Somalilandsun – Interestingly, the case might be that UN-ICAO wants to continue handling the management of the airspace for the benefit of this conflict writes Mohamed A. Mohamoud ‘Barawaani’ in his piece below titled “Somaliland –Somalia : Failing the Joint Airspace Management is the Total Failure to Resume the Talks”
The London Somalia international conference in 2012 was a milestone for Somaliland and Somalia politics because it instigated a good inception that intended to help clarify the major political dispute between Somalia and Somaliland.
1 The intention behind this proposal was to create a political atmosphere that parties can talk meaningfully at expenses of internationally led process of mediation or facilitation. However, Somaliland and Somalia have been conducting these bilateral talks since the post- London conference in 2012. But until now, there is no significant outcome achieved except both parties to demonstrate their willingness and political interest to pursuit the frequent meetings in Chevening, Dubai, Istanbul and Ankara. Nonetheless, if the airspace joints agreement fails, there is no doubt that the whole talks will be failure and that the Turkey’s mediation role will be questioned. Thus, the traditional international community as UK, US, EU, UN and AU must take some steps and hold accountable both parties specially the Federal Government of Somalia which has violated the joint agreement together signed by both parties. In addition to that, it was a symbolic moment at domestic and international limelight that Somaliland and Somalia talks diminished a long term apprehensive situation in which likely might fuel the current problems in the Horn of Africa. Therefore, the decision that ICAO and UNDP arranged to handover the airspace management to Somalia is indeed nullified, since the joint agreement that the two parties validated was a binding accord. In addition, parties were supposed to establish mechanisms of controlling and managing air traffic jointly. However, it seems to be a deplorable step to hear again such unilateral transfer demanded by the Government of Somalia without respecting the mutual agreement.
1Communiqué from the London Conference on Somalia at Lancaster House on 23 February 2012
In this case, one can argue why UN- ICAO is not respecting the mutual joint agreement; does it mean that UN-ICAO is not impartial? In other words, some analysts contend that UN-ICAO is part and parcel of prolonging the airspace dispute between Somaliland and Somalia. Interestingly, the case might be that UN-ICAO wants to continue handling the management of the airspace for the benefit of this conflict.
Eventually, it was a May- 2013 when Somaliland Government has banned on the UN flights entering to Somaliland due to UN-ICAO unilateral decision which was planned the ICAO to handover the airspace management to Somalia on January -2014.Although, this unilateral decision has been rejected by the Government of Somaliland and later on agreed the cancellation of this plan to handover the air traffic to Somalia. Thus, Somaliland’s argument on issues of air traffic control is timely, knowledgeable and valid, since Somaliland authorities are not violating the mutual agreement that both sides endorsed during the Istanbul bilateral dialogue in between2013- 2014.2 The role of Turkey Government as Facilitator in this Airspace control The extensive role that Turkey Government has played on these talks is apparent and encourageable. From this point of view, the Turkey position to facilitate a peaceful transfer of the air traffic management to Somaliland and Somalia is indispensable. Turkey Government is also anticipated to maintain an environment in which the two parties are enabled to comply and implement their mutual agreements as the one of the airspace control. At the moment, in Somaliland the public confidence about Turkey Government is diminishing from time to time, because of several reasons. First, Turkey development modalities or its approach is impartial regarding its current interventions in Hargeisa and Mogadishu. In this course of observation, Turkish is focusing on Somalia – Mogadishu Government not Somaliland. Hence, no doubt that most scholars in Somaliland are very skeptical and pessimistic about the Turkey Government facilitation on these talks, where currently some stalemate situation is inevitable. Second, the talks hosted by the Turkey Government appeared unproductive since the Turkey Government took this position of the facilitation. And this is the reason that many people in Somaliland are arguing about the future proceedings of these talks. It is important that the traditional international community to play a visible role on the discourses of the talks. Third, it is quite apparent that Turkey Government lacks adequate information about the historical background towards Somaliland and Somalia, and this can compromise the inclusivity and objectivity of this process of the talks.
