UNIVERSITY OF PENNSYLVANIA - AFRICAN STUDIES CENTER
This paper seeks to examine the right of self-determination under international law and its relevance to the struggle for independence in the Angolan enclave of Cabinda.
The right of self-determination has been grabbing the spotlight in recent years. The end of the Cold War ushered in sweeping changes in Eastern and Southeastern Europe. The right of self-determination under international law has been acting as a midwife to the birth of new nation states. These kinds of changes have not been limited just to Europe.
In Africa, too, the right of self-determination has received a good deal of attention these past ten years. The success stories have been widely reported. That is, Namibia finally became independent in 1990 after years of South African occupation and domination. In 1993, Eritrea managed to secede from Ethiopia after more than thirty years of struggle. South Africa itself saw its first free and full elections in 1994 after apartheid had begun to crumble around 1989.
Most of the current or remaining struggles for independence on the continent, however, receive little attention, at least outside of their respective regions. For example, Ethiopia's Oromo people, presumably encouraged by the success of Eritrea, are demanding independence. In the southern enclave of Casamance in Senegal, a struggle for independence has been going on for over fifteen years. In southern Sudan, a black liberation front continues to fight against the domination and slavery perpetrated by northern, extremist rulers. In another case, Western Sahara, uncertainty persists as to its status after seceding from Morocco.
In Angola, the enclave of Cabinda is staking its claims to national independence based on the right of self-determination under international law. Cabinda is a province of Angola geographically distinct from the rest of the country. Situated north of Angola on the Atlantic coast, it is separated from the mainland by a strip of the Democratic Republic of Congo ("DRC"), the ex-Zaire. To the north, Cabinda is bounded by the Congo.
Prior to 1975, Angola was a Portuguese colony. Portugal first claimed administrative control over Cabinda based on the Treaty of Simulambuco of 1885. The enclave was then formally integrated into Portuguese Angola in the 1950s. After Portuguese colonial rule, Cabinda retained its status as a province or district of Angola. Cabindans are ethnically related to the Bakongo. Other than in Cabinda, Bakongo populations live mainly in the north of contiguous Angola, in the Bas Zaire region of DRC and in parts of the Congo. However, Cabindans tend to downplay their shared ethnic links with northern Angola.
Today as then, the province has carried on a struggle for independence all its own. Strong separationist tendencies are evident in the activities of FLEC ("Frente de Libertaçao de Cabinda," or Liberation Front of Cabinda) and FDC ("Frente Democratica de Cabinda", or Democratic Front of Cabinda). FLEC is Cabinda's popular liberation movement and includes two rival military wings.
Cabinda's fight for independence is of interest to international lawyers and Africanists for several reasons. First, it exemplifies a postcolonial African liberation movement. That is, Cabinda seeks independence not from foreign colonial masters, but from unwelcome black African rule. Second, though Cabinda represents just a tiny part of Angola's overall territory, it holds vital economic importance to the country - Cabinda produces most of Angola's increasingly important oil wealth.
Finally, Angolan government interests aside, Cabinda has become a stage for major players in the global petroleum industry. Americans and Europeans alike are actively involved in exploiting Cabinda's vast oil reserves. The Americans, through Chevron, are at the forefront of this rush for the black gold. Already, Cabinda is being hailed as "the new Kuwait" and "the Kuwait of Africa."
Part (2) surveys the right of self-determination under international law, its history and principal sources. It takes into account countervailing principles, such as the notion of territorial integrity flowing from sovereignty. This part of the paper also attempts to outline the scope of the right and to what extent it has become justiciable.
Part (3) paints the African background of neo-colonialism and eroding borders. These are part of the context of Cabinda's fight for self-determination. Part (4) provides a framework for understanding Cabinda's political history, its culture, and economy. It introduces the many actors of Cabinda: Angolan government officials, Angolan troops, rival Cabindan guerrillas, multinational oil companies, U.S. representatives, the local population, as well as mercenary security forces.
In light of the information and analyses of parts (2) through (4), part (5) attempts a realistic conclusion on the right of self-determination in Cabinda. Its assessment is not limited to strictly "legal" aspects but takes into account the real economic and political forces shaping Cabinda's situation. Part (6) contains a partially annotated bibliography.
This part of the paper provides an overview over the legal doctrine of the right of self-determination. It starts by dissecting the plain language of the term. The brief linguistic exploration then leads to a subsequent legal survey of the right of self-determination in sections (2.1) through (2.4).
The term "right of self-determination" is composed of three semantic units, that is, "right," "self," and "determination." First, there is a "right." A right connotes a certain entitlement or privilege. Rights usually impose obligations on those who have the power to grant or withhold such entitlement. By juristic definition, a "right" carries legal significance, and should be distinguished from the lesser import of a legal "principle."
Second, there is a "self." It refers to the self of those persons or entities asserting the right in question. As a concept of international law, the right of self-determination is taken to repose in "peoples," as opposed to individuals or states. As such it belongs in the category of so-called "communal" or "collective" rights. It raises the issue of who or what counts as a people. Scholars have advanced surprisingly few criteria to help figure out what constitutes a "people" for the purposes of the right of self-determination.
Third, and finally, the concept includes a "determination." The word presupposes the existence of a controversy that needs to be resolved. But what exactly is it requiring "determination?" In theory and especially in practice, the goals or results of self-determination do vary. However, Hannum notes that there is a "clear preference for independence as the normal result of exercise of the right to self-determination." For the sake of simplicity, and because it concords with the stated goals of Cabinda's struggles, this paper therefore accepts independence as the normative result of exercising the right of self-determination.
The concept of the right of self-determination has its historic origins in the "law of nations" of the Western world. The law of nations consisted of laws and principles, some codified, most of them customary, which were taken to govern relations between sovereign nations. From that "law of nations" later emerged our modern or perhaps even postmodern international law.
By 1945, historical imperialism and fascism had come to an end while colonialism had yet to be dismantled. The so-called Third World, Africa in particular, geared up for the final battle against colonial rule and in the process looked to whatever legal tool it could find that might help support its demands. One such tool turned out to be the right of self-determination.
The concept is closely related to the European concept of nation state and its classic corollary, state sovereignty. From about 1500 onward, Europeans developed ideas of nationhood that gradually replaced tribal, feudal, or trade-based affiliations. People were seen as "naturally" divided into separate nations, based on common language or mythology, or both. Politically, it became accepted that each nation --France, Germany, Italy, England, etc.-- should have its own, national government.
The American and French Revolutions of 1776 and 1789 added important dimensions to the idea of nationhood. Not only does each nation get its own national government, but the very people who make up a nation should exercise some power over who governs them and how. The birth of the United States stands for the idea that people can even come together and declare themselves a nation, then go on to create a government to rule that nation.
The right of self-determination is a philosophical byproduct of these "bourgeois democratic revolutions" and as such represents an "eminently democratic principle," notes Tanzanian socialist Issa Shivji. Self-determination and democracy are indeed often mentioned in the same breath, along with notions such as human rights, equality, and peaceful co-existence. However, self-determination became associated not just with the ideologies of Western democracy but emerged as a Socialist idea as well. The contrast between Western and Socialist notions of the right of self-determination developed during and after World War I.
The Western democratic definition is associated with former U.S. President Woodrow Wilson. In the Wilsonian conception, the right of self-determination is the right of peoples to govern themselves. It implies that no one can legitimately govern a people without that people's consent. Wilson promulgated the right of self-determination in his "Fourteen Points" speech while he was in the process of lobbying the international community to end World War I and form the League of Nations. He envisioned an orderly process of international reform by which all nations, including colonized peoples, would eventually be granted independence.
Elsewhere, the mood was one of revolution, not reform. The Bolshevik Revolution was rapidly unfolding in Eastern Europe. Urban industrial workers and disenchanted soldiers had embraced communism and were actively spreading the revolutionary flames to Russia's disenfranchised peasantry. Vladimir Lenin, the first leader of the newly created Soviet Union, "champion[ed] self-determination with an eye towards developing a worldwide socialist revolution...." Essentially, Lenin's right of self-determination was not so different from Wilson's: "The right of nations to self-determination implies ... the right to independence in the political sense." However, Lenin gave it a radical edge by focusing on the "complete freedom to agitate for secession," which he and fellow thinkers envisioned as a liberation device for "the Negro and other colonial peoples."
The main difference between Wilson and Lenin were reform versus revolution, and democracy versus socialism as the desired means and ends of self-determination. Both men, however, saw the right of self-determination as the right of peoples freely to determine their political destiny.
It should come as no surprise that neither Wilson nor Lenin placed decolonization on the top of their agendas. American and European attention was focused on dealing with the Balkans and other contenders for membership in the "civilized" European world. African peoples were clearly outside that realm of consideration. Also, self-determination was still mostly held to represent a mere "political principle" as opposed to a legally significant right.
All that changed irrevocably when Third World resistance to colonialism reached new heights after World War II. Only after 1945, and in response to anticolonial struggles, did the international community create instruments that represent sources for locating the right of self-determination. Most of these sources, as will be seen, date back only a few decades.
As with other rights and issues under international law, one might distinguish three kinds of sources for the right of self-determination. For reasons explained below, only one kind of source will be considered here, international instruments.
