Force 150. Id.

7 Piracy and Armed Robbery Against Ships Report, supra note 5.

8 McDonald, supra note 5.

9 See Alan Cowell, Somalia: Second Attack on U.S. Ship, N.Y. TIMES, Nov. 19, 2009, at A12.

10 Octavia Nasr, Tape: Bin Laden Tells Sunnis to Fight Shiites in Iraq, CNN (July 2, 2006, 3:10 PM),

http://www.cnn.com/2006/WORLD/meast/07/02/binladen.message/index.html?iref=allsearch. (“We swear to

God that we will fight their soldiers in Somalia and we reserve our right to punish them on their lands and

every accessible place at the appropriate time and in the appropriate manner.”).

11 Mohammed Ibrahim, Rival Islamists Fight for Town in Somalia, N.Y. TIMES (Jan. 2, 2010),

http://www.nytimes.com/2010/01/03/world/africa/03somalia.html; see also Bloody Fighting Grips Somali

Town of Dhuusa Marreeb, BBC NEWS (Jan. 4, 2010, 9:12 AM), http://news.bbc.co.uk/2/hi/africa/8438645.

stm.

12 Police Confirm Suicide Attackers in Uganda Bombing, ABC NEWS (July 18, 2010), http://abcnews.go.

com/International/wireStory?id=11191831.

13 Edmund Sanders, A Small, Ambitious Corner of Africa, L.A. TIMES, May 17, 2009; Tristan

McConnell, Somaliland: The Pirate Hunting Coast Guard, PULITZER CENTER (June 23, 2009), http://

pulitzercenter.org/blog/untold-stories/somaliland-pirate-hunting-coast-guard.

14 See, e.g., Andrew McGregor, Somaliland Charges al-Shabaab Extremists with Suicide Bombings, 6

TERRORISM MONITOR 7, 7–8 (2008), available at http://www.jamestown.org/uploads/media/TM_006_023_01.

pdf.


2010] CALLING A STATE A STATE 779

union with Somalia as the Republic of Somalia, that union’s dissolution, and

the recent history of both Somaliland and rump Somalia. Part II discusses the

legal concepts that bear on Somaliland’s independence: statehood, recognition,

secession, and uti possidetis. Finally, Part III applies these legal concepts to

Somaliland and compares Somaliland to other instances of state creation.

I. BACKGROUND

This Part describes the history of British Somaliland, the unification and

eventual dissolution of Somaliland and Somalia, and the experiences of both

Somaliland and Somalia since the union's disintegration in 1991.

A. British Somaliland

British Somaliland had its origins in the British protectorate of Aden,15

a

way station integral to the Empire’s position in India. At the end of the

nineteenth century, Britain was unwilling to cede its domination of the Gulf of

Aden by allowing another power—regional or global—to establish itself in the

Horn of Africa.16

To secure its position in Aden, in 1881, Britain entered into

treaties of protection with the Somali clans on the coast of what would become

British Somaliland, across the Red Sea from Aden.17

The frontiers of British

Somaliland were delineated by an 1888 Anglo-French treaty and by an 1894

Anglo-Italian Protocol.18

Finally, in 1897, an Anglo-Ethiopian treaty

confirmed the British role in the Horn of Africa and established British

Somaliland.19

The British administration of Somaliland was relatively light. In the words

of I.M. Lewis, “[T]he [a]dministration’s aims were extremely modest, and

restricted in fact to little more than the maintenance of effective law and

order.”20

Lewis notes that the homogenous character of the population of

British Somaliland, comprised of only three Somali clans, facilitated the

maintenance of law and order.21

15 Colonial Aden is today’s Yemen. See WILLIAM L. CLEVELAND, A HISTORY OF THE MODERN MIDDLE

EAST 454 (2000).

16 I.M. LEWIS, THE MODERN HISTORY OF SOMALILAND 40–45 (1965).

17 Id. at 45–49.

18 Id. at 45–56.

19 Id. Despite the 1897 Anglo-Ethiopian treaty, the frontier between Ethiopia and British Somaliland was

not finally established until 1934. Id. at 61.

20 Id. at 104–05.

21 Id. The three Somali clans present in British Somaliland were the Dir, the Darod, and the Isaq. Id.



At the outset of World War II, Italy conquered Ethiopia and captured

British Somaliland.22

By 1942, Britain had liberated Ethiopia and British

Somaliland, and captured Italian Somalia.23

While Britain established military

administrations in both Italian Somalia and British Somaliland, the two

territories were administered separately until Somalia was returned to Italy in

1949.24

After British Somaliland returned to civil administration in 1948, the

gradual process of decolonization began.25

This process accelerated in 1956

after the British withdrew from contested portions of neighboring Ethiopia.26

Beginning in 1958, Somalilanders began replacing British expatriates in

Somaliland’s administrative institutions.27

In the spring of 1960, Somaliland

held elections introducing ministerial government.28

The new Somaliland

legislative council passed a resolution requesting independence on April 6,

1960.29

Sixteen days later, representatives from British Somaliland and Italian

Somalia agreed in principle that the two states should be unified upon

independence.30

Despite the indigenous plans to unify, Britain focused on

preparing British Somaliland for independence as a solitary state.31

On June

26, 1960, a British Order in Council set out the constitution of the independent

state of Somaliland.32

That constitution entered into force at Somaliland’s

independence and defined its government’s structure.33

On June 26, 1960,

British Somaliland became an independent state.34

It was recognized by thirty-

five states, including the United States and Israel.35

22 Id. at 116.

23 Id. at 116–17.

24 Id. at 117–29.

25 Id. at 129–31.

26 Id. at 152. The British withdrawal from disputed territories in Ethiopia angered Somalis in British

Somaliland and Italian Somalia, as it had the effect of placing traditional grazing lands beyond their reach. Id.

at 151. It also stoked the fires of pan-Somaliism, which sought to unify the Somalis in Djibouti, British

Somaliland, Italian Somalia, Northern Kenya, and the Ethiopian Ogaden. Id. at 152.

27 Id. at 154–55.

28 Id.

29 PAOLO CONTINI, THE SOMALI REPUBLIC: AN EXPERIMENT IN LEGAL INTEGRATION 6 (1969).

30 Id. at 7.

31 Id. at 6.

32 Id.

33 Id.

34 LEWIS, supra note 16, at 162–64.

35 Int’l Crisis Group, Somaliland: Democratisation and its Discontents, ICG Afr. Report, No. 66, at 4 n.9

(2003) [hereinafter Democratisation and its Discontents] (citing former U.S. Ambassador David Shinn).



B. The Republic of Somalia: Union and Dissolution

On July 1, 1960, five days after Somaliland became independent, Italian

Somalia also emerged from colonial domination.36

That day, the legislatures of

both states met jointly in Mogadishu to officially unite as the Republic of

Somalia.37

Each state’s legislature enacted, separately, an Act of Union.38

Somaliland’s Act of Union consciously created a new state out of two distinct

states: converting each citizen of Somaliland and each citizen of Somalia into a

citizen of the “Somali Republic.”39

Likewise, the members of Somaliland’s

legislature and the members of Somalia’s legislature were all made members

of the “National Assembly” of the Somali Republic.40

While the constitution of

the Republic of Somalia labeled Somalia a unitary state,41

separate British and

Italian colonial administrations left Northern and Southern Somalia with

distinct administrative regimes.42

The Republic of Somalia held its last presidential election in June 1967,

bringing President Abdirashid Ali Shermarke to power.43

Shermarke’s

presidency was cut short when a member of his personal guard assassinated

him on October 15, 1969.44

Following President Shermarke’s assassination, a

cadre of Somali army officers took control of the country.45

Ultimately, Siad

Barre emerged as the leader of the newly renamed Somali Democratic

Republic.46

President Barre’s rule brought huge works projects, modernization

36 Id.

37 Id.

38 The two Acts of Union were not identical. The slight discrepancies between the two documents led the

Parliament of the unitary Republic of Somalia to enact another Act of Union with retroactive effect in January

1961. Eugene Cotran, Legal Problems Arising Out of the Formation of the Somali Republic, 12 INT’L & COMP.

L.Q. 1010, 1011–14 (1963).

39 Act of Union, § 3 (1960) (Somaliland), available at http://www.somalilandlaw.com/Somaliland_Act_

of_Union.htm.

40 Id. § 6.

41 CONSTITUTION OF THE SOMALI REPUBLIC Dec. 31, 1963, pmbl., available at http://www.

somalilaw.org/Documents/Constitution1960.pdf.

42 LEWIS, supra note 16, at 169; Democratisation and its Discontents, supra note 35, at 4 (“Although

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.”).

43 LEWIS, supra note 16, at 202.

44 I.M. LEWIS, UNDERSTANDING SOMALIA AND SOMALILAND 37 (2008).

45 Id. at 38.

46 Id. at 38, 47.



efforts, and attempts to unify the Somali administration’s two components.47

It

also brought a disastrous war with Ethiopia as Barre attempted to satisfy

Somali irredentism.48

Heavy losses, an influx of refugees, and general

discontent with Barre encouraged the formation of armed opposition groups.49

Between 1981 and 1988, several such groups emerged, forming generally

along clan lines: the Somali National Movement (“SNM”), the Somali Patriotic

Movement, the Somali Salvation Defense Front, and the United Somali

Congress (“USC”).50

Despite their clan-based origins, these armed groups

nursed national rather than parochial ambitions.51

Throughout the 1980s, the

SNM and the other militant groups challenging the Barre regime pursued low-

level insurgencies.52

These insurgent activities, particularly the SNM’s

activities, provoked reprisals generally directed at the civilian population of

Somalia.53

As his regime weakened, Barre became more insular, relying more

on his own clan and lashing out against the rest of Somalia.54

Barre’s efforts to secure his regime in 1988 contributed directly to the

ultimate collapse of Somalia.55

Through a peace settlement, Ethiopia agreed to

shutdown the SNM bases it harbored.56

Denied their safe havens, the SNM

47 Id. at 38–42.

48 Irredentism refers to one state’s attempt to annex the territory of a neighboring state inhabited by the

first state’s co-nationalists. Peter Radan, Secession: A Word in Search of a Meaning, in ON THE WAY TO

STATEHOOD: SECESSION AND GLOBALISATION 17, 22–23 (Aleksandar Pavkovic & Peter Radan eds., 2008). In

the case of the Republic of Somalia, significant populations of Somalis existed in neighboring Djibouti,

Ethiopia, and Kenya. LEWIS, supra note 16, at 182–84. In pursuit of Greater Somalia—the unification of all

the Somali people into one state—Barre prosecuted wars with Kenya in the 1960s and Ethiopia in 1977. MARK

BRADBURY, BECOMING SOMALILAND 38 (2008).

49 ANNA SIMONS, NETWORKS OF DISSOLUTION: SOMALIA UNDONE 55–56 (1995); Democratisation and

its Discontents, supra note 35, at 5–6.

50 Democratisation and its Discontents, supra note 35, at 6.

51 Michael Walls, The Emergence of a Somali State: Building Peace from Civil War in Somaliland, 108

AFR. AFF. 371, 379 (2009) (“It had never been SNM policy to establish an independent state in the north, and

many members of the leadership were against the idea . . . .”); International Crisis Group, Somaliland: Time

for African Union Leadership, ICG Afr. Report, No. 110, at 6 (2006) [hereinafter Time for A.U. Leadership]

(“The SNM did not launch its campaign with independence as its goal; on the contrary, it sought to project

itself as national in character and discussed with its Southern allies a plan to introduce a form of federalism.”).

52 Walls, supra note 51, at 377 (dating the beginning of the Somali Civil War to 1982, when the SNM

moved from London to Ethiopia).

53 Time for A.U. Leadership, supra note 51, at 5.

54 See id. at 5.

55 LEWIS, supra note 16, at 262 (“In retrospect, the peace accord signed by the Ethiopian and Somali

heads of state in April 1988, obliging each party to terminate support for the other’s Somali dissidents, can be

seen as the final precipitant to the vicious civil war which, with the general collapse of governmental

institutions . . . effectively destroyed Somalia . . . .”); SIMONS, supra note 49, at 75–76.

56 LEWIS, supra note 16, at 262; SIMONS, supra note 49, at 69–70.



launched an offensive in the north of Somalia.57

At the same time, Ogadeni

Somali soldiers—recruited from within Ethiopia to pursue Greater Somalia

mutinied—believing Barre’s peace with Ethiopia to be an act of betrayal.58

In

1989, two additional armed opposition groups coalesced out of the Dolbahante

clan and Bantu peasants.59

The proliferation of opposition groups was emblematic of the Barre

regime’s declining control of Somalia.60

By January 1991, Somalia’s multi-

factional civil war had destroyed the institutions of the Somali state.61

While

the SNM established control over former British Somaliland, the USC drove

Barre from Mogadishu.62

Barre’s ouster did not return order to Somalia. On the contrary, the divided

opposition groups were no more able to unite in victory than they had been

during the anti-Barre struggle.63

In fact, on January 31, 1991, while

Mohammed Farah Aideed, commander of the USC forces, chased Barre

outside of Mogadishu, Ali Mahdi, USC financier, declared himself president.64

Not only did Mahdi’s declaration violate agreements between the USC and the

SNM, it divided the USC in two.65

In May 1991, Aideed attempted to form a

national reconciliation government at a conference in Djibouti, but the SNM

boycotted the conference and it failed to produce a new government.66

While

the USC hosted the reconciliation conference known as Djibouti I, the SNM

hosted a gathering of northern tribal elders at Burao.67

The Burao inter-tribal

conference resolved that Somaliland would “revert to the sovereign status [it]

held at independence from Britain on June 26, 1960 . . . .”68

Thus, on May 18,

1991, an independent Somaliland re-emerged with the same territorial extent as

57 SIMONS, supra note 49, at 69–70.

58 Id. at 69–76; LEWIS, supra note 16, at 130.

59 SIMONS, supra note 49, at 78.

60 See id. at 78–94. As 1989 drew to a close, Barre began to be referred to as “the Mayor of Mogadishu”

because he controlled so little of the country. Id.

