This is the second installment in a series which is parsing through Somaliland’s journey towards recognition. The first post in the series, the introduction is available here. One of the legal criteria for statehood is established borders. There is a serious and very well, although often, hidden question as to where Somaliland’s borders are. In this post I try to parse this a bit mainly from the perspective of international law, but also from the political perspective as well.

My friend, and fellow Somaliland voyeur, Rudie made some very interesting and important points in the comments to my previous point. One of which was:

The AU for instance has a declared policy that colonial borders will be the norm for independence. I think this was to prevent states splitting up in small tribal entities. That would create chaos due to the haphazard way in which colonial borders were drawn with no respect for tribal territories, dividing tribes between countries.

But before I get to that point of policy, let me put on my lawyer hat for a second (which looks amazing like a cowboy hat when you live in an anarchical state).

The International Criteria for Statehood

There are clearly defined baseline criteria for a state to be considered a state under international law. The first is a definable population; the second is a definable territory; the third is a government; and the fourth is the capacity to enter relations with other states.

Three of these criteria were first stated in the book, Allgemeine Staatslehre (General Theory of the State), published in 1900 by Georg Jellinek  which would put them in the classification of international law of “opinions of reknowned jurists” (which is the layman’s term, it has an official term from the Vienna Convention but I’m too lazy to look it up). This is a law classification and can easily be trumped or changed by higher classifications of international law which conflict with the opinions. However, as with much of international law (and indeed, with law in general) the opinions of jurists form and shape the “real” (known to lawyers as “positive”) law.

So, what happened was later, in 1933, a regional treaty was passed which took into account the three criteria which were originally stated by Jellinek. was the Montevideo Convention on the Rights and Duties of States, which was a treaty concluded by the Organization of American States. Since that time, these four baseline criteria have become so well understood and highly utilized that they have allegedly become fully integrated into international law and adopted by most of the world’s states. Article 1 of that convention state the four criteria listed above.

Montevideo Criteria #2: Definable territory.

I must say, when I was doing some quick background research for this post that I learned something. The criteria for borders is less stringent than I originally thought. At least legally speaking. What the International Court of Justice (the World’s Supreme Court for matters such as these), requires is that there be a core territory (see North Sea Case, p. 32, para. 46). If there is a region of the territory which is disputed that is not a hindrance to statehood (see German Gas v. Poland, 5 A.D. 11 at 15). At least legally speaking.

I keep saying, “at least legally speaking” for a reason. Here’s the bottom line, just because a geographic area meets the criteria for statehood, does not mean that recognition is automatic. Why? Politics. Politics and law are very often intertwined (for they are two sides of the same coin). There is likely no major sector of law where politics are more intertwined than they are with international law. And even within international law, there is perhaps no norm where politics and law are more intertwined than when it comes to recognition.

Politics of Recognition

Politics Lens #1: The African Union’s Declaration of Respect for Colonial Borders

In the 1960′s the US wasn’t the only territory worried about domino’s falling. The rapidly gaining independence African states were also worried about this. For those who may not fully understand African politics, let me simplify most African states are arbitrary maps on lines which were negotiated far from the ground itself. Largely there are two effect to this: (1) people who identify in very different ways have been haphazardly lumped together for no logical reason other than they traditionally resided near one another, and (2) people who identify in very similar ways have often been separated by international borders which they were given no part in making.

These are not small problems. They are still causing many, many problems throughout the continent. No matter the problems, the AU made a declaration long ago which basically froze the borders the way they were at the end of the colonial period. Why? Hard to say completely, but I suspect it was a devil you know v. devil you don’t know situation. At the end of the day there was a slippery slope argument that the politicians had to quelch. If one tribe, clan, or nation was given its independence within the colonial borders, the massive number of self-identifying entities within Africa would have demanded similar treatment and chaos would have ensued. Or so goes the theory.

For a long time the AU has tightly held this norm. South Sudan challenges this norm directly as it is the first state within Africa which very clearly violates this.

