Dian Septiari, Jakarta – The recent unrest and rioting in Indonesia's easternmost provinces of Papua and West Papua have sparked renewed debate on whether Papuans deserve the right to self-determination, just like the people of former East Timor (present-day Timor Leste) did 20 years ago during the independence referendum on Aug. 30, 1999.
However, international law experts have warned about conflating independence and separatism in comparing Papua and Timor Leste today.
Legal status
Papua and West Papua do not have the same rights as the Indonesian province of East Timor did in 1999, when the independence referendum was held.
"This is an uninformed view that fails to understand international law [and does] not distinguish [between] the statuses of Papua and East Timor under the legal system," said Eddy Pratomo, a professor of international law at Diponegoro University and a former diplomat whose portfolio included Timor Leste.
A referendum for self-determination could only be carried out in the context of colonialism, he stressed. Formerly called West Irian (or West New Guinea by the Dutch), present-day Papua was included with all other territories when Indonesia declared independence on Aug. 17, 1945.
In contrast, East Timor was registered as a Non-Self-Governing Territory with the United Nations Special Committee on Decolonization, and was thus entitled to self-determination.
Papua was never registered with the UN Special Committee on Decolonization, despite several attempts by the Dutch to administer it, because the region had exercised its right to self-determination with Indonesia, said Eddy.
"If Papua were given the [right to] self-determination, it would be as though she was born twice," he said.
Furthermore, Eddy said that the demands some groups had made for an independence referendum for Papua constituted separatism, not self-determination.
"Unfortunately, international law does not recognize the right to [secession] for [an area that is] part of a sovereign territory," said Eddy, citing territorial integrity as a principle of international law.
Regarding the principle of territorial integrity, former Constitutional Court chief justice Mahfud MD said that the Constitution did not recognize calls for independence from areas that were part of Indonesian territory.
"Indonesian law does not recognize a referendum for self-determination for regions that already belong to the Republic of Indonesia," Mahfud said as quoted by tribunnews.com.
He also cited the International Covenant on Civil and Political Rights (ICCPR), which stipulated a country's legal authority over its territories and the use of any measures, including military measures, to defend it. Indonesia has ratified the ICCPR under Law No. 12/2005.
Separate histories
The Papuan secessionist movement might argue that West Irian had never participated in Indonesia's independence struggle, but international law challenges this claim.
Eddy said that demands for a referendum went against the legal principles of territorial integrity and uti possidetis juris ("as you possess under law"), with the latter providing that newly decolonized states should retain the borders they had before independence.
Papua, along with the other regions that make up modern-day Indonesia, formed the Dutch East Indies that came under Japanese imperial rule during World War II, at the height of the Indonesian independence movement. Following Japan's defeat in 1945, the Netherlands attempted to restore control over its former colony.
The Dutch-Indonesian Round Table Conference of 1949 recognized Indonesian sovereignty, with West New Guinea/West Irian set aside as a pending matter to be settled later. The Netherlands and Indonesia eventually signed the New York Agreement on Aug. 15, 1962 that determined West Irian to be an Indonesian administrative territory.
Indonesia consolidated its sovereignty of West Irian in 1969, when selected representatives of the local population voted unanimously for Indonesian rule in the controversial but legitimate Act of Free Choice – or Pepera in Indonesian – which was monitored by UN observers and US diplomats.
In contrast, East Timor was a Portuguese colony from 1702 until 1975, when Indonesia occupied the region. An overwhelming majority of the Timorese people voted against Indonesian integration during the UN-led referendum in 1999, paving the way to independence and the establishment of Timor Leste in 2002.
Sovereign duty
However, even though the repeated calls for Papuan self-determination cannot be recognized under international law, Jakarta is still bound by duty to address the root causes of the prolonged conflict in Papua.
Papua and West Papua have been rocked by protests and rioting since Aug. 19 over claims that authorities and local mass organizations perpetuated racial discrimination against Papuans. The government responded by sending the Indonesian Military to maintain public order and imposed a temporary internet blackout across the region.
Long considered a backwater region that was exploited for its wealth of mineral resources, Papua and West Papua have been a development focus under President Joko "Jokowi" Widodo, whose administration has spent up to Rp 92 trillion (US$6.5 billion) on building roads and other basic infrastructure.
Jokowi also officially ended decades of "transmigrasi", a state migration policy on distributing people from Java and other Indonesian islands to Papua. Some experts claim the policy sowed mistrust of the government among the Papuan people.
The Papuan people are ethnically Melanesian, a characteristic that informs Indonesia's foreign policy in the island nations of the South Pacific, where the majority of people have Melanesian ancestry. Nations including Vanuatu have previously attempted to internationalize the Papuan issue at the UN, irking Jakarta.
Eddy said the people of Papua could not legally demand another referendum based on alleged violations of human rights or their political, economic and social rights, because Indonesia had already guaranteed these rights in the 2001 Special Autonomy Law, which gave the people of Papua and West Papua the authority to manage the two provinces.
West Papua human rights lawyer Yan Christian Warinussy said the law took special care to recognize Papua's unique history.
"What that particular history is, in my legal interpretation, is the Act of Free Choice," said Christian, while also noting that the law stipulated the establishment of a truth and reconciliation commission to address unresolved human rights issues.
Controversial election
Indonesia's nationalist narrative on Papua, however, has not been without controversy, with Christian stressing that the tensions in Papua were deeply rooted in the Act of Free Choice.
Under Article XVIII of the New York Agreement, Indonesia is obliged to "make arrangements [...] to give the people of the territory an opportunity to exercise freedom of choice".
Point (a) of the article stipulates that consultations ("musjawarah") should be held with local representative councils on the procedures and appropriate methods to be followed "for ascertaining the freely-expressed will of the people".
However, point (d) of the same article specifically mentions that all adults, male and female, who are not foreign nationals, are eligible to participate in the act of self-determination – that is, the 1969 Pepera election.
"The agreement says that all [eligible] adults must [vote], but this did not happen. If [the election] was handled well, surely no waves of protest would have ensued from the people of Papua feeling cheated," he said.
Out of the 800,000 Papuan population recorded at the time, only 1,205 people voted in the Pepera, which caused protests to erupt in major cities across the mountainous, forested region.
Critics have decried the 1969 election as a sham, while Jakarta has insisted that those who voted still represented the will of the Papuan people, based on its agreed-upon consultations with local tribal councils.
The international community accepted the results of the Pepera under UN General Assembly Resolution 2504 (XXIV), which reaffirmed as legal fact that West Irian had always been a part of Indonesia. (tjs)