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|Somaliland: Time for Recognition|
A Thesis By Monica Sanchez Bermudez
Supervised By Prof. Joshua Castellino, Irish Centre For Human Rights
July 2004 – Part V
CHAPTER IV – SELF-DETERMINATION AND SECESSION
Self-determination and secession are two concepts which are interrelated, particularly in regard to the fact that most secessionist movements ground their claim for independence from the State they wish to secede from, on their right of self-determination. This does not entail, however, that every secessionist movement will be in a position to exercise such a right, and certain conditions will have to be met in order for the secessionist group to have a claim for self-determination in compliance with international law. The exercise of the right of self-determination has been characterized by scholars as a modern criterion for statehood necessary to validate a claim for independence.
1. Self-determination in historical perspective
a. The evolution of the concept of self-determination from the American and French Revolutions to the aftermath of World War I
The principle of self-determination is regarded as being linked with the history of the doctrine of popular sovereignty which found its first clearest expression during the American and French Revolutions. The concept of popular sovereignty is not only grounded on the idea that government should be based on the will of the people who have the right to determine their own destiny, but also on the concomitant idea that the people have a right of rebellion against despotic and tyrannical regimes. These two aspects of popular sovereignty were clearly identified and proclaimed in the Virginia Bill of Rights of 1 June 1776, the American Declaration of Independence of 4 July 1776, and in the Déclarations des Droits de l’Homme et du Citoyen of 26 August 1789 and 24 June 1793. Because the concept of popular sovereignty lies at the origin of the principle of self-determination, the latter has since its early days “the character of a threat to the legitimacy of the established order, trying to substitute for it one with more equality.”
The concept of self-determination developed further in the early twentieth century, particularly under the influence of American president Woodrow Wilson, who gave the concept a place in international relations, notably when he made his famous Fourteen Points speech on 8 January 1918. Wilson associated the term self-determination to the idea of a democratic government, which has been classified by the modern doctrine as internal self-determination. Although he advocated for the universality of the principle of self-determination, Wilson was mainly concerned with applying such a principle to the oppressed minorities in post-war Europe and he probably did not anticipate the impact that his words would have at a universal scale in the years to come. The other personality to emphasize the importance of self-determination during that same period was Vladimir Ilyich Lenin. According to Lenin, self-determination of nations exclusively meant the right of oppressed nations to political separation, i.e. secession, from oppressor bodies and nations, where oppression was the result of bourgeois nationalism. He therefore saw self-determination as a tool to further the class struggle, whose final aim was to integrate all nations in a universal socialist community. Despite the acknowledgement of the principle of national self-determination, it was inconsistently applied in the aftermath of World War I. As Cassese notes “[o]n the whole, self-determination was deemed irrelevant where the people’s will was certain to run counter to the victor’s geopolitical, economic, and strategic interests.” This approach, which demonstrated a lack of sense of obligation for the States to apply the concept of self-determination, was also reflected in the Aaland Islands case where the International Court of Justice rejected self-determination as a positive right under international law. However, this approach changed radically following World War II and self-determination found its place within customary international law during the decolonization period.
b. The United Nations and decolonization: crystallization of self-determination into a rule of customary international law
The Charter of the United Nations refers twice to the principle of self-determination. In article 1(2) it is asserted that one of the purposes of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Article 55 reiterates this view and begins as follows: “[w]ith view to the creation of conditions and stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote…” Although the Charter does not refer to a right of self-determination as such but to a principle, this will rapidly change through subsequent United Nations documents and measures adopted during the decolonization period.
Backed by Soviet support, the demands for decolonization started giving substance to an emerging right which aimed at freeing African and Asian people of their colonial rulers. In the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the United Nations General Assembly on 14 December 1960 [hereafter resolution 1514], it is explicitly stated that “[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” This right has been qualified by scholars as external self-determination, as it refers to the determination of the international status of a territory and a people, through the formation of an independent State. In 1966, the two international Covenants laying down the foundations of international human rights law were adopted and both Covenants, in their common article 1, reiterated what had previously been affirmed in resolution 1514. This position was further confirmed in the Friendly Relations Declaration adopted in 1970. This codification of the right of self-determination was substantiated by the decolonization movement which took place under the scrutiny of the United Nations. A policy of progressive and gradual development of Trust and Non-Self-Governing Territories towards increased self-government was adopted. However, in the early 1950s, this policy was put under pressure by the General Assembly who requested an acceleration of the process. This is reflected in the wording of resolution 1514 where “the General Assembly…solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations…and to this end declares that…immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories.” This process, however, encountered some limitations through the application of the uti possidetis principle, which implied that colonized people were not free to determine the boundaries of the territory of their newly independent State.
