GOVERNMENT COLLAPSE AND STATE CONTINUITY: THE CASE OF SOMALIA

in The Italian Yearbook of International Law Online
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References

1 See for example HELMAN and RATNER, "Saving Failed States", Foreign Policy, 1992-93, p. 3 ff. See also MUTHARIKA, "The Role of International Law in the Twenty-First Century: An African Perspective", Fordham International Law Journal, 1996, p. 1706 ff. 2 See ZARTMANN (ed.), Collapsed States: The Disintegration and Restoration of Legitimate Authority, London, 1995; YANNIS, "State Collapse and the Prospects for Political Reconstruction and Democratic Governance in Somalia", African Yearbook of International Law, 1997, pp. 23- 47. ' See DAMROSCH (ed.), Enforcing Restraint: Collective Intervention in Internal Confficts, New York, 1993.

^ HELIVtAIV and RaTTIER, cit. supra note 1, pp. 12-18. 5 YUSUF, "Reflections on the Fragility of State Institutions in Africa", African Yearbook of International Law, 1994, pp. 3-8. 6 RICHARDSON, "Failed States, Self-Determination and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectation", Temple International and Comparative Law Journal, 1996, p. 36 ff. 7 Article 78, UN Charter. 8 See YUSUF, "Somalia's Warlords: Preying on a Failed State", The International Herald Tribune, 21 January 2004, p. 6.

9 See generally LAITIN and SAMATAR, Somalia: Nation in Search of a State, Boulder, CO, 1987. 10 "The Mayor of Mogadishu", The Economist, 29 September 1990, p. 47. " See generally, COMPAGNON, "The Somali Opposition Fronts: Some Comments and Questions", Horn of Africa, 1990, pp. 29-54; see also SAMATAR, Somalia: A Nation in Turmoil, London, 1991.

'z "In Somalia, Graves and Devastation", The New York Times, 30 January 199I, p. 12. " See CLARK, "Debacle in Somalia: Failure of the Collective Response", in DAMROSCH (ed.), cit. supra note 3, p. 211 ff.; see also SINJELA, OUGUERGOUZ and YUSUF, "The UN and Internal Conflicts in Africa: A Documentary Survey", African Yearbook of International Law, 1994, pp. 253-283. '4 See UN Department of public Information, The United Nations and Somalia (1992-1996), New York, 1996, p. 12, para. 13.

`5 See, for example, PERLEZ, "Somalia Self- Destructs and the World Looks on", The New York Times, 29 December 1991, p. D4. '6 MENKHAUS and PENDERGAST, "Somalia, the Stateless", Africa Report, May-June 1995, pp. 22-25. " For an analysis of these structures, see infra section 5.1.

'8 Republic of Somalia v Woodhouse, Drake & Carey (Suisse) SA [1992], Weekly Law Reports, Vol. 3, p. 744 ff. '� For an analysis, see CRAWFORD, "Who is a Government? The Executive and the Courts", Cambridge Law Journal, 1993, p. 4 ff.

20 For an analysis of the UN position, see infra section 5.2. 21 For an account of these efforts, see OSINBAJO, "Legality in a Collapsed State: the Somali Experience", ICLQ, 1996, pp. 910-923. 22 Further Report of the Secretary-General submitted in pursuance of paras. 18 and 19 of Resolution 794(1992), LTN Doc. S/25354, para. 1. 23 Doc. S/PV 3188 cited in The United Nations and Somalia (1992-1996), cit. supra note 14, p. 44, para. 126.

24 Ibid., p. 84. 25 Ibid., p. 79. 26 See CRAWFORD, "The Criteria of Statehood in International Law", BY1L, 1976-1977, p. 116 ff 27 Convention on the Rights and Duties of States, League of Nations Treaty Series, 1936, Vol. 165, p. 19 ff. ze "Capacity is not a criterion, but rather a consequence of Statehood", CRAWFORD, cit. supra note 26, p. 19.

z9 According to Crawford "the requirement that a putative State have an effective govern- ment might be required as central to its claim to statehood", ibid., p. 116. 30 MAREK, The Identity and Continuity of States in International Law, Genève, 1968, p. 7. " JENNINGS and WATTS (eds.), Oppenheim's International Law, 9th ed., London, 1992, Vol. I, p. 206. 'z Ibid., p. 122. See also Crawford who refers to the occupation of Ethiopia, Austria, Czechoslovakia and Albania, in the period between 1936-1945, and notes that their legal per- sonality was regarded, at least by the allied powers, as having been preserved despite the lack of effectiveness, CRAWFORD, cit. supra note 26, p. 174. Equally, MAREK: "The absence of effective- ness does not necessarily mean the extinction of a State", cit. supra note 30, p. 8. 33 Sambiaggio case, Reports of International Arbitral Awards, Vol. 10, p. 500 ff, p. 524. 3^ Annuaire de 1'Institut de Droit International, 1936, Vol. II, p. 301.

's See "Mayor of Mogadishu", The Economist, 29 September 1990, p. 47. " Cit. supra note 34. " See, for example, WHEATON (DANA's edition), Elements of International Law, Boston, 1886: "The temporary suspension of that obedience and of that authority, in consequence of a civil war, does not necessarily extinguish the being of the State", para. 23. '$ MAREK, cit. supra note 30, p. 4.

3� MENKHAUS and PENDERGEST, cit. supra note 16, p. 22.