International instruments address the right of self-determination in binding and non-binding formats. Binding instruments include treaties and conventions. Declarations and resolutions of international bodies, on the other hand, are initially considered non-binding. However, they can later evolve into customary international law, which by itself is regarded as binding.
Judicial decisions on the problem might provide a second kind of source to the right of self-determination. For instance, one might look to determinations by the International Court of Justice. However, in practice, most international judiciary bodies have taken a hands-off approach to adjudicating secessionist and other claims to national independence. Consequently, judicial determinations will not be taken into consideration here.
Finally, state actors in the international community have added content to the right of self-determination in the way they have accepted, rejected, and manipulated self-determination. An examination of state practice as a source of the right of self-determination would be beyond the scope of this paper. For the foregoing reasons, the survey of sources in this section is limited to international instruments.
International Instruments in General
No one international convention is dedicated exclusively to the right of self-determination. Nevertheless, at least two UN General Assembly resolutions address the problem of self-determination exclusively. For the most part, provisions concerning the right of self-determination are scattered about within a few international human rights treaties. The right is also made reference to in the organizational charter of the United Nations, which is considered a "World Constitution" of sorts. Overall, documentary sources of the international right of self-determination form a patchwork at best.
United Nations Charter
The UN Charter contains nineteen chapters and a total of 111 articles, yet the right of self-determination is mentioned explicitly only twice. First, the Charter names self-determination of peoples as a "principle" underlying the UN's purpose of developing friendly international relations. U.N. Charter art.1, |P 2. Second, the human rights provisions of the Charter make reference to self-determination as an underlying principle to the promotion of human rights. U.N. Charter art.55.
Chapter XI of the Charter addresses the subject of colonies and trust territories. Interestingly, this part of the Charter manages to avoid any mention of self-determination. Instead, Chapter XI speaks vaguely of "self-government" and is otherwise padded with roseate language. For example, the interests of non-self-governing peoples are described as "paramount" and UN member states are admonished to exercise "good-neighborliness" towards such peoples. U.N. Charter art.73. The UN trusteeship system, meanwhile, is likened to a "sacred trust." Id. Such phraseology, combined with the conspicuous absence of the word "self-determination" belies the political fight for self-determination already underway overseas at the time the Charter entered into force in 1945.
To conclude, the Charter provides cursory recognition to self-determination as a principle. It does not, however, accord it the status of a right or elaborate on it in any significant way.
Universal Declaration of Human Rights
The 1948 Universal Declaration of Human Rights was conceived as a UN General Assembly resolution. When General Assembly resolutions first enter into force, they are not as such binding upon UN members. However, over time, that may change. Over time even a non-binding resolution, if widely accepted as normative, may start to be considered as part of the body of customary international law. It then takes on binding character. The Universal Declaration of Human Rights is the best-known example of this happening. However, the Universal Declaration makes no explicit reference to self-determination. Perhaps this is because the right of self-determination is a collective right that attaches to peoples, whereas the rights enumerated in the Universal Declaration are framed mostly as individual rights.
Nevertheless, indirect support for the right of self-determination, at least in the Wilsonian sense, might be gleaned from article 21(3) of the Declaration. It states that "[t]he will of the people shall be the basis of the authority of government..." From this one could infer that a people who has not consented to, or has withdrawn consent from, its present government is experiencing a collective human rights violation. As a remedy, the right of self-determination might be had recourse to by those who continue to be governed against their will.
The Universal Declaration places the will of the people into a democratic framework. Thus, Article 21(3) goes on to state that "[t]he will [of the people] shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage...." This might mean that a disenfranchised people should first seek the remedy of fair and free elections. It implies that a people has a "duty to mitigate" its lack of self-determination. Put differently, Article 21(3) provides support for a proposition that peoples must first seek to "exhaust its remedies" within the status quo before taking a radical step such as secession.
The "Twin" Covenants of 1966
Since the 1960s, international documents have become more directly affirmative of self-determination. For example, article 1 of both the International Covenant on Economic, Social, and Cultural Rights and that on Civil and Political Rights, refers to self-determination as a right, not just a mere principle. Indeed, article 1 contains identical provisions for both covenants.
Article 1 of the treaties, both of which were signed in 1966 and entered into force in 1976, provides in relevant part that
(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic ... development. (2) All peoples may, for their own ends, freely dispose of their natural wealth and resources... In no case may a people be deprived of its own means of subsistence.
These provision are important not just because they accord self-determination the status of a right, but because they link the political destiny of a people to its economic foundation. This expanded conception of self-determination is more in holding with Lenin's Marxist world view than Wilson's liberal democratic ideas.
The shift should be read against the backdrop of decolonization unfolding during that time. Newly independent Third World nations now formed a majority of UN member states. They were able to use UN fora to address their special needs and concerns. In particular, newly independent countries wanted to make sure their economic nationalizations would not be hampered by European interests laying adverse claims to African and Asian resources.
The 1960 and 1970 UN General Assembly Resolutions
The winds of decolonization and national liberation also led to two UN General Assembly resolutions directly concerned with the right of self-determination. It should again be noted that these resolutions are not per se legally binding. However, as mentioned above, they may in time evolve into customary international law and thus end up legally binding anyway. At present, there is some support for the proposition that the two declarations have already evolved into customary law, while others remain sceptical.
The Declaration on the Granting of Colonial Countries and Peoples of 1960 called for a universal end to colonialism. It uses language later adopted verbatim to express the right of self-determination in article 1 of the twin Covenants. In 1970, a General Assembly resolution, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, reiterates the main points of the 1960 document. Scholars interpret the Friendly Relations declaration as an expansion of the right of self-determination to non-colonial situations. At the same time, the 1970 document pits the right of self-determination against the countervailing principle of territorial integrity. This is discussed below in part 2(3) of the paper.
One of the clearest, for our purposes perhaps most useful commitment to the right of self-determination is found in the African (Banjul) Charter on Human and Peoples' Rights, promulgated by the Organization of African Unity ("OAU"). This convention was adopted in 1981 and entered into force in 1986. Article 20 of the Charter lays out the right of self-determination as follows:
(1) All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
(2) Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
(3) ... [my italics]
In addition, the economic aspects of the right of self-determination are elaborated on in Article 21:
(1) All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
(2) In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
(5) State Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their people to fully benefit from the advantages derived from their national resources. [my italics]
Article 20(1) relates the right of self-determination to the right of existence. This frames the right of self-determination as a fundamental kind of right. Paragraph (1) goes on to define self-determination as having a Wilsonian aspect of free political determination. It further adds a historically Marxist emphasis on economic control as part of self-determination. Both of those aspects are worded in legally significant language, as indicated by the phrases "shall freely determine" and "shall pursue."
Paragraph (2) of Article 20 explicitly extends the applicability of the right of self-determination beyond the bounds of anti-colonial struggle. Not just colonial but all peoples are permitted to throw off the yokes of oppressive domination.
To conclude, a variety of international instruments acknowledge the right of self-determination. However, they supply the right with only skeletal substantive or procedural content. While the instruments discussed in this section provide good evidence of the codification of self-determination, the scope of self-determination should be determined taking into consideration additional factors such as state practice.
The right of self-determination exists in tension with countervailing considerations. Some of these are entirely policy-driven yet can be as powerful as "purely legal" doctrine. In fact, legal doctrine and policy considerations may be closely intertwined. This section considers policy issues and the implications of the legal principle of territorial integrity. That principle refers to the doctrine of the inviolability of the boundaries of nation states. Territorial integrity is considered an earmark of sovereignty and is the doctrine most frequently advanced against self-determination.
Fear of Anarchy and Instability
The right of self-determination has been opposed on policy grounds. Most notably, opponents of the right fear it could lead to anarchy and chaos, to a free-for-all in which any disgruntled group receives a ticket for setting up its own sovereign entity. It is thus perceived as a potential threat to the public order of already existing states. The right of self-determination certainly carries within it seeds for radical and even revolutionary change.
This is true for both "internal" as well as "external" self-determination, a distinction conceived by Cassese. Internal self-determination applies to situations in which a people asserts its political freedom by replacing the government within the boundaries of an existing state. External self-determination, on the other hand, refers to situations in which a people breaks free from an existing state and forms its own state by means of secession.
Cassese's distinction implies that the problem of territorial integrity comes into play only in cases of "external" self-determination, whereas disputes over "internal" self-determination merely threaten public order. However, the difference between the two types of self-determination may not be as clear-cut as Cassese seems to believe.
First, both scenarios equally threaten the authority of an already existing government by challenging the legitimacy of the current rulers. Thus policy-based fears of instability come into play in the context of a struggle for external self-determination as well. A liberation movement may care little about whether it overthrows the existing polity to establish its own state or instead appropriates a parcel of the existing state for the purpose of secession. Most likely, the ultimate goal for a struggling people is to end oppression and reestablish political and economic control over its destiny. What happens to the oppressor or to public order in the process may be secondary.
Territorial Integrity in General
Second, Cassese's distinction implies that in the case of internal self-determination, existing borders of the oppressor state do not become subject to controversy. As indicated by the term, Cassese envisions "internal" self-determination as a dispute of purely domestic or intrastate dimensions. In practice, however, replacing a government may nevertheless raise issues about the integrity or continuing validity of borders. In other words, the legal doctrine of territorial integrity might become relevant even absent a secession or other form of exercised external self-determination. The following examples may serve to illustrate this.
