CPRS Notes: Independence of the Somali Republic

Independence of the Somali Republic

1. 1. The Applicable International Legal System

The new State of the Somali Republic was one of the States formed from two or more territories. United Nations General Assembly established International Law Commission¹ and its functions stipulated in Article 15 under Chapter II of the Statute of the International Law Commission, mandated the commission for “progressive development of international law”, is used for convenience as meaning of “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States”.² The Statute of the International Law Commission stipulates procedures for progressive development of international law in Article 16³ of the Statute.

The Commission appoints one of its members to be Rapporteur of the work of progressive development of international law see Article 16(a), it may also appoint some of its members to work with the Rapporteur Article 16(d).

When Rapporteur concludes a draft Articles on any topic relating progressive development of international law as instructed by the Commission, Rapporteur submits proposal to the Commission for consideration according to procedure in Article 16 (f & g), the Commission invites to the Governments for comments on the document from the Rapporteur, the Commission and the Rapporteur takes comments from the Governments into considerations for the preparation of the final draft with the explanatory report, for the submission and consideration and adoption by the Commission Article 16(i), whence the majority of the Commission adopts draft Articles, it submits with its recommendation to through the Secretary General to the General Assembly.

Similarly, “the expression of codification of international law” is used for convenience as meaning “the precise formulation and systematization of rules of international law, in fields where there already has been extensive State practice, precedent and doctrine”.⁴The Statute of the International Law Commission also stipulates procedures for codification of international law in Article 18 paragraph 1 & 2 of the Statute. According to the procedure in Article 19, paragraph 2⁵, codification of international law through the Secretary General, Commission addresses to Governments to request to furnish the text of laws, decrees, judicial decisions, treaties, diplomatic correspondence and other documents relevant to the topic being studied. In other word, the role of the Commission is to conduct legal interpretation on the text of laws, decrees, judicial decisions, treaties and diplomatic correspondence to come to the conclusions on “the extent of agreement on each point in the practice of States and in doctrine”.⁶

According to Article 21, paragraph 1 of the Statute of the International Law Commission, “When the Commission considers a draft to be satisfactory, it shall request the Secretary-General to issue it as a Commission document”, and the Secretariat shall give all necessary publicity to the document.”

The purpose of this explanation is to facilitate readers understanding on the applicable international legal system regulating legal problems arising out from the formation of the Somali Republic and matters relating to sovereignty disputes arising when one of the original States of Somaliland and Somalia unilaterally declares separate State from its part of the territory of the Somali Republic, which result effects cessation and dissolution of the unitary State of the Somali Republic.

The Extinctions of Somaliland and Somalia

The extinctions of the legal status of Somaliland and Somalia were approved by the first National Assembly of the Somali Republic through paragraph 1 of Article 4 of the Somali Republic Law No.5 of 31^st January 1961, which read: “All rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia, or by any person on their behalf, shall be deemed to have been transferred to and accepted by the Somali Republic, upon the establishment of the union”.⁷

The legal effect of paragraph 1 above was coming into force effective from 1^st July 1960 and according to Article 10 of this law. The work of the International Law Commission repeatedly reported that: Somaliland and Somalia, their separate existences as independent States were very short-lived and designed merely as steps towards the creation of a unitary Republic.”⁸

The merger of Somaliland and Somalia

The merger of Somaliland and Somalia into the Somali Republic was concluded under the auspices of the UN through Integration Consultative Commission.⁹ The consultative commission for integration of the Somali Republic was created by the provisional on the request of the United Nations through president presidential decree of 11^th October 1960.

