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Portugese Africa: a Brief History of United Nations Involvement

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Portugese Africa: a Brief History of United Nations Involvement PORTUGESE AFRICA: A BRIEF HISTORY OF UNITED NATIONS INVOLVEMENT I'Let him who will portray me, but let him not malign me; for patience is very often lost when insults are heaped upon it.'" 1. INTRODCCTION A necessary prerequisite to any examination of Portuguese pol­ icy, in particular one concerning the Overseas Provinces, is an admis­ sion that Americans, in general, have yet to attain a realistic under­ standing of Iberian civilization. Traditionally, discussions of Portugal labored under the shadow of what has recently been recognized as the "Black Legend" (Leyenda Negra). Professor Philip Wayne Powell observes that the fundamental premise of the "Black Legend" is that Iberian peop]" are "uniquely cruel, bigoted, tyrannical, obscurantist. lazy, fanatical, greedy, and treacherous.'" Further, the illusion of a true Portuguese union with Spain under Philip II from 1580 to 1640, often led to the mistaken equation of Portuguese explorative achieve­ ments with the unfortunate adventures of Spain in the New World.' Such misunderstanding predisposed many to uncritically accept alle­ gations of Portuguese injustice whenever presented in a colonial con­ text. John Tate Lanning writes that "the English language historian who deals with (Iberian) civilization and culture has to think as much of how he is going to grapple with the bias of his public as he does of finding what the case is."4 Hopefully, present scholarship should pro­ vide an adequate caveat against continuation of past histrionics. II. LEGAL STATUS OF PORTI'GUESE AFRICA UNDER CHAPTER XI OF THE U.N. CHARTER Under its present constitution. approved by popular vote in Met­ ropolitan Portugal and Overseas Provinces in 1933, Portugal is a uni­ tary republic consisting of the following territories: (1) in Europe: the Metropole of Portugal, the Archipelagoes of Madeira and the Azores; (2) in Africa: Portuguese Guinea, Mozambique, Cape Verde, Ca­ binda, Angola, S. Joao Baptista de Ajuda, S. Tome and Principe; (3) in Asia: Goa (Istado da India) and Macau; and (4) in Oceania: Timor.' The R.epublic of Portugal, under this constitutional composi- 1. M. Ck;HVANTES, DON QmxOTE, pt. II, ch. 59. 2. P. W. POWELL1 TREE OF HA'I'E: PROPAGANhA AND PRF..JUDICE AFFECTING UNITED STATES RELATIONS WITH TIlE HISPANIC WORLD ll, 3, 169 (1971) [hereinafter cited as POWE!...LJ. 3. tL VERZITJ, 2 INTE~r.;A110NAL LAW IN HISTORICAL PERSPECTIVE 134 (1969), 4. Pow>:!.!., supra nQt~ 2, at 131. 5. For English text of' Portuguese Constit.ution of April 111 193~i, as amended to 1959, see A. PEASLEF,. 3 CONS"I1TIJTIONS OF NATIONS 725 (1968). 133 134 ,JOURNAL OF INTERNATIONAL LAW AND POLICY VOL. 4:133 tion, was admitted to the Unit.ed Nations on December 14, 1955.' The seizure of Goa and S. Joao Baptista de Ajuda, by India and Senegal respectively, during the 1960's is not recognized by Portugal. Both are considered under military occupation by foreign powers and Goa re­ tains its representation in the Portugese National Assembly.' Member States of the United Nations, responsible for adminis­ tration of areas designated as non·self-governing territories, are obli· gated to transmit. information concerning social and economic condi· tions of such territ.ories to the Secret.ary General pursuant to Chapter XI of the Cnited :\'ations Charter. Accordingly in 1956, the Secretary General requested of Portugal "whether there are any territories reo ferred to in Article 73 of the Charter for t.he administration of whic), it has responsibility.'" Portugal replied that it "does not administer territories which fall under the category indicated by Article 73.'" During 1957, the Fourth Committee (dealing with colonial and trus· teeship matters) considered transmission of information pursuant to Chapter XI by new members. Discussion focused upon whether the General Assembly could assume responsibility for an objective exam· ination of the obligation of any new member (Portugal in particular) to submit information under Chapter XL" A Fourth Committee reso­ lution to create an ad hoc committee to study the application of the provisions of Chapter XI in regard to new members was defeated by the General Assembly." Such action by the Fourth Committee was not customary. Since 1948, when eight member nations transmitted information in regard to 74 territories, designation of territories as non·self·governing was understood to be the exclusive right of the administering country." The suggestion that this right should now pass to the General Assembly was unprecedented. The Representa· tive of Portugal explained that his country was a unitary state under a unitary constitution with the Metropole and Overseas Provinces under the identical organs of sovereignty and the same status under international law." When Portugal was admitted to the Cnited Na· 6, 1958 YEAR"OOK OF THE UNITED NATIONS 27. 