61 JOHN DRYSDALE, WHATEVER HAPPENED TO SOMALIA 14–19 (2001).

62 LEWIS, supra note 16, at 262; Democratisation and its Discontents, supra note 35, at 6.

63 SIMONS, supra note 49, at 76–79.

64 DRYSDALE, supra note 61, at 14–15.

65 Walls, supra note 51, at 380; LEWIS, supra note 16, at 264.

66 DRYSDALE, supra note 61, at 31–32.

67 Walls, supra note 51, at 380.

68 Id.



its predecessor some thirty years earlier.69

Unlike in 1960, though, no other

state recognized the Somaliland that declared independence in 1991.

C. Somalia Since 1991

Since Barre’s ouster in 1991, rump Somalia has had no effective

government.70

The collapse of the Somali state has been described as

“complete” and “unique.”71

At least fourteen separate attempts at national

reconciliation have failed.72

Several of these reconciliation efforts have

produced transitional governing entities sponsored by the United Nations

(“UN”).73

While supported and recognized by the international community,

these transitional governing entities have been wholly unable to establish

control over Somalia. For instance, the Transitional Federal Government

(“TFG”) never even entered Mogadishu.74

Instead, the TFG spent seven

months in Nairobi, Kenya, where it was constituted, before decamping to

Baidoa in Somalia.75

The TFG was never able to move from Baidoa to

Mogadishu because Mogadishu—and most of rump Somalia at the time—was

69 Fisher, supra note 1; Africa: In The Horn, Peace Hopes Evaporate, IPS-INTER PRESS SERVICE, May

20, 1991 (“According to SNM radio, monitored in Nairobi, all the northern clans now want to put back the

clock to 1960 and re-erect the colonial boundaries which demarcated British Somaliland.”); Interim

Government in North Somalia Promises Free Elections, GLOBE AND MAIL (Toronto), May 20, 1991

(“Ceremonies have taken place at Burco, [N]orthwest Somalia, to proclaim a new state in the area that formed

British Somaliland before it was merged with the adjoining Italian-administered area to form the Somali

Republic in 1960.”). See also CONSTITUTION OF THE SOMALI REPUBLIC Dec. 31, 1963, art. 2.

70 Ken Menkhaus, State Collapse in Somalia: Second Thoughts, 30 REV. OF AFR. POL. ECON. 405, 407

(2003). One interesting example of the absence of effective government is that Somalia has not issued any

passports since 1991. Mohammed Adow, Somali Passports for Sale, BBC NEWS (May 12, 2004, 7:27 AM),

http://news.bbc.co.uk/2/hi/africa/3704127.stm. This has not, however, prevented their distribution: “Abdifatah

Farah Yasin not only sells the passport but also ‘authenticates’ it by putting a seal of the Somali ministry of

foreign affairs and forging the signature of the last controller of passports before the break-up of the Somali

state.” Id.; see also IMMIGRATION AND REFUGEE BD. OF CAN., SOMALIA: PASSPORTS AND OTHER

DOCUMENTATION THAT COULD ASSIST WITH IDENTIFICATION (2007).

71 Menkhaus, supra note 70, at 407.

72 Steve Kibble, Address at King’s College: Somalia/Somaliland: Territory, State, Nation (Feb. 13,

2007), available at http://www.somalilandtimes.net/sl/2007/275/0280.shtml; Somalia: Prospects for Lasting

Peace and a Unified Response to Extremism and Terrorism Before the Subcomm. On Afr. And Global Health

of the H. Comm. On For. Affairs, 111th Cong. 9 (2009) (testimony of J. Peter Pham).

73 Such efforts produced the Transitional National Government in Djibouti (“TNG”) in 2000 and the

Transitional Federal Government in Kenya in 2004. Time for A.U. Leadership, supra note 51, at 2 n.4, 14 n.61.

74 Ken Menkhaus, Governance Without Government in Somalia, 31 INT’L SECURITY 74, 74 (2007).

75 See, e.g., STEPHANIE HANSON, SOMALIA’S TRANSITIONAL GOVERNMENT (2008), available at

http://www.cfr.org/publication/12475/somalias_transitional_government.html (“Formed in late 2004, the TFG

governed from neighboring Kenya until June 2005. Parliament did not convene on Somali soil until February

2006, when it met in a converted grain warehouse in the western city of Baidoa because security concerns kept

the legislature from entering Mogadishu.”).



ruled by the Islamic Courts Union, a loose collection of Islamists attempting to

impose Sharicah on Somalia.

76 In 2006, Ethiopia invaded Somalia to drive the

Islamic Courts Union from power and install a newly reformed TFG.77

By

2009, the head of the reformed TFG was Sharif Sheikh Ahmed, the Islamic

Courts Union’s leader at the time of Ethiopia’s invasion.78

Though the new transitional government is based in Mogadishu, it does not

control the city, let alone the rest of Somalia.79

The al-Qaeda-affiliated al-

Shabaab,80

a radicalized offshoot of the Islamic Courts Union, controls most of

Mogadishu as well as South and Central Somalia.81

Al-Shabaab recently called

for jihad against Kenya,82

which neighbors Somalia, and launched an offensive

that has embroiled both the TFG and the African Union (“AU”) peacekeeping

force that props up the TFG.83

In July 2010, al-Shabaab launched its first

transnational terrorist attack—two suicide bombers struck Kampala, Uganda

during the World Cup final.84

The failure of a series of transitional governments in rump Somalia over

nearly twenty years has not only driven out international aid organizations,85

but has left rump Somalia a haven for pirates. Pirates based in Somalia have

become such a threat to international shipping that the multinational Combined

76 Sharicah is “the all-embracing sacred law of the Islamic community.” CLEVELAND, supra note 15, at

29. The Islamic Courts Union determined in 2005 that Somalia’s chaos was due to a lack of adherence to

Sharicah (also anglicized as Shari’ah). See Somali Conference Calls for Adoption of Shari’ah Law, BBC

MONITORING AFR., Sept. 29, 2005.

77 Napoleon A. Bamfo, Ethopia’s Invasion of Somalia in 2006: Motives and Lessons Learned, 4 AFR. J.

POL. SCI. & INT’L REL. 55, 55–65 (2010).

78 Sharif Sheikh Ahmed was elected by the Transitional Federal Parliament in 2009 at a meeting in

Djibouti. Somalia: Sharif Returns to Power as Militants Advance, AFR. NEWS, Jan. 31, 2009.

79 See, e.g., Daniel Wallis, WFP Suspends Operations in Much of Southern Somalia, REUTERS, Jan. 5,

2010, available at http://www.reuters.com/article/idUSTRE6041GS20100105?pageNumber=1 (“While there

were hopes [Sharif Sheikh Ahmed] would be able to reconcile with the insurgents, he has made little headway

and his government controls only a few blocks of Mogadishu.”).

80 Huma Yusuf, Somali Militant Group Al Shabab Aligns with Al Qaeda, CHRISTIAN SCI. MONITOR (Feb.

2, 2010), http://www.csmonitor.com/World/terrorism-security/2010/0202/Somali-militant-group-Al-Shabab-

aligns-with-Al-Qaeda.

81 Somali Threat Sparks Uganda Alert, BBC NEWS (Oct. 26, 2009, 6:52 PM), http://news.bbc.co.uk/2/hi/

africa/8326840.stm.

82 Bill Roggio, Shabaab Calls for Jihad Against Kenya, LONG WAR J. (Feb. 8, 2010), http://www.

longwarjournal.org/archives/2010/02/shabaab_calls_for_ji.php.

83 Somali Rebels “Pour into Mogadishu,” BBC NEWS (Feb. 10, 2010, 4:01 PM), http://news.bbc.co.uk/2/

hi/8508176.stm.

84 ‘Somali Link’ as 74 World Cup Fans Die in Uganda Blasts, BBC NEWS (Jul. 12, 2010, 9:02 AM),

http://www.bbc.co.uk/news/10593771. Uganda contributes soldiers to the AU mission supporting the TFG. Id.

85 See, e.g., Wallis, supra note 79.



Task Force 150 has patrolled the Gulf of Aden since 2002.86

Despite the

presence of Combined Task Force 150, attacks by pirates based in Somalia

nearly doubled from 111 in 200887

to 218 in 2009.88

The International

Maritime Bureau noted that though overall attacks have increased, successful

attacks have decreased mainly due to the employment of private security on

board vessels,89

driving up international shipping costs.90

Underscoring their

freedom of action, Somali pirates have established a stock exchange in

Haradheere that allows investors to buy shares in various Somalia-based pirate

crews.91

By September 2009, a UN report estimated that 1.55 million Somalis were

internally displaced—the report noted that measuring internal displacement in

Somalia is particularly difficult because most Somalis have been displaced at

least once in their lives.92

An October 2009 Report on Somalia described

Somalia’s refugee situation as the worst in twenty years.93

Hundreds of

thousands of Somalis live in refugee camps in neighboring Kenya and

Yemen,94

and nearly 70,000 have resettled in Somaliland.95

In the nineteen years since the state collapsed, Somalia has been in near-

constant conflict, producing “an entire generation without the slightest clue of

what a stable republic looks like.”96

86 See, e.g., Deterring Piracy at Sea, NAVY.MIL (Jan. 15, 2009, 4:40 PM), http://www.navy.mil/search/

display.asp?story_id=41854; Jeffery Gettleman, Somalia’s Pirates Flourish in a Lawless Nation, N.Y. TIMES,

Oct. 30, 2008, http://www.nytimes.com/2008/10/31/world/africa/31pirates.html?_r=1&pagewanted=all.

87 Piracy and Armed Robbery Against Ships Report, supra note 5, at 5–6.

88 McDonald, supra note 5.

89 See Int’l Mar. Bureau, Int’l Chamber of Commerce, Piracy and Armed Robbery Against Ships Report,

at 23 (Oct. 2009).

90 Raymond Gilpin, Counting the Costs of Somali Piracy 11–12 (U.S. Inst. of Peace Working Paper,

2009), available at http://www.usip.org/files/resources/1_0.pdf; John W. Miller, Piracy Spurs Threats to

Shipping Costs, WALL ST. J. (Nov. 19, 2008), http://online.wsj.com/article/SB122701864743437147.html.

91 See Mohamed Ahmed, Somali Sea Gangs Lure Investors at Pirate Lair, REUTERS, Dec. 1, 2009,

available at http://www.reuters.com/article/idUSTRE5B01Z920091201.

92 SOMALIA: Record Number of Displaced at 1.5 Million, IRIN (Sept. 7, 2009), http://www.irinnews.

org/report.aspx?ReportID=86034; SOMALIA: Shift Aid Base to “Safe” Areas In-country, Urges UN Official,

IRIN (Oct. 21, 2009), http://ww.irinnews.org/Report.aspx?ReportId=86676.

93 October 2009: Somalia, SECURITY COUNCIL REP., http://www.securitycouncilreport.org/site/c.

glKWLeMTIsG/b.5471337/k.F4E1/October_2009brSomalia.htm (last visited Nov. 21, 2010).

94 Somali Refugee Conditions “Appalling,” CNN (Sept. 4, 2009, 5:46 AM), http://edition.cnn.com/2009/

WORLD/africa/09/03/somalia.refugee.conditions/; Some 74,000 Africans Cross Gulf of Aden to Yemen in

Record-Breaking Year, UNHCR (Dec. 18, 2009), http://www.unhcr.org/print/4b2bac179.html.

95 Operation in Somalia: Fact Sheet: July 2010, U.N. High Comm’n on Refugees (July 29, 2010),

http://www.unhcr.org/refworld/docid/4c566f202.html.

96 Robert Draper, Shattered Somalia, NAT’L GEOGRAPHIC, Sept. 2009, at 76.



D. Somaliland Since 1991

Since Somaliland declared its independence in 1991, the Republic of

Somaliland has evolved from a traditional Somali tribal mode of governance to

a representative democracy.97

In 1993, a meeting of Somaliland’s clans at

Borama approved a transitional charter.98

Another conference in 1997

established a provisional constitution.99

In 2001, ninety-seven percent of the

ballots cast in a Somaliland-wide referendum approved the provisional

constitution and approved Somaliland’s independence.100

In December 2002,

Somaliland held its first local municipal elections, followed by its first

presidential election in 2003.101

Notably, the winner of the 2003 presidential

election was decided by just seventy-two votes and, while “the opposition

initially cried foul . . . after exhausting its appeals [it] accepted the result.”102

Somaliland held its first parliamentary election in 2005.103

In June 2010,

Somaliland finally held its long-delayed second presidential election.104

Judged

“free and fair” by international election observers,105

the opposition candidate,

Ahmed Mohammed Silanyo, defeated incumbent President Dahir Rayale

Kahin.106

On July 27, 2010, power was peacefully transferred between Kahin

and Silanyo—making Somaliland just the fourth state in Africa to witness a

peaceful transfer of power from a defeated incumbent president to a victorious

challenger.107

Since Somaliland’s declaration of independence, the militiamen that spent a

decade fighting the Barre regime have been demobilized or incorporated into

Somaliland’s armed forces.108

Somaliland has successfully resolved internal

97 See Democratisation and its Discontents, supra note 35 at 8–13.

98 Walls, supra note 51, at 382–84 (2009); Time for A.U. Leadership, supra note 51, at 6.


100 Id.

101 Democratisation and its Discontents, supra note 35, at i.


103 Id.

104 Democracy Triumphs with Somaliland’s Second Peaceful Election, USAID FRONTLINES (Sept. 2010),

http://www.usaid.gov/press/frontlines/fl_sep10/p05_somaliland100911.html.

105 Somaliland Election Free and Fair: Observers, SOMALILANDPRESS (June 28, 2010), http://

somalilandpress.com/somaliland-election-free-and-fair-observers-16757; see also Somaliland Holds Credible

Presidential Election, INT’L REPUBLICAN INST. (June 27, 2010), http://www.iri.org/news-events-press-center/

news/somaliland-holds-credible-presidential-election.

