Summary of West Papua and Right to Self-Determination in International Law
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• Legal status of Pepera and concludes that PEPERA is a VIOLATIONS of the right of self-determination of West Papua people in international law.
• Indonesia's territorial claims do not justify (justify legally) Indonesian sovereignty over West Papua.
• Indonesia's presence in West Papua is illegal, and this illegality becomes a BASIS for a prolonged Conflict in West Papua.
• Therefore, claims of Indonesian sovereignty over West Papua, and West Papua's claim to the right of self-determination are regulated (and must be resolved) by international law, not domestic law. Thus, there must be self-determination in accordance with international law, to finally establish the international status of West.
I. Self-determination in International Law
1. The terms of West Papua's self-determination in international law
a) West Papua should have a substantive legal right to self-determination in the period when Pepera 1969; and,
b) Pepera must be clearly proven to violate procedural requirements established by international law.
2. What is the right of substantive West Papua law?
• Legal rights of the people of West Papua, as the people of the colony, to choose their international status; namely West Papua's legal right to external (international) self-determination in the context of decolonization.
• The Netherlands New Guinea is handled under the UN Charter of Section XI which includes non-self-governing territories such as colonies.
• The most important foundation is the birth of the UN Declaration. 1514 (XV) on the Guarantee of Independence for States and Peoples of Colonies in December 1960.
• Other factors that indicate that the Declaration has legal significance are:
- The declaration was passed without a vote of rejection with only nine abstained votes, and abstained votes may be considered consent because there is no real rejection.
- The Declaration is followed by several resolutions which recommend States to support self-government, and the right of the people in self-governing territories to self-determination, such as United Nations Resolutions 9 (I), 421 (V), 545 (VI), 637 ( VII), 83 7 (IX), 1314 (XIII).
- To promote the right of self-determination, the General Assembly sets the Decolonization Special Committee: making recommendations and guidance on the progress and extent of implementation of the Declaration. (Resolution 1654 / XVI)
- The declaration is mentioned 95 times in the next session of the General Assembly.
- After the Declaration was made until the late 1970s, colonial powers have stripped their authority over millions of people; and 29 New countries are established.
- The Declaration was adopted by the Security Council in several resolutions, such as Resolution 183 (1963), 202 (1965), 217 (1965), 218 (1965), 301 (1971), 377 (1975).
- International Tribunal affirms that "the principle of self-determination is the right of the people"; and the foundation for the process of decolonization.
- The custom of the General Assembly as a body, the practice of States as well as the opinions of the Courts shows that self-determination in 1960 has grown. being a legal right owned by the people of self-governing territory and the Declaration is evidence of a new international law rule.
• The Indonesian argument that West Papua has no right to self-determination can easily be disputed by the following grounds:
1. The New York Agreement 1962 expressly grants West Papua a right of self-determination, and imposes a treaty obligation to Indonesia in Paragraph (d) of Article XVIII to take an act of self-determination "in accordance with international practice." Both the Dutch and the Indonesians must obey on West Papua's decision.
2. The outcome and impact of the New York Agreement (to carry out West Papuan self-determination) negates Indonesia's claim that West Papua has no right of self-determination based on customary international law or on the basis of Indonesia's special contractual obligations.
3. What are procedural requirements?
• Procedural requirements for self-determination are governed by the General Assembly through the interpretation of Article 73 of the UN Charter. Article 73e states that administrative powers have an obligation to submit to the Secretary General other statistical or technical information relating to social, economic, educational requirements in self-governing territories.
• In the case of West Papua, article 73 places obligations on the Dutch from 1945 and to Indonesia in 1963, when Indonesia took over administrative power.
• In accordance with United Nations General Assembly Resolution 567 (VI), two factors (principles) which are considered important for the fulfillment of the obligations are: political progress and the opinion of the population.
• Political progress must be sufficient to enable people to decide the future of their territory's fate with their knowledge.
• Their opinions should be freely expressed through an informative and democratic process of changing their desired status.
• This requirement is mentioned again in General Assembly Resolution 648 (VII) and 742 (VIII). General Assembly Resolution 637 (VII) affirms that the freed expressed free will of the peoples shall be determined through plebiscites or other democratic means, in particular under the auspices of the United Nations.
• General Assembly Resolution 1541 (XV) confirms that post 1960:
The non-self governed territory can be declared to fulfill all elements of self-government when:
a) stands as an independent sovereign state;
b) free association with an independent state; or
c) integration with an independent state.
• West Papua can actually achieve its independence without necessarily following procedural requirements, because of its status as a self-governing territory. However, in 1969, the decision to integrate it with the existing State was only valid if it met the requirements of Principle IX of General Assembly Resolution 1541 (XV).
II. Indonesia's sovereignty over West Papua is illegal (illegal)
1. Indonesia does not gain sovereignty over West Papua under the New York Agreement or Charter for Sovereignty Transfer.
2. PEPERA conducted in 1969 which proved invalid because it did not meet procedural requirements in accordance with UN principles and resolutions on non-self-governing territory, is also not legitimately made as claim of Indonesian sovereignty over West Papua, because:
- The West Papuan people were NOT LOVED THE OPINIONS in 1962 when the New York Agreement was decided, NOT LOVED THE OPINIONS when the PEPERA 1969 option was set, NOT LOVED THE OPINIONS about what options should be set before the implementation of PEPERA.
