Professor Alexander Orakhelashvili
Earlier I wrote on the legality of Israel’s recognition of Somaliland. This follow-up post clarifies further aspects of this matter by reference to statehood criteria under the 1933 Montevideo Convention and to the recent Security Council’s debate.
The Montevideo Convention
A recently published post on Opinio Juris has concluded that Somaliland is a State owing to its effective position of territory, population and government as statehood criteria referred to in the Montevideo Convention.
The reasons why the Montevideo Convention does not help rationalising the case of Somaliland recognition have been covered in my latest monograph on these matters (though published earlier that this controversy arose) and earlier here. There are several factors validating the conclusion that the Montevideo Convention does not endorse the link between valid statehood and effective government or effective territorial control.
First, the Montevideo Convention does not speak of effective government, or effective territorial control, or of the principle of effectiveness at all.
Second, the Montevideo Convention also includes the requirement of capacity to enter into foreign relations (Article 1(d)). This is a requirement additional to the existence (or effectiveness, if that mattered) of a government, and focuses on the legal capacity of the relevant or entity or government to deal with other States. Factual capacity to enter into foreign relations is available to Taiwan, Northern Cyprus and Scotland alike, but that does not turn any of them into States. Legal capacity can derive only from sovereignty and independence attained and endorsed on the terms of international law.
Third, the Montevideo Convention states that “The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.” It is difficult to deny that “Each State” includes Somalia.
Fourth, the Montevideo Convention was adopted in 1933. In 1919, the League of Nations Covenant, Article 10, recognised the territorial integrity principle as a normative principle applicable to relations between States. From 1931 onwards, the League of Nations began applying this principle to situations in Manchuria and Ethiopia. A number of States-parties to the Conventions were also members of the League of Nations, and it is very unlikely that they would (here rather impliedly) endorse the principles of statehood that would be at odds with the League Covenant.
Owing to all that, the Montevideo Convention criteria do not aid attempts to portray or recognise Somaliland as a State.
Reactions in the Security Council
The Security Council held the debate on Israel’s recognition of Somaliland. With regard to the general significance of this matter, the US delegate stated that “Earlier this year, several countries, including members of the Council, made the unilateral decision to recognize a non-existent Palestinian State, and yet no emergency meeting was called to express the Council’s outrage.” As happens to be the case, however, and given the number of UN and Security Council members who recognise Palestine as a State, there was no real possibility that a UN meeting would agree to express that outrage. Now as before, the US Government was in an isolated position. Also, Palestine is self-determination unit, as Slovenia also noted in these discussions and the African Union also emphasised the stark contrast between legal position on Palestine and that of Somaliland.
Somalia’s main point was that “no external actor has the authority or standing to alter its unity or territorial configuration” and that consequently “recognition or arrangement that seeks to undermine this reality to be null and void”. The position of Greece was similar, to the effect that actions contrary to the principle of territorial integrity, “while having no legal effect, risk leading to another cycle of instability”. Therefore, “Support for secessionist entities within Somalia [was] … unacceptable.” Slovenia’s take on territorial integrity and non-intervention principles was distinctly vocal, to the effect that “Foreign interference does not arrive only with tanks and missiles. It also takes quieter, but no less damaging forms, such as political pressure and actions that undermine sovereignty, territorial integrity and political independence. These principles are not abstract. They are being tested today.” Sierra Leone also stated that Somalia’s sovereignty, unity and territorial integrity “are not optional ideals”.
UK said that it does not recognise Somaliland, and that “any change to Somaliland’s status depends on mutual agreement between Mogadishu and Hargeisa”. Denmark stated on similar terms that “Any resolution of the international legal status of Somaliland must be clarified through Somali‑led dialogue and within the framework of Somalia’s legal and constitutional order.” Russia has said that recognition of Somaliland is “at odds with the sovereignty, territorial integrity and unity of the Federal Republic of Somalia.” Algeria has similarly noted that Somaliland is “an integral part of the Federal Republic of Somalia”, described this recognition as illegal and “null and void”, acknowledged the relevance of the territorial integrity principle, and rejected “any attempt to recognize this secession directly or indirectly.”
