Introduction
1. This memorial on the issue of status of Somaliland is submitted to the UN special representative to Somalia on the basis of articles 65 and 66 of Chapter IV of the Statute of the International Law.
2. International body under the request of the United Nations Secretariat, basing on international law and opinion of relevant parties, should advise on the issue of Somaliland.
Part I: Jurisdiction
3. Pursuant to clause “a” of the article 65 of the Statute of the International law which states that “questions upon which the advisory opinion of the international body is asked shall be laid before the committe by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question”, what status of Somaliland should be.
Part II: Facts of the case
4. In the area which became British Somaliland Protectorate in the late 19th century, the Somali people were traditionally divided into clans, each being separated and independent from the others. Since then and until independence of Somaliland Protectorate in 1960 each clan maintained connections with the British government separately from other ones as the Protectorate treaties signed between United Kingdom and clans recognized that each clan area was a separate Territory. These treaties are the evidence that Great Britain prevented creation of a unitary state of Somali people. Nevertheless, there were common ethnicity, language, culture, Muslim religion, and pastoral life – bonds that were shared with other Somali people in all Somali areas in the Horn of Africa. These bonds provided an opportunity for Somaliland to unite with the same ethnic group and create a national state which would consolidate politically disintegrated Somali people in 1960. Creation of such a state was necessary to unfairly divided Somali people and was an important stage in evolution from uncoordinated clans to centralized state.
5. On June, 26, 1960 Somaliland Protectorate became independent and gaining this independence annulled treaties signed with Great Britain. In accordance with preliminary consensus and agreement among the northern clans Somaliland merged with Somalia on July 1, 1960 thus forming the unitary Somali Republic. The entire intention of gaining independence from Britain was precisely to unite with the rest of the country and to create state which would unite Somali people. It can be proved by the fact that the state of Somaliland existed only in the period of six days after receiving independence and all the activity of the state in this period was turned to formal preparation for creation of the unitary state which was negotiated previously. The willingness of people to create unitary state was proved by the results of the referendum held in June, 20, 1961 over the entire territory of Somali Republic on the draft constitution of the unitary state. According to the results of this referendum published in the African Election Database 90.56% of population voted in favor.
6. The Unitary state, Somali Republic, was recognized by the United Nations on September, 20,1960 when Somali Republic was accepted. Previous administrations such as Somalia and Somaliland people were a legacy of unfair division on the colonies and stopped their existence after unification and entrance into the United Nations. All the governmental institutions of previous administrations were ceased and union government was formed. This united state was recognized by international community and became a subject of international law with all the privileges of sovereign state being applicable for Somali Republic.
7. After the merger, Somaliland people got their share in modern infrastructure built by the united government. Water system was installed in the capital of former Somaliland Protectorate Hargeisa. Full-fledged sea port was built in Berbera; modern bridge was built over the dry riverbed so that motorists and pedestrians could cross it despite seasonal floods; modern airport and cement factory were built in Burao; technical institute and tannery were built and in nearby Sheikh; new hospital was built there as well. Schools multiplied; scholarships were provided for higher studies abroad. Northern region citizens owned farms in the fertile agricultural areas of the South and economy benefited from the wider market which was the natural consequence of the Union. Larger economy increased job opportunities significantly.
All these facts are the testimony that Somali Republic contributed significant resources to the state development and the development of northern region called Somaliland. Therefore the government’s failure to execute social obligations can not be the reason for any part of the country to come out from the state structure.
The report of the Delegation of the European Commission in Kenya to European Commission of September 2003 states: “road…in Somaliland are part of the country core road network. The Kalabaydh – Hargeisa section was paved in the late 1970’s early 80’s. The road between Hargeisa and Berbera was paved in the early 1970’s… The Hargeisa International Airport is located 1,480 m (4,442 feet) above sea level and about 6 km from the city centre. It is ideally suited to serve as a port of entry into Somaliland for both passengers and freight. The present airport was first established as a British military
airport with a gravel runway in 1954. After independence in 1964, the movement area was extended and paved with a thin asphalt concrete layer (less than 50 mm) and the runway length was established at its actual 2,440 meters…The Berbera International Airport is located close to the seaport and, with its 4,140m long runway, was for a long time a major gateway for import and export of goods into Somaliland and neighboring countries. The history of the airport dates back to the mid-sixties when it was developed as a major military base by the Soviet Union” and shows that infrastructure in Somaliland were build by the
unitary state. Thus Somali Republic fulfilled all obligations which were stipulated in the state Constitution of 1961 in social service. The Somali Republic government’s failure to execute social obligations can not be the reason for Somaliland to withdraw from the state structure.
