REINSCRIPTION
OF WEST PAPUA AS A COLONISED STATE AND PEOPLE
by Powes Parkop,
(Master of Law)
1. INTRODUCTION
The purpose of
this paper/Submission is to present the case of West Papua/ns or West New
Guinea/ns as a State and as a people entitled to exercise the right to
self-determination in International Law. The paper outlines the legal basis for
the case of West Papua in International Law, pointing out the historical,
ethno-cultural, geographical and political basis for the rights of West
Papua/ns to self-determination.
2. SUMMARY OF
PAPER
The basic
contention of this paper/submission is that the Melanesian of West Papua or
West New Guinea has a valid right to self-determination under International Law
as People and as State for the following reasons.
2.1 That West
Papua as a State and a People was integrated into the Republic of Indonesia
against the wishes and aspirations of its people and against the principles of
International Law and the charter of the United Nations.
2.2 That the
Melanesians of West Papua as a State and a People had never freely exercised
their right to self-determination according to international law, in particular
according to the Charter of the United Nations and Specific Resolutions of the
General Assembly on Decolonisation, including Resolution 1514 and 1541 of the
Declaration of the granting of independence to colonial countries and peoples
and according to article 1 of both international covenant of Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights.
2.3 That the
integration of West Papua as a State and a People into the Republic of
Indonesia amount to the recolonisation of West Papua and her people by the Republic
of Indonesia and not an expression of Self-Determination as it was not a choice
of the people of that State.
2.4 That West
Papua has a different pre-colonial, colonial and decolonisation history to that
of Indonesia. Whereas Indonesia was at various times part of various
pre-colonial empires that exist in that region, West Papua was never part of
such empires. Whereas Indonesia had been a colony in the late Nineteen (19)
century, a difference of nearly four hundreds (400) years. Whereas Indonesia fought
and won her independence from Holland in 1945, West Papua was forced to
integrate into the Republic of Indonesia in 1969, a difference of 25 years
between the independence and the purported integration.
2.5 That West
Papua as a State and a People are geographically isolated by ‘blue-water’ from
the rest of Indonesia, thus fulfilling the first prerequisite for
self-determination under Resolution 1541 of the General Assembly.
2.6 That West
Papua as a State and a People are ethnically and culturally different from
Indonesia and Indonesians. Whereas, Indonesians are the main of the Asian
Mongoloid race, West Papuans are Melanesians, ethnically and culturally the
same as other Melanesians in Papua New Guinea, Solomon Island, Vanuatu, Kanaky
and Fiji. This also fulfils the second prerequisite for self-determination
under Resolution 1541.
2.7 That since
integration in 1962 (formally in 1969), the Melanesians of West Papua as a
State and a People have been continuously oppressed and discriminated against
by the state of Indonesia, socially, culturally, politically and economically.
The exodus of thousands of West Papuan Melanesian into Papua New Guinea and
around the world as refugees since 1963 attest to the discrimination and
oppression they faced as a people under Indonesian rule. This, thus fulfils the
third and final prerequisite for self-determination as provided under
Resolution 1541 of the United Nations General Assembly.
2.8 That in any
event, the right to self-determination is a right not just a colonised people
but increasingly a right that is being demanded and equally recognised by
International Law, including the United Nations, as a right that is belonging
to non-colonial situation or post-colonial situation as is the case of West
Papua. In this respect, International Law, including the United Nations has
allowed and recognise the exercise of the right by such people and states in
post colonial situation to either external self-determination (that is by
secession) or internal self-determination (within existing state).
2.9 That the
right to self-determination is not a once and for all right belonging to
colonised people and state but is an evolving right equally belonging to states
and peoples as is the case for West Papuans. This is apparent by the fact that
the language of all the International Covenants and Resolutions of the United
Nations General Assembly relating to the right to self-determination refers to
“all people have (Present Tense). The Right to Self-Determination of West Papua
as a State and a People must also be accorded that right despite the purported
integration into the Republic of Indonesia in 1969.