Politics Lens #2: Outsourcing Decisions to the African Union

Quite a while ago now, both the US and the UK, publicly stated that they would follow the AU’s lead when it came to Somaliland. Before I came here I thought this was a good thing. It represented to me, at that time, that the US and the UK were forcing the AU to act like a grown up regional organization and would allow it to take the diplomatic lead on this issue. Publicly at least, I have seen no retraction as to this policy – as applied to the Somaliland situation.

Facts on the Ground

Factual Lens #1: Borders from the Somaliland Perspective

Somalilanders feel very strongly that they meet the Montevideo Criteria #2 without violating the AU’s declaration of respect for colonial borders. Remember Somaliland was a sovereign nation for five days in 1960 (ironically enough, the first state to recognize them during that era was Israel). So Somalilanders say, we have defined borders. And they are the borders of the Somaliland Colony (or Protectorate, which Rudie challenged me on and I haven’t yet had a chance to dig up the answer from my history books here at the office). Case shut.

Factual Lens #2: Borders from the Puntland Perspective

I don’t really know if there is a legal basis to Puntland’s argument, but Puntland does claim the far eastern regions of Somaliland as belonging to it. The border (as Somalilanders see it) does indeed run straight through the middle of a major Somali clan’s traditional homeland, so Puntland’s argument makes sense from a socio-cultural perspective, but I am not sure what their legal basis is. This divergence of opinion is the source of border scuffles which ebb and flow still.

This disputed region, according to the ICJ, does not hinder Somaliland’s statehood quest. At least legally. I suspect, it is a very real world hindrance. Why? One word. Eritrea.

Eritrea’s “break-away” from Ethiopia in the early 1990′s was not dissimilar to what Somaliland needs to accomplish. It was a unification that went awry and the break-away state wanted to reinstate its borders upon independence. The problem was that no one really knew where the border was and Ethiopia and Eritrea ended up fighting a semi-protracted war over the region which required the international community to come in, clean it up, and keep the peace.

So, the borders are very likely a very real thing in the minds of diplomats sitting at desks in Nairobi and Addis writing their home governments analysis memos about Somaliland’s recognition.

Currently, the Somaliland army does occupy almost the entirety of the territory. It doesn’t really control it, but it’s there and it’s doing the best it can with what little resources it has. The problem isn’t really from the Somaliland-Puntland perspective as much as it is from the perspective of the local people. Many of whom put up Puntland flags in their houses and claim to “not know Somaliland.” Somaliland has literally bent over backwards, giving portions of the governance sector way out of per capita proportions to clans from the East. It has attempted, when it can, to sink money into the East. It is actively encouraging development and aid agencies not only to work in the “triangle” but to also work further east. At the end of the day, the area we’re talking about would make Deadwood look like modern Stockholm in comparison. It is L A W L E S S. See here for news from this week about what happens in this area.

Although I have heard Somalilanders often claim that if recognition comes to Somaliland that the eastern clans would “come around” and support Somaliland. Behind close doors, in the majlises that I visit and sit with Somalilanders, most readily admit that it isn’t that simple. The eastern clans have traditionally been among the rules of Somalis overall. One of their major clans has a long a history of being politicians as the Isaaqs (Somaliland’s far-majority clan) have of being traders and business people. Another of their major clans was the clan of the former dictator, Siad Barre. So it isn’t quite a simple matter for them to subservient themselves to the Isaaq. Puntland (where the same clans which are in eastern Somaliland completely occupy), if it were to become a sovereign nation, would be in an awful position resource-wise. They have very little resources to speak of. The areas they claim in Somaliland are said to be decent (if not great) grazing areas and are said to have a decent amount of minerals including perhaps hydrocarbon deposits. So it isn’t a simple matter.

I was talking with a friend on Thursday about this issue and basically we could agree that the area is likely more trouble than it is worth. So I posited why doesn’t the President just cede the area to Puntland and let them deal with the problems. After it left my mouth I realized instantly why Somaliland can never do that: they would then be rewriting the colonial borders.

This is where the South Sudan precedent may be of assistance to Somaliland. If the AU either restricts or abolishes its declaration of respect for colonial borders, or at a minimum creates some exceptions, then Somaliland could potentially allow the area to go to Puntland and still argue that it meets the criteria for statehood. That is incredibly far-fetched I know, but it could be an option at least.

Up next: population

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