Nature of the Commission was an international board “The Consultative Commission for Integration, an international board headed by UN expert Paolo Contini, was appointed in 1960 at the behest of the UN to guide the gradual merger of the new country’s laws and institutions and to reconcile the differences between them”.¹⁰

The Independence of the Somali Republic

The independence of the Somali Republic was established according to paragraph 1 of Article 1 of the Somali Republic Law No. 5 of 31^st January 1961; which read; “Somalia and Somaliland being united, constitute under the constitution the SOMALI REPUBLIC, which shall be an independent, democratic and unitary republic.”¹¹

At the international level, the work of the Commission stated that: “Somalia and Somaliland, both these territories had become independent States before their uniting as the Somali Republic.”¹²

The independence of the Somali Republic on 1^st July 1960 fall under the category of States formed from two or more territories. “The practice summarized in the preceding paragraphs indicates that cases of the formation of a State from two or more territories fall within the rules of part III (Newly independent States).” More importantly, the evidences on the legal status of Somaliland and Somalia at the United Nations as short-lived States,¹³

The independence of the Somali Republic was recognized by number of States namely U.S,¹⁴Japan which recognized Somali Republic explicitly,¹⁵ and the international community and ILC report commentary stated; “Since independence the Somali Republic”¹⁶Recognition of the US¹⁷ government to the Somali Republic stated: “On first July 1960, the Somali Republic become independent, uniting the former U.N Trust territory of Somalia with the former British Protectorate of Somaliland, which had become independent on 26 June”. The recognition of the Somali Republic¹⁸ by the US government cited: “relations between the Somali Republic and the United States is generally good because of US support for the Somali Republic’s independence, past and prospective US assistance.”¹⁹

The independence of 1^st July 1960 in the Somali Republic was (a Union of former British Somaliland Protectorate and the former Italian Trust territory of Somalia) a new government has just been formed in the Somali Republic.²⁰ The new unitary State of the Somali Republic had new legal framework, Memorandum from the Assistant Secretary of the State for African Affairs “The Constitution of the new Somali Republic.”²¹

1. 1. 1. International Relations of the Somali Republic

The independence of the Somali Republic on 1^st July 1960 was supported by concerned power States.

The succession of the Somali Republic on the rights and obligations of the short-lived States of Somaliland and Somalia was according to paragraph 1 of Article 4 and in particular, matters of international relations of the Somali Republic was regulated by paragraph 2 of Article 9 of Law No.5, which were “applied to rights and obligations arising from matters other than international agreements”²² on the succession of the Somali Republic to these rights and obligations on 1^st July 1960. Paragraph 1 of Article 9: Repeal of Inconsistent Legal Provisions, stipulates: “Any provision of any law of Somaliland or Somalia, including the Somaliland Order Council 1960 (Being the Constitution of Somaliland), which is inconsistent with the Constitution of the Somali Republic or this Law hereby repealed.”

Paragraph 1 of Article 9 repealed any law of Somaliland and Somalia, more specifically the Constitution of Somaliland as the fact that Somaliland was State on 1^st July 1960. in contrast, Somalia had no Constitution to repeal on 1^st July.²³

The provision of the Union of Somaliland and Somalia Law (No.1 of 1960), are hereby repealed, except Article 11(4), thereof.

“(4) Without derogation from the foregoing provisions of this Clause the rights and obligations arising from agreements entered into – between the Government of Somaliland and the Government of the United Kingdom of Great Britain and Northern Ireland and between the Government of Somalia and the Government of Italy and other States and International Organizations which are set out in the Schedule (2) to this Act shall be binding upon the Somali Republic.” (Article 11(4) of Law No: 1 of Act of Union).

In addition, schedule (2) stipulated in above provision of Article 11(4) reads:

“(2) Any liabilities or obligation (whether arising from contract or otherwise) incurred by the State of Somaliland or by the State of Somalia and subsisting immediately before this Act of Union shall upon this Act of Union being made be a liability or obligation of the Somali Republic or of such person or authority on behalf of the Somali Republic as the Council of Ministers may direct.” (Article 11(2) of Law No: 1 of Act of Union).

Law No. 5 of Act of Union reads; “the provision of the Union of Somaliland and Somalia Law (No.1 of 1960), are hereby repealed, except Article 11(4).” “This Law may be cited as the “Act of Union” and shall be deemed to have come into operation on the 1^st day of July, 1960.” (Article 10: Title and Entry into Force, Law No. 5).