7, OVERSEAS COMPANIES OF PORTUGAL, FACT SHEET ON PORTUGAL: CONSTITUTIONAL CHANGES 3 (1972). (Material available from the Americ:an representative of Overseas Companies of Portugal, Downs & Roosevelt, Inc., Washington. D.C.) 8. V.N. Doc. NC.4/:3:11/Add,I,2 (1956). 9. Id. 10, C.N. Doc, A/CA/345 (1957). 11, U.N. Doc. A/3531/Add.l (1957), 12. U,N. Doc. AlCAI347 (19571. 13. Some members of t.he Fourth Committee alleged that Portugal had tradition~ ally used the term "COLonies" in regard to its overseas territories and only changed the designation to "Overseas Provinces" in 1951. T'he first. references to "'Overseas Prov~ inees" in official Portu/.,'11eSe documents were in 1576 and 16:j:.':.L The term was employed in t.he Constitutions of 1820, 1832,1842, the overseas legislation of 1867 and the Consti- 1974 COMME~T 1:3.5 tions, the Portuguese Constitution was known to its members and there could be no misunderstanding as to the political structure or territorial composition of Portugal. It was beyond the competence of the General Assembly to question the constitutional structure or ter­ ritorial extension of any member state once it had been admitted to the Cnited Nations. The Portuguese government was and would con­ tinue to furnish extensive information to specialized agencies of the United Nations, however to do so lmder Chapter XI would be in abrogation of its own national constitution." Although future debate would involve Portugal's failure to pro­ vide information on its Overseas Provinces, the substantial issue did not concern quantums of information. From its admission, Portugal submitted reports on it.s Overseas Provinces to the Economic and Social Council, the Economic Commission for Africa, the Interna­ tional Labour Organization, the World Health Organization and the United Nations Library." The real issue confronting the General As­ sembly by the Fourt.h Committee proposal was whether the Assembly could disregard the constitutional structure of a member nation and determine that nation's territorial composition. The Portuguese Con­ stitution did not recognize the existence of territories within the na­ tion with different legal status. Portugal maintained that the inter­ pretation and application of a member nation's constitution was the exclusive right of the respective country. General Assembly interfer­ ence constituted a "flagrant violation" of Article 2(1) (sovereign equality of all members) and Article 2(7) (U.N. int.ervention in mat­ ters essentially within the domestic: juriscliction of member states precluded)." The Fourth Committee resubmitted the resolution ex­ plaining it was necessary to interpret Chapter XI in relat.ion to: (1) the scope of the constitutional limitat.ion clause in Chapt.er XI; (2) whether Chapter XI included territories incorporated as part of the metropolit.an country; and (3) whether the General Assembly could itself define territories as non-self-governing. The General Assembly again rejected the draft resolution, faiiing to obtain a required two- ---------_.... __... _ ... _------- tutions of 1911 anci 1933. Although the term "colonyn was used for a short period in modern texts, this did not change the status of the provinces under Portuguese la\v, An early seventeenth century fuling of the Portuguese Roya! Council reads in part that. "Goa and the other lands overseas with whose Governments t.his Council is concerned arE~ not distinct nor :wparate from this realm, . and thus he who is born and live& in Goa or in Brazil Dr in Angola is just as much a Portuguese as he who lives and iB- born In Lisbon.!> 14, L~.~. Doc. A/C.4/34? (1957). See also PORTCGeESr~ FOREIG:'--" IVlI~I8TRY, PuttT!:.> CAL REPLIES IN THE t:i'iITBD ::-.JATro~s 3-4 (1970) [hereinafter cited as PORTJGAL RePLIES]. 15. F. NOOt1EIRA, THE UNITED NATIONS A:-;D PORTUGAL: A STUDY OF A;,\'Tl~ COL'oK1ALlSM 84 (1963) [hereinafter cited as NOmJEIRAl. 16. [d. at 78-79. 136 JmJRNAL OF INTERNATlONAL LAW AND POLICY VOL. 4:133 thirds majority vote. 17 The composition of the General Assembly in 1960, alt.ered by the admission of eighteen newly independent states, gave a clear majority on t.he Portuguese question to the developing nations. Early in the session the Special Committee of Six, maintaining t.he Charter "was a living document and the obligations under Chapter XI must be viewed in the light of the changing spirit of the times," submitted principles to guide members in determining whether there existed an obligation on their part to transmit information concerning non-self­ governing territories under Chapter XL" These principles were: (1) there exists a prima facia obligation to transmit information on terri­ tories geographically separate and ethnically or culturally distinct from the administering state: (2) full self-government can only be attained by independence, free association or integration: and (3) constitutional limitations enumerated in Chapter XI concerned only the quantum of information to be provided.'" The General Assembly accepted the principles submitted by the Special Committee of Six, and in its companion resolut.ion, unilaterally designated the Overseas Provinces of Portugal to be non-self-governing territories.
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