When one government overthrows another, as is often the case in Africa, the line between succession of government and succession of state may not be demarcated as plainly as international legal theory would wish. For example, after Thomas Sankara came to power in what had been Upper Volta in 1983, his government renamed the country Burkina Faso and claimed that Burkina Faso had never been colonized by the French. Thus, although in retrospect the transition from the governments of Zerbo and of interim Ouedraogo to that of Sankara may have been but a succession in government, at the time it was widely perceived as the revolutionary creation of a new state.
To the extent a succeeding government indeed views itself as a new state entity, it may reopen boundary issues based on historic claims to certain land or based on common ethnicity with neighboring regions. For instance when Somalia gained independence in 1960, it announced plans for the creation of a "Greater Somalia" which would have included parts of southeastern Ethiopia, whose ethnic population to this day is predominantly Somali.
Accordingly, the countervailing doctrine of territorial integrity could come into play under many scenarios of a people's exercise of the right of self-determination, external or internal. At any rate, territorial integrity presumes the existence of a sovereign nation state in full control of its borders. The territorial integrity of a state should be regarded as inviolable only where violations are perceivable. That is, the principle of the preservation of territorial integrity makes no sense unless the state exercises requisite control over the territory and is sufficiently involved in its administration. When territory is not adequately controlled by the state, the sovereign cannot make a credible case for the preservation of its integrity.
Codification of Territorial Integrity
For present purposes, the most important codification of territorial integrity as a countervailing principle to self-determination is found in the 1970 Friendly Relations declaration of the UN General Assembly, cited above. In relevant part, the Friendly Relations declaration provides that
Nothing in the foregoing paragraph [affirming the right of self-determination] shall be construed as authorizing or encouraging any action which would dismember or impair ... the territorial integrity ... of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples... [my italics].
The 1970 Friendly Relations declaration is noteworthy because it makes territorial integrity an express principle curtailing a people's exercise of their right of self-determination. In other words, a people in search of its destiny ought not to encroach upon the already existing boundaries of another sovereign entity. In theory, this makes sense. One people's freedom should not come at the expense of another's territory; such approach can have tragic consequences as still seen in the case of Israel and Palestine.
However, nearly every square mile on the globe today represents part of the territory of a nation state. It is no longer accepted practice for a people or a state to invade another people's or state's territory in order to fulfill its own destiny. This raises a logical question. If territorial integrity is considered inviolable, and all inhabitable parts of the globe already belong to existing nation states, then how can a people exercising its right of self-determination find the territory necessary to establish an independent state? There may be no easy answer to this question.
The secessionists of Biafra of the late 1960s published a pamphlet with interesting thoughts on the relationship between territorial integrity and self-determination. Referring to the OAU's boundary-preservation stance, they note "There is ... nothing sacred about the concept of territorial integrity... [T]o protect the territorial integrity of member states at all cost and in any circumstances would inevitably lead to situations of absurdity." As support for their position they refer to Poland's history and the breakup of the Mali Federation into Mali and Senegal.
From this the Biafran pamphlet concludes that the principle of territorial integrity is designed to "protect the territory of a member state against other states, not against the state itself." That is, it regards the exercise of a people's right of self-determination as springing from the internal affairs of the state that governs those whose right of self-determination has been denied.
In accordance with that view, a state who denies self-determination to a people contained within its borders should not be able to claim territorial integrity as a defense. This view is consistent with a careful reading of the 1970 Friendly Relations declaration, emphasized by my italics above. There, the use of territorial integrity as a defense is made contingent upon a state's satisfactory performance in the area of equal rights and self-determination.
In conclusion, it would appear that the principle of territorial integrity should be available as a defense against self-determination if, and only if, the following conditions are met: (1) the defending state has clearly established and maintained the inviolability of its territory, so that any territorial violation may fairly be recognizable as such, and (2) the defending state has provided equal rights to the asserting people and has otherwise accorded them treatment consistent with their right of self-determination.
(2.4) Scope and Justiciability
There is near unanimity among scholars that the right of self-determination as it exists today is amorphous and overly susceptible to political considerations. Nevertheless, it may be analyzed in terms of the holders and grantors of the right, the threshold for its applicability, and the manner in which the right may be invoked.
Holders of the Right: Peoples
The right of self-determination vests in peoples, not individuals, corporations, or nation states. Who or what constitutes a people has been one of the least defined aspects of the right of self-determination. Where criteria have been advanced as indicative of a people, they usually include shared language, race, ethnicity, geography, religion, historical identity, or a combination thereof.
At present the world is undergoing a process of rapid globalization. Globalization is happening in business, trade, trade policy, communications, and in the expansion of international political and legal cooperation. Although many people still live in mere villages, the concept of Global Village increasingly gives rise to the creation of multiple identities.
Multiple memberships in different ethnic, blood, linguistic, trade or professional, and other groups are becoming more common. The co-existence of identities within one person or even within one state (for example, secular and religious) may make it difficult to ascertain what unit legitimately constitutes a people for the purpose of asserting the right of self-determination.
Grantors of the Right:
World Community and Individual States
The duty to grant the right of self-determination does not subside within any one singular body or entity. Yet the world community, through international instruments and practice and through the United Nations, has affirmed self-determination in theory and practice. However inconsistent that theory and practice may be, the self-determination of peoples today is very much the business of the world. Through action as well as inaction, the world community can act as a de-facto grantor of a people's right of self-determination. By the same token, the international community can stand in the way of self-determination through its involvement or abstention from involvement.
Furthermore, the right of self-determination may be granted by one or more states directly involved. Indeed, even where the global community is overall in favor of a people's independence, individual states on whose land the people in question live may stymie those efforts. This has been true of the Kurdish struggle for independence. In the aftermath of the Gulf War, the Kurds were unable to realize their claim to self-determination because the state governments of Turkey, Iraq, and Iran still opposed Kurdish independence.
Threshold of Applicability
In light of the countervailing principle of territorial integrity, the near total colonization of the globe by nation states, and the desire for worldwide peace and stability, the right of self-determination is not easily invoked. Many scholars appear to agree that "massive" human rights violations should be present before recourse can be had to the right of self-determination.
Other views point to lack of political representation and equal rights as prerequisites for asserting a claim to self-determination. In other words, a people who is denied self-determination by a governing state may have a "duty to mitigate" that denial by first seeking peaceful solutions within that state.
Manner of Invocation
Although some doubt remains, most scholars seem to agree that the right of self-determination can be invoked as jus cogens. Jus cogens means a peremptory norm of international law. Accepting the right of self-determination as jus cogens does not necessarily help in deciding which right would prevail when there is a conflict between two or more rules of jus cogens. However, it does serve to reinforce an understanding of the right of self-determination as an actual legal right, as opposed to a simple principle or aspiration.
For the purposes of this paper, it has been assumed that the full exercise of the right of self-determination includes the attainment of sovereign independence. There is, however, no guaranteed set of procedural steps leading to national independence. Before a liberation movement can transform into a new nation state, many legal and political strategies might be implemented. The ultimate success of a movement may depend not just on the validity of a people's claim or on its political finesse. Other factors, such as regional and global political winds or third party power play, may independently impact on a claim to independence and determine its outcome.
Africa is a continent not quite like the others. It has had a long and proud history that is often little known. Many outsiders, especially, believe that African history, if it exists at all, consists of European "exploration," the slave trade, and the subsequent establishment of colonial rule in all but one or two African countries.
It is therefore easy to fall into the trap of presenting African history as usurped by European influence and activities. Nevertheless, this paper consciously restricts its scope of history to the last one hundred years or so. There are two reasons for doing so. First, the right of self-determination is a Western political and legal concept and as such its history, to the extent it unfolds in Africa, is tied to decolonization and other relatively recent developments. Second, specific accounts of Cabinda's pre-European history are scant and would require more research than can be accommodated here.
After World War II, Africans launched a major attack on European colonialism. After long and hard battles, a wave of national independence swept through Africa in the late 1950s and early 1960s. Most former colonies and de-facto colonies of France, Britain, and Belgium reached national sovereignty during those years. Nevertheless it took a number of African countries many more years to throw off the yoke of foreign or white supremacist domination and finally reach a state of sovereign political self-determination.
In today's Africa, foreign domination in the sense of European outsiders formally imposing their rule is a thing of the past. Neocolonialism, however, is a force by which foreign control and domination are still felt on the continent. That is, many European countries now exercise political and economic control over African affairs from behind the scenes.
For example, neocolonialism has involved Western countries propping up, or otherwise cooperating with, corrupt and despotic African regimes as long as they do not interfere with the business interests of the former colonial power or other Western states. Examples include the Mobutu regime of former Zaire, Eyadema in Togo, and certainly the rule of Abacha in Nigeria.
Neocolonialism has also meant that African and European state-owned companies, private Western business interests, as well as global multinational corporations tussle for dominance over the exploitation of African national resources. The African nation of Gabon, a member of OPEC, presents a good example of how this can play out. It is a country whose upstream oil industry is controlled by various competitors. They include Petrogarb, Gabon's national oil company; Elf Aquitaine, a French company which until recently was state-owned as well; Amoco and Tenneco, American private oil companies, and Shell, a Dutch-British multinational corporation.