2Communiqué of the Somaliland and Somalia dialogue held in Istanbul on 7-9 July 2013
More importantly, it is indeed fair to say if the people of Somaliland question the attainability of the talks. If the first outcome of the joint air traffic management is mostly likely to abort in front of Turkey Government and international community in general. As a result, what raised the suspicion is justifiable, since the two countries agreed a bilateral management body to be established in Hargeisa Somaliland as joint air traffic control. But the diplomatic influence of the Turkey Government to Somalia and Somaliland was not felt in this arena of the post-talks specially the implementation of the airspace joint agreement. Nonetheless, the failure may occur because of no follow up and no possible arrangement yet realized as creating meaningful lines of communication and forging working relations that both sides should needed to recognize the compliance of the Istanbul accord on joint airspace control. And other thematic issues enlightened during the direct talks. A Turkey diplomatic effort is necessary in order to look forward joint agreement implementation and building constructive dialogue among parties. It is also important that Turkey Government and other international community need to be vigilant that there are some serious differences between two countries both political and historical evolutions. Thus, any immediate setback can cause turning back Square zero. To that end, it is the international community responsibility and Turkey Government to take some mediation role on the current political impasse regarding the airspace control before the other rounds of the talks commenced. The Role of International Community on Joint Airspace Management
This atypical situation on airspace control is sending a clear signal to the international community in order to understand the length of the issues propelling this newly conflict between two countries – Somaliland and Somalia. On the other hand, this late conflict about the airspace management is the total decline of the present talks between two sides. One of the underlining issues is the political perception of Somalia that argues that they are the hegemonic actor over the territory of the erstwhile Somali Republic, but they are ignoring the reality on the ground, which is that Former Somali Republic no longer commands allegiance on the former British Protectorate, which regained its independence on 18 May, 1991 and since then, Somaliland has been enjoying empirical sovereignty.
Currently, many people, both in domestic and international actors do believe that Somalia is not independent country that stands on its own feet and does not enjoy empirical sovereignty, while Somaliland is fully functioning government that exercises its empirical sovereignty. And it is for this reason that international community is required to take a leading role to convince Somalia in order to fully implement Ankara agreement. It is also apparent that this matter cannot be resolved on amicable terms but coherent and inclusive intervention is necessary at this stage. It is obvious that the international communities such as United Nations Office for Somalia, EU, UK, U.S.A.
and AU have importance and leverage role to facilitate applicable and timely conclusions on airspace joint management. International community has widely supported Somalia in the post- transitional period. Hassan Sheikh Government is the legacy of the international community .And most political, security and economic manipulations are occurring with conformity and consent of the international community. Despite, building the complex platform of federalism, international community has also succeeded to establish some regional administrations in Somalia included the Interim Juba Administration and Interim South West Administration in Somalia.
As a result, the reluctance and quietness of the international community in this intentional violation on the airspace agreement by the Somalia authorities will have a negative consequence in the foreseeable future cooperation between Somaliland and the international community. Thus, there is no doubt that Somaliland has demonstrated to the international community its continuous remarkable progress in deepening peace, security and in constructing a working model of statehood that is capable of transforming international community engagement into tangible development achievements.3
Ultimately, any unilateral decision about what ICAO and Somalia Government agreed upon is not plausible and worthwhile, considering the last air aviation meeting between two sides where some comprehensive points of agreement had been reached. The airspace F.I.R. management to be returned to Somalis, latest by January 2015 and managed a joint board4 Current Political Status of Somalia and Somaliland
Somalia was recognized as sovereign state in 2012, following the post- transitional period but this does not mean that Somalia fulfilled the criteria of statehood, which was articulated by the Montevideo Convention on the Rights and Duties of States. “The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; (d) capacity to enter into relations with other states.5
