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West Papua: the MSG's opportunity to begin to right a wrong

Pacific Policy - June 18, 2013

Jennifer Robinson As the Melanesian Spearhead Group (MSG) prepares to consider West Papua's application for membership, it is important for member states to consider international law relevant to West Papua.

West Papua is entitled to self-determination under international law, a right that was denied to them in 1969. Had Indonesia complied with its international obligations then, West Papua would like Papua New Guinea be an independent state and MSG member today. That violation of law continues and is the source of ongoing violence and human rights abuse in the restive province. MSG member states have an opportunity to begin to right that wrong by granting West Papua membership.

Indonesia rests its claim to West Papua on the alleged exercise of Papuans' right to self-determination through the 'Act of Free Choice' in 1969. West Papuans call the vote a sham; it popularly known as the 'Act of NO Choice'. International law experts agree, dismissing it as a "spurious exercise",[1] amounting to a substantive betrayal of the principle of self-determination. [2]

Self-determination is a customary rule of international law that has evolved into a fundamental human right. Legal commentators consider that it has attained the status of jus cogens, a peremptory rule of international law from which no state may derogate. As set out in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (UN GA Res 1514) subjugation by a foreign state "constitutes a denial of fundamental human rights", is contrary to the UN Charter and "an impediment to world peace and cooperation." This Declaration provided the basis for de-colonisation[3] and set out the international law applicable when Indonesia took control of West Papua.

In the early 1960s West Papua (then West New Guinea) was a Dutch colony and Non-Self Governing Territory on the path to independence. Under Article 73 of the UN Charter, the Dutch held the territory on "sacred trust" to bring West Papua to self-government, were required to report to the UN on progress towards their independence[4] and did so between 1950 and 1961. Election for West Papua's national parliament began on 9 January 1961 and the New Guinea Council took office on 5 April 1961, with the inauguration attended by officials from Australia, Britain, France, the Netherlands, New Zealand and members of the South Pacific Commission.[5]

But Indonesia wanted West Papua and threatened to invade so the Netherlands, (with Australia's support, at least initially) prepared for war. To avoid conflict, Dutch Foreign Minister Luns proposed a plan under which Papuans would be guided to self-determination after UN administration: the Luns Plan. Meanwhile, concerned about what this might mean for their people, the New Guinea Council voted unanimously on a Manifesto for Independence & Self-Government, a national flag (Morning Star) and anthem ("Hai Tanahku Papua") and state seal on 30 October 1961. The Dutch recognized the flag and anthem on 18 November 1961[6] and these ordinances came into effect on 1 December 1961. The New Guinea Council flew the Morning Star flag for the first time on 1 December 1961.

(It is for this reason, in protest against Indonesia's illegal annexation of their territory West Papuans celebrate their independence day on 1 December each year and mark the occasion by raising the Morning Star flag. Such flag-raisings are met with arrests and violence.)

Indonesia was accepting arms from the USSR and so, due to Cold War realpolitik, the US intervened in the Netherlands-Indonesia dispute. The result was a political compromise in which West Papua's fate was decided but West Papuans were not consulted: the New York Agreement of 1962 (NYA).[7] This stipulated that administration of West Papua would pass to the UN Temporary Executive Authority (UNTEA) and to Indonesian administration in 1963. However, Indonesia, as the administering power, was required both by the agreement and by general international law to provide West Papuans a vote for self-determination in accordance with international practice. This meant by 'informed and democratic processes, impartially conducted and based on universal adult suffrage' (GA Res 1514).