To the extent that foreign corporations, whether state-owned or private, are enmeshed in African economic affairs, one might fairly conclude that African nations have yet to achieve full independence. For example, Douglas Yates cites a 1977 article of "West Africa" magazine in which Agostinho Neto, Angola's first president, is quoted as saying: "Can we say we are completely independent while Cabinda Gulf Oil exploits the petroleum of Cabinda? Obviously not."
Lack of economic independence also plays out in the realm of international diplomacy. African statesmanship, particularly in francophone countries, is often conducted with a view to what the former colonial power, France in particular, would like to see happen.
In October of 1997, the New York Times published a news analysis by its West and Central Africa correspondent, Howard French. The article's headings were "Africa Finds Old Borders Eroding" and "Africa's New Rules: Borders are no Longer Sacred." Indeed, it would appear that mutual respect for national boundaries has been sorely lacking in central and western central Africa over the past few years. By itself, this fact may not indicate newly emerging norms of international customary law with regard to African borders. However, it does draw out the stubborn fiction of sovereignty and territorial integrity that has been maintained in much of Africa.
Angola, in particular, may be singled out as an exemplary transgressor and transgressee when it comes to international borders on the continent. For example, Angolan troops boldly marched into the Congo during the conflict in Congo-Brazzaville in October of 1997. Angolan troops intervened on behalf of former president Denis Sassou-Nguessou. Their military operations proved the decisive blow to the democratically elected Congolese government of Pascal Lissouba. A year prior, Angola had sent troops into Mobutu's Zaire to assist in Kabila's run for power. Interestingly, the Angolan forces first launched their attacks against Zaire not from the western border it shares with Angola, but from the far north and east via Kigali in Rwanda.
Conversely, Angola itself has been subject to territorial incursions and activities that undermine its sovereignty. For instance, the Washington Post reported that up until the fall of 1997, large areas of Angola were still controlled by UNITA, especially the diamond fields. Similarly, South African fortune seekers have been flooding Angola's northeastern diamond regions with "no respect for the country's laws or Angolan sovereignty," as even Angolan government officials admit.
Likewise, arms trafficking appears to have been taking place across Angolan borders with relative impunity. A 1993 report cited continued weapons deliveries to UNITA from Zaire in spite of a UN Security Council resolution prohibiting such activities. In another instance, the Panafrican News Agency reported that Angolan police had intercepted a Russian-registered ship in Cabinda. The ship apparently was carrying rifles, ammunition, rocket launchers, and grenades and was headed for Equatorial Guinea.
In conclusion, it would appear that the Angolan state, has disregarded the territorial integrity of other nations. At the same time, Angola has not been able to maintain full sovereign control over its own territory.
While much has been written about the history and politics of Angola as a whole, little has been published about Cabinda in particular. This is especially true with regard to books and scholarly journals. Even a search of strictly anthropological materials yielded next to nothing. Nevertheless, it is possible to piece together fragments for an overview over Cabinda's historical, political, and socioeconomic conditions. Much of the information dealing specifically with Cabinda has been published in news magazines as well as on the Internet.
Cabinda first came under Portuguese administration in 1885 pursuant to the Treaty of Simulambuco. That treaty was concluded between the Portuguese and local rulers of Cabinda. Unfortunately, a search of local libraries and the Internet did not yield a copy of the treaty. Nevertheless, it is referred to in several sources on Cabinda. Karl Maier, a journalist who has covered Angola in depth, writes that "[t]he Cabindans base their independence claim on the Treaty of Simulambuco of 1885, which first linked Cabinda to Angola but recognised its special status." It apparently forms a legal cornerstone of Cabinda's struggle for national independence.
Regardless of content, the treaty can be seen as one of many treaties concluded between European explorers or imperial agents, on the one hand, and actual or perceived African leaders on the other. Maier notes that in the context of the Scramble for Africa, the Treaty of Simulambuco was a "desperate attempt by Portugal to consolidate its African empire." The treaty meant to protect Portuguese interests against French and Belgian claims to territories in West Central Africa, particularly around the mouth of the Congo river. Indeed, according to one writer, the treaty was recognized as a valid by the 1884-85 Berlin Conference.
Irrespective of the Treaty of Simulambuco, Cabinda was made an integral part of Angola by the dictatorial Salazar government of Portugal in 1956. Interestingly, this coincides roughly with the beginning oil exploration in Cabinda. The timing of the formal incorporation of Cabinda into Angola may also have been related to a United Nations debate set in motion by a routine reminder sent to Portugal by the UN Secretary General in early 1956. In that note, the Secretary General reminded Portugal of its obligation to report on its non-self-governing territories, such as Angola. Portugal replied cooly that it had no such territories - only overseas provinces, which it considered an integral part of Portugal.
By the early 1960s, a variety of regionally based liberation movements had emerged in Angola. Aside from the well-known MPLA and UNITA, who have fueled Angola's civil war since independence, numerous other groups were engaged in the fight against Portuguese rule as well. Despite its small size, the dense forests of Cabinda proved fertile ground for guerrilla resistance in two ways. First, Cabindans themselves came together and formed units of resistance. Second, other liberation movements of Angola began using Cabinda as a convenient launching pad for attacks on Angola.
FLEC, Cabinda's main liberation movement, was formed in 1963 by Cabindan nationalists at a conference in Pointe Noire, a coastal city of Congo-Brazzaville just north of Cabinda. It should be noted that FLEC was not formed as a vehicle for Angolan independence from Portugal, but rather with the express purpose of achieving Cabindan independence from the rest of Angola. FLEC has proved its staying power as Cabinda's strongest liberation front.
However, FLEC was not the only seat of Cabindan resistance in the early 1960s. Activities were also being carried out by MOLICA (Movement for the Liberation of Cabinda) and UPC (Union of Cabindan People), neither of which seem to have survived to the present day. For a territory only about the size of Connecticut with an estimated mere 100,000 inhabitants, Cabinda has had a remarkable proliferation of resistance movements. Indeed, its tendency towards fragmentation may help explain, at least in part, why Cabinda has not been successful in making its claims known to the world at large.
In the 1990s, remarkably diverse actors have jostled side by side in Cabinda, vying for military, political and economic control of the enclave: Cabindan guerrillas, government forces, UNITA troops, U.S. Representatives, government officials, the local population, oil-related actors, and mercenaries.
Cabinda's independence struggle is carried on by three guerrilla groups, two of whom are rival factions of FLEC. The two competing wings of FLEC are FLEC-FAC and FLEC-Renovada. FAC stands for "Forças Armadas de Cabinda," or Armed Forces of Cabinda. It is led by Henrique N'Zita Tiago. FLEC-Renovada is led by Antonio Bente-Bembe, who apparently seized power from its previous leader, Jose Tiburdo, in a coup. The third liberation front consists of a group called FDC, or Democratic Front for Cabinda, which is appears less prominent than FLEC. There have been clashes between FDC and the other two FLEC factions over the control of gold deposits in the Buco Zau area of Cabinda.
In past decades, Cabinda's freedom fighters, FLEC in particular, were able to attract a good deal of financial, military and arms support from Mobutu's Zaire, Gabon, and France. The French, in particular, were interested in broadening opportunities for their national oil company, Elf Aquitaine. However, in recent years, support from external sources has declined, though certainly not stopped.
Accordingly, journalistic accounts of the state of guerrilla warfare in Cabinda paint a bleak picture. Instead of heroic Che Guevara types, Cabinda's fighters have been described as "teenage troops badly in need of haircuts and a good scrubbing." Rob Krott notes excess alcohol consumption among troops, which adds to their belligerency. Depressing photos accompany Krott's report and underscore his final remarks: "No foreign press and no UN observers. ... There is no Geneva Convention in this dirty little bush war."
If there is any military hero in Cabinda, it would have to be Captain Bonga Bonga, who defected to FLEC after twenty years of serving in MPLA's government army, the FAPLA (now FAA). Maier writes that two days prior to his own arrival in Cabinda, "Bonga Bonga [who] is something of a legend in Cabinda ... walked into the city jail and freed 69 prisoners, including seven FLEC-FAC guerrillas, without firing a shot."
The ruling MPLA maintains a strong military presence in the enclave. Its government troops are supposed to suppress Cabindan separatism. Their presence has been likened to a state of military occupation. In 1994, government troops seized intermittent control of most of Cabinda, causing about one fourth of Cabinda's population to flee into the neighboring Congo and Ex-Zaire. Clashes between Angolan troops and Cabinda's resistance continue.
UNITA Troops and United States Representatives
At present, there are few reports of UNITA activities in Cabinda. However, as recently as 1993, UNITA took control of the city of Soyo, a town in the very northwest of contiguous Angola. Soyo is important to Angola's onshore oil production. After taking 17 foreign oil workers hostage in Soyo, UNITA announced its intentions of sabotaging Cabindan oil installations as a follow-up. The United States, who had provided direct support to UNITA throughout the Reagan years, was outraged at UNITA. It issued a warning through Edmund DeJarnette, a U.S. representative in Angola. Reportedly, Mr. DeJarnette made the following verbatim statement to UNITA on January 23, 1993, just three days after Clinton's inauguration. "These are our people and hands off Cabinda, Dr. [sic] Savimbi." The statement is ambiguous as to who "our people" are. DeJarnette may be referring to the kidnapped oil workers of Soyo, the American oil workers in Cabinda, the local population of Cabinda, or maybe all of them.
