Book 06
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Book 06 |
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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." 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. 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). 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: (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. retyped
as original by S. Karoba, BWS (3 May 2001) |
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