Montevideo Convention and Cabinda Statehood

The Montevideo Convention on the Rights and Duties of States solidly affirms the State Sovereignty of the Republic of Cabinda. The Convention, which was signed by Franklin D. Roosevelt as president of the United States, establishes the criteria for statehood in international law, and as a restatement of customary international law, merely codified existing legal norms and its principles therefore do not apply merely to the signatories, but to all subjects of international law as a whole.

According to the Montevideo Convention on the Rights and Duties of States, Cabinda meets the criteria for being considered a separate and independent nation under international law. It states that:

The state as a person of international law should possess the following qualifications:
[A] a permanent population;
[B] a defined territory;
[C] government; and
[D] capacity to enter into relations with the other states.

Cabinda meets all of the traditional requirements for statehood set forth by the Montevideo Convention.

Cabinda has its own currency (Ibinda) and has its own Constitution and common law. It unambiguously defines citizenship, issues its own passports to its citizens, and has a well-functioning judiciary and law enforcement.

It has a defined territory which encompasses more than 12,000 square kilometres. Its permanent population of 1,500,000 is much greater than that of other states that have been admitted into the United Nations since 1990, including Andorra (70,000), Liechtenstein (33,000), Marshall Islands (66,000), The Federated States of Micronesia (132,000), Monaco (32,000), Nauru (13,000), Palau (18,000), and San Marino (25,000).

Cabinda has its own democratically elected president and legislature. Its government commands the armed forces, and engages in discussions with foreign states. Through its government institutions, Cabinda has the capacity to conduct international relations and has represented the people of the country at international negotiations under the mediation of the Organization on Security and Cooperation in Europe, Africa, America and Asia.

The issue of recognition or no recognition is not a test of statehood. To be considered a full country under international law, it is enough for Cabinda to meet the four criteria of the Montevideo Convention: permanent population, defined territory, government and being able to relate to other states.

A similar set of criteria for statehood is found in the European Community's Badinter Committee. The committee defines a state by having a territory, a population, and a political authority. The committee also found that the existence of states was a question of fact, while the recognition by other states was purely declaratory and not the determinative factor of statehood.

The Swiss Government's Directorate of International Law (Switzerland's Administration’s centre of competence for General Public International Law) agrees and states that "The existence of a state is not dependent on any prior recognition. The determining factor is solely the actual and concrete presence of the concomitant characteristics of statehood, i.e. a national territory, a citizenry and a state authority."

CONSTITUTION OF THE REPUBLIC OF CABINDA

The Republic of Cabinda subscribes to the core values of Constitutional Democracy

INDIVIDUAL RIGHTS

- Life
- Liberty
- Freedom of press
- Freedom of speech

JUSTICE

- Due process
- Protection against unreasonable search and seizure
- Rule of law
- Right to a speedy public trial by a jury

THE COMMON GOOD

- Provide for safety and security
- Promote the general welfare

CONSTITUTIONAL GOVERNMENT

- Majorities have right to make political decisions
- Respect for differences
- Equal protection of the law
- Social equality
- Right to vote and seek office
- Equal employment opportunity
- Equal housing opportunity

Background

In international law a protectorate is a political entity (a sovereign state or less developed native polity, such as a tribal chieftainship or feudal princely state) that formally agrees (voluntarily or under pressure) by treaty to enter into an unequal relationship with another, stronger state, called the protector, which engages to protect it (diplomatically or, if needed, militarily) against third parties, in exchange for which the protectorate usually accepts specified obligations, which may vary greatly, depending on the real nature of their relationship.

In fact, 'protectorates' were even declared which were not even duly entered into by pre-existent traditional states, or only by a party in its internal politics of dubious authority, while colonial 'protectors' frequently decided on their own to 'reshuffle' several protectorates into a new, artificial unit, a logic not quite respectful of the theoretical duty of a protector to help maintain the protectorate's status and integrity. The Berlin agreement of February 26, 1895 actually stipulated that the colonial powers could declare a protectorate in Black Africa (the last continent to be further carved up between them) a protectorate could be established by diplomatic notification, even without actual possession on the ground. A similar case is the formal use of such terms as 'colony' and 'protectorate' for an amalgamation, convenient only for the colonizer/protector, of geographically proximious territories over which it held (de facto) sway by protective or 'raw' colonial logic.

In practice, a protectorate often has direct foreign relations only with the protecting power, so other states must deal with it by approaching the protector. Similarly, the protectorate rarely takes military action on its own, but relies on the protector for its defence. This is distinct from annexation, in that the protector has no formal power to control the internal affairs of the protectorate.

The Protectorate demands a detailed and prudent study of its nature and its effects, legislators designate the following:

1. - That no limitation can be founded in presumptions that require a special title.

