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Published On: Tue, Jan 17th, 2017

Somaliland:Pre-Conditions To Reopen Future Talks between SL and Somalia

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The offender (Somalia) pretended to be the judge of the victim with the support of the international community, it become inevitable to shed the reality existing over Somaliland and Somalia. This paper is to illustrate that without peace declarations concluded between Somaliland and Somalia, talks between Somaliland and Somalia is real conspiracy against the status of Somaliland.

This article is published by http://centreforpolicyresearch.org

The Centre for Policy Research Somaliland (CPRS) is a non-profit, independent institute dedicated to conducting research that contributes to a more robust public discourse about the structures and processes that shape life in Somaliland and the country formerly known as “Italian Somalia.”

The Legal Status of Somaliland and Somalia:

“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.”1

1. Introduction 3

1.1. Pre-Condition of Declaration of Peace 4

1.2. The Status of Somaliland and Somalia 4

1.3. Pre-Conditions For Cessation of Somalia’s Violations 5

1.4. Pre-Condition of Admission by Somalia 5

1.5. Cessation of Somalia’s Breaches to Charter of African Union: 6

1.6. Pre-Condition of Cessations of Somalia’s Violations to the United Nations Charter: 7

1.7. Pre-Condition of Cessation of Somalia’s Violations to International Principles of Peace:

2. Somalia’s Atrocities: 8

3. Pre-Condition of Dissolution of the Somali Republic Union as of 18th May 1991. 8

4. Pre-Condition of Sovereignty Equality 8

5. Conclusion: 9

Introduction
Somaliland engaged talks with Somalia without any conditions and in the absence of declaration of peace concluded between Somaliland and Somalia, which deprived Somaliland’s rights and legal positions.

The process that talks under taken between Ethiopia and Eretria, Sudan and South Sudan, Successor States of Yugoslavia and etc were led by pre-conditions of mandatory declaration of peace signed between warring sides. It was the Chatham House that persuaded Somaliland to undertake talks, but the process diverted in the middle, when Talks begin without prior Declaration of Peace concluded between Somaliland and Somalia with the presence of international community.

Somaliland and Somalia were in a hostile for more than 5 decades commencing from the formation of the Somali Republic on 1st July 1960. More specifically, SNM militarily confronted with Somalia for a period of 10 years from 1980 to 1991, when Somalia’s occupation was defeated and Somaliland possessed its territory from that moment.

This paper on the basis of extensive legal research on Somalia’s practices over the period of its existence as de facto government, with which Somalia exercised the rights and obligations she possessed by means of Use of force. Somalia has every possible means to suppress Somaliland’s political independence over the period, which resulted that international community assumed that Somalia’s claims is lawful and ignored the rights and obligations of the injured State of Somaliland.

The offender (Somalia) pretended to be the judge of the victim with the support of the international community, it become inevitable to shed the reality existing over Somaliland and Somalia. This paper is to illustrate that without peace declarations concluded between Somaliland and Somalia, talks between Somaliland and Somalia is real conspiracy against the status of Somaliland.

Already certain political risks are apparent since the time Somaliland engaged talks with Somalia. This paper is to invoke valid legal point which talks can reopen in the future. This paper does not present unnecessary historical narrations, but focuses the existence of legitimate political independence.

Introduction

The legal status of Somaliland and Somalia shall be regulated by their status, regardless of Somalia’s display over the period of its existence as de facto Government: “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.”2 Somalia’s display over the period was on the basis of military power seized over the people, which will not survive after the defeat of Somalia by the other short-lived State of Somaliland. The question of how the short-lived Somalia survived over the other State is with the international jurist and international community.

Pre-Condition of Declaration of Peace
Grave mistake happened when Somaliland entered talks with Somalia, which is still claiming the territory she lost in 1991. There is no doubt that Somaliland and Somalia are in serious hostility, most recent was when Somalia’s Ministry of Information publically said no Oil Company can enter agreement with Somaliland without the approval of Somalia.

In this regards, the extent to which Somaliland engaged talks, the more Somaliland involved political risks to its sovereignty and its existence. Talks engaged by Somaliland have served as Somalia’s life saving. Somaliland has relied on wrong assumptions, which says that Somaliland will talk when Somalia become competent State. This is the opposite, as realizations of Somaliland’s sovereignty are subject to extinction of Somalia, with which Somalia was nearly to die and Somaliland’s Sovereignty would be reality in the eyes of international community. Somaliland’s participation of London Conference has revived Somalia’s life. Somaliland and Somalia should sign declaration of peace as mandatory pre-condition for reopening talks.

2. The Status of Somaliland and Somalia

Somaliland and Somalia possessed equal status as of the date that Somaliland has defeated Somalia’s aggressions.