Article 11 (4) of the provisions of the Union of Somaliland and Somalia Law (No.1 of 1960), of 27 June 1960 made the Somali Republic the successor of all international agreements and treaties of the territories of Somaliland and Somalia.

Encourage Italy and UK to continue to exercise the primary external responsibility for the maintenance of the Somali Republic’s stability and free world orientation.²⁴

Encourage to support the Somali Republic to join the free world financial institutions.²⁵

Encourage the UN Secretary General to take an active role, through personnel representative in the Somali Republic, in attempting to reduce tensions in the areas and to find solutions to various conflicts (border disputes and the future of Somalis in Kenya and French Somaliland) which are acceptance to states and people concerned.²⁶

Somalia’s identity is clearly stipulated in the United Nations Security Council Resolutions before the union from 1950 to 2014.²⁷

1. 1. 1. Identities, legal personalities and International relations

The process integrating international relations of the two states, in particular to the Somali Republic, the successor government and its succession on the rights and obligations of Somaliland sovereignty as stipulated in Article 4(1) Succession To Rights and Obligations “All rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia, or by any person on their behalf, shall be deemed to have been transferred to and accepted by the Somali Republic, upon the establishment of the union”.²⁸The Somali Republic become successor on the Rights and obligations of Somaliland, while Somaliland was not consented any transfer of rights and obligations to the Somali Republic, and according to the report of ILC (1976), Somali Republic was the successor of Somaliland.

Succession of the Rights and Obligations

The Somali Republic accessed rights and obligations of Somaliland and Somalia through paragraph 1²⁹ of Article 4 of the Somali Republic Law No.5 of 31^st January 1961. Legal effect of this paragraph implicitly determines cessations of Somaliland and Somalia as of 1^st July and emerged the new State of the Somali Republic stipulated in paragraph 1 of Article 1 of Law No.5 of 31^st January 1961.

The minimum rights transferred in paragraph 1 of Article 4 include but not limited to the flag and the emblem originally designed to the union of the Somali Republic, established Ordinanza no. 17 rep. 6 September 1954³⁰ for the flag and Law No. 11 of 10 October 1956, for the Emblem, which Somalia secretly claimed enacted laws stipulating Somalia’s flag and emblem as mentioned above. However, Somaliland State was the first State displayed the blue flag on 26 June 1960, thus, Somalia’s Ordinanza no. 17 rep. 6 September 1954³¹ for the ownership of the blue flag has no legal effect when another State has displayed on 26 June 1960. The latter changes of Somalia’s non independence legitimized the ownership of the blue flag by Somaliland State as one of the rights and obligations accessed and possessed by Somaliland State during the period from 26 to 30 June 1960, which Somali Republic become the successor of these rights on 1^st July 1960.

Mr. Eugene Cotran, stated: “As there was never an independent Government of Somalia, the effect of Article 4 is to make the Somali Republic the successor of the Government of Somaliland only, with respect to the rights and obligations acquired by it during the 5 days prior to the union. This applies to rights and obligations arising from matters other than international agreements”.³²

Since Somali Republic was successor of the Government of Somaliland only, with respect to the rights and obligations acquired by it during the 5 days prior to the merger on 1^st July 1960, the blue flag was one of those rights.

All Somalia’s laws before 1^st July 1960 were repealed as of 1^st July 1960, in according to paragraph 1 of Article 9 of Law No.5 All laws of Somalia’s trusteeship administration from 2^ndDecember 1950 to 1^st July 1960 were repealed by Law No. 5 of 31^st January 1961, coming into force effective from 1^st July 1960. Somali Republic become successor of all communication exchanges of notes between Italy the Administering Authority of Somalia’s under trusteeship and the United Nations for a period of 10 years commencing from 2^ndDecember 1950 to 1^st July 1960 were repealed to the extent that these are inconsistent with Law No. 5 of Act of Union and the Constitution of the Somali Republic. Somalia’s request to the United Nations membership dated 30^th August 1959 through Government of Italy was possessed by the Somali Republic.