2.- That it must always be presumed that a State possesses a complete autonomy, the limitations of that autonomy must be specified en clear and precise terms, and if it wishes to make it permanent it must state that it possesses it constantly since time immemorial

3. - Being the limitation an exception to the rule, it must be interpreted in its most restrictive since to its limit and the more convenient to the limit.

4. - It can not be considered valid a limitation of the autonomy and of the freedom of a State that snatches completely these integral rights of their personality,

5. - It should be considered annulled a 'limitation when the circumstances have changed such a way that was not valid their current establishment.

6. - The limitation can extinguish for the agreement in contrary, for the expressed or tacit renouncement, for the other ways of concluding the international treaties.

"VOCABULARY OF THE INTERNATIONAL PUBLIC LAW"

Paper to vulgarize the nomenclature and main concepts of this science; Written by the Doctor in the Law Schools, Philosophy and Letters D. ALFONSO RETORTILLO Y TORNOS (Professor of the Law school in the Central University, Academic of the royal Jurisprudence and Legislation, etc, etc…) With a foreword of His Excellency Doctor D. FRANCISCO J. CASTEJÓN Y ELIO MARQUEZ OF VADILLO (Professor of Natural Law in the University of Madrid, Former-undersecretary of Grace and Justice, Former-vice-president of the Royal Academy of Jurisprudence, Deputy to the Royal Courts etc, etc…). Printed with the license of the ecclesiastical authority in Madrid in the Typographic establishment of Fortanet, Printer of the Royal Academy of History in the street Liberdad No. 29 in the year of 1893

We remind that the frontiers of the Cabinda territory were fixed clearly by the conference of Berlin 1884-1885, where it is evidenced that the territory of Cabinda is not part of the angolan territory, besides being two separate territories so much as geographically, culturally and not sharing any frontier, as well as it is in the ethnic plan and in the linguistic one.

All the countries signatories of the Conference of Berlin on the 26 of February 1885 (Great Britain, Austria, Hungary, Belgium, Denmark, France, Germany, Italy, The Low Countries, Portugal, Russia, Spain, Sweden, Norway, Turkey, and United States of North America), acknowledged that the Kingdom of Portugal signed the Treaty of Simulambuco on the 1st of February 1885 with the Chiefs and Princes of Cabinda and later on they made it recognize, homologated and used of conformity to that of the Conference of Berlin on the 26 February 1885, in this manner the territory of Cabinda become a Portuguese Protectorate and its Status of Protectorate were countersigned by the parenthesis b) of the paragraph 2 of the Article 16 in its Annex "AND" of the "Letter of Havana" of March 24 1948.

The Portuguese constitution of 1933, clearly states that the territory of Cabinda is a separate from any other of its colonial or protected territories.

Identically documents from the United Nations and from the Organization of World Commerce clearly state that the territory of Cabinda is a separate and independent territory of that another.

Both the Organization for African Unit OUA in 1964, identifies Cabinda has the territory with the number 39 in line to become decolonized and the territory of Angola with the numbers 35, has well as the United Nations in November 20, 1962 they acknowledge the desire of auto determination of the People of Cabinda.

The countries of the European Union have signed the Letter of the United Nations, the Letter of Havana, the Universal Declaration of the Human rights, the Convention of Vienna on Diplomatic Relations, the Resolutions 1514 (on the concession of Independence to the countries and colonial Peoples, 1960), and the 1803 (permanent Sovereignty on the natural resources 1962) of the Nations United and many more other treaties and international agreements in this same respect.

The Republic of Cabinda is the de facto Government of Cabinda. It has been a de facto government since the 1974 Conference of Alvor in which Portugal illegally transferred Cabinda to Angola despite Cabinda's previous separate status as the Portuguese Protectorate known as the Portuguese Congo under the 1885 Treaty of Simulambuco. The Cabinda de facto Government has maintained itself against Angola inside Cabinda continually since 1974. The President of Cabinda is His Excellency Father Raul Tati. Ministerial responsibility is split between the Office of the President and the High Commission in London which is responsible for the foreign relations, religion, resources, tourism, commerce, banking, judiciary, information, and telecommunications portfolios. The President has direct command of the armed forces, interior, finance, and political ministries.

The internal political parties of Cabinda are sometimes confused with the Republic of Cabinda. The Republic of Cabinda is a unity government whose members include but are not limited to the majority FLEC-FAC political front where all Cabinda political party’s are and can be present. FLEC-FAC itself is a coalition of parties and organizations including the armed forces. In recent years following the successful example of Botswana, the Republic of Cabinda has recruited outside experts to help and assist the building of civil society in terms of an independent judiciary, legal system, and economic development.