3 Pre-Conditions For Cessation of Somalia’s Violations

Because Somalia is involving violations existing Somalia’s provisional federal Constitution constitutes direct threats against Somaliland State in its provisions 4(1), 7(5, b), 40, 44, 49 (5), 51 (3, a), 54, 72 and 105. Somalia is involving false State representation in the formation of Somalia’s unilateral federal government, which constitute violations against Articles of 6, 7, 49, 50, 51, 52 and 533, of Vienna Convention on the Law of Treaties. Somalia is involving activities destabilizing stability of Somaliland, since the beginning of these talks, Somalia had publically claimed Somaliland regions as member of its federal government, which constitute serious inflammatory words,

Somalia publicly claimed the notion of Unity, while Somalia was not Sovereignty State and does not know what does mean the Unity. Somalia has no credential to represent the territory of Somaliland in the international world.

It is pre-condition that Somalia must admit sovereignty equality without condition before reopening any talks between Somaliland and Somalia, which created misunderstanding and subsequently misled international community; it is for this reason that Somaliland is to end these talks.

4. Pre-Condition of Admission by Somalia

Somalia should admit prior to any future talks pre-condition should be made that the admission of the absence of any binding treaty between Somaliland and Somalia on 1st July 1960.

That Somalia admits it’s breached Law No. 5 of 31st January 1961, the Act of Union.
That Somalia admits it’s breached the unified constitution of the Somali Republic, which Somaliland rejected 60% in 1961.
That Somalia admits its breach Law No. 20 of 23 August 1963, Authorization to Ratify the Charter of Organization of African Unity, Article 1, which stipulates the name of the Somali Republic as the legitimate member of OAU. Somalia is not the eligible Member State in the AU.
That Somalia admits its breached of the treaties entered into by the Somali Republic in 1960 to 1968, these include international treaties entered by the Somali Republic include but not limited to:-
Treaty with Seychelles in 1962 on the use of Airspace
Law on the ratification of treaty No. 22, 18 November 1963, Treaty on fulfillment of Trade and Payments between the Government of the Somali Republic and Government of People ’s Republic of China.
Cooperation Treaty between the Somali Republic and the European Union

Somalia’s unilateral breaches against the rights and obligations of the Somali Republic made the impossibility of the performance of the Somali Republic. This should be the reason that Somaliland cannot continue these talks include, that Somalia is offender and Somaliland is Victim State, it for this reason that Somaliland cannot continue this talks unless Somaliland ceases its aggression against Somaliland.

5. Cessation of Somalia’s Breaches to Charter of African Union:

Somaliland State cannot engage talks with Somalia, while Somalia is involving violations against the purposes Article II, (c) to defend their sovereignty, their territorial integrity and independence;

Principles: Article III, “1. the sovereign equality of all Member States. 2. Non-interference in the internal affairs of States and 3. Respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.” Somalia’s existence is a breach against Article VI; The Member States pledge themselves to observe scrupulously the principles enumerated in Article III of the present Charter.

Somalia has rejected the decision of the First Extraordinary of OAU meeting held in Cairo, Egypt Resolution of OAU, 61(I) of 24 July 1963 on the boundaries inherited on independence. Somalia is also in violations of Article 4, (b) of Constitutive Act, Principles “respect of borders existing on achievement of independence”4; Constitutive Act, held Lome, Togo, 11 July 2000.

It is for these reasons that Somaliland cannot reopen talks with Somalia until Somalia involving such violations, and upon its admission to the “respect of borders existing on achievement of independence.”Somaliland’s engagement to these talks would continue to deprive all rights of Somaliland.

6. Pre-Condition of Cessations of Somalia’s Violations to the United Nations Charter:

Somalia is involving violations against Article purpose and principles 1(2), Article 2(1) of the UN Charter, which read; “1. The Organization is based on the principle of the sovereign equality of all its Members.” Somalia is also involving breach against Article 2(4) and 2(7) of UN Charter. The current practices of Somalia conflicting with Article 2(4) of the United Nations Charter;“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.”

For these reasons, Somaliland cannot continue talks with Somalia, to the extent that Somalia is involving violations against the Charter of the United Nations. Somaliland has no other option but to respect its international obligations on the maintenance of international peace and thus, it cannot make any relations with Somalia.

7. Pre-Condition of Cessation of Somalia’s Violations to International Principles of Peace:

Somalia’s status of ipso jure poses threat against regional and international peace, since the awakening of Somalia; she involved disputes in the boundaries with neighboring States of Ethiopia, Somaliland and Kenya. More specifically, Somalia is involving violations of Treaty of 1888 border between Somaliland and Djibouti, Treaty of 1897 Anglo-Ethiopian, which established border between Somaliland and Ethiopia, Treaty of 1897 Anglo-Italian, which established border between Somaliland and Somalia.

In addition Somalia rejected the validity of Treaty of 1908 Italy-Ethiopia, which established border between Ethiopia and Somalia, Treaty of 1927 between Italy-Ethiopia, which established border between Ethiopia, Treaty of 26 June 1960, on the borders inherited by Somaliland State on the date of its independence and Treaty of 1st July 1960, treaties signed with Italy on its succession of its territory based on borders inherited by Somalia on the date of its independence.

