From Dateline Pacific, 6:04 am on 5 October 2017
An international law specialist says the United Nations should resolve the unfinished business of West Papuan self-determination
Melinda Janki has analysed the adherence to international law in the transferral of sovereignty over Papua from the Dutch to Indonesia in the 1960’s.
She says that under this process, Indonesia was obliged to grant an act of self-determination.
But Ms Janki argues that 1969’s so-called Act of Free Choice didn’t meet international standards of self determination.
Indonesia has strong support among other countries for its claim to Papua, and insists the 1969 referendum finalised its territorial claim to Papua.
But Ms Janki told Johnny Blades that the process around the referendum clearly lacked legitimacy.
MELINDA JANKI: If you look at the legal obligations that the Netherlands had under the United Nations charter, they were to bring West Papua as a non-self-governing territory up to the stage where it could exercise freely a right to self-determination. The Netherlands didn’t do that. What they did instead was to enter into the New York Agreement, which was really a treaty between the Netherlands and Indonesia where they agreed that the Netherlands would hand over administration to the United Nations temporary executive authority, and they could then hand over administration to Indonesia. And Indonesia agreed in the treaty that they would hold an act of self-determination. And if you do that, when you hold an act of self-determination, you must make sure that it is completely free, and that the people have a range of choices. What actually happened is that the Indonesian government rounded up about 1022 people, forced them to declare that they wanted to remain with Indonesia, and then went to the United Nations and said ‘we’ve held an act of self-determination, that’s all we need to do’. Clearly that was not all they needed to do. It’s a complete breach of international law, and it’s complete and fundamental violation of the West Papuan right to self-determination.
JOHNNY BLADES: But that was sanctioned by the United Nations wasn’t it?
MJ: No, it was not sanctioned by the United Nations. And I think that this is one of the problems. No one has gone back and read the resolution. Actually what happened is the United Nations secretary-general decided that he would put before the UN the report of his own representative, and he would put before the UN the Indonesian report. And then the resolution, all it said was – this is resolution 2504 which is what the Indonesians rely on – all that resolution says is that the United Nations General Assembly takes note of the report of the secretary-general and acknowledges with appreciation the fulfilment by the secretary-general and his representative of the tasks entrusted to them under the agreement of the 15th of August 1962 between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea. So they were taking note of a report that says the secretary-general has carried out his duties. And the duties of the secretary-general were to advise, assist and participate in the arrangements for the Act of Free Choice. Well, Indonesia paid no attention to the advice, the secretary-general’s representative did very little in the way of assisting and even less in the way of participating. So all the General Assembly said is we take note of this report. There is nowhere anywhere in the United Nations General Assembly a resolution which says the General Assembly approves the integration of West Papua into the Republic of Indonesia.
JB: So where does that leave the legality of 1969’s Act of Free Choice and of the process that preceded it, that preparation period, the interim administration that was facilitated or at least sanctioned by the UN in terms of… they agreed there would be that period leading up to a referendum.
MJ: So there was a treaty obligation on Indonesia to hold an act of self-determination within seven years, and that’s why they did it over a period of July and August, culminating with bringing these people in and forcing them to declare that they wanted to remain with Indonesia. But let’s just think for a moment what an act of self-determination is. Number one, it’s based on universal adult suffrage. That clearly didn’t happen in this case. So it’s automatically in breach of the UN resolution which sets out the process by which you have an act of self-determination. Number two, people have to be allowed to vote. No Papuan has ever voted for integration, there has never been an an act of self-determination in West Papua in which people have been allowed to vote. All that has happened is that this tiny group of people were coerced into declaring that they wanted to remain with Indonesia. The third thing is that you must have range of choices. These include independence, association with another state, or integration. Those choices were not offered to the Papuans. They were simply asked whether they would declare to remain with Indonesia. And Indonesian authorities were telling each assembly what the previous assemblies had done. There were eight assemblies, and then they had to declare. The debate took place in front of some high ranking Indonesian officials including the Minister of Home Affairs, the person heading up the West Papuan provincial government, a Brigadier-General and the chief of the information service. There is no way that you could say that was a free atmosphere in which to make a decision. And these officials weren’t just observing. It was bad enough that they were there. But they were also telling the people what the right decision would be. So the Governor told each assembly that they had already expressed their desire not to be separated from Indonesia, and therefore the assemblies had to declare that they wanted to remain with Indonesia. So there was no free vote. And this is set out in the UN report, and it’s set out in the Indonesian report.
JB: How can this be resolved? Is it a matter for the UN?
MJ: I think it definitely has to be a matter for the United Nations because they were complicit in this. And I can tell you that when the vote came up in 1969, there were several countries who didn’t agree with it. So it’s really unfinished business. And the UN really does need to ensure that there is a free act of self-determination. If the Papuans have never exercised their right of self-determination then all they’ve done is swapped one colonial authority for another colonial authority. Therefore they still have a right of self-determination. West Papuans really do understand that they have a right to self-determination, and that they intend to keep on demanding that they are given the same right that everyone else has had. So the only question now is not whether they exercise their right to self-determination, but when will it happen. How long is it going to take now for a genuine act of self-determination? How long is it going to take for the United Nations to ensure compliance with international law?