- 35-Independence or Autonomy : The Right to Self-Determination in the Enclave of Cabinda

For decades, armed groups in the Angolan enclave of Cabinda have been attempting to overthrow the Angolan government and establish an independent state. However, since their military struggle has not succeeded, what, if any, basis for secession can Cabinda claim under international law? This article argues that while Cabindan nationalists can draw upon a number of effective legal arguments justifying independence, the enclave ultimately has a better claim not to full independence, but rather to autonomy within Angola. This is demonstrated by considering and refuting three major legal arguments used by proponents of Cabindan independence. After a brief review of the relevant legal concepts and Cabindan history, the first argument to be examined is that Cabinda’s distinct historical status voids Angola’s uti possidetis claim to Cabinda. Following this will be a review of the claim that political abuses and the denial to the Cabindan people of a plebiscite on independence grant Cabinda the right to ‘external’ self-determination. The final argument to be examined is that the scale of the misappropriation of Cabinda’s oil wealth by Angola and foreign companies justifies independence, given the enclave’s present lack of economic self-determination. The article ultimately concludes that although Cabinda had a stronger case for secession during the Angolan civil war, recent political and economic changes have weakened Cabinda’s claims under

international law, self-determination is one of the most frequently contested.In Africa in particular, weak states often rely on the right to self-determination to condemn 'imperial' interference, while at the same time delicately avoiding the use of this language when referring to domestic populations.The perpetual confusion over who constitutes a 'people' deserving the right to self-determination, combined with a colonial history that left Africa a patchwork of states drawn for Western administrative ease rather than legitimate ethnic linkages, has spawned separatist and irredentist tensions from Western Sahara to Namibia.When identities become complex and politicized by circumstances, and 'rights' to territory and governance confused, the basic foundations for conflict are created.
Although Africa faces many difficult legal and political questions resulting from the right to self-determination, some conflicts stand to have a greater impact than others.One of the least known African conflicts is the low-level struggle for the enclave of Cabinda.This tiny territory, although home to only 400,000 of Africa's approximately one billion people, happens to be among the most oil-rich territories on the continent, and has thus been hotly contested by separatist rebels, the Angolan government, and often by foreign states with diverse political or economic interests.
In this paper, international laws regarding self-determination and their potential application to Cabinda will be examined in order to determine whether Cabinda's unilateral secession from Angola would be legally justifiable.Three arguments for Cabinda's independence shall be considered.After a brief review of the relevant legal concepts and Cabindan history, the first to be examined is the argument that Cabinda's distinct historical status voids Angola's uti possidetis claim to Cabinda.Following this is the argument that political abuses and the denial to the Cabindan people of a plebiscite on independence grant Cabinda the right to 'external' self-determination, that is to say, independence.The final argument will examine whether the scale of the misappropriation of Cabinda's oil wealth by Angola and foreign companies justifies independence, given the lack of economic self-determination.Throughout the paper, it will be argued that while Cabinda may have a claim to full independence, this assertion was much stronger in the past, and thus, today, the most that Cabinda can reasonably expect to achieve is greater autonomy within Angola.

Argument 1: Historical Differences Justify Cabindan Independence
The right to self-determination has had a controversial history in the twentieth century.Despite having been enunciated by Woodrow Wilson after World War I, codified as a fundamental 'principle' in the United Nations Charter, and later confirmed as a full human right in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Political Rights (ICESPR), the right to self-determination is often difficult to pin down.The tension between the right of 'peoples' to selfdetermination and the right of states to territorial integrity has meant that the application of either 'right' has not been universal, as is demonstrated by the United Nations' condemnation of separatist conflict in Katanga (a region of modern Democratic Republic of Congo) and its silence on the war in Biafra (in present-day Nigeria). 1 Both decolonization in the 1960s and the messy civil conflicts of the post-Cold War have also transformed our understanding of how this concept is to be interpreted.
