1. The last Security Council mission to Somali faction leaders (26–27 Oct. 1994) described the situation as having presented “a vacuum of civil authority and governmental structure” (see Message of Security Council Mission to Somali Faction Leaders on behalf of the Council, 26 Oct. 1994).

2. If the defining characteristic of a State is, as Kelsen argues, the existence of a national legal order, then it would seem to follow that a “lawless State” is a contradiction in terms: see Hans, Kelsen, General Theory of Law and State (1961), p.181. But it would appear that even where a national legal order (or independent “government”) does not exist, if foreign control does not amount to annexation or the vesting of sovereign authority in some other way, then the question of loss of Statehood does not arise: Jennings, “Government in Commission” (1946) 23 B.Y.I.L. 120 et seq.Google Scholar

3. But see Haile Selassie v. Cable and Wireless Ltd (No.2) [1993] Ch. 182 (CA).

4. Iraq's belligerent occupation of Kuwait did not terminate Kuwait's Statehood. The Security Council in Res.687(1991) “welcomed the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate government”. The wording of the Res. demonstrates at least implicitly that the Security Council recognised the continued existence of Kuwait as a State, even though its government and sovereignty might have been impaired by the occupation. Brownlie acknowledges that foreign control of a State (either by a treaty of protection or consensual agreement of representation or agency) does not necessarily extinguish Statehood, especially where the representation or agency exists in fact and in law. He, however, bemoans the conceptual confusion created by writers who accept independence as an aspect of Statehood but then also acknowledge the existence of “dependent States” as some sort of an aberrant category. A prominent feature of this category is that the incidents of personality are not sufficiently distinguished from its existence. He highlights six situations or combinations of situations generally considered as bringing a State within the “dependent” classification: (a) The absence of Statehood, where the entity concerned is subordinated to a State so completely as to be within its control and the origin of the subordination does not establish agency or representation; (b) A State which has made concessions to another State in matters of jurisdiction and administration to such an extent that it has in some sense ceased to be sovereign; (c) A State which has legally conferred wide powers of agency and representation in foreign affairs on another State; (d) A State which in fact suffers interference from another State and may be a client State politically, but which quantitatively is not under the complete and permanent control of the “patron”; (e) A legal person of a special type, appearing on the international plane for certain purposes only, in the case of mandated and trust territories and some protectorates; (f) A State which fails to qualify as an “independent” State for the purpose of a particular instrument: Principles of Public International Law (4th edn, 1970), pp.75 et seq. Also see the Montevideo Convention on Rights and Duties of States (signed 26 Dec. 1933)Google Scholar: Hudson, , International Legis, Vol.VI, p.620 (quoted in Brownlie, Principles of Public International Law, p.72). For conditions of Statehood see Fitzmaurice (1957) 92 Hag.Rec. 13.Google Scholar

5. Sovereignty in this context describes the legal competence which States have in general. Jurisdiction, legislative competence over a geo-political territory would qualify as embodiments of sovereignty. (Note also that the term sovereignty itself is open to considerable confusion. It may be used in the sense of a criterion for Statehood or as a synonym for independence (or legal personality).) See Brownlie, , Principles of Public International Law, p.78.Google Scholar See generally Kleffens, E. N. Van, “Sovereignty In International Law” (1953) 82 Hag. Rec. 1Google Scholar, cited in Raja, M. S., United Nations and Domestic Jurisdiction (1961), pp.15 et seq.Google Scholar

6. The expression has been used to describe situations of entities such as the free cities of Danzig and Trieste, which were given status by treaty between the allied powers and defeated Germany, and protected by the League of Nations.

7. The scale of UNOSOM is probably unprecedented in UN peace-keeping history. At its peak there were about 28,000 personnel and the operation itself cost $1.5 billion annually.

8. As of Feb. 1995 UNOSOM had re-established regional courts in 10 of the 18 regions of Somalia, district courts in 43 of about 105 districts, and 10 courts of appeal. UNOSOM was also paying salaries for about 233 judicial and administrative staff of the courts.

9. The largest prison, the Mogadishu Central Prison, had as of Feb. 1994 an inmate population of about 300. UNOSOM in collaboration with international aid agencies such as WHO, FAO and the International Red Cross set up vegetable farms, ran clinics and generally kept order.

10. See Further Report of the Secretary-General on the United Nations Operations in Somalia submitted in pursuance to para.14 of Res.897(1994) S/1994/614, 21 May 1994.

11. MPOC monthly statistics show that the port did reasonably good business. In July 1994 e.g. a total of 22 ship calls were recorded, 442 incoming containers and 215 outgoing containers were recorded (MPOC, Monthly Pan Statistics, July 1994).

12. 55 district councils were established out of 66 districts excluding Benadir and North-West Regions, 8 regional councils, and 819 councillors in 39 districts had been trained.

13. See Further Report of the Secretary-General submitted pursuant to para.4 of Res.886 (1993) S/1994/12, 6 Jan. 1994, for figures as at 6 Jan. 1994.

14. 24 Apr. 1992.

15. Addis Ababa Agreement of the First Session of the Conference on National Rec onciliation in Somalia, 27 Mar. 1993.

16. S/RES/814 (1993) 26 Mar. 1993.

17. See Further Report of the Secretary-General submitted in pursuance of para. 18 of Res.814(1993) S/26317, 17 Aug. 1993, Annex 1: The Re-Establishment of Security in Somalia: The Police, Judicial and Penal System.

18. Annex 1, idem, para.29, p.24.

19. idem, para.35, p.25. Note also that this was the case in Somali courts in the 1960s.