106 William Wallis, Election Victor Takes Power in Somaliland, FIN. TIMES (July 27, 2010, 4:40 PM),

http://www.ft.com.

107 Id.

108 Democratisation and its Discontents, supra note 35, at 6.



conflicts without resorting to internal armed conflict.109

In 2003, the

International Crisis Group reported that the government of Somaliland could

boast “basic civil administration across roughly eighty per cent of the

territory.”110

The UN High Commission for Refugees described Somaliland’s

central administration as

maintain[ing] functional control over the national army; the police force and courts maintain public order; customs officials collect taxes at the port; the two houses of the legislature convene and debate bills; and at least some of the ministries are making serious attempts to play a constructive role in their assigned sector.

111

The government of Somaliland also issues currency and passports.112

In stark contrast to Somalia, Somaliland’s central government proactively

confronts both transnational terrorism and piracy. In 2005, Somaliland

interdicted an al-Qaeda cell trying to establish itself in Hargeisa.113

Following

an investigation, the government of Somaliland tried members of that cell:

In December 2006, a major trial ended in Somaliland in which 15 suspects were charged (six in absentia) with conspiracy to commit terror, illegal importation of arms and explosives and the wounding of three policemen in September/October 2005. Most of the suspects were convicted and sentenced to 20 - 25 years in prison. . . .

Surprisingly, both Shaykh Hassan Dahir Aweys and Aden Hashi Farah “Ayrow,” an Afghanistan veteran and military commander of al-Shabaab, were acquitted due to a lack of evidence.

114

The government of Somaliland has also embarked on an anti-piracy campaign,

establishing a small coast guard and arresting pirates caught in its waters.115

As part of a concerted effort to garner recognition, Somaliland has

cultivated international relationships, including an agreement with Ethiopia,

109 Id.

110 Id. at 7.

111 KENNETH MENKHAUS, SOMALIA: A SITUATIONAL ANALYSIS AND TREND ASSESSMENT 25 (2003),

available at http://www.unhcr.org/refworld/pdfid/3f7c235f4.pdf.

112 See Somalia Country Specific Information, TRAVEL.STATE.GOV (Jan. 19, 2010), http://travel.state.gov/

travel/cis_pa_tw/cis/cis_1023.html.

113 Trying to Behave Like a Proper State: Breakaway Somaliland Has Impressed the Americans by Hitting

al-Qaeda, ECONOMIST, Sept. 29, 2005, http://www.economist.com/node/4466050 [hereinafter Trying to

Behave Like a Proper State].

114 McGregor, supra note 14, at 7, 8.

115 See Sanders, supra note 13.



granting Ethiopia overland access to Somaliland’s port of Berbera.116

That

agreement also formalized trade relations between Somaliland and Ethiopia,

and included an agreement to establish customs offices along Somaliland’s

border with Ethiopia.117

Somaliland has opened liaison offices in Ethiopia,

Djibouti, the United States, and the United Kingdom.118

It has hosted

delegations from states like Pakistan, and from international organizations like

the World Bank and the African Union.119

In 2005, Somaliland submitted its

application for membership to the AU.120

Though the AU has yet to act on

Somaliland’s application for membership, a 2005 AU fact-finding mission

reported favorably on Somaliland, recommending that the AU “find a special

method for dealing with” Somaliland and urging that recognizing Somaliland’s

independence “not be linked to the notion of ‘opening a [P]andora’s box.’”121

Yet, the AU has not found a special method for dealing with Somaliland,

and no other state or non-governmental organization has recognized its

independence. To understand whether Somaliland should be recognized as an

independent state, the legal issues that concern secession must be examined.

II. LEGAL ISSUES GOVERNING SECESSION

Secession, when successful, results in the emergence of a new state

recognized by the international community.122

The legal issues implicated by

the creation of a state through its separation from a preexisting state are

statehood, recognition, secession, and uti possidetis.

116 Trying to Behave Like a Proper State, supra note 113.

117 Dilemma of the Horn: The West Pushes for Somaliland Recognition, 34 DEF. & FOREIGN AFF.

STRATEGIC POL’Y 7 (2006).

118 See, e.g., Hassan Ali, Ethiopia Appoints New Representative to Somaliland, Upgrades Its Office,

SOMALILANDPRESS (Oct. 30, 2009, 6:25 AM), http://somalilandpress.com/ethiopia-appoints-new-

representative-to-somaliland-upgrades-the-office-9356; The Contacts and Addresses of the Somaliland

Representative Offices Around the World, SOMALILAND OFFICIAL WEBSITE, http://www.somalilandgov.com/

contacts.htm (last visited Nov. 20, 2010).

119 See, e.g., Hassan Ali, Pakistani Delegation Arrives in Somaliland, SOMALILANDPRESS (Nov. 8, 2009),

http://somalilandpress.com/pakistani-delegation-arrive-somaliland-9531; Isahaq Hashi & Abdiqani Baynah,

Somaliland: International Donors Tour Hargeisa’s Main Water Storage, SOMALILANDPRESS (Oct. 12, 2010),

http://somalilandpress.com/somalilandinternational-donors-tour-hargeisa%E2%80%99s-main-water-storage-

18680.


121 AFRICAN UNION, AU FACT-FINDING MISSION TO SOMALILAND 4 (2005) (emphasis omitted); see also

Iqbal Jhazbhay, Somaliland has Strong Case for Recognition, SUNDAY INDEP. (S. Afr.), Apr. 2, 2006; Time for

A.U. Leadership, supra note 51, at 2 (“[The AU fact-finding mission] reported favourably in 2005, on both the

situation in Somaliland and the territory’s sovereign status.”).

122 DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 60–62 (2d ed. 2006).



A. Statehood

Statehood is a notoriously vexing concept in international law.123

Though

states have been the fundamental unit of the international system for nearly

four hundred years,124

there remains no generally accepted definition of

statehood.125

The classical criteria of statehood, enumerated in the Montevideo

Convention on the Rights and Duties of States of 1933 (“Montevideo

Convention”), declare that “[t]he 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 other

States.”126

The so-called Badinter Commission echoed the Montevideo criteria

in its opinions concerning the dissolution of Yugoslavia: “[A] State [is] a

community which consists of a territory and a population subject to an

organized political authority [and] is characterized by sovereignty.”127

However, the Montevideo Convention criteria are not exclusive. In

practice, whether an entity is effective is central to the question of statehood.128

The effectiveness of an entity turns on whether the entity is in fact independent

123 See, e.g., JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 31 n.1 (1979);

THOMAS D. GRANT, THE RECOGNITION OF STATES 83–84 (1999).

124 The modern international system is usually described as being born with the Peace of Westphalia of

1648. See, e.g., DOUGLAS HOWARD & LUISE WHITE, THE STATE OF SOVEREIGNTY: TERRITORIES, LAWS,

POPULATIONS 3 (2008). That treaty both ended the Thirty Years War and ushered in the European state

system. See id.; see also THOMAS H. GREER & GAVIN LEWIS, A BRIEF HISTORY OF THE WESTERN WORLD 398

(2005).

125 CRAWFORD, supra note 123, at 31.

126 Montevideo Convention on the Rights and Duties of States, art. 1, Dec. 26, 1933, 165 L.N.T.S. 21031

[hereinafter Montevideo Convention].

127 Conference on Yugoslavia, Arbitration Commission, Opinion No. 1, 92 I.L.R. 162, 165 (1991)

[hereinafter Badinter Opinion 1]. See generally Alain Pellet, The Opinions of the Badinter Arbitration

Committee: A Second Breath for the Self-Determination of Peoples, 3 EUR. J. INT’L L. 178 (1992).

128 Gerhard Erasmus, Criteria for Determining Statehood: John Dugard’s Recognition and the United

Nations, 4 S. AFR. J. HUM. RTS. 207, 215 (1988). In fact, Crawford considers the capacity to enter into

international relations to be a conflation of the governance and independence criteria. CRAWFORD, supra note

123, at 47–48. Crawford likewise considers effectiveness to embrace both governance and territory—that is,

that a state has territory by exerting government control over it, thereby being effective. Id. at 42. Finally,

Crawford writes:

It is clear that “government” and “independence” are closely related criteria—in fact they may be

regarded as different aspects of the requirement of effective separate control . . . . [G]overnment

is treated as the exercise of authority with respect to persons and property within the territory

claimed; whereas independence is treated as the exercise . . . [of] authority with respect to other

international persons.

Id. at 42 n.54.



and whether its government exerts control over its territory.129

Entities that

have not been in fact independent or entities that do not exercise effective

control over the territory that purportedly constitutes the state have been denied

statehood. For example, the League of Nations refused to recognize

Manchukuo, the entity that the Empire of Japan established in Manchuria after

Japan’s 1931 invasion, because it was a puppet of Japan and not formed

through “a genuine and spontaneous independence movement.”130

On the other hand, failure to satisfy the Montevideo Convention criteria

does not conclusively prevent an entity from achieving statehood. The process

of decolonization in Africa resulted in the emergence of several entities

recognized as states despite their failure to satisfy one or more of the

Montevideo criteria.131

The former Belgian colony, the Democratic Republic

of the Congo, provides the best example of a state emerging from colonial

dominion that substantially failed to meet one or more of the Montevideo

criteria.132

For example, at independence, the Congo did not possess an

effective government.133

Instead, the UN and the state’s former colonial power

propped up the new state.134

Despite its inability to govern itself and thus its

failure to satisfy one of the four Montevideo criteria of statehood, the Congo’s

“application for United Nations membership was approved without dissent.”135

Thus, while the statehood criteria, especially the governance and

independence criteria, suggest that effectiveness is the primary determinant of

statehood, effectiveness is not conclusively determinative.136

It is possible that

an ineffective putative state will receive international recognition.137

Moreover,

even effectiveness operates only as a predicate for the creation of a new state.

A putative state must additionally conform to existing international norms of

state creation.138

In the case of a state created by its separation from a prior

existing state, this means that the putative state’s separation must conform to

129 Georges Abi-Saab, Conclusions, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 475 (Marcelo G.

Kohen ed., 2006) (“[For an effective state to exist,] the population and territory must be well-defined and ruled

(or controlled) by a sovereign government that depends on no other.”).

130 Report of Lytton Commission of Enquiry, League of Nations Doc. C.663M.320 1932 VII, at 97 (1932).

131 See, e.g., CRAWFORD, supra note 123, at 42–44.

132 See id. at 42–44.

133 Id.

134 Id. at 44.

135 Id. at 43.

136 Id. at 43–44.

137 See id. at 43.

138 See id. at 42.



state practice regarding secession or dissolution, including the principle of uti

possidetis.

B. Recognition

Much of the literature dedicated to the question of statehood focuses on the

legal effect of recognition.139

Traditionally, there are two schools of thought

regarding the legal impact of recognition on a putative state.140

The

constitutive school holds that recognition is a fundamental criterion of

statehood—that an entity only becomes a state once it has been recognized.141

The declaratory school, on the other hand, holds that recognition has no legal

effect; recognition merely announces what is already fact—that the entity in

question is a state.142

However, there is another view—one that regards the traditional

constitutive-declaratory dichotomy as overly simplistic.143

The question from

this perspective is not when a state is a state, but rather to whom is a state a

state. That is, a state may be a state internally but not externally:

Though political communities . . . can without recognition continue to operate as states within the four walls of their domestic (territorial) enclave, they cannot enter into relations with any other state unless that other state expressly, or by putting up with such relations, impliedly recognize[s] that political community as a subject of international law.

144

A state may also be a state vis-à-vis one state but not the international

community generally, as is the case with the Turkish Republic of Northern

Cyprus.145

In some sense, this view treads a middle ground between the

constitutive-declaratory dichotomy.

Regardless of whether a state is a state with international personality absent

recognition, unrecognized states suffer a disability in the modern international

system:

139 See, e.g., JOHN DUGARD, RECOGNITION AND THE UNITED NATIONS (1987); GRANT, supra note 123; H.

LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW (1948).

140 See LAUTERPACHT, supra note 139, at 38–42.

141 Id. at 38–41.

142 Id. at 41–42.

143 See Johan D. van der Vyver, Statehood in International Law, 5 EMORY INT’L L. REV. 9, 10 (1991).

144 Id. at 99.

145 Id.



[R]ecognition is more than a mere formality in the contemporary international system. Its denial places real constraints on the capacity to function as a modern state, both domestically and internationally. The government has no access to international financial institutions or direct bilateral assistance; trade . . . is handicapped by the lack of recognised regulatory controls; foreign investors—among them banks and insurance companies—are reluctant to invest in a territory that is still legally part of a failed State and a designated war zone.

146

It is little wonder, then, that “virtually every community lacking recognition”

between 1415 CE and 1987 CE lost its independence.147

Moreover, recognition

is particularly important to secessionist entities.148

Recognition has been the

primary pursuit of states newly created through secession.149

Failure to gain

widespread recognition has consigned many secessionist entities—including

both Katanga and Biafra—to failure.150

More than sixty years ago, Lauterpacht argued that recognition is of such

import to states and the international system that there is a legal duty

incumbent upon existing states to recognize qualifying entities:151

[E]xisting States are under the duty to grant recognition. In the absence of an international organ competent to ascertain and authoritatively to declare the presence of the requirements of full international personality, States already established fulfil that function in their capacity as organs of international law. In thus acting they administer the law of nations. This legal rule signifies that in granting or withholding recognition States do not claim and are not entitled to serve exclusively the interests of their national policy and convenience regardless of the principles of international law in the matter.

152

Despite the impact that recognition or non-recognition has on a state,

Lauterpacht’s view has not taken hold and recognition remains a political act at

the discretion of existing states: “Third-party states normally do not pronounce


147 GRANT, supra note 123, at 27 (quoting David Strang, Anomaly and Commonplace in European

Political Expansion: Realist and Institutional Accounts, 45 INT’L ORG. 143, 154–58 (1991)).