Recently, the United States again publicly affirmed its stakes in Cabinda when U.S. Secretary Madeleine Albright visited Angola in December of 1997. Albright took it upon herself to venture 25 kilometers out into the sea to speak from Cabinda's Takula drilling platform, which belongs to American oil giant Chevron. She noted that "Angolan oil already accounts for seven percent of U.S. imports -- three times as much as our imports from Kuwait in early 1990." The implication seems clear. If the United States was willing to go to war with Iraq over Kuwaiti oil, then surely the U.S. will want to make sure the situation in Cabinda takes no unwelcome turns and twists which might jeopardize the flow of oil to the U.S. from that region.
Angolan Government Officials
In Cabinda, life can be dangerous for Angola's MPLA government representatives. For example, after the 1992 elections, the residence of then Governor of Cabinda, Augusto da Silva Tomás, came under Kalashnikov fire by ragtag forces of his own government. Da Silva fled through a back window and escaped south to Soyo by boat. Other government officials have lost their lives in Cabinda. Miguel Fernando Nzambi, a senior police officer, was killed by FLEC-FAC after being waylaid. His body was dumped in a river.
On the other hand, some MPLA administrators in Cabinda even openly sympathize with the Cabindan cause. As an explanation, Maier suggests that their approval may be due to their fear of becoming FLEC targets, although "they are just as scared of their own army."
Cabinda's Local Population
The true hero of Cabinda is probably its local population. Unfortunately, there are next to no reports on the lives of average Cabindans not directly involved in guerrilla activities. In 1997, a reporter of L'Autre Afrique interviewed several young people in Cabinda City who explained the realities of life in Cabinda to him. A 22 year old student, identified only as Pedro, explained why very little of Cabinda's deplorable situation leaks to the outside world. "Here ... there is no history of tribunals or of justice. If you rebel, they kill you, that's all. You complain to an official, you are killed, and nobody dares ask that your death be accounted for."
Similarly, Pedro told the reporter about environmental degradation that has resulted from massive off and on shore drilling. "You can see how black the sand is [from the nearby drilling] ... Officially, there is no pollution. When we made a petition demanding an account from the oil company, Chevron failed to reply." In the article the journalist confirms the sand looking particularly black and oily, along with a strong stench of petroleum wafting through the air.
The future does not look bright for Cabinda's youth. The next closest lusophone university is located all the way in Luanda, and there are no monies for Cabindan students to pursue such higher studies. While petroleum is the backbone of Cabinda's economy, local residents do not even have a reliable supply of electricity. Local residents do not share in the oil wealth by any account. Another young man interviewed by L'Autre Afrique, Carlos, said that the only chance for economic advancement lies in obtaining a job in the oil industry. That, however, is difficult, given that most of Chevron's employees are Americans.
Cabinda has been swamped with oil company employees, most of whom are flown in from abroad. However, these employees rarely come into contact with Cabinda's native population. For example, Chevron maintains a secluded complex called Malongo. In contrast to the abject poverty of the rest of Cabinda, Malongo is a true American town with its own electricity, running water, communications network, cinemas, shopping areas, and so on. It even has its on helicopter port from which oil workers are airlifted to and from Cabinda.
Chevron and other oil companies have resorted to the use of mercenaries in an attempt to establish what are in effect their own private armies. Mercenaries not only provide security to the oil workers. They also allow oil companies to physically conquer and claim territories, both onshore and off. Thus, Chevron and others do not just conduct business in Cabinda. In effect they also usurp sovereign functions by securing inviolable territories that are then protected by the force of arms.
Until not long ago, mercenaries in Cabinda were provided mainly through Executive Outcomes, a South African based company. When Executive Outcomes fell out of favor with Cabinda's oil giants, they hired ex-army veterans from the United States instead. However, Executive Outcomes may still have stakes in Cabinda. Reportedly, the Angolan government has shown interest in using Executive Outcomes troops as a backup to its own national armed forces, the FAA.
A full assessment of the legal aspects of the right of self-determination in Cabinda should first take into account all specific instruments regarding the enclave. This would include the Treaty of Simulambuco of 1885, upon which Cabindan independence claims are primarily based. It would also include the Treaty of Alvor of 1975, which set the terms for Angolan independence. Signed by FNLA, UNITA, and MPLA --but not by any representatives from Cabinda--, article 3 of the Alvor treaty states that "Angola constitutes one indivisible unity. In this context, Cabinda is an integral and inalienable part of Angola."
In addition, international instruments speaking on the right of self-determination should be applied to the situation in Cabinda, such as the 1960 and 1970 UN General Assembly declarations and the African (Banjul Charter). In light of these, the population of Cabinda should be able to assert a successful claim to self-determination. Cabinda forms a distinct geographic unit with a shared history that is unlike that of the rest of Angola. Moreover, the population of Cabinda receives next to no benefit from its rich petroleum reserves. The production and profits of oil are controlled solely by outside corporations.
Meanwhile the population of Cabinda suffers from poverty, lack of infrastructure and educational opportunities, as well as environmental degradation due to massive drilling operations both offshore and onshore. Cabindan and Angolan journalists reporting on the situation in Cabinda have been harassed, intimidated, and killed. On the other hand, outside journalists are rare visitors, thus weakening another line of communication.
With respect to the sovereignty and territorial integrity of the Angolan state, Cabinda could argue several reasons for why its right of self-determination should prevail over any countervailing considerations. First, given the long civil war in Angola with its near parity of power between MPLA and the rebel UNITA, Cabinda could argue that Angolan sovereignty was never clearly established after independence.
Second, even assuming Angola's status as a nation state, Angola has neither been able to maintain its own territorial integrity, nor has it much respected that of others. Accordingly, it should not be able to assert territorial integrity as a defense to Cabinda's claim to self-determination by way of secession.
Third, Cabinda has had no real possibility of mitigating its dire condition by way of representative participation in Angola's political institutions. This is so for the following two reasons. Democratic political processes in Angola have been practically non-existent, and continue to be so. In addition, to the extent the Angolan legislature functions at all, political parties cannot participate in it unless they can show the support of 14 out of 18 Angolan provinces. Given FLEC's separatist politics, there is little chance of FLEC garnering support in thirteen provinces outside of Cabinda.
As a possible solution to the conflict in Cabinda, the international community might want to step in and conduct a plebiscite under the auspices of the United Nations. Such a referendum, provided it can be accomplished in a relatively safe and fair manner, with minimum bloodshed, would allow the people of Cabinda to freely express their political destiny. However, even if Cabinda obtains national independence from Angola, how would it be able to regain control of its economic resources? International law allows a people to become independent from another nation state. But on what basis could Cabinda free itself from economic oppression at the hands of powerful oil companies? At present, the global trend is towards privatization, not nationalization.
The multinational companies and all actors involved in Cabinda's destructive exploitation, including local guerrillas, will hopefully be forced some day to account for the gross injustices they continue to inflict. In the meantime, the people of Cabinda are quietly exploited in the backwaters of our globe. In part, the situation goes unchecked because Cabinda's communication links with the rest of the world are weak and unstable. Cabindans must become able to broadcast their story to the world, whether through local and foreign journalists or via the internet and even study abroad abroad programs. Only then will Cabinda stand a chance at realizing its right of self-determination.
Angola Peace Fund, Inc., Alvor and Beyond: Political Trends and Issues in Angola (1988)(chronological account and legal analysis of the Treaty of Alvor, the independence agreement signed by Portugal, MPLA, FNLA, and UNITA in 1975).
Basil Davidson, In the Eye of the Storm - Angola's People (1972)(description of pre-independence Angola).
Basil Davidson, Modern Africa (3rd ed. 1994).
Jim Hudgens & Richard Trillo, West Africa (2d ed. 1995)
W. Martin James III, A Political History of the Civil War in Angola 1974-1990 (1992)(focusing on the history of UNITA in particular).
Phyllis M. Martin, Historical Dictionary of Angola (1980)(reference book with alphabetical entries relevant to Angola).
Karl Maier, Angola: Promises and Lies (1996)(journalistic account of Angolan civil war, its causes and aftermath).
William Minter, Apartheid's Contras - An Inquiry Into the Roots of War in Angola and Mozambique (1994)(providing, inter alia, historical background to and political dynamics of ethnic and regional identity in Angola today).
William Minter, Portuguese Africa and the West (1972)(historical analysis of Western, in particular United States, policy regarding Angola prior to its independence).
William J. Samarin, The Black Man's Burden (1989)(describing the use of Cabindans and other Bakongo as colonial labor between 1880 and 1900 from a rather Eurocentric perspective).
Miles Smith-Morris, Recent History, in Africa South of the Sahara 138 (1996)(dense account of liberation struggles in Angola from April 1974 through June 1995).
Michael Wolfers & Jane Bergerol, Angola in the Front Line (1983)(focusing in particular on the history of MPLA).
George Wright, The Destruction of a Nation (1997)(overview over United States policy vis-à-vis Angola from 1945 through 1996).
Douglas A. Yates, The Rentier State in Africa: Oil Rent Dependency and Neocolonialism in the Republic of Gabon (1996).
The Right of Self-Determination/International Law
Hanna Bokor-Szego, New States and International Law (1970).
Barry E. Carter & Phillip R. Trimble, International Law (2d ed. 1995)(law school textbook).
Antonio Cassese, Self-Determination of Peoples (1995).