20. Ibid.

21. S/1994/115, 3 Feb. 1994.

22. idem, para.1(d). See also Res.865(1993) which enjoined UNOSOM to implement a policy of resuscitation of the Somali administration of justice system. The Res. provided, inter alia, that the Security Council “Welcomes the Secretary-General's intention to maintain and utilize the fund established pursuant to resolution 794 (1992) and maintained in resolution 814 (1993) for the additional purpose of receiving contributions for the re-establishment of the Somali judicial and penal system”. Also in Res.886(1993) the Security Council again emphasised its commitment to ensuring the re-establishment of the administration of justice system in Somalia when it stressed: “The importance it attaches to the accelerated implementation by the Somali people, with the assistance of the United Nations and donor countries of the recommendations contained in Annex I of the Secretary-General's report of 17th August and endorsed by the Security Council in its Resolution 865, and in particular the establishment of an operational police, penal and judiciary system at the regional and district level as soon as possible”.

23. S/C 5853, 31 May 1994.

24. See Organisation of Judiciary Law, Chap.III, Arts.27–29.

25. idem, Art.28(2)(b).

26. idem, Art.27(2).

27. See Report, supra n.17, at para.34.

28. Legislative Decree No.5 of 16 Dec. 1962.

29. Law No.9 of 27 July 1974, Civil Procedure Code.

30. Legislative Decree No.1 of 1 June 1963, Criminal Procedure Code.

31. Legislative Decree No.3 of 12 June 1962, Organisation of Judiciary.

32. Law No.3 of 10 Jan 1970, Institution of National Security Court.

33. These guidelines included the Standard Operating Procedure (SOP) for apprehension, investigation and detection by UNOSOM. The SOP was drawn up by the Justice Division of UNOSOM in collaboration with the office of the Legal Counsel to the Special Representative of the Secretary-General.

34. Prison Law, Law No.7 of 30 Dec. 1971.

35. See supra n.15.

36. See Arts.24(2) and 25 of the UN Charter. The Security Council has decision-making powers under Chap. VII of the Charter, and members are obliged to accept and carry out the Council's decisions. See generally Falk, , “On the Quasi-legislative Competence of the General Assembly” (1966) 60 J.I.L. 782.Google Scholar

37. S/Res. 794(1992), 3 Dec. 1992.

38. idem, para.10.

39. Sovereignty is used in the limited sense of the supreme political/legal authority. But see Hans, Kelsen, “Natural Law Doctrine and Legal Positivism”, in op. cit. supra n.2, at p.383.Google Scholar

40. The concept of territorial jurisdiction (in non-mandate or trusteeship situations) of inter-governmental organisations is controversial (see Kelsen, “The Law of the United Nations, 1950). It is, however, not without precedent. The Treaty of Versailles (Arts.45–50) e.g. gave the League of Nations full governmental powers in the Saar. A governing commission was appointed to run the country under the treaty. More restricted jurisdiction was given to the League by the Treaty of Versailles (Arts.100–108, Council Res. of 13 Feb. 1920) in respect of the government of Danzig. The League appointed a High Commission to run the City. Finn Systered (1961) 37 B.Y.I.L. 452–453 rightly notes that the failure of the UN to record a successful attempt to exercise territorial jurisdiction (e.g. Jerusalem where the General Assembly proposed the establishment of a corpus separation under a special international regime, or the case of the free city of Trieste, both of which failed) is no indication of absence of legal capacity but lack of territories. But see Brownlie, , op. cit. supra n.4, at p.175Google Scholar. Laulerpacht, “UN Cannot Have Territorial Sovereignty” (1956) 5 I.C.L.Q. 409.Google Scholar

41. See Somalia Justice Programme Appeal Document. UN Office in Somalia (UNOSOM) 10 1993, Version 2, pp.10 et seq.Google Scholar

42. See Report, supra n.17, at Annex 1, para.35.

43. Somali Justice Programme, supra n.41, at p.7.Google Scholar

44. Ibid.

45. Addis Ababa Agreement, supra n.15, at para. 1(a).

46. idem, para.1(b).

47. idem, para.1(c).

48. idem, para.1(h).

49. It is noteworthy that three days after the Addis Ababa Agreement the 15 political factions who were signatories to the Agreement signed a further agreement which purported to set out the rules for the appointment of members of the TNC. The Agreement also prescribed the setting up of a charter-drafting committee. The charter was to be approved by the TNC. This agreement was also never implemented. (Agreement Reached Between the Political Leaders At the Consultations Held in Addis Ababa, 30 Mar. 1993.)

50. 24 Mar. 1994.

51. Supra n.15.

52. See Boutros Boutros-Ghali, An Agenda for Peace (1992), p.17, and Res.46/182 of 19 Dec. 1991.Google Scholar

53. See Briefly, J. L., The Law of Nations (6th edn (ed. Sir Humprey, Waldock), 1963), p.189Google Scholar, and “Trusts and Mandates” (1929) B.Y.I.L. 217Google Scholar. See Hall, , Mandates, Dependencies and Trusteeships (1948), The Trusteeship System of the United Nations (1956)Google Scholar; Marston, , “Termination of Trusteeship” (1969) 18 I.C.L.Q. 1Google Scholar; The International Status of West Africa I.C.J. Rep. 1950, 128Google Scholar; Lathan CI in Frost v. Stevension, Ann. Dig. 1935, p.98.Google Scholar

54. See Secretary-General's letter to the Security Council 18 Apr. 1995 (5/1995/322), 31 May 1995 (S/1995/451).

55. See generally Report of the Secretary-General on the Situation in Somalia, 19 Jan. 1996, S/1996/42.

56. The harsh punishments for which the Sharia penal system is known are perhaps some reasons why these courts will be favoured by local warlords concerned with maintaining order in the territories they control.