148 Radan, supra note 48, at 20; CRAWFORD, supra note 123, at 252.

149 Radan, supra note 48, at 20.

150 Id.

151 LAUTERPACHT, supra note 139, at 6.

152 Id.



on the issue [of recognition] until they perceive it in their national interest to

do so, and then their pronouncements are colored by that interest.”153

Nauru recently exemplified the political nature of state recognition. Nauru

is a small, impoverished, island state in the Pacific Ocean.154

On December 15,

2009, Nauru became the fourth state to recognize the independence of

Abkhazia, a breakaway province of the Republic of Georgia.155

Nauru, which

had its national airline’s only Boeing 737 repossessed in 2005,156

received $50

million in aid from Russia in exchange for recognizing Abkhazia.157

Nauru is

an extreme example, but it should not be surprising that states decide to extend

recognition to new states based on considerations of their own interests. The

Cold War is rife with examples of states being recognized by the NATO bloc

only to be denied recognition by the Warsaw Pact countries, or vice versa.158

Even today, the mostly East-West divide over whether to recognize Kosovo as

an independent state is mirrored in the conflict over recognition for

Abkhazia—a principled approach to recognition would likely dictate the same

treatment for both territories.159

More recently, some scholars have argued that existing states have a duty

of non-recognition.160

The duty of non-recognition obliges existing states not

to extend recognition to putative states whose creation violated a peremptory

norm of international law.161

Under this regime, recognition of a would-be

state created in violation of the prohibition on aggression, the prohibition on

the acquisition of territory by means of force, the prohibition of systematic

racial discrimination or suppression of human rights, or the prohibition of the

153 Erasmus, supra note 128, at 216–17; Alfred P. Rubin, Secession and Self-Determination: A Legal,

Moral, and Political Analysis, 36 STAN. J. INT’L L. 253, 261 (2000).

154 Ellen Barry, Nauru, a Pacific Island Nation, Establishes Relations with Faraway Abkhazia, N.Y.

TIMES, Dec. 16, 2009, at A8.

155 Id.

156 Cameron Stewart, Nauru Begs US for Plane, AUSTRALIAN, Dec. 20, 2005.

157 Barry, supra note 154.

158 For example, the United States recognized Taiwan as a state until 1979. Gerrit van der Wees, Taiwan

Is as Much a Nation-State as the US, TAIPEI TIMES (June 18, 2007), http://www.taipeitimes.com/News/

editorials/archives/2007/06/18/2003365794/2.

159 Kosovo has already been recognized by sixty-five states, including the United States. See Nicholas

Kulish & C.J. Chivers, U.S. and Much of Europe Recognize Kosovo, Which Also Draws Expected Rejection,

N.Y. TIMES, Feb. 19, 2008, at A10.

160 See, e.g., JOHN DUGARD, INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE 99–100 (Lucienne

Walters ed., 3d ed. 2005).

161 Id.



denial of self-determination would be illicit,162

violating the duty of non-

recognition.163

Like the duty of recognition, the duty of non-recognition has

been criticized for treading on what has traditionally been a state’s political

prerogative—it is not yet widely accepted.164

C. Secession

Secession is the “creation of a State by the use or threat of force and

without the consent of the former sovereign.”165

Secession is characterized by

the “separation of part of the territory and population of an existing State.”166

In general, secession results in the creation of one or more new states and the

continued existence of the parent state from which those states seceded.167

Dissolution, like secession, is a non-consensual separation of territory and

population giving rise to new states.168

However, unlike secession generally,

dissolution is characterized by the extinction of the parent state and its

replacement by two or more newly created states.169

Dissolution is also marked

162 Dugard uses Katanga and Rhodesia as examples of states created in violation of the right to self-

determination. Id. at 101. Katanga’s establishment violated the right to self-determination because the “right of

self-determination is to be exercised within existing borders and that the United Nations will oppose the claim

to statehood of an entity that comes into existence in violation of this principle.” DUGARD, supra note 139, at

89–90. Rhodesia offended the principle of self-determination because its regime systematically denied

segments of its population the right to participation in its government. Id. at 97.

163 DUGARD, supra note 160, at 100–01.


165 CRAWFORD, supra note 123, at 247. Radan defines secession as “the creation of a new state upon

territory previously forming part of, or being a colonial entity of, an existing state.” Radan, supra note 48, at

18. The original state from or on which the new state is created is referred to as the parent or metropolitan

state. Cf. id. (referring to the originating state as the “host state”).

166 Marcelo G. Kohen, Introduction, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 3 (Marcelo G.

Kohen ed., 2006). Many scholars distinguish secession, the non-consensual creation of a new state, with

devolution, the creation of a new state with metropolitan consent. See id.; CRAWFORD, supra note 123, at 215,

247 (“The crucial distinguishing feature is the presence or absence of metropolitan consent.”). Some scholars

also enlarge the concept of secession to include both consensual and non-consensual separation of territory.

See, e.g., Johan D. van der Vyver, The Right to Self-Determination and Its Enforcement, 10 ILSA J. INT’L &

COMP. L. 421, 429 (2004). But see LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION

97–99 (1978).

167 Kohen, supra note 166, at 3.

168 See id. Contra John Dugard, A Legal Basis for Secession: Relevant Principles and Rules, in SECESSION

AND INTERNATIONAL LAW 89, 89 (2003) (defining “[s]ecession as the unilateral withdrawal of part of an

existing State from that State without the consent of the government of that State. Secession by agreement is

better described as dissolution of a State”).

169 KOHEN, supra note 129, at 3. For this reason, secession and dissolution are sometimes treated as

distinct concepts. However, because both involve the non-consensual separation of territory and population

from a prior existing state, resulting in the creation of one or more new states, the better view is to treat

dissolution as a subset of secession.



by the breaking apart of a composite state along the boundaries of its

constituent units.170

Groups claiming a right to self-determination have frequently pursued

secession, but self-determination and secession are not necessarily

coextensive.171

Even a group that does not qualify as a people, and is therefore

not vested with the right to self-determination, may pursue secession.172

When

a putative secession does not implicate self-determination, however, the critical

criterion of statehood is the “maintenance of a stable and effective

government” to the exclusion of the metropolitan state.173

The secessionist

entity’s independence must also either not be disputed, or it must be

“manifestly indisputable.”174

As a threshold matter then, secessionist entities

must be, in fact, independent and effective.

The international system is a state-centric system.175

As such, it is

“understandable that a community composed of States and a legal system that

purports only to regulate the rights and duties of States would react adversely

to any threat to the present State-centered order.”176

Secession, because it

results in the “dismemberment of a previously unified, independent State,”177

necessarily threatens the state-centered order. It is for this reason that

secessionist entities are usually described as illegitimate when they attempt to

secede.178

However, secession is not prohibited under international law.179

170 Rodoljub Etinski, Has the SFR of Yugoslavia Ceased to Exist as a Subject of International Law?, in

INTERNATIONAL LAW AND THE CHANGED YUGOSLAVIA 32–34 (Ranko Petkovic ed., 1995).

171 See, e.g., van der Vyver, supra note 166, at 427 (“The right to self-determination vests in a people,

while a new State created through secession is essentially territorially defined.”). Often, secession is discussed

in terms of a “right to secession.” Normally, the right to secession vests in a people denied self-determination.

From this conception springs the notion of remedial secession. See generally SECESSION AND SELF-

DETERMINATION (Stephen Macedo & Allen Buchanan eds., 2003).

172 van der Vyver, supra note 166, at 427, 429. Bosnia-Herzegovina provides a good example of secession

occurring outside the context of self-determination. Unlike Croatia or Slovenia, Bosnia-Herzegovina is a

multiethnic state; its secession from Yugoslavia did not result in the creation of a national-state, and was not in

pursuit of national self-determination. See PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND

INTERNATIONAL LAW 187 (2002) (explaining that Bosnia-Herzegovina’s successful plebiscite on

independence required majority support of two of its ethnic constituencies).

173 CRAWFORD, supra note 123, at 266; RADAN, supra note 172, at 210 (“What is crucial ‘is the notion of

control . . . which concerns the de facto authority exercised by the government over the people.’” (quoting

M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia, 66 BRIT. Y.B. INT’L L. 333,

367 (1995)).


175 BUCHHEIT, supra note 166, at 13.

176 Id.

177 Id.

178 See id. at 13–14.



While Lauterpacht wrote that “[s]uccessful secession from the parent State is a

fact not contrary to international law,”180

other scholars have gone further,

arguing that “[s]ecession is . . . sanctioned by international law—not under the

rubric of a right to self-determination but as a permissible political strategy in

its own right.”181

In the eighteenth century, a secessionist entity was regarded as valid only

when the metropolitan state extended recognition to that secessionist entity—

under this regime, extending recognition to a seceding territory before its

parent state recognized it as a state would be illegal or at least premature.182

From the nineteenth century though, secession was successful not when or if

the metropolitan state recognized the secessionist entity, but merely when the

metropolitan state gave up the struggle to retain the territory:

[W]hen a sovereign State, from exhaustion or any other cause, has virtually and substantially abandoned the struggle for supremacy it has no right to complain if a foreign State treat[s] the independence of its former subjects as de facto established; nor can it prolong its sovereignty by a mere paper assertion of right.

183

Recently, secession generally has been described as valid in only two

scenarios—consensual separation of territory (devolution) and the redrawing

of national boundaries through a peace treaty following an armed conflict.184

Restricting secession’s validity to secession through a peace treaty effectively

restricts legitimate secession to instances of metropolitan accession, as was the

case in the eighteenth century.185

Dissolution, however, requires no such

metropolitan accession. The nature of dissolution is such that, unlike secession,

179 Dugard, supra note 168, at 91 (“While international law does not, as Stated by U Thant, prohibit

secession, it does recognize rules which put a brake on secession.”); see Christian Tomuschat, Secession and

Self-Determination, in SECESSION: INTERNATIONAL LAW PERSPECTIVES, supra note 129, at 23–25; Jorri

Duursma, Preventing and Solving Wars of Secession, in STATE, SOVEREIGNTY, AND INTERNATIONAL

GOVERNANCE 352 (Gerard Kreijen ed., 2002).


181 van der Vyver, supra note 166.

182 Mikulas Fabry, Secession and State Recognition in International Relations and Law, in ON THE WAY

TO STATEHOOD: SECESSION AND GLOBALISATION, supra note 48, at 51, 54.

183 CRAWFORD, supra note 123, at 256 (citation omitted).

184 van der Vyver, supra note 166, at 429–30.

185 Mikulas Fabry, Secession and State Recognition in International Relations and Law, in ON THE WAY

TO STATEHOOD: SECESSION AND GLOBALISATION, supra note 48, at 51, 54 (“According to [the eighteenth

century] norm, the dominion of a legitimate monarchy was in principle inalienable. The only valid change of

title to sovereignty or territory was through freely given consent of the affected monarch.”); CRAWFORD, supra

note 123, at 11.



the former metropolitan state ceases to exist. Its extinction means that a parent

does not continue to accede to its components’ newfound statehood.186

During the Biafran War, UN Secretary-General U Thant claimed that “the

United Nations attitude is unequivocable [sic] . . . . [T]he United Nations has

never accepted and does not accept . . . the principle of secession of a part of

its Member State.”187

His declaration better reflects the general reluctance of

states to admit secession in the abstract than it reflects actual state practice.188

In fact, since U Thant made that statement, at least forty states created through

secession have become member states of the UN.189

These forty examples of

secession provide a general survey of secession scenarios. They also provide a

good guide to state practice regarding—and therefore the norms governing—

secession. The experiences of Eritrea, Yugoslavia, and the United Arab

Republic are particularly instructive. Whereas Eritrea represents a

straightforward secession, both Yugoslavia and the United Arab Republic

underwent dissolution.190

1. Eritrea’s Secession

In the case of Eritrea, an armed movement prosecuted a thirty-year war of

secession against Ethiopia, its metropolitan state. Eritrea was an Italian colony

until the British occupied it during World War II.191

Following World War II,

instead of gaining independence through decolonization,192

Eritrea became

federated with Ethiopia by the United Nations.193

Ethiopia abrogated this UN-

imposed federal arrangement by annexing Eritrea in 1962, extinguishing

186 Radan, supra note 48, at 26.

187 Dugard, supra note 168, at 90 (citation omitted).

188 See Kohen, supra note 166, at 3 (pointing out that states go so far as to refer euphemistically to the

“separation of part of the state” in the 1978 Vienna Convention on State Succession); see also Dugard, supra

note 168, at 91 (describing Thant’s statement on secession as “a gross exaggeration”).

189 Dugard, supra note 168, at 91; Kohen, supra note 166, at 2. Since the end of the Cold War, the

constituent states of Yugoslavia and Eritrea have all successfully seceded and subsequently joined the UN. See

Press Release, Department of Public Information, United Nations Member States, U.N. Press Release

ORG/1469 (July 3, 2006).

190 See, e.g., Badinter Opinion 1, supra note 127, at 166 (determining that “the Socialist Federal Republic

of Yugoslavia is in the process of dissolution”); Rep. of the Int’l Law Comm’n, 27th Sess, May 2–July 2,

1972, U.N. Doc. A/8710/Rev.1 (1972), reprinted in 2 Y.B. INT’L L. COMM’N 220, 286–93 (1972); Kohen,

supra note 166, at 2.

191 RUTH IYOB, THE ERITREAN STRUGGLE FOR INDEPENDENCE: DOMINATION, RESISTANCE, NATIONALISM

1941–1993 61–63 (1995).

192 Id.

193 Id.



Eritrea’s autonomy.194

Ethiopia’s annexation sparked the armed Eritrean

secessionist movement.195

Ultimately, Eritrea’s secession from Ethiopia was facilitated both by the

success of its armed struggle and by a revolution within Ethiopia.196

Rather

than continuing the struggle to retain Eritrea, Ethiopia’s revolutionary

government endorsed Eritrean independence.197

Eritrea emerged as an

independent state within its former colonial borders on May 24, 1993,

following a plebiscite conducted with the support of Ethiopia,198

and monitored

by observers from both the UN and the Organization for African Unity

(“OAU”).199

Eritrea was then rapidly recognized by governments around the

world and admitted to the UN.200

Eritrea’s secession was thus legitimated

when its parent state gave up the struggle to retain Eritrea and acceded to its

independence.