2.10 That any
event, the right to self-determination is recognised by International Law and
human right and not simply as a political right linked to decolonisation. Hence
the criteria for exercising such a right should not be limited to classical
colonial situation but increasingly to situation where a people as a state
demarcated by culture, ethnically and geographically are subjected to various
other human rights violations in post colonial situations as is the case of
West Papuans under Indonesian rule.
2.11 That the
United Nation Decolonisation Committee should take hint from the expression of
the General Assembly in its declaration of 1993 as the International Year for
indigenous peoples’ right and recognised that such peoples and states are and
should be the new subjects or beneficiaries of the right to self-determination.
West Papua as a State and a People who are ethnically, culturally,
geographically different from Indonesia and who have for thirty (30) years been
oppressed and discriminated by the State of Indonesia must be considered as
such a beneficiary of this right.
3. WEST PAPUAN
CLAIM UNDER INTERNATIONAL LAW
It is submitted
that West Papua as a State and a People does have a right to
self-determination. That such a right has not been exercised, despite the so
called 1969 ‘Act of Free Choice’ (AFC). In any event that West Papua/ns should
be accorded the right to self-determination in international law as a
geographically, culturally and ethnically separated State and People who have
been oppressed and discriminated in the post colonial of Republic of Indonesia
as (re) colonised people or indigenous people.
West Papua’s
claim as a State and a people entitle to exercise the right to
self-determination find strong support and legitimacy in international law.
There should be no dispute that West Papua either as a State or People did
qualify as subjects or beneficiaries of the rights to self-determination in
international law. This is apparent by the fact that West Papua or West New
Guinea as it was then was initially listed on the United Nations List on
‘non-self-governing territories’ before 1969. In any Event the state and people
of West Papua does fulfil the requirements of the rights in International Law,
particularly resolution 1541 of the United Nations General Assembly, in that
they were geographically, ethnically, and culturally different from their
colonial administrator – the Netherlands. The issue for West Papuans now is
whether the right has been exercised in 1969 as a result of the so called “AFC”
and hence cannot be accorded again. In other words does the 1969 “AFC” defeats
any future claims of West Papua as a State or a People to be entitled to that
right or exercise it again if indeed they have exercised such a right as in
1969.
It is submitted
that despite the 1969 so called “AFC” and contrary to any claims by the
Republic of Indonesia and the opinion of the United Nations and specifically
the Decolonisation Committee of the United Nations, West Papuans as a State and
as a people have never lawfully and freely exercised their rights to
self-determination under international law. The 1969 so called AFC therefore
should not defeat the rights of West Papua and West Papuans to the right to
self-determination on the following basis:
(1) That the
1969 AFC was not conducted in accordance with International Law in that it was
not freely and fairly conducted and exercised.
(2) That the
1969 AFC had no legal basis in international law in that it was a mechanism
that was agreed to by parties other than the West Papuans who were the subject
of the agreement and hence wrong in law, including international law. Secondly
that in any event the Agreement, upon which the exercise was conducted had
already lapsed in law and thus negates the subsequent AFC conducted in 1969.
4. THE 1969 “ACT
OF FREE CHOICE (AFC)”
The 1969
so-called AFC is tragedy that is and continues to be the history of West Papua
and her people. This exercise which is being claimed by Indonesia and
regrettably the United Nations as an exercise in self-determination by the West
Papuan, involved the West Papuan Voting in a referendum to decide whether or
not to be granted independence as a separate state or to be integrated into the
republic of Indonesia. When the referendum was actually conducted in 1969, only
1025 hand-picked members of the specifically appointed referendum’ council were
allowed to vote. This act which took place aimed widespread political unrest
and armed resistance was formally acknowledged by the UN General Assembly and
the West Papuan henceforth cease to occupy the attention of the world
community. This is despite the fact that the manner in which the so-called
referendum was clearly violated the Declaration of the United Nations’ own
General Assembly.