INTERNATIONAL LAW

THE RIGHT OF LEGATION OF THE EXPATRIATED GOVERNMENTS

The right of the legation accompanies the governments that are expatriated, such has in the event of war for not falling into the hands of the enemy; this succeeded, for example, during the second world war (from 1938 at 1945), to the governments from Poland, Belgium, Holland, Norway, Yugoslavia and Luxemburg, they expatriated to prevent them to fall in the hands of the enemy, has such they moved to Great Britain fixing the headquarters of its legation right in London, from where they credited and received all diplomatic agents.

A de facto government requires no diplomatic recognition to conduct itself under international law. Both United States and international courts have repeatedly accorded legal standing to de facto governments.

De facto governments may conduct foreign relations with sovereign states which have not extended de jure recognition to them. Section 107 of the Restatement (Second) of Foreign Relations Law of the United States 119651 states that: "An entity not recognized as a state but meeting the requirements for recognition specified in § 100 of controlling a territory and population and engaging in foreign relations], or an entity recognized as a state whose regime is not recognized as its government, has the rights of a state under international law in relation to a non-recognizing state..." See also Article 74 of the Vienna Convention on the Law of Treaties which states that "The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States".

International Recognition of Cabinda

In the past the Republic of Cabinda has enjoyed a close working relationship with the former governments of the Democratic Republic of the Congo and the former Zaire. In fact, so cordial were relations with Zaire that its leader called for a plebiscite in Cabinda on the issue of independence. The current weak minority regimes in these states however are now allied with Angola which maintains troops in both countries capitals.

The Republic of Cabinda through its majority party FLEC-FAC is a member of the UNPO. The UNPO (Unrepresented Nations and Peoples Organization in The Hague) enjoys NGO status at the United Nations. UNPO members include Taiwan, Somaliland, Tibet and Kosovo.

The condition and situation of the Republic of Cabinda is similar to the condition and situation of the Arab Republic Democratic Saharaui.

So much the Republic of Cabinda like the Arab Republic Democratic Saharaui is not member of the United Nations. If a nation, is not member of the United Nations it doesn't remove them its status of Nation.

Not to" belong to the United Nations is not an impediment for their recognition and establishment of Relationships Diplomats. It is for that reason that the Republic of Bolivia recognized to the Arab Democratic Republic of Saharaui as a nation in date 1412-1982. It is for that reason that in January of this year, his Excellency the President of the Arab Democratic Republic of Saharaui, attended the transmission of control of his Excellency the President of the Republic of Bolivia.

The Republic of Cabinda and its associated entities, the National Bank of Cabinda and the Cabinda Law Society are also acknowledged by the African Union's Commission on Human and People's Rights which will be hearing the international legal case Cabinda vs. Angola filed by the Republic of Cabinda regarding control of natural resources in Cabinda. The Republic of Cabinda also has dealt with agencies of the United Nations including the UN Human Rights Office, UN High Commissioner for Refugees, and the UN Office for the Coordination of I humanitarian Affairs.

Under the Geneva Conventions of 1949, it is a war crime to transfer, directly or indirectly, the civilian population of a country power onto land under that country's military occupation. The reasoning for this crime is to emphasise that it is a violation of International Law to annex territory through military force.

Diplomatic Presence

The Republic of Cabinda maintains a Permanent Mission in Paris and a High Commission in London. Diplomatic representatives for Italy, England, Madeira, the Vatican, San Marino, Paraguay, Argentina, Bolivia have been named. Ongoing negotiations regarding bilateral relations are being conducted with Bolivia, Oromonia, Somaliland, Katanga, Democratic Republic of the Congo, Southern Cameroon and Caprivi. FLEC-FAC maintains liaison offices in the Congos, the Hague, and Paris.

Economic Development

The National Bank of Cabinda has recently issued postage stamps and established Cabinda's first currency, the Cabinda. Escudo, which is on par with the Central

African Franc. Cabinda National Petroleum has been in negotiation with several oil companies pending the outcome of the African Commission case.

Future Outlook

Angola's current government, the MPLA, is an increasingly unpopular Dictatorship regime which has been accused of looting Angola's resources and committing genocide. Elections called for the by the United Nations have yet to take place. Free and fair elections would result in regime change and a change in Cabinda's status. The main opposition party in Angola, UNITA, has called for participation of FLEC-PM in any future political outcome for Cabinda.

The Republic of Cabinda expects to become the de jure government of Cabinda within the near future. Current civil society initiatives are in place to avoid economic disruption and smooth a political transition. Cabinda supports all human rights regimes including the Geneva Convention and the Universal Declaration of Human Rights.

Da Sucessão de Estados Quanto aos Tratados O Caso do Estado de Cabinda


 

E-mail:  cabinda@gmail.com

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