2. Yugoslavia’s Dissolution

In the case of Yugoslavia, the Socialist Federal Republic of Yugoslavia

(“SFRY”) began the process of dissolution when two of its constituent

republics, Slovenia and Croatia, declared independence in 1991.201

By the end

of 1991, three of the SFRY’s republics had held referendums approving

independence and one had adopted a “sovereignty resolution.”202

The Badinter

Commission emphasized the collapse of Yugoslavia’s federal apparatus in

determining that “the Socialist Federal Republic of Yugoslavia is in the

process of dissolution.”203

Specifically, the Badinter Commission noted “that

194 Id. at 94–97.

195 Id. at 104–05.

196 See TEKESTE NEGASH, ERITREA AND ETHIOPIA: THE FEDERAL EXPERIENCE 166–68 (1997).

197 Id. at 168; IYOB, supra note 191, at 138–39.

198 IYOB, supra note 191, at 143. Ethiopia had actually recognized Eritrea as an independent state on May

3, 1993, before Eritrea officially declared its independence. Ethiopia Accepts Eritrea Vote, N.Y. TIMES, May

4, 1993, at A3.

199 IYOB, supra note 191, at 137.

200 For example, Saudi Arabia, Algeria, and Denmark recognized Eritrea on May 4, 1993. Eritrea is

Recognized by Saudi Arabia, Algeria and Denmark; Applies to Join OAU, BBC SUMMARY OF WORLD

BROADCASTS, May 6, 1993, at 4(B). Israel recognized Eritrea on May 6, 1993. Israel Recognised Officially the

Independence of Eritrea on 6th May, BBC SUMMARY WORLD BROADCASTS, May 8, 1993, at 4(B). The United

Kingdom recognized Eritrea on May 19, 1993. Eritrea Recognized, GUARDIAN (London), May 19, 1993, at 8.

The United Nations admitted Eritrea as a member state on May 28, 1993. U.N. Welcomes Monaco, Eritrea,

L.A. TIMES, May 29, 1993, at A12.

201 Badinter Opinion 1, supra note 127.

202 Id.

203 Id. at 166.



in the case of a federal-type State . . . the existence of the State implies that the

federal organs represent the components of the Federation and wield effective

power.”204

Putting aside the type of government structure used in Yugoslavia,

it becomes clear that the state’s existence is tied to its ability to “wield

effective power.”205

Therefore, when the SFRY’s constituent units began to

exercise authority over their declared territory to the exclusion of Yugoslavia’s

central government, the state of Yugoslavia began to dissolve. With dissolution

came the emergence of Yugoslavia’s constituent units as independent states.

Importantly, statehood for the component states of Yugoslavia was not

dependent on recognition by the state claiming to be Yugoslavia’s successor.206

The non-Serbian constituent units of Yugoslavia were widely recognized as

states and were even admitted to the UN well before they were recognized by

Serbia.207

For example, Croatia was admitted to the UN on May 22, 1992,208

but it was not recognized by Serbia until 1996.209

Instead of metropolitan—or

purportedly metropolitan—accession, the validity of the secessions of

Yugoslavia’s constituent units turned on their independence, effectiveness, and

satisfaction of the objective criteria of statehood.

3. The United Arab Republic’s Dissolution

The United Arab Republic provides another example of dissolution. In

1958, the “total union of Egypt and Syria into a single state” resulted in the

creation of the United Arab Republic (“UAR”).210

The unification of Egypt

204 Id. at 165 (emphasis added).

205 Craven highlights that the dissolution question turns not on representativeness of government but on

whether the government can exercise control. Craven, supra note 173, at 367.

206 While the Badinter Commission determined Yugoslavia to be in the process of dissolution, Serbia

maintained that it was in fact the successor state to the Socialist Federal Republic of Yugoslavia. See Oberster

Gerichtshot [OGH] [Supreme Court] Dec. 17, 1996, docket No. 4 Ob 2304/96v (Austria), translated and

reprinted in 36 I.L.M. 1520 (1997) (determining that the SFRY had dissolved and that it had been succeeded

by five states, and not solely by Serbia as Serbia claimed).

207 Member states of the European Community and Canada recognized Croatia and Slovenia on January

15, 1992, while Croatia, Slovenia, and Bosnia-Herzegovina were admitted to the United Nations as member

states on May 22, 1992. ANA S. TRBOVICH, A LEGAL GEOGRAPHY OF YUGOSLAVIA’S DISINTEGRATION 280–81

(2008). Admission to the United Nations followed a string of negotiations involving Yugoslavia’s component

republics, the European Commission, the Badinter Commission, and various European states, particularly

Germany. Id. at 239–81.

208 Id. at 280–81.

209 The Federal Republic of Yugoslavia did not recognize Croatia until 1996. Yugoslavia-Croatia Ties,

N.Y. TIMES, Sept. 10, 1996, at A4.

210 CLEVELAND, supra note 15, at 314; Eugene Cotran, Some Legal Aspects of the Formation of the

United Arab Republic and the United Arab States, 8 INT’L & COMP. L.Q. 346, 347–48 (1959) (“The texts of



and Syria was voluntary on the part of both states, was approved by the

legislatures of both states,211

and was ratified by plebiscites held in both Egypt

and Syria.212

A single executive branch and a single national assembly

governed the UAR, drawing equal members from both formerly independent

states.213

Additionally, within the UN, one mission singularly representing the

UAR replaced the separate UN member states of Egypt and Syria.214

Similarly,

the United States recognized the UAR and the United States Senate confirmed

an ambassador to the United Arab Republic.215

In September 1961, a coup d’etat in the Syrian region of the UAR, led

Syria to declare its independence.216

The UAR violently resisted Syria’s non-

consensual separation from the unitary state.217

The Syrian coup forces quickly

established their authority at the exclusion of the UAR.218

In doing so, Syria’s

secession dissolved the UAR, leading Gamal Abdel Nasser, the UAR

President, to describe himself as “the captain of a ship which has split in two in

the middle of the sea.”219

Despite Egypt’s persistent use of the label “United

Arab Republic” in the wake of the UAR’s dissolution, Nasser remarked to the

U.S. Ambassador that the dissolution would allow him to focus on Egypt’s

affairs.220

Syria and Egypt resumed their separate representation at the UN and,

by 1962, the Egyptian who held the post before unification in 1958 replaced

the sole Syrian member of the UAR’s delegation.221

[the provisional constitution of the UAR and the unification proclamation] indicate clearly that there is now

one State and one international person where formerly there were two.”).

211 JAMES JANKOWSKI, NASSER’S EGYPT, ARAB NATIONALISM, AND THE UNITED ARAB REPUBLIC 113

(2002).

212 Cotran, supra note 210, at 347–48.

213 JANKOWSKI, supra note 211.

214 Cotran, supra note 210, at 348; see also ELIE PODEH, THE DECLINE OF ARAB UNITY: THE RISE AND

FALL OF THE UNITED ARAB REPUBLIC 145–46 (1999).

215 See PIERRE MICHEL EISEMANN & MARTTI KOSKENNIEMI, STATE SUCCESSION: CODIFICATION TESTED

AGAINST THE FACTS 222 (1996).

216 Richard Young, State of Syria: Old or New, 56 AM. J. INT’L L. 482, 482 (1962).

217 Within twenty-four hours of the coup d’etat, President Nasser launched an abortive armed mission to

preserve the single state. Nasser called off the operation after it became clear that the coup forces had

solidified their control over Syria. PODEH, supra note 214, at 150–51.

218 PODEH, supra note 214, at 150–51. Interestingly, Nasser immediately recognized the ramifications of

Syrian secession, stating on September 28, 1961, as he deployed UAR forces to put down the coup, that it was

not in his power to dissolve a union based on the will of the Arab people. JANKOWSKI, supra note 211, at 169.

219 JANKOWSKI, supra note 211, at 170 (quoting cABD AL-LATIF BAGHDADI, MUDHAKKIRAT cABD AL-

LATIF AL-BAGHDADI 124 (1997)).

220 Id. at 171.

221 L.C. Green, The Dissolution of States and Membership of the United Nations, 32 SASK. L. REV. 93, 109

(1967).



Secession is the creation of a new state through the separation of territory

and population from a parent state.222

Dissolution, though, occurs when

components integral to a state secede, generating new states and extinguishing

the erstwhile metropolis.223

A secessionist entity, like Eritrea, is valid once its

parent state accedes to its independence.224

Products of dissolution, however,

are validly independent not when the metropolis accedes to their

independence—indeed, dissolution means there is no metropolis to accede to

such independence225

—but when those products wield effective authority to

the exclusion of the former metropolitan state and satisfy the criteria of

statehood, so long as they do not violate the limiting principle of uti

possidetis.226

D. Uti Possidetis

Uti possidetis is a principle that governs the international frontiers of a

newly emergent state.227

The principle evolved in the context of decolonization

in South America and Africa.228

In Africa, uti possidetis has meant the

conversion of colonial boundaries into international borders: “[T]he

primary . . . application of uti possidetis was . . . of ‘securing respect for the

territorial boundaries at the moment when [a state’s] independence is

achieved.’”229

Thus, the boundaries that delineated separately administered

territories became international frontiers at the moment of decolonization.

The combination of uti possidetis and the principle of territorial integrity

have worked to preserve Africa’s post-colonial territorial status quo despite

many ethnically heterogeneous states, and tribal groups that straddle borders.

Fears of territorial fragility drove the member states of the Organization for

African Unity to “pledge themselves to respect the borders existing on their

achievement of national independence,” because “border problems constitute a

222 See Radan, supra note 48, at 18; supra text accompanying notes 165–67.

223 Radan, supra note 48, at 26 (noting the creation of the Federal Republic of Yugoslavia after the

dissolution of Yugoslavia); see supra text accompanying notes 168–70.

224 See supra text accompanying notes 197–200.

225 Radan, supra note 48, at 26; see supra text accompanying note 186.

226 See infra text accompanying notes 227–36 (addressing the proposition that uti possidetis is a

requirement for secession).

227 RADAN, supra note 172, at 121–22; TRBOVICH, supra note 207, at 269.

228 RADAN, supra note 172, at 121–22.

229 Id. at 123 (quoting Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 565 (Dec. 22)).



grave and permanent factor of dissention.”230

Yet, the permanence of Africa’s

post-colonial borders has not been absolute. Several states, including the

Republic of Somalia, are amalgamations of former colonial possessions that

achieved independence separately.231

Moreover, in at least two examples, the

African Union has recognized states that, following decolonization, were

amalgamated into larger states only to later re-emerge as independent states

within their boundaries at decolonization.232

In the Frontier Dispute Case, the International Court of Justice elevated the

principle of uti possidetis to a general principle of international law designed

“to prevent the independence and stability of new states being endangered by

fratricidal struggles provoked by the challenging of frontiers following the

withdrawal of the administering power.”233

Uti possidetis has since evolved

into a limitation on the validity of secession. In its arbitration of the dissolution

of Yugoslavia, the Badinter Commission not only applied uti possidetis in a

European context for the first time, it used the doctrine to define which

territorial units could legitimately emerge as new states through Yugoslavia’s

dissolution.234

In this way, the Badinter Commission explicitly generalized the

principle of uti possidetis from decolonization scenarios to dissolution:

[O]nce the process in the [Socialist Federal Republic of Yugoslavia] leads to the creation of one or more independent States, the issue of frontiers . . . must be resolved in accordance with the following principles: . . . [T]he former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in

230 Org. of African Unity [OAU]. Resolutions Adopted by the First Ordinary Session of the Assembly of

Heads of State and Government Held in Cairo, UAR, from 17 to 21 July 1964, AHG/Res. 16(I) (July 21,

1964).

231 In fact, the word Tanzania is a portmanteau of its two parent states: Tanganyika and Zanzibar.

Tanzania, INT’L LABOUR ORG. (Oct. 24, 2010, 1:37 PM), http://www.ilo.org/public/english/region/afpro/

daressalaam/countries/tanzania.htm.

232 Eritrea was fused to Ethiopia in 1952 before it successfully concluded a war of independence in 1993.

Senegal and Gambia were joined as one state from 1982 to 1989. For a discussion on Eritrea’s secession, see

supra text accompanying notes 191–200; for a discussion on Senegal and Gambia, see infra text

accompanying note 344.

233 Frontier Dispute, 1986 I.C.J. at 565.

234 See Conference on Yugoslavia, Arbitration Commission, Opinion No. 3, 92 I.L.R. 170 (1993)

[hereinafter Badinter Opinion 3].



settling decolonization issues in America and Africa, is today recognized as a general principle.

235

Despite criticism of its approach, the Badinter Commission has been described

as “creat[ing] a precedent by using the uti possidetis juris principle to select the

territorial units that would become eligible for recognition.”236

The Badinter Commission was not alone in its novel application of uti

possidetis juris. A 1992 report on Québécois secession commissioned by the

government of Québéc found that

in the case of secession or dissolution of States, pre-existing administrative boundaries must be maintained to become borders of the new States and cannot be altered by the threat or use of force, be it on the part of the seceding entity or the State from which it breaks off.