For these reasons and many others Somaliland cannot involve itself with Somalia’s violations, and therefore, cannot engage talks with Somalia until Somalia is about to cease its violations.

8. Somalia’s Atrocities:

Somaliland is the injured State and therefore, Somaliland should observe its responsibility not to take any direct relations or cooperation with offender. Recent talks disproved the rights of Somaliland, though international community coerced Somaliland, Somaliland cannot benefit under the name of Somalia, which in turn serves as waiver of any claims.

Pre-conditions to reopen talks, Somaliland must demand: (i) Cessation of all wrongful conducts of Somalia (ii) Restoration of original status, (iii) Non-reputation guaranteed and (v) Remedies of compensation and reparation by Somalia to all damages and destructions committed.

Talks have risked the rights which Somaliland has to claim damages committed by Somalia. It is impossible that Somaliland is benefiting under the name of the occupier, this is not the choice of the international community, international law or international obligations, but this is solely weakness of Somaliland, which Somaliland has to improve its negotiation and administrative capacity.

9. Pre-Condition of Dissolution of the Somali Republic Union as of 18th May 1991.

Somaliland is a party affected by the breach committed by Somalia and thus, nothing would preclude Somaliland to invoke the Act of Union Law No. 5 of 31st January 1961, coming into operation as of 1st July 1960. Somalia’s atrocities in the territory of Somaliland are used as a ground for suspending the operation of the Act of Union in whole in the relations between Somaliland itself and Somalia the defaulting party.

The Act of Union concluded by the Integration Commission chaired by the United Nations Legal Advisor is of such a character that a material breach of the provisions of Act of Union by Somalia has radically changed the position of Somaliland with respect to the further performance of its obligations under no binding treat between Somaliland and Somalia.

10. Pre-Condition of Sovereignty Equality

Somaliland and Somalia should agree that succession process is without parent state, which successor states had equal status. Each successor state must make clear commitment in the process. Somaliland declares its objection of Somalia representation in the IGAD, AU, UN, EU and Arab League. Somaliland should declare its position that all treaties entered by Somalia ceases in the territory of Somaliland effective from the date of the succession, while the treaties entered by the union government of the Somali Republic will continue each of the successor state separately.

11. Conclusion:

The fact that the existence of Somalia is an internationally wrongful act and breach against law of Act of Union, No. 5 of 31st January 1961, coming into operation as of 1st July 1960, the Constitution of the Somali Republic as well its existence is controversial to the decisions adopted by the International Law Commission and the General Assembly of the United Nations, which states; “Somaliland and Somalia as short-lived states after their separate independence” with which the Special Rapportuer of ILC stated; “However, in as much as there was never an independent Government of Somalia”.5

While this paper focuses the fact that Somalia’s existence is internationally wrongful act. The extent to which international community is supporting Somalia’s wrongful act, the more Somalia threatens regional and international peace. Somalia’s problem was widely recognized as an international legal problem “there Somalia’s post conflict reconstruction is—to a great extent—an international legal problem”.6 More specifically, Somalia was recognized as threat against international peace.

This paper intends to recommend international community to admit that continuation of Somalia’s wrongful act constitute violations against Somaliland State, the Charter of African Union, the Charter of the United Nations and international law. Somalia’s wrongful act was precluded in the territory of Somaliland as of 18th May 1991, since then, Somalia has lost the possession of the territory of Somaliland for more than 2½ decades from 1991 to the present date. In other word, no State can regulate a territory which is not under its possession. In conclusion, this paper strongly supports the evidences that Somalia has no legitimacy to establish federal structure beyond its jurisdiction limited to the territory of under the trusteeship of the United Nations before 1st July 1960.

The process federating hostile countries of Somaliland and Somalia is the mere source of conflict and insecurity in the horn of Africa. The proposed federal boundary is breach against the Charter of African Union and the principle of respect of borders attained on the independence of African States. It is new source of conflict in the horn of Africa superseding the dissolved Somali Republic. Proposed boundaries creates ethnic and clan based interest rather than respecting international boundaries established by treaty. The alteration of international border between Somaliland and Somalia is a form of instigating prolongs civil war between dissolved States of Somaliland and Somalia.

The coercive talks which the injured State is imposed to negotiate with the offending illegitimate state constitute serious international injustice. It is illogic and immoral to the people inhabitant in Somaliland, where Somalia committed the death of 70,000 innocent unarmed civilians.

Talks can reopen when Somalia reforms its unilateral provisional federal Constitution which contains violations against Somaliland and its Constitution. International community is legitimizing provisional constitution which is concluded through fraud, corruption and false state representation, which is modernized colonization ideology, sheltered by the international organizations.

About the Author

- Mohamed Ibrahim Guled is the CEO, owner and chief editor of SomalilandPress

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