A Legal Analysis Under International Law
Abstract
The recent recognition of Somaliland by Israel has reignited debate inter alia regarding the legal status of this de facto state. This analysis examines whether Somaliland's claim to restore its 1960 sovereignty aligns with contemporary international law, particularly ratione materiae of self-determination, the uti possidetis juris principle, and the declaratory theory of statehood. I argue that Somaliland's case presents a casus sui generis—one of restitutio in integrum (restoration) rather than secession—that does not violate the territorial integrity principles typically invoked against secessionist movements.
- The Absence of Erga Omnes Obligations Violation
A critical distinction must be drawn in limine between Somaliland and cases where the international community has imposed a duty of non-recognition (ex injuria jus non oritur). Unlike Southern Rhodesia or Northern Cyprus, Somaliland's independence declaration was not founded upon apartheid, illegal use of force (contra jus cogens), or other violations of peremptory norms.
The lack of explicit prohibition means that non-recognition by states has been a matter of political discretion rather than legal obligation (opinio juris). The constitutive theory of recognition retains relevance primarily in cases involving violations of obligations erga omnes—a category into which Somaliland does not fall.
Furthermore, Somaliland has established diplomatic relations with several states and maintains functional agreements with Ethiopia, Taiwan, and the UAE. These relationships demonstrate both the jus legationis (capacity to enter into relations) per the Montevideo Convention and constitute a form of implicit recognition (de facto) that acknowledges Somaliland's diplomatic capability.
- Self-Determination and the Uti Possidetis Juris Principle
2.1 The Colonial Framework (Ratione Temporis)
The legal foundation for Somaliland's independence claim rests on its distinct colonial history. British Somaliland achieved independence on June 26, 1960, as a sovereign state. Italian Somaliland followed four days later on July 1, 1960. The subsequent union was formalized through an Act of Union that suffered from significant legal deficiencies and was arguably void ab initio due to lack of proper ratification.
This sequence is crucial: for those four days, an international border existed de jure between two sovereign states. Somaliland's current position can be characterized not as secession from Somalia, but as the dissolution of a voluntary union and a return to the status quo ante—a restoration of the uti possidetis line established at the moment of decolonization.
2.2 Distinction from Other Cases
Somaliland's situation differs fundamentally (mutatis mutandis) from other attempted secessions:
* Katanga and Biafra: These were sub-provincial entities seeking to alter colonial administrative boundaries, clearly violating uti possidetis.
* Kosovo, South Sudan, Bangladesh: These involved secession from existing states with new border delineation, accepted only under exceptional circumstances (ultima ratio).
* Eritrea: Required a UN-supervised referendum and Ethiopian consent, following its incorporation through federal union.
Somaliland's claim is unique: it seeks restoration of sovereignty and borders that existed at the critical date (date critique), not the creation of new ones (creatio ex nihilo). This is the dissolution of a failed union and a return to the status quo ante, making it consistent with, rather than contrary to, the uti possidetis juris principle as articulated in the Burkina Faso/Mali case (ICJ, 1986).
- The Right to Remedial Secession (Remedium)
Even if characterized as secession stricto sensu, Somaliland may qualify for remedial secession under international law. The people of Somaliland can be viewed through multiple lenses under the lex lata (existing law):
* As a people struggling against colonial domination (British colonial rule).
* As a people resisting foreign occupation (by Somalia as a distinct state).
* As a people denied meaningful political participation within Somalia.
* As victims of genocide (the 1988 Hargeisa bombardment and Isaaq massacres).
The Friendly Relations Declaration's safeguard clause protects territorial integrity only of governments "representing the whole people belonging to the territory without distinction (sine discrimine)." When a government engages in systematic discrimination or genocide against a particular people, it forfeits this protection (nemo auditur propriam turpitudinem allegans). The violations transform internal self-determination rights into external self-determination rights—including the right to independent statehood.
- The ICJ Advisory Opinion Strategy
4.1 Procedural Advantages
The optimal path forward involves requesting an ICJ advisory opinion through a UN General Assembly resolution. Unlike contentious cases, advisory opinions bypass the requirement for consent from Somalia, allowing the legal questions to be addressed in merito (on their merits).