Nearly a decade
earlier in 1969, before the so-called AFC, the General Assembly had adopted a
Declaration on granting of independence to colonial countries and peoples. The
declaration upheld “the need to pay regard to the freely expressed will of the
peoples.” This declaration which was adopted as Resolution 1514 of the xvth
Session of the General Assembly was manifestly violated by what happened in
West Papua in August, 1969. Principle ix of Resolution 1514 (xv) defined the
conditions under which integration which other countries should take place:
“(a) The integrating territory should have attained advanced stage of self-government with free political institutions, so that its people would have the capacity to make a reasonable choice through informed and democratic processes. (b) The integration should be the result of freely expressed wishes of the territory’s peoples acting on full knowledge of the change in their status, their wishes having been expressed through informed and democratic process impartially conducted and based on universal suffrage. The United Nations could, when deemed necessary, supervise these processes.”
“(a) The integrating territory should have attained advanced stage of self-government with free political institutions, so that its people would have the capacity to make a reasonable choice through informed and democratic processes. (b) The integration should be the result of freely expressed wishes of the territory’s peoples acting on full knowledge of the change in their status, their wishes having been expressed through informed and democratic process impartially conducted and based on universal suffrage. The United Nations could, when deemed necessary, supervise these processes.”
These principles
were profoundly breached by what happened in West Papua from the moment
Indonesia took over the country’s administration. The adequate preparation of
the people and their institutions and the manner in which the so-called AFC was
conducted should render the exercise and its subsequent outcome void in
international law as it clearly violates the principle of the United Nations.
In any event the exercise that was forced upon the West Papuans without their
consent and participation.
The 1969 ‘Act of
Free Choice’ was a result of the terms of the ‘New York Agreement’ singed
between the United States of America, the Kingdom of Holland and Indonesia on
the 15th of August, 1962. West Papuans were never a party of the agreement nor
they ever consulted as to its terms and conditions. The role of the Untied
States of America is also questionable in International Law as she was neither
the Administering State of either Indonesia or West Papua. Her role can
therefore only be understood in political terms at the time of the Agreement as
it was at the beginning of the so-called Cold War. It is obvious that West
Papua as a State and a People was one of the first victims of the Cold War
between East and Western Europe.
In any event in
the ‘New York Agreement’ should be rendered invalid in international law in
that it was subsequently overridden by the Rome Agreement signed on the 30th of
September 1962, between the United States of America, Indonesia and the
Netherlands Governments. Again, no West Papuan was involved in negotiating,
drafting, and signing of the Agreement. The Rome Agreement provided among other
things the following:
(1) Referendum
or the Act of Free Choice set for 1969 in the New York Agreement of 15 August
1962 to be delayed or if possible cancelled.
(2) Indonesia to
rule West Papua for the next twenty-five (25) years effective from the first of
May 1963.
(3) Method to be
used in implementation of the Act of Free Choice or Referendum would be
“musyawarah system” in accordance with the Indonesian Parliamentary practice.
(4) UN’s final
report on the implementation of the Act of Free Choice presented to the UN
General Assembly be accepted without open debate.
(5) The United
States of America be responsible to make investment through Indonesian State
Companies for the Exploration of minerals, petroleum and other resources of
West Papua.
(6) The USA
guarantees the Asian Development Bank US $30 Million to be granted to the
United Nations Development Program (UNDP) to develop West Papua for a period of
twenty-five (25) years.
(7) The USA to
guarantee the World Bank funds for Indonesia to plan and implement its
transmigration program where Indonesians were resettled in West Papua starting
from 1977.
The so-called
Act of Free Choice was not only violation of the United Nations’ rules and principles
on decolonisation. It was also an act which had no legal basis in INTERNATIONAL
Law. It is therefore best described as an ACT OF NO CHOICE. Indonesians claim
to West Papua should thus be held by International Law to be void and of no
legal effect. For this reason the United Nations and International Community
should revise its recognition of West Papua as part of the Republic of
Indonesia and reinstate West Papua on the list of Non-Self-Governing
Territories.