Hurst Hannum, Autonomy, Sovereignty, and Self-Determination (rev. ed. 1996).
Harold S. Johnson, Self-Determination Within the Community of Nations (1967).
David B. Knight & Maureen Davies, Self-Determination (1987)(supplying an annotated interdisciplinary bibliography that takes into account theory, practice, case studies, and contains an introductory overview to the right of self-determination).
Anna Michalska, Rights of Peoples to Self-Determination in International Law, in Issues of Self-Determination 71 (William Twining ed. 1991)
Siba N'Zatioula Grovogui, Sovereigns, Quasi-Sovereigns, and Africans (1996)(providing a postmodern critique of the international legal system as catering to continued hegemonic interests of Western nations).
W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (1977).
Christopher O. Quaye, Liberation Struggles in International Law (1991).
Issa Shivji, The Right of Peoples to Self-Determination: an African Perspective, in Issues of Self-Determination 33 (William Twining ed. 1991).
Okon Udokang, Succession of New States to International Law (1972).
Umozurike O. Umozurike, Self-Determination in International Law (1972).
Works in Journals
Henry J. Richardson III, "Failed States," Self-Determination, and Preventative Diplomacy, 10 Temp. Int'l & Comp. L.J. 1 (1996).
Magazine, Newspaper, Internet Articles and Other Reports
Africa Information Afrique (AIA), Wealth Amid Poverty gopher://csf.colorado.edu/00/ipe/Thematic_Archive/newsletters/africa_information_afrique_net (Jan 8, 1996)
Amnesty International, Amnesty International Report 71 (1997)(annual human rights report).
Angola: Zaire Defies Ban on Arms Supplies, Oct. 27, 1993, at 1 (Africa Information Afrique "AIA").
Suzanne Daley, Africa's "White Tribe" Fears Dark Past is Prologue, N.Y. Times, Feb. 22. 1998, at A1, A11.
Howard W. French, Africa Finds Old Borders Eroding, The New York Times, Oct. 18, 1997, at A1, A7.
Howard W. French, West Africa's New Oil Baron, The New York Times, Mar. 7, 1998, at D1.
Jeffrey Goldberg, Our Africa, The New York Times Magazine, Mar.2, 1997, at 34.
Guerra sem Ibope: Cabinda, 251 Sem Fronteras, June 1997, at 33 (editorial article by a Brazilian magazine published online).
Human Rights Watch, Human Rights Watch World Report 9 (1995)
Rob Krott, Battle for Cabinda, New African, Mar. 1998, at 12.
L'Autre Afrique, L'Enclave de L'Or Noir, Dec. 24, 1997, at 36.
Mail & Guardian, Ex-US Army Vets Flood to Guard Angola Oilfields, Oct. 10, 1997 (South African newspaper, also available online).
Mail & Guardian, Separatists Launch Offensive, Aug. 11, 1997.
Alice Martin, Identity Crisis, BBC Focus on Africa, Apr. 1997, at 26 (describing how in Ethiopia's southeastern Region Five, which is mostly Somali, even the trading currency is Somali shillings rather than Ethiopain birr).
Ministry of Information, Republic of Biafra, The Concept of Territorial Integrity and the Right of Biafrans to Self-Determination, 20 Afr. L. Pam. No.6.
Panafrican News Agency, Ship Carrying Weapons Arraigned in Cabinda, May 21, 1997.
Roberto, Cabinda, in Karibu (Oct. 1996), http://www.karibu-online.demon.co.uk/experiences/one/roberto.htm.
James Rupert, Rebellion in Senegal Flares Anew, Washington Post, Oct.4, 1997, at A15.
United States Information Agency, Remarks by US Secretary of State, Dec. 12, 1997.
The Washington Post, Angolan Ex-Rebels Quit Town, Win Delay, Sept. 30, 1997, at A16.
Weekly Mail and Guardian, Treasure-Seekers Find Only Trouble, Sept. 20, 1996 (Association for Progressive Communications).
ZA*NOW, Angola Enters Brazzaville Fray, Oct. 13, 1997, at 3.
 From the former Soviet Union, many divergent nation states emerged in 1991, such as Lithuania, Georgia, Belarus, Uzbekistan, and others. The violent break-up of the former Yugoslavia similarly created new and independent sovereign entities. Czechoslovakia broke into two separate states, Slovakia and the Czech Republic in the beginning of 1993. Most recently, ethnic Albanians in the Kosovo region of Serbia have made known their demands for an independent state.
 But see the viewpoint of Colonel Odumegu Ojukwu, Biafra's secessionist leader, who is quoted in Quaye as saying that "a country never disintegrates because another one did. ...one so called secession does not necessarily lead to another." Christopher O. Quaye, Liberation Struggles 220 (1991).
However, Ojukwu's view fails to consider how easily groups with separate causes fighting in one region may become interconnected - particularly if they are fighting a common enemy. As a case in point, the Eritrean People's Liberation Front (EPLF) in fact provided the Oromo's struggle with psychological, political, and even military support. Dan Connell, Against All Odds - A Chronicle of the Eritrean Revolution 176, 209, 233 (rev. ed. 1997). He writes that "[during the 1980s], the EPLF would arm, train, back up and even fight side by side with ... the Oromo Liberation Front and several other underground groups inside Ethiopia..." Id. at 176.
 James Rupert, Rebellion in Senegal Flares Anew, Washington Post, Oct.4,1997, at A15; Jim Hudgens & Richard Trillo, West Africa 173 (2d ed. 1995).
 Morocco continues to claim Western Sahara as its territory and has even advanced claims against parts of Mauritania. For the time being, a UN brokered seize-fire is in effect in Western Sahara and the situation remains in limbo.
 There has been plenty of name confusion since the ex-Zaire reclaimed the name 'Congo' after the fall of Mobutu. To alleviate some of that confusion, the Democratic Republic of Congo is often called DRC for short, while the Congo is again being called by its colonial name, Congo-Brazzaville. This presents an attempt to avoid confusion with the ex-Zaire which itself has reclaimed the name Congo.
Potentially adding to the confusion, a budding liberation movement of Bakongo lays claim to the name Congo as well. That movement is composed of Bakongo from northern Angola and is based in London, Johannesburg, and parts of the United States.
 João V. Martins, Crenças, Adivinhação e Medicina Tradicionais dos Tutchokwe do Nordeste de Angola 32 (1993)(providing an chart of Angola's ethnic groups); W. Martin James III, A Political History of the Civil War in Angola 1974-1990 23 (1992).
The Bakongo ("people of the Congo") are a group of peoples in western Central Africa. They comprise a range of ethnic and linguistic subdivisions, such as Bayombe, Basolongo, Bazombo, etc. This nomenclature is similar to that of the Akan of Ghana or the Yoruba of Nigeria. Bakongo peoples speak Kikongo on a wide continuum of dialects.
 See W. Martin James III, A Political History of the Civil War in Angola 1974-1990 27 (1992).
 For example, a British publication named Karibu published a web page entitled "Cabinda," the author of which is identified simply as "Roberto, Angola." Roberto claims that "[t]he Cabindese [sic] ... do not have ethnic relations [with Angola]. Cabinda is not part of Angola, it is separate." http://www.karibu-online.demon.co.uk/
experiences/one/roberto.htm (Oct. 1996).
 Several references compare Cabinda to Kuwait. Karl Maier, Angola: Promises and Lies 68 (1996); Jean-Dominique Geslin, Autant Que le Koweit, Jeune Afrique, Dec. 16, 1997, at 135; Guerra Sem Ipobe, Sem Fronteiras, June 1997, at 33.
 E.g. Professor Richardson reminds us that rights do not exist in a vacuum, but that, conceptually at least, every right has a correlative duty attached to it somewhere. For example, he has suggested that a full realization of people's economic rights under international law would require that those in control of economic resources should have a duty to alleviate poverty. See Henry J. Richardson, III, "Failed States," Self-Determination, and Preventative Diplomacy, 10 Temp. Int'l & Comp. L.J. 1, 8 (1996).
 See Black's Law Dictionary 919 (abridged 6th ed. 1991).
 In recent years, international jurists have written extensively about the increased importance and recognition of non-state entities (such as individuals, communities, and international organizations) as newly protected actors under international law. E.g., Teson, The Kantian Theory of International Law, in International Law 74 (Barry E. Carter & Phillip R. Trimble eds., 2d ed. 1995)(emphasizing that individuals, not states or governments, should be regarded as the "primary normative unit" of international law); see also, e.g., Barton & Carter, International Law and Institutions for a New Age, in International Law 36, 38-39 (Carter & Trimble, supra)(outlining the expansion of international law to include as its subject the conduct and rights of individual and corporate persons, as well as those of sovereign nations).
 See David B. Knight & Maureen Davies, Self-Determination 1 (1987); see also Henry J. Richardson, III, "Failed States," Self-Determination, and Preventative Diplomacy, 10 Temp. Int'l & Comp. L.J. 1, 47 (1996)(juxtaposing peoples and states to show how presumptive equations of a state with its peoples may undermine any meaningful application of the right of self-determination). Richardson suggests "discarding the classic postulate that the state under international law 'represents' the peoples within its borders, in favor of a postulate that the state represents only its own bureaucratic consent as against the people within its borders." [my italics]
 Etymologically, the word "self-determination" apparently derives from the German "Selbstbestimmung." Umozurike O. Umozurike, Self-Determination in International Law 3 (1972). To native speakers of German, the word carries connotations of labor organizations and industrial democracy.