What is clear, however, is that the right to self-determination does not immediately entail a right to independence, but rather a right to autonomy.The three official options for a non-self governing territory are to gain independence, maintain autonomy within an existing state, or integrate fully with an existing state. 2 Secession is not explicitly illegal,3 but there are conditions that limit how it can be achieved.A region seeking independence must somehow have its populace identified as a 'people,' the new state must conform with 1 John Dugard, "A Legal Basis For Secession: Relevant Principles and Rules," in Secession and International Law, ed.Julie Dahlitz (The Hague: T.M.C. Asser Press, 2003): 91.
2 John H. Currie, Craig Forcese, and Valerie Oosterveld, International Law: Doctrine,  Practice and Theory (Toronto: Irwin Law, 2007), 321.previous administrative boundaries (uti possidetis), and independence may only be pursued in the most extreme cases where internal self-determination4 is clearly being denied. 5Even if these criteria are met, the right to self-determination can still only provide a claim to independence.Ultimately, it is still up to the breakaway region to actually achieve independence, a process that can take decades, if it happens at all.This right is thus inherently political and is deliberately imprecise to avoid a strict application or the creation of undesirable obligations under international law.
A brief review of Cabinda's history is also in order.In 1885, the Portuguese signed the Treaty of Simulambuco, establishing Cabinda as a 'protectorate' with special privileges, whereas Angola was classified as a full colony. 6In 1956, just as it became apparent that Cabinda had oil, the Portuguese unilaterally broke the Simulambuco treaty and made Cabinda a full province of Angola to solidify their hold on the enclave.When resistance mobilized in the early 1960s and the Front for the Liberation of the Enclave of Cabinda (FLEC) was founded in 1963, it was to oppose the region's incorporation into Angola, not to fight Portuguese colonialism. 7In 1975, Portugal signed the Alvor treaty with Angola's three main rebel groups -the Popular Movement for the Liberation of Angola (MPLA), The National Liberation Front of Angola (FNLA), and the National Union for the Total Independence of Angola (UNITA) -granting Angola independence under its existing boundaries.However, no representatives from Cabinda were allowed to attend. 8The three national rebel groups quickly turned on each other, and thus began the longest civil war in modern African history.
Throughout the war, Cabinda's oil made it a strategic target, and UNITA, FLEC, and the MPLA-controlled government fought fiercely for control of the enclave.During the 1990s, despite ceasefires and even elections in 1992, the fighting was as fierce as ever, and over one quarter of Cabinda's population was forced to flee as refugees.9By 2002, with the killing of UNITA leader Jonas Savimbi, a ceasefire between the major parties came into effect, but FLEC continued to fight.With resources liberated from the end of the fight with UNITA, the MPLA government dealt FLEC a significant blow in 2003 and forced the group to sign a ceasefire in 2006.However, while this ceasefire has been broken by both sides, FLEC still controls some areas of Cabinda's countryside, and the conflict continues intermittently.
The first major argument that Cabindan separatists make in support of independence is historical.This is based on the concept that the principle of uti possidetis does not apply in Cabinda due to Portugal's broken obligations under the 1885 Simulambuco treaty.
To separatists, Cabinda's establishment as a protectorate, as opposed to a full colony, demonstrated that the Cabindan leaders accepting Portuguese protection were to retain a degree of sovereignty and remain distinct from other colonies. 10The classification as a protectorate was not purely a formality; it entailed a particular legal understanding between Cabinda and Portugal when the treaty was signed.Thus, when Portugal decided to unilaterally bring Cabinda into the rest of Angola to facilitate administration, Cabindans argue that Portugal violated the remaining sovereignty inherent in its protectorate status.Aside from being culturally and politically distinct, Cabinda was a different legal entity that could not simply be merged with Angola.Assuming Cabinda should never have been part of Angola in the first place, Cabindans thus argue that their inclusion in the newly-independent Republic of Angola under the principle of uti possidetis was also illegal, and remains so to this day.To draw a comparison, a potential modern example would be the Iraqi invasion of Kuwait.Even when Kuwait ceased to be fully independent, it was still recognised as never having been fully absorbed.11Cabinda claims a similar status as a legal backdrop to independence, even though Kuwait was a United Nations member at the time of the Iraqi invasion, which Cabinda has never been.