5. RIGHT OF WEST
PAPUA AS A RECOLONISED STATE
The right of
West Papua as a State and as a People also find support in international law as
s recolonised people under he same principles of international law. Such a
practice is not unprecedented in international law and practice. Recently
Bangladesh and Eritrea are beneficiaries of such international law and
practice. This right it is submitted is accorded when the post colonial state
discriminate and oppresses as specific group of people and the People of West
Papua it is submitted qualifies under such criteria for decolonisation in
post-colonial era.
The fact is that demands to self-determination in a non-colonial situation or postcolonial situation are growing both in quantity and intensity. This is equally true of external self-determination (within existing state). The secession of Bangladesh from (West Pakistan) illustrates the possibility of self-determination in a post-colonial situation.
Secession from an existing State either to constitute an independent state or to join an existing State is already recognised as one of the means of exercising self-determination and in which self-determination has been allowed to be exercised. This is provided for in the 1970 UN declaration on Principles of International Law Concerning Friendly Relations among States of the United Nations.
The fact is that demands to self-determination in a non-colonial situation or postcolonial situation are growing both in quantity and intensity. This is equally true of external self-determination (within existing state). The secession of Bangladesh from (West Pakistan) illustrates the possibility of self-determination in a post-colonial situation.
Secession from an existing State either to constitute an independent state or to join an existing State is already recognised as one of the means of exercising self-determination and in which self-determination has been allowed to be exercised. This is provided for in the 1970 UN declaration on Principles of International Law Concerning Friendly Relations among States of the United Nations.
It is
acknowledged that the 1970 Declaration of Friendly Relations both the rights of
State to Territorial integrity and the rights of people’s self-determination by
secession. The Right to Self-Determination in a postcolonial therefore is
Consequential Right rather than an absolute right under the 1970 Declaration of
Friendly Relations. The right to self-determination by secession, it is
submitted that becomes a right consequential to the postcolonial State becoming
oppressive and discriminatory to a specific people within the given state. This
was indeed the case of Bangladesh when the International Community and the
International Law ignored the Right of Pakistan to territorial integrity thus
recognising and granting Bangladesh her independence. It is submitted that the
same or similar situation exist for West Papua as a state and as a people.
Yours
Excellency, Since the Indonesia took over administrative control of West Papua
on the first of May 1963 to the present, West Papuan have been subjected to
various act of intimidation, violence and other oppressive act by the
Indonesian government, specifically by its Armed Forces which to this day
control West Papua. The recorded and unrecorded acts of brutality, discrimination
and oppression are numerous and have been well documented by the International
Human Rights Organisations such as Amnesty International, Asia Watch, TAPOL and
others.
Some of the examples of the brutality which Melanesians of West Papua have been subjected to since Indonesian take over is given (see pages 6-7 above).
Some of the examples of the brutality which Melanesians of West Papua have been subjected to since Indonesian take over is given (see pages 6-7 above).
The presence of
hundreds of thousands of West Papuan refugees particularly in Papuan New Guinea
but generally also in the world attest to the brutal oppressive and
discriminatory rule of Indonesian in West Papua.
In this era of International Decade of Eradication of Colonialism and the International Year of the Indigenous, the People’s Right we submit to the committee the following:
In this era of International Decade of Eradication of Colonialism and the International Year of the Indigenous, the People’s Right we submit to the committee the following:
(1) That the
United Nations General Assembly through the good office of the chairman of this
office and the good office of the Secretary-General of the United Nations to
reconsider its decision in respect of the 1969 Act of Free Choice with a view
to reject its legality and result.
(2) That the
United Nations Decolonisation Committee reinstate the case of West Papua as a
non-self-governing territory. Territory entitled to exercise the right to
self-determination.
(3) That the
Chairman of the committee uses its good office to begin a process for West
Papuans to legitimately and legally exercise the Right to Self-Determination.
(4) That the
Chairman and the Member Committees of the Decolonisation Committee liase with
Netherlands as the Administrative Power and the Indonesian as the occupying
power to begin such a process of decolonisation.
Thank you
MELANESIAN SOLIDARITY.
MELANESIAN SOLIDARITY.