40 See OLSON, "Dictatorship, Democracy and Development". American Political Science Review, 1993, pp. 567-576. 41 Ibid., p. 567. 42 See YUSUF, cit. supra note 4, p. 6.

43 Ibid. z See infra section 5.3. as See, for example, Resolution 1519(2003) adopted by the Security Council on 16 December 2003 whereby it reaffirms "the importance of the sovereignty, territorial integrity, political inde- pendence and unity of Somalia, consistent with the purposes and principles of the Charter of the United Nations" and reiterates its insistence that "all States, in particular those of the region, should not interfere in the internal affairs of Somalia''

°6 "The Security Council had devoted a great deal of energy to the crisis, adopting some 20 resolutions, committing billions of dollars and establishing a major peacekeeping force", Statement by of Jean-David Levitte, Permanent Representative of France to the UN Security Council, UN Press Release, SC/7178, 19 October 2001. 47 See SHRAGA, "La qualite de membre non-represente: Ie cas du siege vacant", AFDI, 1999, p. 649 ff., p. 653. It should however be noted that in 2001 the UN Secretary-General received the credentials of a TNG-appointed Permanent Representative to the United Nations (see infra note 52 and accompanying text). 48 See letter of Mrs. Fatoun Hassan, Charge d'Affaires of the permanent Mission of Somalia to the UN, to the Security Council. See Security Council Docs. S/23957 of 19 May 1992, S/ 26412 of 7 September 1993, and S/26530 of 4 October 1993. °9 See for example Decision of the Assembly of Heads of State and Government, AHG/ Dec.I46(XXXVI) adopted at its Thirty-Sixth Session, Lome, Togo, July 2000.

50 For the text, see African Yearbook of International Law, 2000, pp. 479-502. 51 See OAU Decision, AHQ/Dec. 146(XXXVI), July 2000. s2 See Statement by the President of the Security Council, in Security Council Doc. S/PRST/ 1 2001/30 of 31 October 2001. 53 Ibid. See also statements made by the UK representative during the debate in the Security Council where he declared that "He was encouraged by the idea that the Transitional Government was a transition to a permanent government" and by the US delegate who said that "All must

do what they could to improve those conditions, but only the people of Somalia could reclaim their country from chaos and create political legitimacy. No single group had yet achieved that legitimacy, and it was not for the United State, the Security Council or any outside powers to determine it". Security Council, Press Release, SC/7178, 19 October 2001, pp. 8-9. sa See, generally, The United Nations and Somalia (1992-1996), cit. supra note 14.

55 For the full text of Resolution 814(1993) of 26 March 1993, ibid. 56 For an account of UNOSOM's institution building in Somalia under the above Security Council mandate, see OSFNBAJO, cit. supra note 21. 57 BOUTROS-GHALI, "Introduction to the United Nations and Somalia", in The United Nations and Somalia (1992-1996), cit. supra note 14, p. 77.

58 LULLING, "Come Back Somalia? Questioning a Collapsed State", Third World Quarterly, 1997, p. 287 f£, p. 298. s9 For a recent account of the illegal activities of warlords and their militias, see Report of the Panel of Experts on Somalia Pursuant to Security Council Resolution 1474(2003), Security Council Doc. S/2003/1035 of 4 November 2003. 60 See BOUTROS-GHALI, cit. supra note 57, p. 87. 6' BATY, "Can An Anarchy Be a State?", AJIL, 1934, pp. 444-455.

62 Ibid., p. 454. 63 See text accompanying note 60 above. 64 See BATY, cit. supra note 61, pp. 451, 452 and 455.

ss According to CANSACCHI: "La fiction juridique c'est un procede de droit par lequel on presuppose une certaine situation comme existante, tandis que, dans la realite des choses, elle s'etait produite differemment; cela pour r6aliser des effets juridiques et politiques qui decoulent de la situation fictive et qui ne pourraient pas d6couler de la situation rdelle". See CANSACCHI, "Identite et continuite des sujets internationaux", RCADI, 1970, II, p. 1 ff., p. 40. ss See RAES'rAD, "La cessation des Etats d'apres le droit des gens", Revue de droit interna- tional et de legislation comparee, 1939, p. 441 ff. 67 For example, China, India, Saudi Arabia, Egypt, Zambia, Italy, France and Pakistan. 68 Egypt, Libya and Sudan. s9 A notable exception to this situation took place recently, when the TNG ratified the Constitutive Act of the African Union, making Somalia a founding member of the successor organization to the OAU. 70 Somaliland Government, Somaliland: Demand for International Recognition, Hargeisa, 2001.

" See, for example, Resolution 1519(2003), Doc. S/Res/I519(2003) of 16 December 2003.

'2 For the desirability of the exercise of self-determination at the sub-State level in Africa, see YUSUF, cit. supra note 5. " To use OLSON's words, they have not yet learned how to transform themselves from '`rov- ing bandits" to '`stationary bandits": OLSON, cit. supra note 40. '^ See Report of the Panel of Experts, cit. supra note 59, for similar recommendations par- ticularly with regard to ports and airports.

'S For analysis of recent UN experiences in assuming full administrative authority and their legal implications, see YA1�11�1IS, "The Concept of Suspended Sovereignty in International Law and its Implications in International Politics", EJIL, 2002, pp. 1037-1052.

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