Without doubt, Somalia has not qualified the above stated statehood criteria i.e. Somalia has not defined territory as regards its claims over the territory of the erstwhile Somali Republic which was consisted of two independent states – Somaliland British protectorate and Italian Somali. There are no effective state institutions that can deliver their anticipated mandate as well as the capacity to maintain into international relations. In the contrast, Somaliland which was not
3Mohamed A. Mohamoud (Barawaani) Commentary – Somaliland-UN Relations: the Possibility of Establishing a Special Arrangement for Somaliland (2014) 3 4Communiqué of the Technical Committees meeting – Meeting of the Technical Committees from Somalia and Somaliland, regarding Terms of reference (TOR) of the Board of management held in Istanbul, Turkey 31/03/2014-04/04/2014 5Montevideo Conventions on the Rights and Duties of States – 1933
internationally recognized by the other state as the constitutive theory entails, has fully demonstrated the criteria of the statehood stated by the Montevideo Convention. Nevertheless, Somalia is relied on African Union troops and generous assistance from international community. Unfortunately, still Somalia is in a turmoil situation which cannot be anticipated to recovery for short period of time. Nevertheless, Somaliland has made a remarkable statehood formation which many African countries cannot cope with. For example, building viable state institutions, democratic platform, reliable security and inclusive socio-political reconciliations are the unbelievable achievements made by Somaliland. Thus, if the Federal Government in Somalia is not committed to carry out the agreements reached during the talks in which their representatives presumed to ratify the continuation of the talks cannot be justified. And the paramount need of ensuring mutual responsibility and genuine inclusive dialogue is thus far behind.
However, the international community must bring Somalia accountable on implementation in this airspace joint agreement. Article (2) of the Chicago Convention has explained the territory that international air flights subject to fly. For the purposes of this convention the territory of a state shall be deemed to be the land area and territory waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such state.6On the other hand, the Somaliland Constitution Article (2) has extensively illustrated the territorial of the Republic of Somaliland.
The territory of the Republic of Somaliland covers the same area as that of the former Somaliland protectorate and is located between latitude 8′ to 11’30 north of equator and longitude 42′ 45 to 49′ East: and consists of the land, island and territorial waters, above and below the surface, the airspace and the continental shelf.7Regarding these illustrations of the article two of Chicago Convention and the article two of the Somaliland Constitution, Somaliland has all rights to manage its air traffic services unilaterally. Since the Mogadishu government has internationally ceased the joint binding Ankara accord endorsed by two countries.
Similarly the article seven of the Somalia Constitution has also indicated the territory of the Federal Republic of Somalia. The Sovereignty of the Federal Republic of Somalia, which includes the land, territorial sea, the islands, the subsoil, the air space and the continental shelf, and any land waters that joint the Federal Republic of Somalia in accordance with a law that shall be passed by the Federal Parliament.8
In pursuing this article 7 (4) is indicating the boundaries of the Federal Republic of Somalia shall be those described in the 1960 Constitution of Somalia. In this Constitution of 1960, the people emanated from Somaliland British protectorate had unanimously rejected, and this is
6 Convention on International Civil Aviation, signed at Chicago, ON 7 December 1944 (Chicago Convention) 7 The Constitution of the Republic of Somaliland approved by Referendum on 31 May, 2001 8 Federal Republic of Somalia – Provisional Constitution adopted Aug- 2012 Mogdishu, Somalia
entirely showing how the people from Somaliland immediately encountered injustice and political marginalization after the Union in the 1960. In addition, the people of Somaliland also were not totally part of Somali’s process of federalism and Constitution- making. Therefore, no legal jurisdiction that Somalia can claim over the territory of the Republic of Somaliland airspace, sea and land.
Moreover, the recently Preliminary Cartographic Representation of Somali Exclusive Economic Zone singed by the President Hassan Sheikh is adding fuel to the fire to the current political deadlock between two parties.9 And this is more similar to the issues of airspace management, on other hand, the Somalia President has no legitimate position to proclaim the sea or maritime in former Somali Republic since Somaliland had revoked the union entered in 1960. Hence any unilateral decision is null and void.
