1 1The author is a Ph.D candidate in International Relations at the Graduate Institute of International Studies in Geneva and is currently a Visiting Scholar at the School of International and Public Affairs of Columbia University in New York and the 1997-98 Albert Gallatin Fellow in International Affairs. Between 1994-97 he was an adviser to the European Commission Special Envoy to Somalia and travelled extensively throughout Somalia and several other states in the Horn of Africa.
1 M. Lachs, `"The development and general trends of international law in our time," General Course in Public International Law, Collected Courses of the Hague Academy of International Law, 1979, Vol. 169, p.39 2 About the Somali crisis see in particular A.I. Samatar, "Destruction of State and Society in Somalia: Beyond the Tribal Convention," The Journal of Modern African Studies, 1992, Vol.30, No.4, pp.625-641, I.M. Lewis, Understanding Somalia, London, Haan Associates, 1993, 123p, H.M. Adam, "Somalia: A Terrible Beauty Being Born?," Collapsed States: The Disintegration and Restoration of Legitimate Authority, Zartman W. (ed.), Lynne Rienner, 1995, pp.69-89, T. Lyons T. and A.I Samatar, Somalia: State Collapse, Multilateral Intervention and Strategies for Political Reconstruction, Washington DC, The Brookings Institution, 1995, 99p, M. Doornbos and J. Markakis, "Society and state in crisis: What went wrong in Somalia?," Crisis Management and the Politics of Reconciliation in Somalia, M. Salih and L. Wohlgemuth, Uppsala, Nordiska Afrikainstitutet, 1994, pp. 1-17, K. Menkhaus and J. Prendergast, "Somalia: the stateless state," Africa Report, 1995, Vol. 40, pp.22- 25.
3 The terms '`state collapse'' and "failed state" are currently used interchangeably in the literature of international relations. However, since the term failed state appears to imply a value judgement suggesting that there are specific standards of success to which all states should aspire, this article prefers the more descriptive term "state collapse." See also K.V. Hippel, "The Proliferation of Collapsed States in the Post- Cold War World," in Brassey's Defence Yearbook, 1997, p.194 and H.J. Richardson, "Failed States, Self-Determination, and preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations," Temple lnternational and Comparative Law Journal, 1996, Vo1.10, pp.13-l6.
4 At the beginning of the millennium "enormous fragmentation of sovereignty prevailed throughout the territory that would become Europe... and nothing like a centralised national state existed anywhere in Europe. Within the ring formed by these sprawling, ephemeral states sovereignty fragmented even more, as hundreds of principalities, bishoprics, city-states, and other authorities exercised overlapping control in the small hinterlands of their capitals," Ch. Tilly, Coercion, Capital and European States: AD 990-1992, Massachussets, Blackwell, 1997, pp.39-40. More recently "the Eastern Question" referred essentially to the liquidation of the crumbling Ottoman Empire, euphemistically called "the Sick Man of Europe" because of the virtual absence of control over major parts of its territory. By the end of the 19'" century apart from the constant turmoil in the Balkans "most of the remoter regions of the empire, in North Africa and the Middle East, had not been under regular effective Ottoman rule for a long time," E. Hobsbawm, The Age of Empire, London, Abacus, 1987, p.283. 5 About the phenomenon of state collapse see in particular R.H Jackson, Qua.ri-States: Sovereignty, International Relations and the Third World, Cambridge, Cambridge University Press, 1990, 225p, G.B Helman and S.R.Ratner, "Saving Failed States," Foreign Policy, Winter 1992-93, No 89, pp.3-20, I.W. Zartman (ed.), Collapsed states: The Disintegration and Restoration of Legitimate Authority, Boulder, Lynne Rienner, 1995, 303p, A.A. Mazrui, "The blood of experience: the failed state and
political collapse in Africa," World Policy Journal, 1995, Vol.12, pp.28-34, Abdulqawi A. Yusuf, "Reflections on the Fragility of State Institutions in Africa," African Year Book of International Law, 1995, Vol.2, pp.3-8, J. Herbst, "Responding to State Failure in Africa," International Security, Vol.21, No.3, Winter 1996-97, p.120-144, Vol.2, p.3-8, R.D. Kaplan, "The Coming Anarchy," Atlantic Monthly, 1994, Vol.273, No 2, pp.44-76, A. Zolberg, "The Specter of Anarchy: African State Verge on Dissolution," Dissent, 1992, Vol.39, No.3, pp.303-31 1, A.E.Eckert, "United Nations Peacekeeping in Collapsed States," Journal of International Law and Practice, 1996, Vol.5, No.2, pp.273-303. See also B.B. Ghali, "Supplement to an Agenda for Peace," UN General Secretariat, 3 January 1995, Doc. A/50/60- S/I995/1, and M.K. Albright, "Yes, There is a Reason to be in Somalia," New York Times, 10.8.1993, p. A19, as well as the 1997 UNCTAD Report on The Least Developed Countries, particularly Chapter Three: Economies in Regress, the Crisis of Governance, State Failure and Internal Conflicts, 213p. The USA Central Intelligence Agency is also currently in preparation of a publication on the Origins and Causes of State Collapse, for a commentary on this report see J. Hoagland, "As in Kenya, a Nation's Decline is the World's Affair" in International Herald Tribune, 16-17 August, 1997. 6 E. Hobsbawm, Age of Extremes: The Short Twentieth Century 19]4-1991, London, Abacus, 2nd ed., 1995, p.255. 7 J. Herbst, supra note 5, p.124. 8 ". the old national states of Europe almost never experienced the great disproportion between military organisation and all other forms of organisation that seems the fate of client [African] states throughout the contemporary world," Ch.Tilly, War making and state making as organised crime, Bringing the state back in, New York, Cambridge University Press, 1985, p.186.