- 1022 people's deliberations (4 others did not take part), less than 0.2% of the Papuan population, conditioned to agree to integration with Indonesia, is not a legitimate voice to express true integration.
3. Therefore the acquisition of West Papua is an illegal annexation similar to Indonesia's temporary takeover of Timor Leste in 1975.
4. In addition, it is also not true that the UN legitimizes / endorsed the decision of PEPERA. The proof is:
• Article XXI The New York Agreement requests the representatives of the United Nations and Indonesia to report to the Secretary-General who at the time is obliged to give the report to the UN General Assembly on the implementation and results of PEPERA.
• The UN General Assembly advises the Secretary-General of the United Nations to present the full report to the General Assembly and not the summary of the report, because: legally or not, there is widespread doubt as to whether the true opportunity is entirely given to the expression of the will of the people in the case and the Secretary should therefore not gives the impression of evidence or material being passed or hidden.
• Both reports are attached to the report presented by the UN Secretary to the General Assembly. Resolution 2504 (XVII) only states that the General Assembly: Notes the report of the Secretary-General and acknowledges with the appreciation of the fulfillment of duties granted by the Secretary to his representatives on the basis of the New York Agreement of 15 August 1962 between the Reproductive of Indonesia and the Kingdom of the Netherlands relating West New Guinea (Irian West).
• The task given to the UN representative is limited to giving views, guarding, and participating in the PEPERA arrangements. Regulators and implementers are actually the responsibility of Indonesia in accordance with the New York Agreement. The UN representative has no authority to agree or disagree. The UN has carried out its duties though, as noted by the UN Secretary General, the Government of Indonesia does not always adhere to the advice given.
• The duties of the General Assembly are limited by the New York Agreement only to receive the report of the Secretary-General of the United Nations. The General Assembly has no authority to agree or disagree over the results of PEPERA. As the UN General Counsel states: It is difficult to see what action the General Assembly can take ... The agreement is between Indonesia and the Netherlands, and the UN is not a party to it.
• Resolution 2504 (XVII) does not mention the self-determination of West Papua, nor West Papua is no longer a self-governing territory. No further resolution of the UN General Assembly (or UN Security Council) approves of PEPERA or affirms that West Papua has exercised freely its right of self-determination.
• In the absence of a clear resolution indicating UN approval of PEPERA, it is difficult to conclude that the UN has given its consent to West Papua's integration into Indonesia.
• In fact, furthermore, the existence of Indonesia in West Papua is still questionable its validity.
The proof:
(a) Only 0.2% of West Papua's population takes part in PEPERA and they have no right to vote;
(b) West Papua is in military occupation;
(c) From the beginning in 1963 when UNTEA transferred the administration to Indonesia, there were already 15,000 Indonesian security forces in West Papua;
(d) The UN Decolonization Committee even declared Netherland New Guinea to join Indonesia in 1963 as Irian Jaya, meaning that Indonesia has even annexed West Papua BEFORE PEPERA.
5. The recognition and approval of States is also doubtful as the legal basis for Indonesian sovereignty, since when it recognizes that West Papua is a non-self-governing territory, Indonesia is bound by Article 73 of the UN Charter which requires it: recognizes that the interests of the territory's population are primary, as a sacred trust to promote the safety of the inhabitants of the territories. And the Indonesian annexation of West Papua is not a sacred trust.
6. The status of West Papua is therefore a non-self-governing colony which is entitled to self-determination. Until West Papua can exercise its right to self-determination it remains a colony and Indonesia's presence in West Papua is illegal.
7. The UN General Assembly has declared: the sustainability of colonialism in all its forms and manifestations is a crime in violation of the UN Charter and the Declaration of Independence of the Occupied Countries and Peoples and the principles of international law. (Resolution 2621 (XXV).
III. Conclusion
1. In 1949 after the formation of the State of the Republic of Indonesia, West Papua was a self-governing colony recognized by the United Nations and the Dutch, who at the time became its colonial administrative ruler.
2. In 1963 when Indonesia took over the administrative responsibility of West Papua, the territory remained a non-self-governing colony entitled to self-determination under international law. The right was recognized by Indonesia in the New York Agreement which corroborates the fact that Indonesia has no legal sovereignty over West Papua.
3. The existence of Indonesia in West Papua is a colonial administration that can be permanent only if the people of West Papua choose integration through self-determination with procedures required by international law.
4. The only self-determination to be done is UNCERTAINTED PEPERA in 1969.
5. Because the acquisition is illegal, West Papua is not a legitimate part of Indonesian territory but its own non-self-governing territory under occupation.
6. West Papua's independence will be a return of sovereignty of the people of Papua and not a violation of Indonesia's territorial integrity.
7. The use of Indonesian armed forces in West Papua to make passive West Papuans a form of denial of the right of self-determination and crimes against international law.
8. Countries of the world should therefore recognize that West Papua is a separate and distinct colony of Indonesia, and acts to ensure that human rights crimes in West Papua are immediately terminated.
9. Therefore the international community of states is also obliged to ensure that the Papuan people are given the right to freely determine their own destiny.
Summarized by the Central Committee of the West Papua National Committee (KNPB)
Summary of West Papua and Right to Self-Determination in International Law
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March 13, 2018
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