2. The principle of territorial integrity and the uti possidetis doctrine
Resolution 1514 granted on the one hand the right of self-determination to peoples but on the other hand it stipulated that: “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” This stipulation was put into practice with the application of the uti possidetis doctrine to the African continent.
a. The norm of uti possidetis juris
The norm of uti possidetis juris originates directly from the Roman law principle uti possidetis ita possidetis which assumes that the title of the goods belongs to its current possessor. This principle, translated into international law, establishes that in cases where a dispute erupts between two sovereigns over a territory, the de facto occupier of the territory is regarded as the legitimate sovereign, regardless of how the territory has come into its possession. This rule seeks to maintain the status quo in order to avoid a disruption to peace and the fragmentation of States into myriads of smaller States. The uti possidetis doctrine was applied in the early 19th century to the newly independent States in Latin America, who could not change their inherited colonial boundaries. This principle was further applied during the decolonization process of Africa. The boundaries demarcated by the colonial powers became sacrosanct and therefore could not be altered. Theoretically, the adoption of the uti possidetis principle was perceived as sound as it was considered to be a simple and efficient way to avoid territorial disputes and potential armed conflicts. Nevertheless, its application in practice encountered serious problems. We have seen in Chapter II (2), through the example of Somaliland, that when European Powers colonised Africa, those were only seeking to extend strategically their areas of influence taking exclusively into account their personal interests. Therefore, when it came to draw boundaries, the ethnic and religious diversity of the local populations were not taken into consideration, thereby creating multi-ethnic colonies as well as dividing homogenous nations into different countries. Although the adoption of the uti possidetis rule within the African context probably prevented some conflicts, it definitely contributed to the rising of ethnic and religious intra and inter-States warfare, which we have been witnessing in the last decades.
While the application of the uti possidetis rule is generally associated with the preservation of territorial integrity, its application to the case of Somaliland proves that the two concepts are different and can, in rare circumstances, contradict themselves. Indeed, if the uti possidetis doctrine were to be applied to the Republic of Somaliland, it would substantiate its claim for independence, as Somaliland currently seeks the recognition of its inherited colonial borders as international boundaries. Therefore, one needs to be clear that the refusal of Somaliland’s independence, particularly by the African Union and the League of Arab States, is based on the respect for the territorial integrity of the Republic of Somalia and not on the application of the uti possidetis doctrine.
b. Conflict between territorial integrity and self-determination?
The term “territorial integrity” was first mentioned in article 10 of the Covenant of the League of Nations which provides that member States “undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.” The preservation of territorial integrity was subsequently characterised as one of the purposes of the United Nations if one reads a contrario article 2(4) of the Charter which states that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The principle has also been mentioned in various regional instruments, such as the Charter of the Organisation of American States, the Charter of the African Union, the Helsinki Final Act and the Charter of Paris.
In general terms the concept of territorial integrity denotes “the material elements of the State, namely the physical and demographic resources that lie within its territory (land, sea and airspace) and are delimited by the State’s frontiers.” More specifically, territorial integrity refers to the effective control over and possession of territory by a State. Therefore, if a State looses control over part of its territory as a result of force by another State, its territorial integrity would be impaired and this impairment would constitute a breach of international law. However, when impairment to territorial integrity is the result of a secessionist movement within a State, this impairment is not necessarily in breach of international law. In order to be legally valid, the secessionist movement has to be the holder of a right of self-determination. Therefore, although the concepts of territorial integrity and self-determination are often perceived as conflictive, in fact, the exercise of the right of self-determination limits the principle of territorial integrity. Now that the legal background has been established, it is important to verify whether Somalilanders were exercising their right of self-determination when they auto-proclaimed themselves independent and whether unilateral secession is the only possible means of exercising such a right.