9 However, the absence of an internationally recognised government does not necessarily imply state collapse. The lack of international recognition of governments has traditionally reflected essentially political considerations, mainly about the political legitimacy of the government, rather than considerations of effectiveness. 10 Article 1 of the Montevideo Convention of Rights and Duties of States provides that "the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to
enter into relations with the other states." See in particular J. Crawford "The criteria for statehood in International Law," British Year Book of International Law, Vol.48, 1976-77, p.93. II "There is thus a strong case for regarding government as the most important single criterion of statehood, since all the others depend upon it," J. Crawford, The Creation of States in International Law, Clarendon Press, 1979, p.42. 12 R.E. Gordon, "Some Legal Problems with Trusteeship," Cornell lnternational Law Journal, Vol.28, pp. 333-5. 13 I. Brownlie, Principles of Public International Law, Clarendon Press, 1990, 4th ed., pp.83-84 and O. Schachter, "Sovereignty - Then and Now," Essays in Honour of Wang Tieya, R. St. J. Macdonald ed., Martinus Nijhoff Publishers, 1993, p.685. 14 "The presumption - in practice a strong one - is in favor of the continuance, and against extinction, of an established state. Extinction is, thus, within broad limits, not affected by more or less prolonged anarchy within the State...," J. Crawford, supra note I I, p.417. See also O. Schachter, supra note 13, p.685 I. Brownlie, supra note 13, p. 73, and K. Marek, Identity and Continuity of States in Public International Law, Libr. Droz, 1968, p.548
15 See The United Nations and Somalia: 1992-1996, The United Nations Blue Books Series, Vol. VIII, Department of Public Information, United Nations, New York, 1996, 516p. 16 See the UN Security Council Resolution 794 of 3 December 1992 17 See the UN Security Council Resolution 814 of 26 March 1993 and the UN Secretary General Report on the situation in Somalia of 3 March 1993.
18 A. Jan, "Peacebuilding in Somalia,'' lnternational Peace Academy Policy Briefing Series, 1996, p.3. 19 See Report by Consultants from the London School of Economics and Political Science (hereinafter the LSE report), A Study of Decentralised Political Structures for Somalia: A Menu of Options, August 1995, 97p. and K. Menkhaus and 1. Prendergast, "Political Economy of Post-Intervention Somalia," Somalia Task Force Issue Paper 3, at the NomadNet home page: http://www.users.interport.net/-mmaren/Somarchive. html, April 1995, 35p. 20 See in particular H.M. Adam, "Formation and Recognition of New States: Somaliland in Contrast to Eritrea," Review of African Political Economy 1994, Vol. 21, No.59, pp.21-38, J. Drysdale, Somaliland: The Anatomy of Secession, Hove Publications, 1991, p. 39, A.J. Carroll and B. Rajagopal, "The Case for the Independent statehood of Somaliland," The American University Journal of Internationale Law and Policy, Winter/Spring 1992/1993, Vol.8, No 2&3, pp.653-681, R. Omaar, "Somaliland: One Thorn Bush at a Time," Current History, May 1994, pp.232-6 and A. Y. Farah and I.M Lewis, "The Roots of Reconciliation," Life & Peace Review, 1994, Vol.8, No.4, pap.19- 21
21 R.E. Gordon, supra note 12, pp.301-347 G.B Helman and S.R.Ratner, supra note 5, A. Mazrui, "Decaying Parts of Africa Need Benign Colonisation," International Herald Tribune, 4 August 1994, H.M. McFerson, International Trusteeship for Somalia: An End to the Stalemate?, unpublished monograph, Public Affairs Department and the Institute for Conflict Analysis and Resolution, George Mason University, Virginia, 1992, p. 23, W. Pfaff, A new Colonialism? Europe Must Go Back into Africa, Foreign Affairs, 1995, Vol.74, No.l, pp.2-6, P. Lyon, "The rise and fall and possible revival of international Trusteeship," Journal of Common Wealth and Comparative Politics, 1993, Vol. 31, pp.96-110, Ch. Krauthammer, "Trusteeship for Somalia; An Old- Colonial-Idea Whose Time Has Come Again," Washington Post, 9 October 1992, A27. 