Indonesia’s claim to sovereignty over West Papua rests upon an unsound legal basis
A Papuan woman flying the West Papuan flag: the symbol of Papuan nationalism
Between 14 July and 2 August 1969, the Indonesian government held what it called the ‘Act of Free Choice’ in West Papua. It gathered 1022 Papuan tribal representatives into eight locations – one for each region of West Papua: Merauke, Jayawijaya, Paniai, Fak-Fak, Sorong, Manokwari, Cenderawasih and Jayapura. Some of these Papuans had to walk three days to their designated location. Some had to leave behind their wives and children in the ‘care of the Indonesian government’. These 1022 Papuans were asked to choose between two alternatives, either to remain with Indonesia or to sever ties with Indonesia and become an independent state separate from Indonesia, like Papua New Guinea.
In each region the decision-making process was the same. The head of the West Irian provincial government informed the Papuan group that the peoples of West Papua had already expressed their desire not to be separated from Indonesia and that the right answer was for Papua to remain a part of Indonesia. The Indonesian Minister of Home Affairs informed them that this ‘Act of Free Choice’ would finally safeguard the unity of the Indonesian nation and there was no alternative but to ‘remain within the Republic of Indonesia’. The Papuans were not permitted to vote. They had to reach a decision through the Indonesian system of musyawarah (mutual deliberation) in which discussion continues until everybody agrees. All of this took place under the watchful gaze of the Chair of the West Irian Provincial House of Representatives, the Chief of the Indonesian Information Service, as well as a Brigadier-General in the Indonesian army. One by one each Papuan group declared in favour of remaining with Indonesia.
Ever since that time, Indonesia has represented this ‘Act of Free Choice’ as West Papua’s exercise of its right to self-determination. This is its justification for the integration of West Papua into the Republic of Indonesia.
Self-determination in international law
From its origins as a political principle championed by Lenin and then by Woodrow Wilson, self-determination has evolved into a fundamental human right and a rule of international law. In its 1960 ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, the UN General Assembly stated that ‘the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to world peace and cooperation’. Since then the principle of self-determination has attained quasi-constitutional status within the United Nations and has been reinforced by state practice throughout the world. As a result, millions of people have gained their freedom from the former colonial powers. Self-determination has been entrenched in treaty law and in the International Covenant on Economic, Social and Cultural Rights.
The ‘Act of Free Choice’ was an egregious violation of West Papua’s legal right to self-determination
In early 2008, the chair of the UN special committee on decolonisation, who was also the UN representative for Indonesia, H.E. Mr R. M. Marty M Natalegawa (now Indonesia’s foreign minister), declared that ‘decolonisation remains an unfinished business of the United Nations. We must therefore continue to give decolonisation a high priority and seek effective ways to accelerate the process of decolonisation in the remaining Non-Self-Governing Territories’. If he is really serious, His Excellency need look no further than across the Afar Sea to West Papua.
The situation in 1969
In 1969, Indonesia did not have sovereignty over West Papua. It had exercised administration responsibilities over the territory under UN supervision since 1963, after assuming responsibilities from the United Nations Temporary Executive Authority, which had in turn taken over administration from the Netherlands, the original colonial power. Indonesia’s obligations towards West Papua were governed by two separate treaties. The first and more important was the UN Charter, Article 73 of which imposed on Indonesia a ‘sacred trust’ to bring West Papua to self-government. The second treaty was the ‘Agreement Concerning West New Guinea (West Irian)’ made on 15 August 1962 between the Kingdom of the Netherlands and the Republic of Indonesia and commonly referred to as the New York Agreement. This treaty imposed on Indonesia an obligation, as the administering power, to hold an act of self-determination in West Papua in accordance with international practice.
In 1969 ‘international practice’ was well-established. Under Resolution 1541 (XV) ‘Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’, an historic resolution passed by the UN General Assembly in 1960, there were two fundamental conditions that had to be met before a non-self-governing territory (such as West Papua) could be integrated into another state (such as Indonesia).
Legal commentators have been scathing about the vote ever since, dismissing it as an empty and formalistic exercise, a pseudo-choice and a betrayal of the principle of self-determination
Firstly, the territory should have already attained ‘an advanced stage of self-government with free political institutions’. This was necessary, to give its people ‘the capacity to make a responsible choice through informed and democratic processes’. Secondly, integration should only proceed once all the people of the territory, fully informed about the consequences, had expressed their wishes through ‘informed and democratic processes, impartially conducted and based on universal adult suffrage’. These requirements were set out in Principle IX of Resolution 1541 (XV).
No justification in law
Clearly, in the 1969 ‘Act of Free Choice’ these conditions were ignored. Legal commentators have been scathing about the vote ever since, dismissing it as an empty and formalistic exercise, a pseudo-choice and a betrayal of the principle of self-determination.
The ‘Act of Free Choice’ was an egregious violation of West Papua’s legal right to self-determination, a violation of the ‘sacred trust’ under Article 73 of the UN Charter and a breach of Indonesia’s treaty obligations under the UN Charter and the New York Agreement. It cannot justify Indonesian sovereignty over West Papua. The justification for such sovereignty, if it exists, must lie elsewhere in the legal rules governing the acquisition of sovereignty. Otherwise West Papua is a territory that is under alien domination – a status forbidden by international law. ii
Melinda Janki (firstname.lastname@example.org) is an international lawyer specialising in the environment and human rights, providing legal advice to conservation organisations and to aboriginal and tribal peoples in Asia, Africa and South America. She is also a founding member of International Lawyers for West Papua.
This article is part of our series on the fortieth anniversary of the Act of Free Choice