 For instance, as a result of asserting the right of self-determination, a people may gain national independence, attain limited autonomy within an existing state, or merely achieve increased minority rights.
 Hurst Hannum, Autonomy, Sovereignty, and Self-Determination 40 (rev. ed. 1996).
 Grovogui points out the irony of using Western jurisprudence as a means of dismantling colonialism, when colonialism derived justification from that very system. In his book, he is appropriately critical of Western international law as intrinsically protective of Western hegemony. However, he does concede the potential value of adopting Western legal concepts and reshaping them for the purpose of African liberation. Yet as a practical matter he concludes that the adoption and adaptation of Western idioms have not worked to Africa's advantage: "The current postcolonial crises suggest that the results of [that] strategy have been mixed at best." Siba N'Zatioula Grovogui, Sovereigns, Quasi-Sovereigns, and Africans 196 (1996).
 Issa Shivji, The Right of Peoples to Self-Determination: an African Perspective, in Issues of Self-Determination 33, 33 (William Twining ed. 1991).
 E.g. Okon Udokang, Succession of New States to International Treaties 76-77 (1972).
 Antonio Cassese, Self-Determination of Peoples 19-23 (1995); David B. Knight & Maureen Davies, Self-Determination 4 (1987).
 Cassese at 19.
 Hurst Hannum, Autonomy, Sovereignty, and Self-Determination 32 (rev. ed. 1996)(quoting from Lenin's writings on national policy).
 Antonio Cassese, Self-Determination of Peoples 16 (1995)(quoting from a letter written to Lenin in 1922 by the Soviet Union's foreign minister).
 See Umozurike O. Umozurike, Self-Determination in International Law 182 (1972).
 See Basil Davidson, Modern Africa 69-79 (3rd ed. 1994)(describing how between 1930 and 1945, anti-colonial struggles gained momentum through youth associations and the spread of pan-African ideas among educated elites).
 Hurst Hannum, Autonomy, Sovereignty, and Self-Determination 33 (rev. ed. 1996); Hanna Bokor-Szego, New States and International Law 16 (1970).
 See Anna Michalska, Rights of Peoples to Self-Determination in International Law, in Issues of Self-Determination 71, 85 (William Twining ed. 1991). But see Hannum, Autonomy 33 (rev. ed 1996)(accepting the Declaration's lack of express language as evidence that it provides no support for the right of self-determination).
 The artificial division between civil and political rights on the one hand, and economic, social, and cultural rights, on the other, are a historical result of the ideological schism of the Cold War.
The identical language of Article 1 of both conventions, however, underscores the relevance of both kinds of rights to a meaningful right of self-determination.
 G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. 16, at 66 U.N. Doc. A/4684 (1960)(declaring that "[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.").
 G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. 28, at 121, U.N. Doc. A/8028 (1970)("Every state has the duty to respect this right [of self-determination] in accordance with the provisions of the [United Nations] Charter. ... Nothing ... shall be construed as authorizing ...any action which wold dismember or impair ... the territorial integrity ... of sovereign and independent States...").
 See Richardson, "Failed States" 10 Temp. Int'l & Comp. L.J. 1, 42 (1996); Hannum, Autonomy 34-35 (rev. ed. 1996).
 It should be noted that more instruments on the right of self-determination exist than could be accommodated for the purposes of this paper. One of the more interesting of those is the Algiers Declaration, a non-binding declaration adopted in 1976 by a group of radical academics, trade unionists, and representatives of national liberation movements. See Issa Shivji, The Right of Peoples to Self-Determination: an African Perspective, in Issues of Self-Determination 33, 41 (William Twining ed. 1991); see Antonio Cassese, Self-Determination of Peoples 296-303 (1995).
 See Restatement (Third) of Foreign Relations Law of the United States [[section]]206(a)("Under international law, a state has ... sovereignty over its territory...").
 Quaye describes how R. Emerson seeks to severely limit the applicability of the right of self-determination lest it become, in Emerson's words, "...a declaration of an extreme liberation or even anarchistic variety, authorizing any group which designates itself as a people to disrupt the existing polity and set up a new one which meets their desires." Christopher O. Quaye, Liberation Struggles in International Law 218 (1991), quoting from R. Emerson, Self-Determination, Proc. A.S.I.L. 136-37 (Apr. 1966).
 David B. Knight & Maureen Davies, Self-Determination 3 (1987).
 Schachter, State Succession, in Barry E. Carter & Phillip R. Trimble, International Law 480, 481 (2d ed. 1995)("[The] basic differentiation between changes in government and changes in sovereignty is rarely questioned but ... the distinction 'in some cases wears thin to the point of disappearance' and may be 'quite arbitrary.'").
Okon Udokang notes as well that some scholars perceive the distinction between succession of states and mere government succession as artificial. Okon Udokang, Succession of New States to International Law 112 (1972).
 This information is based on the recollections of Burkinabe friends and acquaintances.
 Udokang, Succession 382 (1972)(referring to the "re-assertion of historic titles to tracts of land" by a new sovereign). The most famous and tragic example of this happening in history are the claims and activities of the government of Adolf Hitler after coming to power in Germany in 1933. But see W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law 164 (1977)(arguing that any form of exercising the right of self-determination is unlikely to raise issues of territorial boundaries).
 Udokang, Succession 381-87 (1972); Alice Martin, Identity Crisis, BBC Focus on Africa, Apr. 1997, at 26 (reporting on the strong ethnic links between Somalia and southeastern Ethiopia).
 See Antonio Cassese, Self-Determination of Peoples 118-19 (1995).
 For better or worse, this principle has been fully grasped by Israel and Switzerland, examples of two nations that guard every square foot of their territory with military zeal.
 Id. at 109. Note that Article 2(3) of the UN Charter, while codifying the principle of territorial integrity, makes its prohibition against territorial violations applicable against UN member states, not against peoples in search of self-determination. Even Article 2(6), the provision that makes the UN Charter provisions relevant to non-member states, is worded in terms of states as opposed to liberation movements or other non-state actors.
 Observation by Jeffrey Herbst of Princeton University during his presentation at a roundtable discussion at the Fourth Annual African Studies Workshop at the University of Pennsylvania in October, 1996.
 Ministry of Information, Republic of Biafra, The Concept of Territorial Integrity and the Right of Biafrans to Self-Determination, Temple University School of Law Call Location: 20 Afr. L. Pam. No.6.
 Cf. Antonio Cassese, Self-Determination of Peoples 114 (1995)(arguing that based on provisions in the 1970 Friendly Relations declaration, the right of self-determination should attach primarily to racial or religious, but not to linguistic groups).
 E.g. Umozurike at 199.
 Id. at 198-99.
 Cassese at 133-40; Quaye at 60-61.
 Quaye at 63-64.
 As the name implies, decolonization means the process of undoing or ending colonization for the purpose of reestablishing indigenous rule.
 See generally Basil Davidson, Modern Africa (3d ed. 1994)(ably summarizing the particular dynamics that led to the decolonization movement after World War II). It is interesting to note that the stated objectives of the varios African liberation movements did not coalesce in all cases. While most wanted complete and immediate national independence, others were willing to settle for increased autonomy within the status quo.
 By "de facto" colonies I mean countries such as the Belgian Congo (now DRC), Rwanda, or Togo. They were ruled not as imperial colonies, but according to "trustee" mandates of the League of Nations and its successor, the UN. In theory, the trusteeship system represented a model of benevolent European rule designed to "prepare" African nations for self-government. In practice, however, colonial and trusteeship hardly differed, hence the expression "de-facto colonies."
 The list includes Ghana (1957), Guinea (1958), and Senegal (1959) prior to 1960. That year, 1960, marked the independence of Burkina Faso (then Upper Volta), Benin (then Dahomey), Cameroon, Central African Republic, Chad, Congo-Brazzaville, Congo-Kinshasa (now DRC), Côte D'Ivoire, Gabon, Mali, Niger, Nigeria, Somalia, and Togo. Over the next few years, independence also came for Madagascar, Mauritania, Sierra Leone (1961); Burundi, Uganda, and Rwanda (1962); Kenya (1963); Malawi, Tanzania, and Zambia (1964); and the Gambia (1965).
 This includes Angola and Mozambique (1975), Zimbabwe (1980), and Namibia (1990).
 Opinions differ with regard to whether the white man's minority rule of South Africa should be classified as foreign or as endogenous. The 1994 elections formally ended the apartheid system. Many African nationalists, both within and outside of South Africa, have suggested that the best way to rid the country of all remnants of apartheid would be to "send the white people home." That idea implies that South African whites are not really South African, and definitely not "African."
However, many South African whites --especially the Afrikaans-speaking Boers-- do not appear to have significant cultural, economic, or social ties outside of Africa. Der Spiegel (German news magazine), "Wir Sind Alle Bastarde," Mar. 3, 1998, at 190; see Suzanne Daley, Africa's "White Tribe" Fears Dark Past is Prologue, N.Y. Times, Feb. 22. 1998, at A1, A11. Accordingly, if there is no longer any "home" to send South African whites back to, one might rather conclude that South Africa's white minority rule - while racist and supremacist - was not foreign, but rather a homegrown phenomenon.