22 J. Herbst, supra note 5, pp.137-138 and 140-141. 1. 23 The international aid community involved in Somalia, operating in the framework of the Somalia Aid Coordination Body (SACB), in the absence of international instruments to respond to such an exceptional situation, in February 1995 adopted the Code of Conduct for International Rehabilitation and Development Assistance to Somalia which was then introduced and endorsed separately by each individual Somali authority. The policy of the international aid community in Somalia was predicated on the Addis Ababa Declaration of the Fourth Coordination Meeting on Humanitarian Assistance to Somalia, of 1 December 1993, in The United Nations and Somalia: 1992-1996, supra note 15, pp.345-353. The UN Security Council, too had encouraged this innovative approach by approving "...giving priority to directing international reconstrnction resources to those regions where security is being re-established and to
local Somali institutions which are prepared to cooperate with the international community in setting development priorities," UN Security Council Resolution S/RES/897/1994 of 4 February 1994.
24 "Superiorem non recognoscentes" in the words of the fourteenth-century jurist Bartolo de Sassofarrato, in F. Braudel, A History of Civilizations, New York, Penguin Books, 1995, p. 323 and O. Schachter, supra note 13, p.672. 25 O. Schachter, "Sovereignty and Threats to Peace," in Collective Security in a Changing World, Weiss T.G. (ed.), Lynne Rienner Publishers, 1993, p.23. 26 . _, I'Etat herm�tique, une boite noire ou une balle de billard opaque, qui ne touche les autres que de l'extdrieur, et fait abstraction de ce qu'il y a dedans ou feint l'ignorer ou ne pas le voir," M.G. Abi-Saab, "La p6rennit6 des frontieres en droit international," Relations Internationales, 1990, No.64, p.342.
27 See in particular H.Hannum, Autonomy, Sovereignty and Self-Determination: the accommodation of conflicting rights, Philadelphia, University of Pennsylvania Press, 1990, 503p. and A. Cassese, Self Determination of peoples: a legal reappraisal, New York, Cambridge University Press, 1995, 375p 28 M. Lachs, supra note 1, p 54. 29 G.M. Abi-Saab, "Cours General de Droit International Public," Collected Courses of the Hague Academy of International Law, 1987, Vol.207, No VII, pp. 390-414. For the development of the legal principle of self-determination of peoples through the practice of the UN organs see in particular UNGA Resolution 637A(VII) of 16 December 1952, the Declaration Granting of Independence to Colonial Countries and Peoples, UNGA Resolution 1514(XV) of 1960, the Declaration of Principles of International Law concerning Friendly Relations, UNGA Resolution 2625(XXV) OF 1970 as well as the Advisory Opinion of the International Court of Justice on Western Sahara (1CJ reports 1975). 30 See T. Frank, "The Emerging Right to Democratic Governance," American Journal of International Law, 1992, Vol.86, pp.46-9I, and W.M. Reisman, Sovereignty and Human Rights in Contemporary International Law, (editorial comment), American Journal of International Law, 1990, Vol. 84, pp. 867-877.
31 In 1963, with the foundation of the Organisation of African Unity, the independent African states chose as guiding political ideals the broadly established international principles of territorial integrity and uti possidetis; see in particular the Charter of the Organisation of African Unity (OAU), Addis-Ababa May 1963, Article III (1,3). This policy was elaborated further in the Assembly of Heads of State and Government in Cairo (1964); article 2 of the final document reads: "Solemnly declares that all Member States pledge themselves to respect the borders existing on their achievement of national independence." 32 Abdulqawi A. Yusuf supra note 5, p.5, see also O. Shacther, supra note 13, pp. 672- 674. 33 G.M. Abi-Saab, supra note 29, p.400.