8. The distinctive feature of Somali Republic is that clanism reasserted itself and instead of regional, clan balance was observed in the allocation of ministerial portfolios and other political positions as an indicator of power sharing in Somali Republic. That reality necessitated a formula for sharing the power among the clans: the President of the Republic was from the Hawiye clan, the Prime Minister from the Daarood, the Speaker of the National Assembly from Isaaq, and the Minister of Finance from Digil and Mirifle who
were the representatives from south clans. But there was a Deputy Prime Minister from Gadabuursi representative from northern clan. Furthermore, the northern clans’ representatives have in different times occupied senior ministerial positions including Foreign Affairs and Finance Ministers and were twice appointed to the position of Prime Minister. They also served in the most visible positions in the public service: they were professional diplomats as Ambassadors, Counselors, and were Generals in the military and police – occupying twice the position of ‘Commandant of Police’.
All these facts are the definite proof that power in the Somali Republic was divided between Northern and South clans on the national level, regional and local levels equitably. It is a guarantee that equality of rights for all the citizens in all the country’s areas was observed. Thus political inequality in the Somali Republic can not be the reason for parts of the country to separate from the integral state.
Part III: Law of the case
9. British Empire or Great Britain signed with each clan agreements. The article 1 of each agreement said, “The British Government, in compliance with the wish of the undersigned tribe undertakes to extend to them and to the territories under their authority and jurisdiction, the gracious favor and protection of Her Majesty the Queen-Empress”. This is the testimony of the fact that tribes on the territories of British Somaliland Protectorate did not possess integral and unitary state.
10. The Royal Proclamation in terminating Her Majesty’s Protection on / of June 23, 1960 begins with the words: “Whereas the Territories in Africa known as the Somaliland Protectorate are ….” This proclamation attests that notherern clans lived in separate territories. That once again proves that Somaliland Protectorate was not an integral centralized state.
11. Basing on the law of union between Somaliland and Somalia B 1 of 1960 27 June 1960 which was ratified by Somaliland legislature and which states that “Whereas the people of Somaliland achieved independence and ceased to be under British protection or within the jurisdiction and sovereignty of Her Britannic Majesty on the 26th day of June, 1960, being Muharram 1st 1379, and Whereas the people of Somalia achieved its independence and ceased to have the status of a Trust Territory of the United Nations Organization administered by the Republic of Italy on the 1st day of July, 1960, being Muharram
6th 1379, and Whereas it is the will of the peoples of Somaliland and Somalia that their peoples shall unite and shall forever be united in the Somali Republic”. Somaliland people made legally important act which shows the Somaliland favorable position on the unification with Somalia people. Thus taking into account estoppel principle today’s Somaliland can not dispute the creation of the unitary state, Somali Republic.
12. Preamble of Declaration on Principles of International Law Friendly Relations and cooperation among states in accordance with the Charter of the United Nations says, “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”. Integration into Somali Republic was an example of the pursuing the right of peoples to self-determination proved by the results of the referendum, previous consensus among the states and seniors of the clans and by creation of Acts of Unions.
13. United Nations General Assembly resolution 1479 of September 20, 1960 called “Admission of Somali Republic to membership in the United Nations” which states, “…decides to admit the Republic of Somalia to membership in United Nations”, Somali Republic became a Member State of the United Nations. Thus Somali Republic gained international recognition and legitimacy as a subject of international law. All the previous administrations such as Somalia and Somaliland which formed Somali Republic do not exist since that moment.
14. The article 2 point 4 of Charter of United Nations stipulates that “All 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” and consequently indicates that all the actions which can be turned to division of the Somali Republic are interpreted as a threat to territorial integrity of the state and will violate the Charter of United Nations. Any separatist movements in Somalia are, therefore, in violation of the territorial integrity of the Somali Republic.
15. The Charter of the Organization of African Union which was signed and ratified by Somali Republic in 1963 and its Article III, paragraph 3 declares that “the Member states affirm…respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence”. Consequently Somali Republic integrity should be observed since Somali Republic is a member of the Organization of African Union.
The general principles of law recognized by civilized nations” explains that decisions of the United Nations Security Council are the core principles of international law. The testimony of this fact is that all civilized countries signed UN Charter where it is stipulated that all the countries should carry out all the decisions of the body. Thus UN Security Council Resolutions are applicable for Somalia case and should be observed.
16. Adopted unanimously Resolution 1772 (2007), Resolution 733 (1992), Resolution 1356 (2001), Resolution 1425 (2002), Resolution 1725 (2006) and Resolution 1744 (2007)pf the Security Council and the statements of Security Council President, in particular those of 13 July 2006 (S/PRST/2006/31), 22 December 2006 (S/PRST/2006/59), 30 April 2007 (S/PRST/2007/13) and 14 June 2007 (S/PRST/2007/19) which in preamble stipulates “Reaffirming its respect for the sovereignty, territorial integrity, political independence and unity of Somalia” and in article 2 and 4 initiated today’s international efforts to solving the long time Somali conflict. Thus all parties have to participate and support the political process and the initiatives of the international community.