Furthermore, the article four of Act of Union is in the meantime showing that two independent governments united under the umbrella of the Somali Republic. All rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia or by any person on their behalf, shall be deemed to have been transferred to and accepted by the Somali Republic upon the Establishment of the Union.10 In this case, Somaliland revoked the merger in 1960 through legitimate means based on self- determination and people’s wishes. Despite, the legal and political argument of Somaliland, it is worth to mention that United Nations agencies who involve in this case of airspace control, must be a conscious and more cognitive to consider what the United Nations Charter is widely promoting which is peaceful environment and amicable relations, and any action against it, is unlawful and breaching the mandate of the United Nations.
Hence the article 1 (2) of the United Nations Charter is saying: -To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strength universal peace.11As this article 1 (2) has stated Somaliland has right to determine its own political and territorial control, because this article of the United Nation Charter is fully supporting that such self-determination made by the people of Somaliland through referendum, is legitimate and legally justifiable. Conclusion
There was some possible momentum, when Somaliland and Somalia signed Ankara accord on airspace joint control in 2013. However, there were immediate speculations signaling that Somalia has no state capacity to implement this mutual agreement and cooperation between two countries. Of course this agreement occurred with the consent and presence of the Somaliland
9 Proclamation by President of the Federal Republic of Somalia, dated 30 June 2014 10 Law No.5of 31 January 1961 Act of Union 11 Charter of the United Nations and Status of the International Courts of Justice – SAN FRANSCISCO 1945
and Somalia leadership H.E. President Mohamed Ahmed Mohamoud (Silanyo) and H.E. President Hassan Sheikh Mohamoud. As result, it is shocking news to know that Somalia is on the road to cancel the agreement between two sides and this can cause historical ramification and political new crisis in the Horn of Africa. In this essence, without peaceful means, the airspace management will generate another series of conflict between two sides. Looking upon this issue of airspace current confrontations, it was the international community responsibility to promote peace, stability and mutual cooperation in the region. And the people of Somaliland deserve their rights and aspirations to be respected and protected as well. On other hand, the hosting state of the talks (Turkey) has gigantic responsibilities to maintain on the implementation of the agreements reached under their facilitation and their diplomatic capabilities. Therefore, Somaliland is calling for the international community to take some decisive measures that would lead to mutually acceptable conclusions and diplomatic pressuring on Somalia side. Indeed, it is the interest of all parties to fully adhere in this agreement; otherwise, no one can forcibly take the airspace control. Moreover, the United Nations agencies as ICAO, CACAS and UNDP have the primary responsibility to mitigate with all current crises on airspace management. And this is actually contrary to the United Nations mandate on promoting peaceful, dialogue and equality. Ultimately, the airspace management crisis is directly affecting any future discourses between Somaliland and Somalia and this is also decreasing the credibility and impartiality of the United Nations and other frontier international community as whole. In fact, this unilateral decision took by the ICAO to handover the airspace management to Somalia is totally against the self-determination of the people of Somaliland and their democratic choice. Somaliland’s objection about the UN-ICAO decision is not the only to draw the attention of the international community, but also to demonstrate the subsequent difficulties that can affect the current modalities of the international community which is to establish the mutual cooperation and working together the interest of the region.
Finally, it is recommended that the UN leading agencies have to avoid such inconsistent steps, and hasty decisions that may cause end or terminate any future cooperation between concerned stakeholders. Somaliland has the legitimate and legal contention over the issues of airspace and Exclusive Economic Zone; it is the time that international community must take some imperative and coherent diplomatic steps for the benefit of the peace, security and regional cooperation. __________________________________________________
The Author Mohamed A. Mohamoud ‘Barawaani’ is an Independent Researcher, MA International Relations and Diplomacy and Author of Various Academic Papers about Somali issues:
Other Barawaani Articles published by Somaliandsun
Time for International Community to accept two State Solutions
Somaliland: Ending the Stagnated Relations with United Nations
Somaliland-UN Relations: the Possibility of Establishing a Special Arrangement for Somaliland
Somaliland: Talks with Somalia are Devoid of Substance
Possible Failure of the Talks between Somaliland and Somalia and its Consequences beyond the Region
Somaliland: Choosing Bilateral Dialogue to End Communal Conflict in the Region