34 See M. Weller, "The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia," American Journal of International Law, 1992, Vol. 86, pp. 569-607 and A, Cassese, "Self-Determination of Peoples and the Recent Break-up of USSR and Yugoslavia," Essays in Honour of Wang Tieya, R.St.J Macdonald (ed.), Martinus Nijhoff, 1993, pp.131-144. 35 Regarding normative criteria for secession see in particular L. Buchheit, Secession: The Legitimacy of Self Determination, New Haven, Yale University Press, 1978, 260p, A. Heraclides, "Secession, Self-Determination and Nonintervention," Journal of lnternational Affairs, 1992, Vol. 45, No2, pp.399-420. O. Schachter, supra note 13, p.684. 36 F.L. Kirgis Jr., The degrees of self-determination in the United Nations Era (editorial comment), The American Journal of International Law, 1994, Vol.88, p.308. 37 T. Franck, supra note 30, pp.76-77, and W.M. Reisman, supra note 30, pp.868-70. 38 "Increasingly, governments recognise that their legitimacy depends on meeting a normative expectation of the community of states. This recognition has led to the emergence of a community expectation: that those who seek the validation of their empowerment patently govern with the consent of the governed. Democracy, thus, is on the way to becoming a global entitlement, one that increasingly will be promoted and protected by collective international processes," T. Franck, supra note 30, p.46. Opponents of this position argue that the lack of opinio juris and consistency of state practice on the matter are decisive criteria opposing the emergence of a customary
principle of democratic governance in international law. They also underline the potential risks of the democratic principle to international stability since it can be abused by states in order to justify intervention for national interests. See I. Brownlie, "General Course on Public International Law," Collected Courses of the Hague Academy of International Law, 1995, Vol. 255, pp.72-74. 39 G.M. Abi-Saab, supra note 29, p.391, see also D.P. Moynihan, Pandeaemonium; Ethnicity in Internationale Politics, New York, Oxford University Press, 1993, p. 69.
40 The members of the European Union in a Declaration of 16 December 1991 stated that they would recognise states that constituted themselves on a democratic basis, EPC Press Release 128191 of 16 December 1991. See also C. Warbrick "Recognition of States: Recent European Practice," in Aspects of Statehood and Institutionalism in Contemporary Europe, M.D. Evans (ed.), 1997, pp. 9-43. 41 T. Franck, "United Nations Based Prospects for a New Global Order," New York University Journal of International Law and Politics, 1990, Vol.22, pp. 601 and 621
and D. Shelton, "Representative Democracy and Human Rights in the Western Hemisphere, Human Rights Law Journal, 1991, Vo1.12, pp. 353-355. 42 I.M. Lewis, "Introduction: The uncentralised Somali Legacy," in LSE Report, supra note 19, pp.l-13. 43 J. Markakis, "The Horn of Africa,'' Review of African Political Economy, 1996, Vol.23, p. 472. 44 About the Somalia intervention see in particular W. Clarke and J. Herbst, "Somalia and the Future of Humanitarian Intervention," Foreign Affairs, 1996, Vol.75, No.2, pp.30-42, J.T. Howe, "The United States and United Nations in Somalia: The Limits
of Involvement," The Washington Quarterly, 1995, Vo1.18, No.3, pp.49-62, S.M Makinda, Seeking Peace from Chaos: humanitarian intervention in Somalia, Lynne Rienner, International Peace Academy Occasional Paper Series, 1993, 92p, M. Sahnoun, The Missed Opportunities Washington DC, United States Institute for Peace, 1994, 89p., M. Bryden, "Somalia: The Wages of Failure," Current History, 1995, Vil.94, No.591, pp.145-151. 45 The international community "... should not obstruct the recognition of Somaliland as an independent state due to the internal and external peace-generating potential it holds," A.J. Carroll and B. Rajagopal, supra note 20, p. 681 and J. Herbst, supra note 5, pp.137-138.