237

Scholars and modern state practice, then, suggest that secession is valid so long

as the seceding territory is a distinct, cohesive, and recognizable unit. Support

for this position is also found in the Aaland Islands Case. The Commission of

Rapporteurs determined that Finland, even when subsumed within the Russian

Empire, had retained its territorial integrity: “[P]roperly speaking, from a

geographic point of view, this State had possessed frontiers which were clearly

defined for over a hundred years.”238

Importantly, the Rapporteurs’ opinion

demonstrates that an independent state might disappear into another state only

to reappear at some later date within its historical borders. Ultimately, the

Council of the League of Nations endorsed the Rapporteurs’ position,

recognizing that Finland had seceded from the Russian Empire as a coherent

territorial unit, within its original borders.239

Likewise, Eritrea resumed its distinct and separate character after having

been subsumed within Ethiopia.240

Unlike Finland, however, Eritrea had not

been an independent state before its subsumption within Ethiopia. Instead, it

235 Id.

236 TRBOVICH, supra note 207, at 272.

237 T.M. Franck et al., The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty

(May 8, 1992), reprinted in SELF-DETERMINATION IN INTERNATIONAL LAW: QUEBEC AND LESSONS LEARNED

241, 273 (Anne Bayefsky ed., 2000).

238 Report Presented by Comm. of Rapporteurs on the Aaland Islands Question, League of Nations Doc.

B7.21/68/106, at 24 (1921).

239 See JAMES MINAHAN, ENCYCLOPEDIA OF STATELESS NATIONS: ETHNIC AND NATIONAL GROUPS

AROUND THE WORLD: S-Z 71 (2002).




had been a separately administered colonial possession.241

Still, because

independent Eritrea emerged within its colonial boundaries, its secession

conformed to the African application of uti possidetis.242

Uti possidetis, therefore, applies not only to decolonization but to secession

and dissolution. In the post-colonial period, uti possidetis has functioned to

deny validity to entities—like Katanga or Biafra—that sought independence

without regard for colonial boundaries.243

In this way, uti possidetis is a

limiting principle that restricts the creation of new states in Africa. A new

African state may only be valid if its territorial extent matches that of a

colonial unit.

III. THE REPUBLIC OF SOMALILAND

The Republic of Somaliland is a state. It meets the objective criteria of

statehood and its emergence through the dissolution of the Republic of Somalia

conforms to international norms. Here, the legal concepts described in Part II

are applied to Somaliland.

A. Somaliland and Statehood

Somaliland meets the statehood criteria set out in the Montevideo

Convention. It has a permanent population, defined territory, a government,

and the capacity to enter into relations with other states. Somaliland claims a

population of approximately 3.5 million people.244

Since its secession in 1991,

“hundreds of thousands of refugees and internally displaced [Somalilanders]

have returned home.”245

In contrast, persons displaced by ongoing conflict in

rump Somalia have taken refuge in Somaliland’s capital.246

Somaliland has fixed and clearly determined borders, satisfying the

territory criterion of statehood.247

At secession, the Republic of Somaliland

explicitly declared its territory as that comprising the British Protectorate of

241 See supra text accompanying note 191.

242 See RADAN, supra note 172, at 127; supra text accompanying note 198.

243 See supra text accompanying notes 150, 162, 187.

244 Republic of Somaliland: Country Profile, SOMALILAND OFFICIAL WEBSITE, http://www.

somalilandgov.com/cprofile.htm (last visited Oct. 18, 2010).

245 Time for A.U. Leadership, supra note 51, at i.

246 AMNESTY INT’L, HUMAN RIGHTS CHALLENGES: SOMALILAND FACES ELECTIONS 10 (2009).

247 Cf. CRAWFORD, supra note 123, at 36–40 (“It is suggested then that a new State may exist despite

claims to its territory, just as an existing State continues despite such claims.”).



Somaliland.248

Though there are examples of states satisfying the defined

territory criterion by exerting control over only a portion of the territory they

claim,249

this is not the case for Somaliland. Somaliland exerts control over the

whole territory it claims: Somaliland collects customs duties from ships that

enter the port of Berbera; Somaliland’s coast guard patrols its territorial waters

to prevent piracy; and Somaliland’s armed forces have even engaged in an

armed conflict to defend its borders.250

It is true that the semi-autonomous

region of Puntland claims a portion of Somaliland.251

However, competing

territorial claims and boundary disputes historically have not denied a state’s

satisfaction of the territory prong of statehood, so long as the state effectively

governs a certain coherent territory.252

Somaliland possesses an “organized political authority,”253

satisfying the

government criterion of statehood. It is responsible for national defense.254

It

maintains law and order. It even engages in those auxiliary activities of

government such as the printing of currency, operating a central bank, and

issuing passports.255

Somaliland’s central government is so effective that

several Western nations refuse to grant Somalilanders asylum because

Somaliland is “safe and secure.”256

Somaliland’s government has even

managed to demilitarize its population without outside support or funding.257

Additional indicators of the effectiveness of Somaliland’s government are

found in its dealings with pirates and Islamist militants. In stark contrast to

rump Somalia, where pirates operate with impunity,258

Somaliland’s

248 Fisher, supra note 1; Interim Government in North Somalia Promises Free Elections, GLOBE & MAIL

(Can.), May 20, 1991 (“Ceremonies have taken place at Burco, northwest Somalia, to proclaim a new state in

the area that formed British Somaliland before it was merged with the adjoining Italian-administered area to

form the Somali Republic in 1960.”).

249 See, e.g., CRAWFORD, supra note 123, at 42–43 (discussing the ineffectiveness of the Congo).

250 McGregor, supra note 14, at 8–9. Like Somaliland, Puntland is autonomous. Regions and Territories:

Puntland, BBC NEWS (Apr. 28, 2010, 10:15 AM), http://news.bbc.co.uk/2/hi/africa/country_profiles/

4276288.stm. Unlike Somaliland, Puntland does not claim outright independence. See id. Also unlike

Somaliland, Puntland’s secession would not conform to international norms—it would fail the test of uti

possidetis. See Time for A.U. Leadership, supra note 51, at 8–10.



253 Badinter Opinion 1, supra note 127, at 163.

254 Time for A.U. Leadership, supra note 51, at 11 (noting the criteria of army and police forces).

255 Id. at 7, 11.

256 Id. at 12.

257 LEWIS, supra note 44, at 93–94 (2008) (“[T]he UN made no contribution to Somaliland’s tough and

largely successful demilitarisation programme. Instead it supported the essentially fantasy demilitarisation

campaigns in Mogadishu.”).

258 See, e.g., Gettleman, supra note 86 (discussing Somali pirates based in Puntland).



government operates a coast guard that actively pursues pirates,259

freeing

hijacked ships and capturing pirates based in rump Somalia.260

For example, in

February 2010, a Somaliland court sentenced eleven pirates captured in

December 2009 to fifteen years imprisonment for piracy and kidnapping.261

Moreover, while rump Somalia is overrun with al-Qaeda-affiliated militants,262

Somaliland exerts sufficient control over its territory that, in 2005, it

successfully disrupted a terrorist cell in Hargeisa.263

Somaliland then tried

fifteen individuals accused of involvement with that terrorist cell, convicting

and punishing thirteen of them.264

Further, when two British nationals were

shot and killed by Islamic militants in 2003,265

those responsible were tried and

convicted of murder.266

In contrast, at its emergence from the dissolution of

Yugoslavia, the government of Bosnia-Herzegovina, deemed effective, did not

control its territory; even its capital, Sarajevo, was under siege by sniper and

artillery fire—the longest siege in modern history—at the time of its

recognition as an independent state.267

Over its nearly twenty years of self-rule, Somaliland’s government has

transitioned from a traditional, clan-based system to a representative

democracy.268

The people of Somaliland have gone to the polls four times this

259 Sanders, supra note 13; McConnell, supra note 13; Pirates Aboard Libyan Vessel Fire on Somaliland

Forces, SOMALILANDPRESS (Feb. 4, 2010), http://somalilandpress.com/pirates-aboard-libyan-vessel-fire-on-

somaliland-forces-11411 (“A shoot-out erupted Thursday between pirates who seized a North Korean-flagged,

Libyan-owned ship and coast guards in Somalia’s breakaway Somaliland region, leaving one soldier dead,

police said.”).

260 Somaliland Forces Help Free Yemeni-Flagged Ship, XINHUANEWS (Jan. 11, 2010, 4:47 AM),

http://news.xinhuanet.com/english/2010-01/11/content_12787234.htm; McConnell, supra note 13 (noting that

Somaliland’s coast guard has captured three dozen pirates); Daniel Howden, Somaliland: Africa’s Best-Kept

Secret, INDEPENDENT (May 6, 2009), http://www.independent.co.uk/news/world/africa/somaliland-africas-

bestkept-secret-1679731.html.

261 SOMALILAND: Somali Pirates Get 15-Year Sentences: Official, SOMALILANDPRESS (Feb. 14, 2010),

http://somalilandpress.com/somaliland-somali-pirates-get-15-year-sentences-officials-11721.

262 Supra note 11 and accompanying text.

263 Trying to Behave Like a Proper State, supra note 113.

264 Id.

265 Two Britons Killed in Somaliland, BBC NEWS (Oct. 21, 2003, 7:59 PM), http://news.bbc.co.uk/2/hi/

africa/3210432.stm.

266 LEWIS, supra note 44, at 98 (2008); Gus Selassie, Supreme Court Passes Death Sentence Against

Suspects for Murder of Aid Workers in Somaliland, GLOBAL INSIGHT, Apr. 20, 2007; Foreign Office Statement

on the Sentencing in Somaliland of the Eyeington Family’s Murderers, SOMALILAND TIMES (Apr. 23, 2007),

http://www.somalilandtimes.net/sl/2007/275/0280.shtml.

267 Charlie Connelly, The New Siege of Sarajevo, TIMES (Oct. 8, 2005), http://www.timesonline.co.uk/tol/

news/world/europe/article575571.ece.

268 See CATHOLIC INST. FOR INT’L RELATIONS, VERY MUCH A SOMALILAND-RUN ELECTION, March 2003

(grading the December 2002 local Somaliland elections); INT’L REPUBLICAN INST., SOMALILAND



century: once for local municipal elections; once to elect a parliament, and

twice to elect a president.269

Those elections have been graded absent of undue

influence,270

free of “systemic fraud,”271

and “largely free and fair” by

observers and monitoring organizations.272

Finally, though it remains unrecognized by any other state, Somaliland not

only has the capacity to enter into foreign relations, it in fact enters into foreign

relations. Somaliland maintains a Minister of State for Foreign Affairs—

currently, that post is held by Abdirahman Osman Aden.273

Somaliland also

operates diplomatic missions in the United States, the United Kingdom, Italy,

and Ethiopia.274

Somaliland has even entered into agreements with Ethiopia.

For example, in 2006, the Republic of Somaliland and Ethiopia agreed to give

Ethiopia access to the port of Berbera.275

That agreement also called for the

formalization of trade relations and the establishment of customs offices at the

Ethiopia-Somaliland border.276

In the last year, Somaliland has hosted

delegations and from Pakistan and Djibouti,277

and had ministerial meetings

with the World Bank.278

The United States has even transferred former

Guantánamo detainees into the custody of Somaliland’s government.279

PARLIAMENTARY ELECTION ASSESSMENT REPORT, Sept. 29, 2005 (grading the September 2005 parliamentary

elections); Kibble, supra note 72.

269 Kibble, supra note 72.

270 INT’L REPUBLICAN INST., supra note 268, at 3.

271 CATHOLIC INST. FOR INT’L RELATIONS, supra note 268, at 21.


273 New Minister of Foreign Affairs Appointed, SOMALILAND TIMES (Jan. 23, 2010), http://www.

somalilandtimes.net/sl/2010/417/8.shtml.

274 The Contacts and Addresses of the Somaliland Representative Offices Around the World, supra note

118.

275 Trying to Behave Like a Proper State, supra note 113 (“[A]greement was concluded between the

Ethiopian Customs Authority and its counterpart in Somaliland on the use of the Port of Berbera on the basis

of international conventions. They added that any business organization, governmental and non-governmental

office can now safely use the port.”).

276 Somaliland, Ethiopian Officials Upbeat About Launch of Trade Corridor, BBC MONITORING AFR.,

Nov. 22, 2005.

277 Djibouti Delegation Visits Somaliland in Bid to Establish Better Ties, BBC MONITORING AFR., June

20, 2009; Somaliland’s Minister Meets Pakistani Delegation to Discuss Bilateral Ties, BBC MONITORING

AFR., Nov. 17, 2009.

278 Somaliland Delegation Leaves for Djibouti to Attend World Bank Meeting, BBC MONITORING AFR.,

May 20, 2009.

279 Adam Brickley, Gitmo Detainees Sent to Country that Does Not Exist, WKLY. STANDARD (Dec. 21,

2009, 9:57 AM), http://www.weeklystandard.com/weblogs/TWSFP/2009/12/gitmo_detainees_sent_to_countr.

asp.



Somaliland qualifies for statehood even if the measure is effectiveness

rather than the Montevideo Convention criteria. The question of the

effectiveness of a putative state turns on whether that putative state is

independent and exercises control over its territory.280

Somaliland’s

government exercises control over the territory it occupies.281

Somaliland is

likewise independent. Unlike Manchukuo, Somaliland was not an entity

established by a foreign invader to serve as the invader’s alter-ego or puppet.

Rather, Somaliland is an indigenous creation—established by the clans of

Somaliland in the wake of the Somalia’s civil war.282

Those clans came

together for a reconciliation conference at Borama without outside assistance

or funding.283

That conference produced an interim constitution and set out the

process that, in 2001, resulted in a national referendum approving both

independence and a permanent constitution.284

Indeed, in stark contrast to

entities like Manchukuo and arguably the Turkish Republic of Northern

Cyprus—which enjoy recognition solely by the foreign state responsible for

the entities’ creation—Somaliland is not recognized by any other state.

B. Somaliland and Recognition

Somaliland’s independence and statehood are not recognized by any other

state.285

When a state or non-governmental organization explains its non-

recognition of Somaliland, its reasons are typically that it prefers the

preservation of a unitary Somali state,286

that the peace process in rump

Somalia must take precedence,287

or that the African Union should determine

whether Somaliland is an independent state.288

Given the political nature of

280 Supra text accompanying notes 123–38.

281 Supra text accompanying notes 245–58.


283 I.M. Lewis notes, “UNSOM [the United Nations mission in Somalia] . . . did not provide any

assistance, despite its proclaimed concern for democracy.” Id. at 93.