A related Cabindan argument is that the purpose of uti possidetis is to prevent the chaos and anarchy that might arise if a newlyindependent country were allowed to fragment into multiple smaller states.However, Angola has proven itself to be one of Africa's most chronically unstable countries, having fought a 27-year civil war.For a country unable to control most of its official territory since independence, to claim Cabinda for reasons of 'stability' is questionable.
However, these arguments alone are not enough to justify independence.For example, although Cabinda claims it never signed away all its sovereignty in the 1885 Simulambuco treaty, this raises questions about just how much sovereignty an entity can sign away and still remain sovereign at all.For 71 years, Cabinda accepted significant Portuguese interference in its affairs and, in practice, was governed little differently than Angola.If conditions on the ground had made Cabinda a de facto colony, then was it inappropriate for Portugal to treat Cabinda as one, if all they were doing was changing the name to better suit the reality?Furthermore, although the difference in historical identification and status does distinguish Cabinda from Angola, this argument is irrelevant legally: a legal claim to sovereignty is not legitimate because differences exist between two 'peoples' (even if they can be called that).There must be legitimate grievances as well. 12n challenging uti possedetis, Cabinda is also historically on the losing side, given past African experiences.In 1964, as decolonization was under way, the Organisation of African Unity (OAU) explicitly made its support for the principle of uti possidetis clear, arguing that using existing borders would maintain order and stability.This demonstrated an aversion by African states to secession as a legitimate means to self-determination, since a successful secession in one state could inspire minorities elsewhere.Since decolonization, there has been only one successful new state created from an existing African state: Eritrea from Ethiopia in 1993, and this case was different given that this was a breakdown of a previous merger of the two. 13Namibia and the on-going controversy in Western Sahara are also different, as both were classified as 'nonself-governing territories' by the United Nations, unlike Cabinda.The recognition by the international community that both these territories possessed a distinct legal identity helped ensure that Namibia was not swallowed by South Africa and that Western Sahara has not yet been recognized as part of Morocco.Since Cabinda has not received this special recognition of distinct status, however, the region is not in a position to follow Namibia's unique path to independence.
Thus, perhaps the most effective counterargument to the Cabindan historical position is the fact that the international community has recognised Angola and its current borders.Even if the final status of Western Sahara has yet to be resolved, the region is not diplomatically recognized by the international community as being part of Morocco.Cabinda has no such protection.Oil companies from around the world have signed contracts for Cabinda's offshore oil with the Luanda government, and these companies deal with the entity that has power on the ground.As important as the historical record may be, it appears that Cabinda needs more tangible arguments if international actors are to recognise its goals as legitimate.
Although the Angolan argument also has its flaws, Cabinda could at best use its historical argument to earn more provincial autonomy.Even so, Cabinda's position would likely have been much stronger in the past: shortly after independence, given the turmoil, Cabinda's claim would have been bolstered by the chaos within the Angolan state.Since the recent 'peace,' however, Angola has demonstrated that it can indeed govern.Even if the quality of that governance is disputed, it makes Cabinda's case less clear.

Argument 2: Political Oppression as Grounds for Independence
Cabindan nationalists also claim that independence is warranted given Angola's denial of internal political self-determination.Since unilateral secession is considered to be a radical move, the judges in the Quebec Secession Case found that "the international law right to self-determination only generates... a right to external selfdetermination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government."14Essentially, the offending state must be shown to be abusing its responsibilities as legitimate representative of its people if a claim for external self-determination is to be legitimate.