Somali Republic was the successor of all international treaties, agreements and diplomacies of Somaliland and Somalia according to paragraph 2 of Article 9 of Law No.5.

1. 1. Declaration of Succession of the Territory:
      1. Declaration of Objection against irregular transfer of the territory of Somaliland in 1960, Declare that no transfer of territory between Somaliland and the Somali Republic in 1960.
      2. Declaration that the succession of the territory of Somaliland is occurring on the basis of:-

1. Declaration of objection against Somalia’s reservations on the Charter of OAU and the Principles in Article III (3) the respect of borders on the existence of independence of Somaliland 26 June 1960.

2. Declaration of objection against Somalia’s accession in the membership of the OAU and latter African Union, which is breach against the membership of the Somali Republic.

3. Declaration of termination of the membership of the Somali Republic to the OAU and declare that Somalia has no power of credential to represent Somaliland in the African Union effective on the date of termination of its illegal occupation in the territory of Somaliland.

1. 1. Declaration of Succession of International Treaties:

Practical Actions: Somaliland State should to ratify, accept, approve or accede to a treaties, it must execute an instrument of ratification, acceptance, approval, accession or signature, signed by one of two specified authorities, namely the Head of State, or Minister for Foreign Affairs. There is no mandated form for the instrument, but it must contain the minimum practical considerations.

1. 1. 1. Declaration of Termination of all Treaties of Somalia the illegal occupier of the territory of Somaliland on the date of liberation and that Somaliland State will be member by its name.

1. 1. 1. Declaration of State that Multilateral Treaties which become in force in the territory of Somaliland before independence on 26 June 1960 will be provisionally continued for such X period until legal examination is undertaken by Somaliland Government.

1. 1. 1. Declaration of State that Bilateral Treaties which become in force in the territory of Somaliland before independence on 26 June 1960 will be continued between Somaliland State and the other party through reciprocal between parties.

1. 1. 1. , Ratification of Multilateral Treaties of the OAU and latter African Union:-

1. 1. 1. Declaration of Succession of Multilateral Treaties, Ratification of Multilateral Treaties of the OAU and latter African Union:-

1. Declaration of Ratification of the Charter of the OAU and the Constitutive Act of the African Union.
2. Declaration of Ratification of the Resolution of the OAU, in Cairo 1964 on the Principles in Article III (3) the respect of borders on the existence of independence of African States.
3. Declaration of Ratification of the Charter of the United Nations
4. Somalia’s unlawful possession of the territory of Somaliland is terminated as of the date of liberation and possessed and acquired by Somaliland State on 31st January 1991.

1. 1. 1. Declaration of Lawfulness of Liberation Struggle 

1. 1. Declaration of Objection against Somalia’s Violations of the following International Treaties:

      1. Declaration of Objection against Somalia’s violations of the following Treaties:

1. Treaty of 1887 border between Somaliland and Djibouti

2. Treaty of 1897 Anglo-Ethiopian, which established border between Somaliland and Ethiopia

3. Treaty of 1897 Anglo-Italian, which established border between Somaliland and Somalia,

4. Treaty of 26 June 1960, on the borders inherited by Somaliland State on the date of its independence.

5. Treaty of 1^st July 1960, signed with Italy on its succession of its territory based on borders inherited by Somalia on the date of its independence which was violations against agreement on the attainment of independence by Somaliland Sovereignty claims as breach of the rights and obligations of the Somali Republic Para 1 of Article 1 and Para 1 of Article 4 of the Somali Republic Law No.5.