 Africa historian Davidson explains the policy goals of European neocolonialism, a policy that first arose in the context of decolonization, as "the handing over of power to African groups ... who could be relied on to safeguard the ... economic interests ... of the former empire-owners." Basil Davidson, Modern Africa 81, 100-101 (3rd ed. 1994).
 See Basil Davidson, Modern Africa 99-100 (mentioning competitive struggles between European national and Western multinational corporations).
 In oil industry jargon, "upstream" operations relate to the drilling and pumping of crude oil. By contrast, the term "downstream" refers to the transportation, refinement, and marketing of petroleum products.
 Due to the global trend towards privatization, in Africa, too, more and more foreign business interests are now held by private corporations.
 Cabinda Gulf Oil (or CABGOC, for short) is a wholly owned subsidiary of Chevron, a private coporation based in the United States. CABGOC is the corporate entity through which Chevron operates in Angola.
 Douglas A. Yates, The Rentier State in Africa: Oil Rent Dependency and Neocolonialism in the Republic of Gabon 227 (1996)(citing an article by Basil Davidson).
 Howard W. French, Africa Finds Old Borders Eroding, The New York Times, Oct. 18, 1997, at A1, A7.
 For example, one South African online publication reported on October 13, 1997 that an unconfirmed 1,000 Angolan troops had entered the civil war in the Congo. ZA*NOW, Angola Enters Brazzaville Fray, Oct. 13, 1997, at 3.
 According to Professor Tom Callaghy, presenting at the Fifth Annual African Studies Workshop at the University of Pennsylvania in October of 1997.
 The Washington Post, Angolan Ex-Rebels Quit Town, Win Delay, Sept. 30, 1997, at A16.
 Weekly Mail and Guardian, Treasure-Seekers Find Only Trouble, Sept. 20, 1996 (Association for Progressive Communications).
 Angola: Zaire Defies Ban on Arms Supplies, Oct. 27, 1993, at 1 (Africa Information Afrique "AIA").
 Panafrican News Agency, Ship Carrying Weapons Arraigned in Cabinda, May 21, 1997.
 Phyllis Martin notes that "few works in English have appeared on the ... topics [of anthropology, sociology, and culture in Angola]." Phyllis M. Martin, Historical Dictionary of Angola 97 (1980). Works on Cabinda in French or Portuguese were not found either at local libraries.
 E.g. Guerra sem Ibope: Cabinda, 251 Sem Fronteras, June 1997, at 33 ("The rebels of Cabinda ... accused Portugal of never having complied with the compromises agreed to by the Treaty of Simulambuco of the last century. According to them, this is the historical reason for the conflict." [my translation]).
 Karl Maier, Angola: Promises and Lies 67 (1996).
 L'Autre Afrique, L'Enclave de L'Or Noir, Dec. 24, 1997, at 37; see W. Martin James III, A Political History of the Civil War in Angola 1974-1990 22 (1992)(stating that "FLEC argued that Cabinda had been illegally integrated by the [Portuguese] Salazar regime ... in violation of the Treaty of Simulambuco.").
 Maier, Angola: Promises and Lies 67 (1996).
 W. Martin James III, A Political History of the Civil War in Angola 1974-1990 23 (1992).
 Mail & Guardian, Separatists Launch Offensive, Aug. 11, 1997; But see James III, A Political History of the Civil War in Angola 1974-1990 22 (1992)(naming 1958, not 1956, as the year Cabinda was formally integrated into Angola).
 See James III, A Political History of the Civil War in Angola 1974-1990 23 (1992)(noting that the Gulf Oil Corporation of America began prospecting for oil in Cabinda in 1954); cf. William Minter, Portuguese Africa and the West 118 (1972)(naming 1957 as the starting year of Gulf Oil explorations in Angola).
 William Minter, Portuguese Africa 50 (1972).
 See Minter, Portuguese Africa at 50 (describing the stubborn position taken by Portugal against the UN).
 See Miles Smith-Morris, Recent History, in Africa South of the Sahara 138 (1996); see Phyllis M. Martin, Historical Dictionary of Angola 8 (1980); see Angola Peace Fund, Inc., Alvor and Beyond: Political Trends and Issues in Angola 4-5 (1988). The main liberation movements of Angola were the MPLA, UNITA, and FNLA. In early 1975, all three groups signed the Treaty of Alvor with Portugal, which set forth terms and conditions for Angola's November 1975 independecnce from Portugal. Article 1 of the agreement states that "[t]he Portuguese State acknowledges that the liberation movements FNLA, MPLA and UNITA are the sole representatives of the Angolan people."
The FNLA, however, quickly lost military backing from abroad so that MPLA and UNITA were left to face each other in a long, bloody war over the rule of Angola. Today, the MPLA, which for years followed doctrinaire Marxist-Leninism, still rules Angola through President Eduardo dos Santos, who was first democratically elected in 1992. The equally powerful UNITA, led by Jonas Savimbi, has not yet given up the hope of formally ruling Angola some day and still controls vital Angolan territory, such as most of the diamond fields in the northeastern regions.
 These groups include UPNA, which later merged with smaller groups to form the FNLA of Holden Roberto. UPNA ("União das Populaçoes do Norte de Angola," or Union of the Populations of the North of Angola) was formed with mainly Bakongo support in 1957. James III, A Political History of the Civil War in Angola 1974-1990 42 (1992). Under the leadership of Holden Roberto, the UPNA was renamed UPA in 1958 in order to attract more than just northern, Bakongo support. Phyllis M. Martin, Historical Dictionary of Angola 88 (1980).
 For example, in 1963, the MPLA was expelled from Kinshasa and was therefore no longer able to attack Portuguese Angola from Zairean soil. After moving its headquarters to Brazzaville in the Congo, the group began attacking Cabinda instead. See William Minter, Portuguese Africa and the West 62 (1972).
 Martin, Historical Dictionary 49 (1980).
 Michael Wolfers & Jane Bergerol, Angola in the Front Line 219 (1983).
 According to the news magazine L'Autre Afrique, Cabinda has about 7,270 square kilometers, or approximately 5,000 square miles. L'Autre Afrique, L'Enclave de L'Or Noir, Dec. 24, 1997, at 36. By comparison, Connecticut is listed at 5,018 square miles in the New York Times 1998 Almanac.
 The estimate of about 100,000 inhabitants is given in a recent article of the news magazine New African. Rob Krott, Battle for Cabinda, New African, Mar. 1998, at 12. Older figures put the size of Cabinda's population at 70,000 for 1974 and over 80,000 for 1970, respectively. W. Martin James III, A Political History of the Civil War in Angola 1974-1990 23 (1992)(stating that of a population of 70,000, about 3,000 were white); Phyllis M. Martin, Historical Dictionary of Angola 22 (1980)(providing the figure of 80,857 based on a 1970 census).
 See, for example, Phyllis Martin, who writes that "[t]he Cabindan independence movement has suffered through its history from personal rivalries and internal division that have hopelessly weakened its efforts." Martin at 49.
 Rob Krott, Battle for Cabinda, New African, Mar. 1998, at 12.
 This information is based on the statements made at a press conference in 1997 by Major João Batista Bras, who apparently deserted FLEC and turned himself in to MPLA government authorities. Rob Krott, Battle for Cabinda, New African, Mar. 1998, at 15.
 Id. at 14.
 Martin at 49.
 Karl Maier, Angola: Promises and Lies 66 (1996)
 Rob Krott, Battle for Cabinda, New African, Mar. 1998, at 15.
 Maier at 64.
 L'Autre Afrique, L'Enclave de L'Or Noir, Dec. 24, 1997, at 37.
 E.g. Mail & Guardian, Separatists Launch Offensive, Aug. 11, 1997.
 George Wright, The Destruction of a Nation 171 (1997); Miles Smith-Morris, Recent History, in Africa South of the Sahara 138, 143 (1996).
 Wright at 171 (my italics, Wright's brackets).
 United States Information Agency, Remarks by US Secretary of State, Dec. 12, 1997.
 Rob Krott, Battle for Cabinda, New African, Mar. 1998, at 13; Maier at 60.
 Krott at 13; Maier at 60.
 Maier at 64.
 Maier at 63.
 L'Autre Afrique, L'Enclave de L'Or Noir, Dec. 24, 1997, at 37 (my translation).
 Id. (my translation).
 Id. Interestingly, Chevron's web site makes no reference to its number of local versus American oil employees in Cabinda. The photo accompanying Chevron's profile of its Angola venture, however, shows an Angolan employee wearing a hard hat, smiling in front of a maze of pipelines.
 William Reno gave a succinct account of this kind of phenomenon in 1996 at the University of Pennsylvania during a roundtable discussion at the Fourth Annual African Studies Workshop.
 See William Reno's contributions to the 1996 roundtable discussion. At that event, Reno also wondered if and how accountability can be achieved or maintained as more and more government functions are taken over by private entities.
 Mail & Guardian, Ex-US Army Vets Flood to Guard Angola Oilfields, Oct. 10, 1997.
 Miles Smith-Morris, Recent History, in Africa South of the Sahara 138, 141 (1996).
 Plebiscites in general are discussed fully and carefully by Johnson and might work for Cabinda, too. Harold S. Johnson, Self-Determination Within the Community of Nations 90-98 (1967).
|Previous Menu||Home Page||What's New||Search||Country Specific|