Instead, in 1969 Indonesia rounded up 1022 men who voted under threat of violence. The outcome was unanimous: integration with Indonesia. This 'Act of NO Choice' took place after six years of violence and intimidation[8] during which time the US Ambassador to Indonesia warned that Indonesian military operations "had stimulated fears... of intended genocide". British diplomats admitted in private that, despite the outcome, West Papuans were overwhelmingly in favour of independence and UN officials have since admitted the process was "a whitewash". International law experts describe it as a betrayal of the principle of self-determination.[9]

Indonesia violated international law and West Papuans were denied the right to self-determination. But the UN and the international community did nothing.[10] Concerned about what West Papua's plight might mean for other states fighting against de-colonisation, a number of states complained to the UN but those complaints fell on deaf ears. At the time, Melanesian states were each finding their own path towards independence, learning to come to terms with the legacy of colonialism and to integrate customary and national values into their own institutions. Now, at 25 years old, the MSG has defined itself as an integral instrument for the expression of pan-Melanesian identity and solidarity. It is only natural and right for the MSG to now stand up for West Papua. Since Indonesia's annexation, West Papuans have suffered all forms of human rights abuse in a situation that both Yale and Sydney Universities have said is approaching genocide.[11] Admitting West Papua to MSG membership would be a firm show of Melanesian solidarity against colonisation, demonstrate the region's principled respect for international law and the need to end human rights abuse in West Papua. Similar to Palestine before it, West Papua cannot take its claim to the international stage: it requires other UN member states to act. If West Papua's Melanesian brothers and sisters in the MSG won't help them who will? It must start here.

[Jennifer Robinson is Director of Legal Advocacy advising the Bertha Foundation and a member of International Lawyers for West Papua.]

[1] M Pomerance, Self-determination in Law and Practice: the New Doctrine in the United Nations (Martinus Nijhoff Publishers, 1992), 20.

[2] A Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP, 1995), 84 -85.

[3] Advisory Opinion Western Sahara (Nature of Legal Ties and their Relation to Decolonisation and Self-Determination) I.C.J. Reports 1975, 12 (at para 57)

[4] See General Assembly Resolution 448(V), 12 December 1950, in which the General Assembly notes 'the communication dated 29 June 1950 from the Government of the Netherlands in which it is stated that the Netherlands will no longer present a report pursuant to Article 73e on Indonesia with the exception of West New Guinea.' The resolution recognises the independence of Indonesia and '[t]akes note with satisfaction of the communication of the Government of the Netherlands with reference to the cessation of the transmission of information on Indonesia' and requests that the 'Special Committee on Information transmitted under Article 73 e of the Charter to examine such information as may be transmitted in the future to the Secretary-General [in relation to the non-self governing territory of West New Guinea] and to report thereon to the General Assembly'. This explicitly recognises that the Dutch had to continue reporting pursuant to Article 73 e of the UN Charter on West New Guinea, recognising West New Guinea as a non-self governing territory.

[5] See 'New Council for West NG Begins Session', Sydney Morning Herald, 6 April 1961.

[6] Government Gazettes of Dutch New Guinea Nos. 68 and 69.

[7] Commonly known as the New York Agreement, the official name is "Agreement Concerning West New Guinea (West Irian)", reprinted as an official document in American Journal of International Law Vol. 57 No. 2 (April 1963), 493-700.

[8] Hugh Lunn, 'How the West was lost' The Weekend Australian 21-22 August 1999.

[9] See John Saltford, The United Nations and the Indonesian Takeover of West Papua, 1962-1969: The Anatomy of Betrayal (2006) Routledge. See also Jennifer Robinson, "The UN's chequered record on West Papua", Al Jazeera English, 21 March 2012 http://www.aljazeera.com/indepth/opinion/2012/03/201232172539145809.html

[10] See, for example, Melinda Janki, "A violation of international law", Inside Indonesia Vol 98: 98: Oct-Dec 2009, available at: http://www.insideindonesia.org/weekly-articles/a-violation-of-international-law

[11] See, e.g., Brundige et. al, 'Indonesian Human Rights Abuse in West Papua: Application of the Law of Genocide to the History of Indonesian Control', Allard J Lowenstein International Human Rights Clinic, Yale University, April 2004, 1.

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