46 "...in several instances, potential states are being established, which to many of their inhabitants merit international recognition," LSE Report, supra note 19, p.14. The constitutive documents of several sub-state entities (e.g the Legislative Council of Bari Region, the Supreme Governing Council of the Digil and Mirifle) provide fascinating information regarding the political and institutional developments in Somalia, available at the Documentation Unit of the UN Development Office for Somalia in Nairobi, Kenya. 47 "There were three attempts made between 1991 and 1994 to assist Somalia to form a central government. The Djibouti conferences in mid-1991; the Addis Ababa Conference in the spring of 1993; and the Nairobi Conference in 1994. None of these
conferences sought to "impose" structures of any kind; nor were their failures due to any expressed desire by the Somali participants for devolution of power. Indeed the essence of the most successful of all three conferences, the Addis Ababa conference, was the establishment of Regional and District Councils as an electoral instrument for the formation of a central government and parliamentary institution. Little progress was made, however, for [other reasons]...," J. Drysdale, unpublished letter to Mr A. Fange, UNOPS programme manager, commenting on a discussion document entitled Natural Alliances written by a UNDP/SRRP consultant, 18 October 1996. 48 "The idea of developing a common understanding between the Somali leadership about the future constitutional arrangements of the state remains a fundamental issue of the peace process in Somalia," S.Illing, European Commission Special Envoy to Somalia, speech at the opening session of the Second seminar on Decentralised Political Structures for Somalia, Nakuru, Kenya, between 16-18 November 1996, p.l. 49 "..these institutions must be based on a social compact which involves recognition of popular sovereignty and sovereign rights for the people at different tiers of political interaction be they at the regional, district or village level. The establishment of such sovereign governmental institutions at the regional and local levels would constitute the first nucleus of a future Somali state. It would also provide a solid basis for more
direct and more representative democratic institutions in Somalia," Abdulqawi A. Yusuf, " Comments on the Study of Decentralised Political Structures for Somalia: A Menu of Options," unpublished paper, June 1996, p.4. 50 LSE Report, supra note 19, pp. 14-28. See also H.M. Adam, "Somalia: Federalism and Self- Determination," Conflict and Peace in the Horn of Africa: Federalism and its Alternatives, Woodward P. and Forsyth M. (eds.), London, Dartmouth Pub., 1994, pp.114-123. 51 Statement by the participants at the Second Seminar on Decentralised Political Structures for Somalia, held in Nakuru, Kenya, between 16-18 November 1996. 52 " once of the other provisions of the National Charter [adopted in Boromal, article 21, made a brief but emphatic statement of intent concerning the establishment of local authorities. The intention of the authors of the National Charter was clearly inspired by
their wish to maximise the process of political devolution given that the majority of Somalilanders had suffered grievously over two decades from the highly centralised system of government in Mogadishu," J. Drysdale, "Problems of Decentralising political structures in the Somali cultural context," unpublished paper, 1995, pp.1-2, see also M. Bryden, "Somaliland and Peace in the Horn of Africa: A situation Report an Analysis," unpublished paper prepared for UNDP Emergencies Unit for Ethiopia, November 1995. 53 S.Illing, supra note 48, p.2. 54 The European Commission in 1995 sponsored A Study of Decentralised Political Structures for Somalia: A Menu of Options, which was prepared by experts at the London School of Economics and Political Science. The Menu of Options, which focused on three territorially-based models of decentralised government (confederation, federation and a decentralised unitary state) and a community based type of power sharing known as consociation, was followed by several seminars during 1996 and 1997 in Kenya and Somalia with the participation of representatives of the Somali civil society (traditional and religious leaders, intellectuals, professionals, businesspersons, women etc.) and appear to have had considerable impact on the debate of the Somali political leadership for a political solution in the country.
55 Nationality Decrees in Tunis and Morocco (Great Britain v France), 1926, Permanent Court of International Justice, ser.B, No.4, p.26.
56 O. Schachter, supra note 13, p.688. 57 I.W. Zartman, "Putting things back together," Collapsed states: The Disintegration and Restoration of Legitimate Authority, Zartman I.W. (ed.), Boulder, Lynne Rienner, 1995, p.268. 58J. Herbst, supra note 5, p.120 59 H.J. Richardson, supra note 3, p.7-12. 60 G.B Helman and S.R.Ratner, supra note 5, pp. 12-16. 61 P. Johnson, "Colonialism's back-And not a Moment Too Soon," New York Times, 8.4.1993, F22. 62 J. Chopra, "Achilles' Heel in Somalia: Learning from a Conceptual Failure," Texas lnternational Law Journal, 1996, Vol. 31, No. 3, p.517.
63 T.J. Farer, "Intervention in Unnatural Humanitarian Emergencies: Lessons of the First Phase," Human Rights Quarterly, 1996, Viol.18, p.3. 64 From the very first UN Security Council resolution on the Somali crisis long before the intervention, the continuation of the situation in Somalia was explicitly considered as a threat to international peace and security. The successive military operations by Ethiopian forces inside Somalia (Gedo region) which started on 10 August 1996 against strongholds of the islamic fundamentalist group Al-Itihad which is based in the region and, allegedly, carries out terrorist activities in Ethiopian territory, is a prominent example of the destabilising impact of state collapse on regional and international security. As far as human rights is concerned following the disappearance of governmental institutions and the subsequent retreat of citizen's identity, discrimination by reason of one's clan identity has become the predominant cause of numerous abuses of human rights. See in particular Human Rights Watch/Africa, Somalia Faces the Future; Human Rights in a Fragmented Society, New York, April 1995, Vol.7, No.2, p.3.