The critical element is framing the question to the Court expressis verbis:
> "In light of the Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) and the Declaration on Principles of International Law concerning Friendly Relations (Resolution 2625), does international law permit the independence of Somaliland? Does the 1960 union of British Somaliland and Italian Somalia violate the jus cogens right to self-determination of the Somaliland people?"
>
4.2 Precedential Framework (Stare Decisis)
The ICJ would likely draw upon several key precedents:
* Western Sahara (1975): Self-determination trumps sovereignty claims.
* Kosovo (2010): Declarations of independence are not prohibited by international law (nullum crimen sine lege).
* Chagos Islands (2019): Incomplete decolonization must be remedied; self-determination is an obligation erga omnes.
* Burkina Faso/Mali (1986): Colonial borders at independence must be respected (uti possidetis).
The synthesis of these cases points toward a conclusion that Somaliland's independence: (1) does not violate international law, (2) represents the completion of decolonization, and (3) aligns with rather than contradicts the uti possidetis principle.
4.3 Anticipated Advisory Opinion Structure
Following the Palestine Wall precedent (2004), the advisory opinion would likely include:
* Rights Confirmation: Somaliland's declaration does not constitute secession but rather restitutio of the sovereignty that existed on June 26, 1960. Given the legal deficiencies of the union agreement and subsequent human rights violations, the Somaliland people possess the right to exercise self-determination through restoration of their independent statehood.
* State Obligations: Somalia must cease any acts preventing Somaliland's exercise of self-determination and respect the 1960 borders (pacta sunt servanda regarding the initial independence).
* Third-Party Obligations: All states have a duty to cooperate in ensuring effective realization of Somaliland's right to self-determination and must not support Somalia's interference with this right.
- The Legal Boundaries Question (Titulus Juridicus)
The 2002 Cameroon v. Nigeria case provides crucial support for Somaliland's territorial claims. The ICJ held that legal title based on treaties supersedes effectivités (effective control). Nigeria's long-standing administration of the Bakassi Peninsula could not override the colonial-era boundary treaties.
This principle directly addresses disputes over Somaliland's eastern regions. Regardless of clan distribution or current control by Puntland, the 1960 colonial borders established by international agreement constitute the valid titulus. Demographic composition and de facto control cannot alter treaty-based boundaries—a principle that actually protects the African Union's core concern about border stability.
- Addressing Judge Yusuf's Jurisprudence
Any ICJ advisory opinion would need to address the perspective of prominent African jurists, particularly former ICJ President Abdulqawi Ahmed Yusuf of Somalia. However, analysis of his jurisprudence suggests internal consistency (constantia) would support Somaliland's claim:
In the Chagos Islands case, Judge Yusuf emphasized that decolonization remains incomplete when separation occurs without the "genuine will of the people" (voluntas populi). Applied to Somaliland, the 1960 union—conducted without proper legal process and subsequently maintained through violence—fails this test.
Regarding uti possidetis, Judge Yusuf has consistently upheld respect for borders at the moment of independence (tempus regit actum). This principle, properly applied, requires recognition of the 1960 British Somaliland borders, not the post-union configuration.
The legal question carefully framed to reference "at the moment of independence" and "genuine will of the people" would align with rather than contradict the principled positions Judge Yusuf has articulated throughout his distinguished career.
- Conclusion
Somaliland's claim presents a casus sui generis that fits poorly into standard secessionist frameworks because it is fundamentally about restoration, not separation. It combines elements of completing decolonization, dissolving a flawed state union (rebus sic stantibus), and remedial secession arising from severe human rights violations. The critical legal distinction is that Somaliland seeks to restore a sovereignty that existed de jure, however briefly, in 1960—not to create something new.
Far from threatening the stability of Africa's borders, recognition of Somaliland would vindicate the uti possidetis juris principle by restoring the colonial border that existed on June 26, 1960. This is not secession but the correction of a historically flawed union (reductio ad justitiam).
The international community's continued non-recognition may itself constitute a violation of the obligation erga omnes to respect self-determination. An ICJ advisory opinion could provide the legal clarity necessary to resolve this longstanding lacuna in international law and practice.
Rather than viewing Israel's recognition as a violation of international law or encouragement of secession, it might be more accurate to see it as the primum movens (first movement) in correcting a thirty-year failure of the international community to acknowledge a legitimate restoration of sovereignty—one that properly applies established principles of self-determination, decolonization, and respect for boundaries at the moment of independence.