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The Seychelles–Somaliland Prisoner Transfer Agreement: A Case of Implicit Recognition?

Document Cited in Related
Vincent
Pages400-425
Published date01 August 2019
DOI10.3366/ajicl.2019.0281
Date01 August 2019
Author
INTRODUCTION

Somaliland, an unrecognised state comprising approximately a quarter of Somalia's territory, has consistently sought recognition since declaring independence on 18 May 1991.1 However, in the face of a collective non-recognition policy led by the African Union (AU) based on uti possidetis juris, no state has recognised Somaliland's independence. Despite participating in meetings with transitional federal Somali institutions, Somaliland has refused to withdraw its declaration of independence; indeed, ‘international engagement’ and the search for recognition features prominently on the Somaliland government's official website.2

This article considers whether Somaliland was implicitly recognised in April 2011 by the Seychelles through signing a Prisoner Transfer Agreement (PTA) covering Somali nationals convicted of piracy. It begins with an overview of Somaliland's statehood claim, turns to the status of treaty-making as a source of implicit recognition and then considers whether, through the 2011 PTA, Seychelles did implicitly recognise Somaliland.

 SOMALILAND'S STATEHOOD CLAIM

The government of Somaliland advances two arguments in support of its independence. First, that in James Crawford's typology, Somaliland is a Self-Determination Unit, and that endorsement of the 2001 Somaliland constitution served as an overwhelming vote for independence.3 Independence, it is argued, would be a return to Somaliland's brief period of independence in 1960 before unifying with the former Italian Trust Territory of Somaliland (Italian Somaliland4) to form the Republic of Somalia, meaning that secession is consistent with the AU's strict and continuing interpretation of uti possidetis.5 Alternatively, Somaliland argues that the crimes committed by the Barre regime in the 1988–91 civil war were of sufficient gravity for Somaliland to claim independence via remedial secession.6

Somaliland and the Montevideo Criteria

Though the International Law Commission (ILC) was unable to agree a statehood definition in 1949,7 Thomas Grant argues that the 1933 Montevideo Convention on the Rights and Duties of States8 codified customary international law criteria for statehood.9 Today, the use of the Montevideo Criteria is ubiquitous, even if uncited.10

Thus, in addition to claiming independence, does Somaliland possess:

a permanent population;

a defined territory;

government; and

capacity to enter into relations with other states?11

 With a permanent population, a functional government and signing the PTA as evidence of Somaliland's ability to enter into relations with other states, Somaliland meets three of the four Montevideo Criteria

Somaliland's eastern border in the provinces of Sool, eastern Sanaag and southern Togdheer12 remains contested by the Dhulbahante and Warsangeeli peoples of Puntland, northern Somalia. However, the 1928–31 Anglo-Italian boundary commission records survive, meaning that the colonial border claimed by Somaliland is not disputed.13 Somaliland thus meets all four Montevideo Criteria.14

 Undoing Somali Unification

Somaliland's first argument is that flaws in the 1960 unification can be reversed by referendum. This requires a particular reading of history: it is uncontested that Britain granted British Somaliland independence as the State of Somaliland on 26 June, that Italy granted independence to Italian Somaliland as the Somali Republic on 1 July, and that a union as the Republic of Somalia was proclaimed the same day.15 In the interim period, Somaliland had been recognised by the UK and 34 additional states.16 What Somaliland contests is whether the unusual mechanism of unification was valid and binding. As independent states, unification would normally be executed by treaty, underpinned by plebiscites in both states; the 1958 unification of Egypt and Syria as the United Arab Republic followed this model. Instead, Somaliland's Legislative Council began considering unification in May 1960, and passed an Act of Union prior to independence. This Act was sent to Mogadishu, in the expectation that the Mogadishu legislature would pass identical legislation, resulting in unification. In the event, the Mogadishu legislature passed a substantially different text as the Atto di Unione, leading to unification being achieved by Presidential decree.17

Thus unification was not put to a plebiscite in either state. Instead, there was a Somalia-wide referendum on the unified state's constitution in June 1961.18 In Somaliland, a majority voted against the constitution, but as the vote was carried nationally, this had no practical effect.19 This, Somaliland claims, proves that unification was illegitimate, providing the basis for secession.

However, there is no basis to conclude that unification did not enjoy broad support among Somalilanders in the summer of 1960. Rather, unification was initially popular in Somaliland, and seen as the best prospect of recovering the 25,000 square mile Haud grazing lands in the Ogaden, ceded by Britain to Ethiopia in 1897.20 Somaliland's elites were notably enthusiastic supporters of unification in 1960, and engaged in a multi-year effort to integrate the British and Italian colonial legal systems.21 Somalilanders played central roles in the national government; former Somaliland Premier Mohammed Egal served as Defence Minister from 1960 and Prime Minister 1967–69.

Somalilanders' support for unification appears to have soured from 1961, as hopes for the recovery of the Haud faded22 and political power was concentrated in Mogadishu.23 This dissatisfaction led to an abortive coup by disaffected Somalilanders24 and Somaliland rejecting the constitution.25

Given the legislative process and popular support for unification in 1960, claims on this basis alone that unification was illegitimate, allowing secession, are unpersuasive. A better explanation is that Somalilanders made a bargain that soured, but dissatisfaction at a bad bargain alone does not provide adequate legal basis for reconstituting the 1960 State of Somaliland. Hence, the Somaliland government's first argument for statehood fails.

 Remedial Secession

The Somaliland government's alternative claim for statehood rests on the idea that crimes committed against Somalilanders in the 1988–91 civil war were...

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