Although the colonialism argument might be possible in conjunction with Cabinda's historic claim to independence, Angola's recent history provides Cabinda with many opportunities to make a strong case for foreign oppression.For much of the war years, Cabinda's riches naturally led to some of the harshest fighting.Throughout the 1990s, UNITA, the MPLA government and FLEC routinely accused each other of human rights abuses in the Cabindan countryside.In particular, the government was allegedly responsible for the illegal detention, torture, rape or murder of thousands of Cabindan civilians with suspected pro-independence sympathies. 15t the war's peak, entire villages were exterminated as part of a 'scorched earth' policy meant to neutralise FLEC and UNITA. 16It is remarkable that even at the height of Angola's excesses, little outside media coverage or research into Cabinda was conducted, and thus extensive abuses could be perpetrated in near-complete international obscurity.
Although FLEC's diminished capacity has strengthened the MPLA government and made Cabinda more stable, abuses within the Cabindan political system remain common.According to Human Rights Watch, in 2004 "the Angolan army arbitrarily detained and tortured civilians with impunity in Cabinda, and continue [d] to restrict their freedom of movement despite an apparent end to the decades-long separatist conflict." 17After the 2006 ceasefire between FLEC and the government, repression was less overt but still present.Human Rights Watch reported that "police and state security services regularly intimidate and harass journalists and individuals... who have publicly questioned the credibility of the peace agreement [while] the military have continued to detain civilians for alleged 'crimes against the security of the state' for extended periods without bringing them before an independent judicial body to review their detention". 18urthermore, aside from the oppression argument, Cabinda also claims to have been denied meaningful access to government, which is another potential criterion for external self-determination.For example, despite calls by FLEC and by neighbouring countries like the Republic of Congo (Congo-Brazzaville) for the independence question to be decisively resolved by plebiscite, Angola has no plans to allow a democratic vote on independence at any time in the future.A referendum is one of the simplest yet most effective ways of deciding an independence question; it has been used to prompt the creation of numerous new states in recent years, such as East Timor and Montenegro, but has also been used unsuccessfully in cases like Quebec.The United Nations itself often proposes a referendum as an ideal solution to a political impasse, and although African leaders in particular often commit to a plebiscite, in reality few actually hold one. 19owever, beyond the referendum itself, the underlying principle is that a territory must be governed with some consent of its people under international law.In this respect, the will of the Cabindan people remains largely unknown.Truly democratic elections in Cabinda have never taken place, either because elections have either been widely boycotted or the results deliberately skewed once all pro-independence parties were banned. 20The United Nations General Assembly clearly enunciated a potential customary legal norm in Resolution 1541 (XV), stating that territorial "integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage."21Aside from also supporting the historical argument elaborated earlier, Cabindan rebels argue that without a referendum on independence in a territory that has fought the government almost constantly since Portugal's departure, Angola cannot justify itself as the legitimate guardian of Cabindan interests.Thus, military abuses and the restriction of the political expression of Cabinda's people constitutes a denial of Cabinda's right to internal selfdetermination, legitimizing its claim to external self-determination.
However, it is unclear if these arguments are enough to justify complete unilateral secession.Firstly, the Angolan government was not the only perpetrator of abuses during the war.Both FLEC and UNITA fought ruthlessly, targeting civilians and government officials for assassination. 22If either of these groups had taken power in Cabinda, it is unclear if their claim to governance would have been any more legitimate than the MPLA's, since all were responsible for abuses against civilians.Furthermore, FLEC is a highly fragmented organisation with various competing wings, each one claiming to be the true representative of the Cabindan 'people.'If FLEC itself has more than one 'President of Cabinda' and clearly remains divided, it is unclear whether its pro-independence message can be considered representative of the wishes of Cabindans.In the absence of a referendum, the default position should not automatically be that independence is desired, since FLEC is also accused of intimidating the population to promote its pro-independence message. 23urthermore, the right to external self-determination can only be claimed in 'extreme' cases. 24The question is whether Cabinda's domestic political situation merits being considered severe in the wider African context.Although the war itself was devastating and clearly extreme simply in the numbers of refugees it produced (over 100,000 by some estimates) 25 , the 2006 'ceasefire' has calmed most of Cabinda in recent years.Even if the repression of political parties and silencing of the media clearly do continue, how can this compare, for example, to complete economic collapse in Zimbabwe, genocide in Darfur, anarchy in Somalia, or homicidal chaos in the eastern Democratic Republic of the Congo?Although logically the focus should be on whether abuses in Cabinda violate the rights of Cabindans and not on what is happening elsewhere, the right to selfdetermination is extraordinarily vague and it is natural, and perhaps essential, to view it in a wider perspective if we are to judge the validity of Cabinda's claim.