284 Id. at 94; Time for A.U. Leadership, supra note 51, at 6.

285 See, e.g., LEWIS, supra note 44, at ix; Kibble, supra note 72.

286 See, e.g., LEWIS, supra note 44, at 93 (“UNOSOM [was] committed to a unified Somali state.”).


288 See, e.g., Time for A.U. Leadership, supra note 51, at 1 (“The broader international community is

largely willing to follow the AU’s lead. Whether the organisation does engage, and how it chooses to do so,

will have profound consequences for peace and security in the Horn of Africa.”); US Department of State:

Taken Question Office of the Spokesman January 17, 2008, M2 PRESSWIRE, Jan. 18, 2008, available at

ProQuest, Doc. ID 1414702731 (“While the United States does not recognize Somaliland as an independent

State, and we continue to believe that the question of Somaliland’s independence should be resolved by the

African Union, we continue to regularly engage with Somaliland as a regional administration and to support

programs that encourage democratization and economic development in the Somaliland region.”).



recognition, it is unsurprising that the reasons underlying Somaliland’s non-

recognition are political rather than legal.

The desire to see rump Somalia and Somaliland reunified is driven in part

by fears of opening a Pandora’s box289

and in part from the African Union’s

internal politics.290

Since decolonization, Africa has been preoccupied with the

fragility of its inherited borders:291

most African states are ethnically

heterogeneous,292

and tribal and ethnic groups, like the Somali, straddle many

of Africa’s borders.293

Recognizing Somaliland would encourage ethnic

conflict and irredentism across the continent, or so goes the argument against

recognition.294

It is not clear, however, that recognizing Somaliland will inspire ethnic

separatist movements or encourage the widespread disruption of African

borders. It is worth noting that Somaliland’s separation from rump Somalia is

not ethnically driven. The now-defunct Republic of Somalia was one of the

most ethnically homogenous states in Africa.295

The majority of the

populations of both Somaliland and rump Somalia are Somali.296

Somaliland’s

independence would therefore not provide justification for ethnic separatist

movements. Further, one need only look to Eritrea’s secession from Ethiopia in

289 The Pandora’s box that the African Union fears is the unlimited fragmentation of its heterogeneous

states, whereas, in Europe, “[n]ations defined borders . . . . [i]n Africa, borders defined nations.”

Kathryn Sturman, New Norms, Old Boundaries, in ON THE WAY TO STATEHOOD: SECESSION AND

GLOBALISATION, supra note 48, at 67, 70; see also Matt Bryden, State-Within-a-Failed-State, in STATES-

WITHIN-STATES 167, 178–79 (Paul Kingston & Ian S. Spear eds., 2004).

290 Bryden, supra note 289, at 178–79.

291 AFRICAN UNION, AFRICAN UNION CONSTITUTIVE ACT art. 4(b) (2000); ORG. OF AFRICAN UNITY,

CAIRO DECLARATION ON BORDER DISPUTES AMONG AFRICAN STATES (1964); ORG. OF AFRICAN UNITY,

CHARTER arts. 3(2)–3(3) (1960).

292 See, e.g., Sturman, supra note 289; Pierre Englebert & Rebecca Hummel, Let’s Stick Together:

Understanding Africa’s Secession Deficit, 104 AFR. AFF. 399, 400 (2005).

293 Case Concerning Arbitral Award of 31 July 1989, 83 I.L.R. 2, 408 (1989); see, e.g., Pierre Englebert,

Stacy Tarango & Matthew Carter, Dismemberment and Suffocation, 35 COMP. POL. STUD. 1093 (2002); David

Newbury, Irredentist Rwanda: Ethnic and Territorial Frontiers in Central Africa, 44 AFR. TODAY 211 (1997);

Ali Mazrui, The Bondage of Boundaries, ECONOMIST, Sept. 11, 1993, at 28.

294 Dan Simpson, The Ghost of Somalia, PITTSBURGH POST-GAZETTE (July 12, 2006), http://www.post-

gazette.com/pg/06193/705096-108.stm (“The argument against recognition of [Somaliland’s] independence is

that to accept its successful separation is to accept the dissolution of Somalia as a country. Africa and the

world do not wish that to happen. Not only is it messy, worst of all from the point of view of other African

countries it risks encouraging separatist movements across the continent to seek independence for their own

pieces of real estate. Countries vulnerable in that regard are numerous.”).

295 David Carment & Patrick James, Third-Party States in Ethnic Conflict: Identifying Domestic

Determinants of Intervention, in ETHNIC CONFLICT AND INTERNATIONAL POLITICS 11, 28 (2004).

296 See, e.g., MARK BRADBURY, BECOMING SOMALILAND 9 (2008).



1993 for an example of African secession unaccompanied by rampant

dissolution of African states.297

Moreover, unlike Somaliland, Eritrea’s

secession was ethnically driven298

and therefore more likely to inspire the

dissolution of Africa’s ethnically heterogeneous states. Eritrea’s example

notwithstanding, Somaliland’s independence is unlikely to encourage the

forcible alteration of post-colonial borders because Somaliland conforms to the

borders it inherited at decolonization. In this way, Somaliland is

distinguishable from entities like Katanga or Biafra—entities that, had their

secessions been successful, would have offended principles of territorial

integrity and violated uti possidetis.299

In 2001, though, the African Union (then, the Organization for African

Unity) gave the Republic of Somalia’s seat to the Transitional National

Government.300

Both the Transitional Federal Government and the TNG before

it have asserted claims over Somaliland.301

In admitting the TNG as the

representative of Somalia, the AU has implicitly recognized the TNG’s claims

to Somaliland.302

It is understandable, then, that a body so concerned with the

territorial integrity of its member states would be loath to endorse what it

views as the carving up of one of those states.303

However, deference to rump Somalia’s claims has not alone prevented AU

action. A number of African states have an interest in delaying resolution of

the Somaliland question. For example, Egypt has an interest in supporting any

strongly nationalist Somali entity likely to pursue irredentism.304

Such an entity

would threaten Egypt’s historic rival Ethiopia, which possesses a large Somali

population.305

Somaliland, given its amicable relations with Ethiopia and its

explicit opposition to involvement in rump Somalia—and its apparent lack of

297 See IYOB, supra note 191.

298 Id. at 134–46.


300 Bryden, supra note 289, at 176.

301 Id.

302 Id. at 173; David H. Shinn, Somaliland: The Little Country that Could, AFR. NOTES, Nov. 2002, at 4–

5. When the Transitional Federal Government replaced the Transitional National Government, it took over

Somalia’s representation in both the African Union and the United Nations. Bryden, supra note 289, at 176.

303 J. Peter Pham, The U.S. and Somaliland: A Road Map, WORLD DEF. REV. (Feb. 28, 2008),

http://worlddefensereview.com/pham022808.shtml (“The AU is simply unable to actually address the matter

as long as it continues to seat the utterly ineffectual ‘Transitional Federal Government’ . . . which asserts

sovereignty over the entire territory of the defunct Somali Democratic Republic despite being unable to so

much as safely police its putative capital.”).


305 Id. See also supra note 49.



interest in Greater Somali claims—does not satisfy Egyptian strategic goals in

the Horn of Africa. Ethiopia, on the other hand, worries that recognition of

Somaliland will antagonize its Somali population and damage its relations with

the Arab League.306

The parochial strategic interests of these two states are just

examples of the interests that prevent both the states themselves and the AU

corporally from recognizing Somaliland’s independence.

In contrast to state-specific strategic goals, treating reconciliation in rump

Somalia as a necessary predicate to resolving the Somaliland question stems

from the international community’s earnest desire to see peace and stability in

Somalia.307

Yet, as the International Crisis Group points out, it is not apparent

that “raising the Somaliland issue could destabilise the peace process in the

South. . . . The Somaliland government has not participated in any Somali

peace talks since 1991, including the conference that led to the formation of

the TFG.”308

Nor is it clear that any disruption to the peace process in rump

Somalia would be measurable. The current product of international

reconciliation efforts has not brought peace or stability to Mogadishu, let alone

to the rest of Somalia.

Western aversion to preempting the AU stems from a desire not to meddle

in Africa’s affairs. During a visit to Somaliland’s capital in 2000, a French

diplomat asked Somaliland government officials “to consider what might have

happened had African states rushed to recognize Croatia, Slovenia, or Bosnia

before European states were ready to [do] so.”309

The United States has

explicitly relegated the Somaliland question to the African Union.310

Likewise,


307 See, e.g., Ahmedou Ould-Abdallah, Op-Ed., The World’s Duty to Somalia, WASH. POST, July 20,

2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/19/AR2009071901759.html; Khadija

O. Ali, Force Won’t Bring Peace to Somalia, FOREIGN POLICY IN FOCUS (Jan. 19, 2007), http://www.fpif.org/

articles/force_wont_bring_peace_to_somalia (“The United States and the international community have a

moral obligation to play a positive role in helping Somalis help themselves.”); Speedy Financial Support for

Somalia Vital to Give Peace a Chance, UN Warns, UN NEWS CENTER (Oct. 8, 2009), http://www.un.org/apps/

news/story.asp?NewsID=32463&Cr=somali&Cr1.



310 USA Reportedly Concerned About Political Deadlock in Somaliland, BBC MONITORING AFR., Sept. 5,

2009 (“[Former Ambassador Yamamoto] said the United States has nothing to do with the issue of recognition

adding that it concerns the United Nations, the African Union, and even Somalis. The envoy said the United

States would like to have relations with Somaliland but that it is most appropriate that Hargeysa first of all

focuses its efforts on the African Union and the United Nations.”); U.S. Department of State: Taken Question

Office of the Spokesman, supra note 288 (“While the United States does not recognize Somaliland as an

independent State, and we continue to believe that the question of Somaliland’s independence should be

resolved by the African Union, we continue to regularly engage with Somaliland as a regional administration



the United Kingdom has stated that it is waiting for African countries to

recognize Somaliland.311

While it is admirable that non-African states, particularly former colonial

states, are reluctant to impose political changes on Africa, the African Union—

and the Organization for African Unity before it—has had nearly twenty years

in which to resolve the Somaliland question.312

In 2005, Somaliland officially

applied for membership in the African Union.313

Yet, despite its application,

and despite a favorable report from an AU fact-finding mission,314

the African

Union has not acted on Somaliland’s application.315

In that period, though,

rump Somalia has only become more unstable and more of a threat to

international security: a haven for both al-Qaeda-affiliated Islamists that

threaten transnational terrorism and pirates that disrupt international shipping

in the Red Sea, Gulf of Aden, and Indian Ocean.316

Continued non-recognition has deleterious consequences for Somaliland.

Non-recognition denies Somaliland access to “bilateral donor development

assistance or the support of international financial institutions.”317

It also

imperils Somaliland’s survival.318

The goal of non-recognition may be the

termination of the secessionist entities that seek recognition.319

In this case,

however, non-recognition ignores the benefits generated by Somaliland. As

discussed above, Somaliland does not share rump Somalia’s instability or rump

Somalia’s abundance of Islamic militants and pirates.320

The most probable

outcome of extinguishing Somaliland is an increase in the threats to

international security that Somalia currently represents: pirates currently kept

at bay by Somaliland’s coast guard would be able to expand their base of

operation around the Horn of Africa; Islamist militants affiliated with al-Qaeda

would find even more lawless territory in which to hide, train, prepare, and

eventually launch transnational terrorist acts.

and to support programs that encourage democratization and economic development in the Somaliland

region.”).

311 Lobbyist Urges UK to Recognize Somaliland, BBC MONITORING AFR., Jun. 20, 2009.

312 Sturman, supra note 289, at 78.

313 Id.

314 Id. at 78–79; See Time for A.U. Leadership, supra note 51, at 20.

315 See Sturman, supra note 289, at 81–82.

316 See supra text accompanying notes 5–14, 85–91.



319 See, e.g., DAVID RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 114 (2002).




On the other hand, recognizing Somaliland would afford it access to

bilateral aid, international financial institutions, and development assistance.

Recognition would likely encourage foreign direct investment, including the

development of offshore oil and gas fields.321

Outside investment and

economic development are in turn likely to contribute to Somaliland’s survival,

preserving the international security largesse it provides. In light of the

political nature of recognition, states can be expected to choose recognition

when it serves their interests. With regard to Somaliland, its contribution to

international security as a bulwark against piracy and al-Qaeda-affiliated

militants suggest that it is in the interest of Western states to see it preserved,

irrespective of the interests of regional actors like the African Union, Ethiopia,

or Egypt. Western states should therefore extend recognition to Somaliland.

Additionally, recognition of Somaliland would not violate the proposed

duty of non-recognition. Somaliland’s creation, and its statehood, does not

offend the four peremptory norms that impose on the international community

a duty to decline to recognize a state. Somaliland is not the product of an

illegal act of aggression or the acquisition of territory by means of force. It is

not the product of, or subject to, a racist regime. Its creation does not disrupt

existing frontiers or principles of territorial integrity like both Katanga and

Biafra—disruptions that violated the peremptory norm of self-determination

within existing borders, imposing a duty of non-recognition on the rest of the

international community.322

Nor does Somaliland violate norms of self-

determination by denying segments of its population participation in

government.323

Because Somaliland declared independence unilaterally, without a

Somalia-wide referendum approving its separation from the rest of Somalia,

Somaliland arguably violated the right of self-determination.324

However, it is

not clear that such an approval requirement attaches to instances of dissolution,

which Somaliland surely represents.325

Certainly, in the case of Yugoslavia,

there was no requirement that the whole population of Yugoslavia approve the

independence of Croatia, Slovenia, or Bosnia-Herzegovina. It was sufficient

321 See M.Y. Ali, Hydrocarbon Potential of Somaliland, 24 FIRST BREAK 49 (2006). Currently, foreign

investors are reluctant to invest in Somaliland because of its uncertain status and the risk that its potential

demise—due to non-recognition—poses. See, e.g., Sturman, supra note 289, at 82.