1. 1. 1. Declaration to condemn Somalia’s Illegal Occupation in the territory of Somaliland
      2. Declaration of the date of liberation of Somalia’s Illegal Occupation in the territory of Somaliland as of 31^st January 1991.
      3. Declaration that the Principle State of the Somali Republic disappeared and ceased to exist.
      4. Somaliland was not Part of Somalia but under Illegal Occupation, which was terminated on the indicated liberated date 31^stJanuary 1991.

      5. Declaration of Objection of Somalia’s Sovereignty claims as breach of the rights and obligations of the Somali Republic Para 1 of Article 1 and Para 1 of Article 4 of the Somali Republic Law No.5.

      6. Declaration of Objection against Somalia’s claims of the Sovereignty of the Somali Republic Para 1 of Article 1 and Para 1 of Article 4 of the Somali Republic Law No.5.

      7. over the territory of Somaliland was not Part of Somalia but under Illegal Occupation, which was terminated on the indicated liberated date 31^st January 1991.

1. 1. DecProve of the Extinctions of Rights and Obligations of the Somali Republic
      1. Declaration of
   2. Declarations on the Succession of State:
      1. Declaration Prove of the Fact that Somalia has lost the territory of Somaliland
   3. Declaration of Condemnation of Somalia’s Breaches against International Law
      1. Declaration of Objection Against Somalia’s Reservations on the Principles: Article III (3) of the Charter of OAU “3. Respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.”
      2. Declaration of Objection Against Somalia’s rejection of the decision of First Extraordinary of OAU meeting held in Cairo, Egypt Resolution of OAU, 61(I) of 24 July 1963 on the boundaries inherited on independence.
      3. Declaration of Condemnation of Somalia’s violations of Article 4, (b) of Constitutive Act, Principles “respect of borders existing on achievement of independence”³³; Constitutive Act, held Lome, Togo, 11 July 2000.

Conclusions:

Somaliland and Somalia possessed the status of territories not States when the succession of the Somali Republic occurred. In paragraph 37, “in accordance with article 25 of the Commission’s draft on succession in respect of treaties, the definition also covers the case of a newly-independent State “formed from two or more territories, not already States when the succession occurred.”³⁴

The recognition of the Somali Republic³⁵ by the US government cited: “relations between the Somali Republic and the United States is generally good because of US support for the Somali Republic’s independence, past and prospective US assistance.”³⁶

Factual information presented on the situation intends to change policy of the international community towards the search of lasting peace and stability for Somalia. The extent that international community recognizes as lawful those rights which Somalia possessed by means of force during its existence, the more they instigate Somalia’s crisis rather ending. which has been on the basis of views and opinions rather than interventions based on the applicable legal framework. Finally, the role of international community to end Somalia’s crisis should be governed by international legal system and the official records depository at the Secretary General of the United Nations.

Somalia’s identity is clearly stipulated in the United Nations Security Council Resolutions before the union from 1950 to 2014.³⁷Somalia’s claims of independence is linked to the rights which Somalia possessed by means of force during its existence and display, which is breach against paragraph 1 of Article 1 of Law No.5

It is the role of international community to intervene where differences between Somaliland and Somalia is laying Somalia’s attempts to sustain those rights which Somalia possessed and displayed during its existence and on the basis of military force.

Somalia’s claims is continuation of its breach of paragraph 1 of Article 4 of Law No.5, “All rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia, or by any person on their behalf, shall be deemed to have been transferred to and accepted by the Somali Republic, upon the establishment of the union”.³

Somalia’s breach of above paragraph was led the impossibility of the performance of the Somali Republic, which nothing precludes Somaliland to defeat Somalia’s aggressions and illegal occupation in the territory of Somaliland. Somalia’s claims of sovereignty should be limited to the recent recognition of the US government on 17^th January 2013, which is applicable to the area of the territory, which Somalia possesses on date of recognition.