Also, as with the historical argument, Cabinda's claim to political self-determination would have been stronger in the past.When the war was raging and government abuses escalated in a frantic attempt to protect the oil revenues that funded the military, Cabindans as a people would have had a far stronger claim to external self-determination than exists today, when government abuses are much less 'extreme.'As it stands, therefore, it is likely that Cabinda could not justify a full claim to independence, but a claim only to greater internal self-determination within Angola.

Argument 3: Cabinda's Right to 'Economic Self-Determination'?
A final argument, but the one that is perhaps the most intriguing, is the idea that the denial of economic self-determination gives rise to a 23 Human Rights Watch, "Angola: Doubts over Free and Fair Elections." 24Dugard, "A Legal Basis For Secession," 93. 25 Minorities at Risk, "Chronology for Cabinda in Angola."claim to independence.Cabinda is easily one of Africa's, and even the world's, most oil-rich territories.Angola is Africa's second-largest oil producer after Nigeria; Cabinda alone has over 60 percent of Angola's oil, represents at least 50 percent of government revenues, and generates almost all of Angola's foreign currency reserves. 26abinda produces an estimated one million barrels of oil a day, which total over two barrels, per inhabitant, per day. 27This impressive output has led some to dub Cabinda the 'African Kuwait' and, by extension, one might expect Cabinda to be as prosperous as its Middle Eastern counterpart.
The reality is starkly different.Cabinda remains poor, undereducated, and was practically abandoned by government social services during the war.The majority of Cabindans still live in ramshackle huts and slums.By contrast, the Angolan capital, Luanda, sports multi-million dollar luxury neighbourhoods for state officials and improved government services, although the majority of Luandans also live in dire poverty. 28The Angolan argument for retaining Cabinda as part of Angola has traditionally been that Cabinda's oil wealth is essential to rebuilding and developing the country.However, according to the United Nations, the government spent 34 percent of its total budget from 1995 to 2005 on defence, as compared to 15 percent for education and 6 percent for health. 29In 2006, Angola had one of the worst child mortality rates in the world: over one fifth of all children died before the age of five. 30Until 2002, most of Cabinda's oil wealth appears to have been funding the war against UNITA, not developing the socialist economy the MPLA had claimed to support.
To Cabindan separatists, this apparent economic disparity is the greatest outrage of all.Officially, Cabinda was meant to receive 10 26 A Semana, "Angola's Cabinda has more onshore than offshore oil," Afrol News, Febrary 1, 2005, http://www.afrol.com/articles/15453. 27 Ibid. 28Alex Duval Smith, "It's party time for Luanda's elite as Angola grows rich on oil and gems," The Guardian, August 31, 2008, http://www.guardian.co.uk/ world/2008/aug/31/angola.elections.percent of its oil revenues back from the government during the 1990s, but in practice this figure was far lower and much of that was then stolen through corruption. 31The dramatic difference between what Cabinda could have been and what it has actually become can clearly be classified as 'extreme,' as any comparison of Cabinda to Kuwait illustrates.Even if Angola's political repression did not justify independence, its economic repression by depriving Cabinda of meaningful access to its own natural resources is so overwhelming that external self-determination becomes legitimate.