322 Cf. DUGARD, supra note 139, at 89–90.

323 Cf. id. at 97.

324 See generally Franck, supra note 237.

325 Supra text accompanying note 249.



that the polity of each territory emerging as an independent state from

Yugoslavia’s dissolution approved of that individual territory’s

independence.326

The population of Somaliland has already approved

independence—in fact, it has done so at least twice: in 1993, the traditional

clan-based structure approved independence and then, in 2001, 97% of

Somalilanders approved independence in a referendum.327

C. Somaliland and Secession

There is no right of secession in international law. However, there is

likewise no prohibition against secession. Accepting this, and recognizing that

secessions do occur, we are left to compare Somaliland’s secession with those

secessions that have been successful—that is, those secessionist entities that

have been recognized by the international community and admitted into the

community of nations.

Like Yugoslavia, the United Arab Republic, and Ethiopia, from 1960 until

1991, the Republic of Somalia was the product of the merger of multiple

independent states.328

Whereas in the case of Ethiopia and Eritrea, Eritrea did

not achieve statehood through decolonization, Somaliland briefly enjoyed

statehood before voluntarily merging with Somalia.329

In this way, Somaliland

is more like Croatia and Syria in that those two states also enjoyed independent

statehood before subsumption within another state.330

Further, whereas

Ethiopia was a state unto itself before it subsumed Eritrea,331

Yugoslavia and

the United Arab Republic were created by the merger of their constituent

states.332

Likewise, the Republic of Somalia was the product of the merger of

independent Somaliland and the newly decolonized Italian Somalia.333

It was

326 See Badinter Opinion 1, supra note 127, at 165–66.




330 See JANKOWSKI, supra note 211, at 73–78; TRBOVICH, supra note 207, at 83–88.

331 While Ethiopia and Eritrea were initially federated in 1952, Ethiopia annexed Eritrea in 1962. IYOB,

supra note 191, at 82–86. This annexation did not result in the creation of a new state; rather, Ethiopia

swallowed Eritrea. Id. at 87–88. Eritreans were so dissatisfied with this arrangement that it sparked an armed

secessionist movement. Id. at 98–101.


333 That fact is plainly demonstrated by the history of unification. Somalia and Somaliland came together

in an act of unification—Somaliland did not cede itself to Somalia nor did Somalia annex Somaliland. In fact,

to underscore that the Republic of Somalia was a new creation and not the continuation of the newly

decolonized territory of Somalia, the Act of Union set out, inter alia:



only through the Act of Union, passed by the legislative bodies of both

Somaliland and Somalia, that the Republic of Somalia was born.334

It is clear, however, that at least since Siad Barre’s ouster in 1991, the

Republic of Somalia has been without a government able to wield effective

authority over its territory. The various transitional governing entities which

claim the Republic of Somalia’s former territory have not been able to exercise

even the most basic authority over Mogadishu, let alone the rest of the territory

ascribed to them.335

If the Yugoslav state apparatus could be described as

unable to “wield effective power” even though it functioned sufficiently

The State of Somaliland and the State of Somalia do hereby unite and shall forever remain united

in a new, independent, democratic, unitary republic the name whereof shall be the Somali

Republic.

. . . All persons who upon the date of this Union possess the citizenship of Somaliland and

Somalia respectively shall by this Union now become citizens of the Somali Republic.

. . . All persons who hereafter would, but for this Union, have become citizens of Somaliland or

Somalia respectively under the law of either of the two uniting States as presently subsisting,

shall hereafter become citizens of the Somali Republic.

. . . Upon this Act being made the presently subsisting Legislative Assemblies of Somaliland and

Somalia respectively shall cease as such to subsist: but the existing elected members of the said

Legislative Assemblies shall constitute the first National Assembly of the Somali Republic.

Immediately upon the National Assembly of the Somali Republic being constituted under these

provisions, the members thereof shall each before the person presiding over the National

Assembly make an oath of allegiance to the Somali Republic.

Act of Union, supra note 39, §§ 1(a), 3(1), 3(2), 8(1). By way of comparison, consider M.C. Setalvad’s

discussion of secession with regard to India:

The real distinction may lie not in the use of the word “Union” but in the antecedent, historical

background which establishes that the constituent states were at no time independent or

autonomous states which entered into a voluntary compact to surrender some of their powers to

the general government. The States constituting the Indian Union were thus at no time

“indestructible states.” Having no existences as states anterior to the Constitution they could

never claim a right to secede.

BUCHHEIT, supra note 166, at 98 n.220.

334 The Act of Union also required a popular referendum confirming unification. This referendum took

place on June 20, 1961 and was approved by more than 90% of the vote. LEWIS, supra note 16, at 172.

Notably, only 100,000 people voted in former Somaliland and, of these, half rejected unification. LEWIS, supra

note 44, at 35. For this reason, some have argued that the Union between Somalia and Somaliland was

defective and, therefore, Somaliland’s secession should be given effect and it should be recognized as an

independent state. See, e.g., Brad Poore, Comment, Somaliland: Shackled to a Failed State, 45 STAN. J. INT’L

L. 117, 140 (2009). However, the Republic of Somalia operated as a unitary state from 1960 until 1991. See

supra text accompanying notes 36–69. It was also recognized as a state by both the United States and the

United Soviet Socialist Republic, among others, and seated as a member state in the United Nations. Press

Release, United Nations, United Nations Member States, U.N. Press Release ORG/1469 (July 3, 2006)

(reporting Somalia’s date of admittance to the UN as September 20, 1960).

335 See supra text accompanying note 74.



enough that its Constitutional Court was still able to issue opinions,336

then

certainly the Republic of Somalia, described as an example of complete state

collapse, is unable to wield effective power. When forces loyal to the coup

plotters took control of the state—by arresting officials loyal to the UAR,

taking control of Radio Damascus, and securing its territory to the exclusion of

any other authority—the UAR ceased to wield effective power over Syria.337

The government of Somaliland, however, exercises control and effective

authority over the territory that it claims. Somaliland maintains a police force,

a judiciary, armed forces, and a civil administration,338

in contrast to—and to

the exclusion of—the Transitional Federal Government, or any other entity

laying claim to the former Republic of Somalia. In so doing, Somaliland has

re-emerged as an independent state. Its re-emergence has, therefore,

necessarily dissolved the Republic of Somalia.

Dissolution of the Republic of Somalia—like the dissolution of Yugoslavia

or the dissolution of the United Arab Republic—extinguished the Republic of

Somalia. As such, as was the case in Yugoslavia and the UAR, there exists no

metropolitan state to recognize the re-emergence of Somaliland and Somalia.

Moreover, following Yugoslavia’s example, no such recognition is needed for

Somaliland and Somalia’s independence to be valid. In contrast, Eritrea

seceded from Ethiopia—Ethiopia did not dissolve—and it was only with

Ethiopia’s accession that Eritrea became independent.339

From this viewpoint, statements by the various transitional governments of

rump Somalia rejecting Somaliland’s independence are best viewed in the

same manner as Serbia’s claims to be the SFRY’s successor state.340

Those

transitional governments could only claim Somaliland if they were in fact

336 TRBOVICH, supra note 207, at 261.



339 Crawford holds that secession is valid when the metropolitan state has ceased struggling for control of

the seceding territory and the state cannot “prolong its sovereignty by a mere paper assertion of right.”

CRAWFORD, supra note 123, at 256–57.

340 See, e.g., Somalia: Government Urges Arab League to Reject Somaliland Referendum, BBC

WORLDWIDE MONITORING, June 13, 2001, available at ProQuest, Doc. ID 74075035; Somali Leader Denies

Plan to Recognize Somaliland, BBC MONITORING AFR., Sept. 5, 2009, available at ProQuest, Doc. ID

1853756061 (“Speaking to the media in UAE, President Sharif dismissed the report, saying that Somaliland is

a region in Somalia and cannot be recognized as independent state. The president described the report as

baseless and stressed that the country cannot be divided, adding that Somalia is one country. He said that both

Puntland and Somaliland regions are part of the TFG.”); Three Somali Groups Against Secession of Northern

Somalia, XINHUA GENERAL NEWS SERV., Jan. 11, 1993, available at 1993 LEXIS 0111009.



successors to the Republic of Somalia. However, since the Republic of

Somalia dissolved in 1991, those claims, like Serbia’s, must be rejected. Even

if the transitional governments could claim succession from the Republic of

Somalia, their claims over Somaliland amount to “mere paper assertion[s] of

right”341

—insufficient to preserve title over the secessionist entity and prevent

dissolution. Somaliland has in fact maintained its independence for nineteen

years and no transitional government has even attempted to establish control

of—let alone wield effective power over—Somaliland. The Republic of

Somaliland must therefore be regarded as an independent state.

Somaliland’s re-emergence as an independent state following the

dissolution of the Republic of Somaliland follows the pattern laid down by

both Yugoslavia and the UAR. Its secession is therefore in line with modern

state practice.

D. Somaliland and Uti Possidetis

Somaliland’s independence conforms to the doctrine of uti possidetis as it

has been applied in Africa. Though uti possidetis began as a principle defining

which territories could gain independence through decolonization, in the post-

colonial era it has defined what territorial units could emerge as new states

through secession or dissolution.342

In Africa, uti possidetis operates to limit

emergent states to those territories that existed as colonially administered

units.343

Somaliland, like Eritrea and in opposition to Katanga or Biafra,

existed as a separate colonial possession.344

Somaliland’s independence,

therefore, conforms to uti possidetis.

In fact, Somaliland has an even better claim to satisfaction of uti possidetis

than its neighbor Eritrea. Unlike Eritrea, Somaliland underwent the process of

decolonization before losing its international personality to a larger entity.345

In

this way, Somaliland is more like Syria following the UAR or, arguably,

Senegal following the dissolution of Senegambia.346

Each of those states

341 CRAWFORD, supra note 123, at 256–67.





346 Senegal and Gambia were briefly united as Senegambia from 1982 to 1989. Henry Hale, DIVIDED

WE STAND: Institutional Sources of Ethnofederal State Survival and Collapse, 56 WORLD POL. 165, 184

(2004). Though intended to produce unified administration of the two states, including a single currency,

market, and military, perennial Gambian reticence to consummate the union eventually led Senegal to



existed as independent states by virtue of decolonization before losing their

international personality to some larger entity. In both cases, the larger entity

subsequently dissolved and the component states re-emerged within their

colonial boundaries, satisfying uti possidetis. There is no question that both

Senegal and Syria are independent states. Further, both Senegal and Syria’s

UAR cognate, Egypt, are member states of the African Union—as is Eritrea.347

Somaliland’s adherence to its colonial boundaries, then, satisfies the doctrine

of uti possidetis as it has been applied in Africa, in post-colonial secessions.

CONCLUSION

Somaliland is a state that merely lacks recognition. Recognition, however,

is a political act and its validity turns on whether the creation of the state to be

recognized satisfied norms of international law. Somaliland’s creation

conforms to those norms: it satisfies the four Montevideo Convention criteria

of statehood; it gained its independence through dissolution, a species of

secession; and its secession conforms to the limiting principle of uti possidetis,

requiring territorial adherence to colonial boundaries.

Recognizing Somaliland would not violate any imagined African norm that

precludes secession. Africa has already witnessed a handful of secessions and

dissolutions in the post-colonial era. Moreover, because Somaliland regained

its independence in the context of dissolution and in adherence to uti

possidetis, its recognition would neither set a new precedent nor justify tribal

fragmentation of African states. The only groups that could possibly point to

Somaliland as precedent or justification would be those that seek independence

for former colonies currently amalgamated in larger states. Such groups, if they

exist at all, would hardly open the feared African Pandora’s box. Rather, the

greatest impact they could have is to return Africa to its status at the very

instant of decolonization.

Another rejoinder may be that recognition for Somaliland will legitimize an

entity like al-Shabaab or another radical al-Qaeda affiliate that exercises de

facto control over rump Somalia. Yet, there is little reason to worry over this

outcome. The only indigenous Somali entities that have exercised anything

approximating de facto control over rump Somalia in the last decade have been

unilaterally withdraw from the project, dissolving Senegambia in 1989. Tijan M. Sallah, Economics and

Politics in the Gambia, 28 J. MOD. AFR. STUD. 621, 639–44 (1990).

347 AU Member States, AFR. UNION, http://www.africa-union.org/root/au/memberstates/map.htm (last

visited Nov. 7, 2010).



these sorts of al-Qaeda affiliates, but they have not gained legitimacy. Instead,

the international community has sanctioned the Transitional National

Government and Transitional Federal Government with legitimacy irrespective

of their abilities to exercise de facto control over Somalia. It is likely that after

recognizing Somaliland—and thereby acknowledging that rump Somalia is a

separate state—the international community will continue to spurn radical

indigenous groups operating in rump Somalia, granting legitimacy to its

moderate groups that work with the international community.

On balance, then, recognizing Somaliland is likely to contribute to

international security and stability by preserving the Republic of Somaliland’s

bulwark against piracy and terrorism without encouraging either ethnic

separatism or legitimization of al-Qaeda affiliates. On the other hand, non-

recognition threatens the modicum of international security that Somaliland

provides in the Horn of Africa. It does the international community no good to

allow rump Somalia’s lawlessness to spread. Doing so would only exacerbate

piracy that already harries international commerce and afford al-Qaeda

affiliates yet more freedom of action. These, though, are the likeliest fruits of

non-recognition for Somaliland.

BENJAMIN R. FARLEY*

* Editor-in-Chief, Emory International Law Review; J.D. Candidate, Emory University School of Law

(2011); M.A., The Elliott School of International Affairs, The George Washington University (2007); B.S.,

cum laude; B.S., University of Massachusetts, Amherst (2005). The author would like to thank Professors

Johan D. van der Vyver and Laurie R. Blank, as well as the staff of the Emory International Law Review, for

their help and guidance throughout the comment-writing process. The author additionally thanks his family

and friends for their support, particularly Parul Nagar, Jason S. Kennedy, Steven J. Merrill, and Brett E.

Sterling.