Panama also relied on the territorial integrity principle and said that “changes of territorial status must not ensue from faits accomplis or unilateral recognition.”
Korea has said that “Our respect for Somalia’s sovereignty necessarily entails full recognition of its internationally recognized borders”; hence “we support the authority of the Federal Government of Somalia as exercised within its internationally recognized borders and in accordance with the Somali Constitution.” China was even more vocal that “Somaliland is an inalienable part of Somali territory. China firmly supports Somalia’s sovereignty, unity and territorial integrity and opposes any act to split its territory. China has always maintained that the Somaliland issue falls entirely within the purview of Somalia’s internal affairs.” Pakistan was similarly vocal that “The Somaliland region remains an integral, inseparable and inalienable part of Somalia. No external actor has either the legal standing or the moral authority to alter that fundamental reality.” France did not speak on recognition directly but said that “Internal disputes within Somalia must be resolved through negotiation, within the framework of a dialogue between all Somali stakeholders.”
Turkey has said that the recognition of Somaliland “constitutes a clear and serious violation of international law and the Charter of the United Nations. The unilateral recognition of a region that is a part of a sovereign United Nations Member State directly undermines the principles of sovereignty, territorial integrity and non-interference.” Kuwait spoke on identical terms; so did Egypt and added that “Recognizing the independence of parts of the territories of States is … an infringement on their sovereignty”. Djibouti similarly said that this recognition is “in direct violation of established international norms and legal principles” and unlawful transgression of the territorial integrity principle.
The African Union said that it “categorically rejects any initiative or measure that aims to recognize Somaliland as an independent entity. Somaliland remains an integral, indivisible part of the Federal Republic of Somalia.” However, no one apart from the African Union itself (including some African members of the Council) has addressed the Somaliland issue primarily or exclusively through the AU’s regional legal framework. The prevailing focus was on the UN Charter and corresponding general customary law. The AU representative also confirmed that the recognition measures “are inconsistent with the international consensus based on the principles of international law”, and South Africa emphasised the link between the UN Charter regime and the African regional legal framework.
Israel suggested that its recognition decision “consistent with international law” but did not provide any specifics, except the reliance on the effectiveness principle, by referring to “Somaliland’s capacity to govern responsibly” and that “international law permits acknowledgement of long-established facts”. No other member of the Council has endorsed the relevance of the effectiveness principle.
There is, therefore, the overwhelming support in practice for the position that an external State’s recognition of a secessionist entity amounts to violation of territorial integrity of and to interference in domestic affairs of the State from which the entity in question attempts to secede. The principle of effectiveness is not treated as the basis for legal and valid statehood.
Conclusion
There has been some propensity of international lawyers (for instance Thomas Franck) to emphasise the link between effective existence of a territorial unit, its entitlement to statehood and independence, and legality of its recognition by external States. The Somaliland situation has abundantly clarified that, both in terms of the Montevideo Convention and of State practice, such link between these above elements is imagined and not real. The somewhat widespread misunderstanding of the ICJ’s Kosovo Advisory Opinion to the effect that the territorial integrity principle is separate from the legality of State recognition should be assessed accordingly.
The position that obtains from the Montevideo Convention was also confirmed in Security Council debates. The argument that a territorial unit’s statehood can materialise simply by virtue of its effective existence as a territory administered by a government is not one that could or did survive a contact with the legal system. Instead, the normative principles of territorial integrity and non-intervention provide the key criteria on how the relevant statehood claims should be assessed. In modern international law statehood is a question of law, not of fact, and international legal legitimacy is the key factor to determine whether a political entity, whatever the degree of effectiveness of its territorial control, can be viewed as a State.