This position, though unconventional, is clearly supported by relevant international law.Article 1(2) of both the ICCPR and ICESPR states that "All peoples may... freely dispose of their natural wealth and resources... [and] in no case may a people be deprived of its own means of subsistence". 32Once again, however, this begs the question of who constitutes a 'people' under international law: does Cabinda alone, or Angola as a whole, possess the right to these resources?The fact that elite Luandans, not Cabindans, benefited from the oil revenues significantly weakens the claim that the entire country is one people under international law.
Therefore, this novel concept of a 'right to economic selfdetermination' could expand the classic view that political abuses are the primary factors giving rise to external self-determination rights.A gross denial of economic opportunities can also constitute a violation of a people's right to self-determination, thus creating another way by which peoples can claim a legitimate right to independence.This principle could potentially be applied to other hotly contested, resource-rich territories, such as Nigeria's Niger delta.
However, while the principle of economic self-determination is sound and was relevant to Cabinda for most of the 1990s, does it still apply today?After the 2006 'ceasefire,' Angola experienced its most peaceful period in 30 years and new geological results were indicating that Cabinda had even more oil than previously anticipated. 33Therefore, in 2006 Angola began a new strategy to earn Cabinda's confidence by bridging the economic gap.The government announced plans to spend over $500 million in Cabinda over two years, including $100 million for a state-of-the-art port facility that would turn Cabinda into a regional hub. 34Schools became free, and the government not only bought every pupil lunches and uniforms, but also invested in a university.Cabinda is currently Angola's second richest urban centre after Luanda35 and is predicted to grow with the investment in more regional infrastructure.
This strategic change of heart has not reversed Cabinda's fortunes entirely, as poverty remains widespread.However, it does significantly diminish the economic argument for independence.FLEC still protests imbalances and urged Cabindans to boycott the September 2008 parliamentary elections, but it remains to be seen if FLEC can even sustain itself if the government maintains superior resources and gains popular support.Thus, as with the historical and political repression arguments, a much stronger claim to independence existed in the past, leaving today's claim for economic self-determination somewhat diminished and likely applicable only to autonomy within Angola.

Conclusion: Is Independence a Realistic Goal?
Cabinda's legal foundation for independence has been eroding.Although the legal justification for independence did once exist, the arguments for independence today are clearly not what they were during the civil war.This has been demonstrated by examining the historical argument refuting Angola's claim to uti possidetis, the argument that internal political self-determination has been violated, and the argument that denial of meaningful access to local natural resources constitute grounds for independence.However, it is also important to recognise that, though international law can have an important impact on diplomatic recognition of new states, many violent nationalist movements tend to be recognised post-facto if they are successful, legitimate claim or no.In Cabinda, FLEC is unlikely to fill that coordinated military role.Internally divided, and faced with an exponentially more powerful adversary funded by Cabinda's own oil wealth, FLEC's claim does not have adequate legal justification, nor do they appear to have the military strength to force independence unilaterally.Their case would be strengthened if the international community, led by the United Nations, would recognise Cabinda as a 'non-self-governing territory', but that possibility remains highly unlikely, particularly given Cabinda's current level of international obscurity and the opposition coming from African states.
To date, Cabinda's oil has been more of a curse than a boon.Cabindans saw little profit most of the time, while their region became an especially hot strategic war-zone.The future is perhaps brighter than before, however, since Angola seems to have come to respect just how crucial Cabinda is to its overall success.Whether high payments to Cabinda will continue now that oil prices have plummeted remains to be seen, as are the effects that such an action might have on the attitudes of Cabindans themselves.
Therefore, in some forgotten parts of the world plagued by war, with populations suffering abuses from both governments and rebel militias theoretically pledged to protect them, some may see the socalled right to self-determination as a beacon of hope for a better future.To others, this inexplicit, radical, and potentially dangerous 'right' threatens to promote violence and anarchy within previously stable societies.Yet regardless of what one thinks of the right to selfdetermination, it remains one of the most important and ideologically powerful concepts of our times.