Recognition granted to Somalia by the US government on 17^th January 2013, is incompatible to Somaliland because of the circumstance of changes of sovereignty as of 1991, when Somalia’s illegal occupation was defeated. The commitment which Hassan Sheikh has made to the US government on the exchange of recognition, which relates to the interest of the US government to the territory of Somaliland, has no legal effect in Somaliland. No State can make commitment what is not under its possession, thus, the commitment which Somalia has made to the US government does not reflect the reality on the ground, which Somalia has no title over the territory of Somaliland.

Somalia’s commitment to the interests of the US government in the territory of Somaliland could be Somalia’s misunderstanding on the delicate airspace agreement concluded between Somaliland and Somalia, the mistake made by Somaliland, when it accepted that the defeated aggressor has to continue its possession of the Airspace of the territory of Somaliland State, which Somalia has lost in 1991. But this would last at any moment until the government of Somaliland understands that the actualization of its sovereignty depends to the extent that Somaliland controls its airspace.

The existence of Somaliland State is by virtue of the liberation of Somalia’s illegal occupation, the disappearance of the Somali Republic, which ceased to exist following by the absence of parent State. Somalia’s existence was always illegal de facto government and the legacy of the dictatorship. It is immoral to international community “to recognize and highlight that the central government of Somalia collapsed in 1991.”

Which is contrary to paragraph 1 of Article 1 of the Somali Republic Law No. 5 of 31^st January 1961; which read; “Somalia and Somaliland being united, constitute under the constitution the SOMALI REPUBLIC, which shall be an independent, democratic and unitary republic.”³⁹

Notion of Somalia’s central government in 1991 is also conflicting paragraph 1 of Article 4 of the Somali Republic Law No. 5 of 31^stJanuary 1961 and the official records at the United Nations. The cause of Somalia’s collapse is often ignored because it links to the atrocities committed by Somalia under the commissions and directions of foreign entities. However, the cause of Somalia’s collapse is clear in the legal framework of the Somali Republic and the work of International Law Commission, which determines the legal status of Somalia; “there was never as such an independent Government of Somalia.⁴⁰ In other word, Somaliland and Somalia had possessed equal legal status as of 1^st July 1960 to the present date.

Efforts of international community, especially IGAD and AU have been trying to sustain the legacy of Siyad Barre, the dictatorship who sustained the display of Somalia’s illegal de facto government by means of force until his fall in 1991. Somaliland confronted Somalia’s illegal de facto government militarily for a period of 10 years until the defeat of junta rule in 1991, since then, international community was the successor to sustain the legacy of the dictatorship and its illegal occupation.

About This Paper:

This paper intends to illustrate the legitimate State of the Somali Republic, the genesis of the State and its formation. Furthermore, this paper clarifies the legitimacy and legality of the Somali Republic its formation and recognition by other States, the validity of the political independence of the Somali Republic as of 1^st July 1960.

Paper presents factual information on the status of separate independent states of Somaliland and Somalia in 1960, the extinctions of Somaliland and Somali’s separate existence of independence States and the creation of unitary State of the Somali Republic as of 1^stJuly 1960.

This paper is also answers the notion of the Africa Program Conference Summary on the Somaliland’s Place in the World, which published; “Many external partners will not recognize Somaliland until a Mogadishu based government does so”,⁴¹ with which this statement has no clear meaning “until a Mogadishu based government does so” which government is Mogadishu based government?, is this government of the Somali Republic, government of Somalia or the federal government of Somalia created August 2012.

This paper presents strongly legal argument that no Mogadishu based government which has qualification to consent the recognition of Somaliland see paragraph 1 of Article 1 of Law No.5, which read: “Somaliland and Somalia, being united, constitute under the Constitution the SOMALI REPUBLIC, which shall be an independent, democratic and unitary republic.”⁴²

Paper is also informing all involving players of the game the legal framework of the principle State of the Somali Republic, which disappeared and ceased to exist on the awakening of Somalia, which has been de facto government displaying its personality by means of use of force, with which these rights which Somalia possessed by means of force will not survive after the defeat of the force which Somalia was existing over the period.

By Yusuf Ali

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