Comment on the Indonesian Government's reaction to the
International Parliamentarians for West Papua
Self-determination
1. No State is above the law. The question of West Papua's status is a matter of international law. Sovereignty over West Papua is governed by international law not by municipal law. Indonesia cannot opt out of its responsibilities under international law, particularly the obligations imposed by the United Nations Charter on self-determination.
2. The right of self-determination is guaranteed by international law. Self-determination entitles the peoples with that right to choose independence if they wish. It is trite law that independence in this context is not secession but the restoration of the peoples' inherent sovereignty.
3. Indonesia accepted that West Papua had a right to self-determination. Indonesia claimed sovereignty after an "Act of Free Choice" in 1969. That "Act of Free Choice" did not meet the requirements of international law for self-determination and cannot be a valid legal basis for Indonesian sovereignty over West Papua.
4. This is not a matter of Indonesia's territorial integrity but a question of whether Indonesia has a right under international law to sovereignty over West Papua.
5. It is time for the United Nations to review the "Act of Free Choice" and address the rights of the Papuan peoples under international law.
Human rights
6. The preamble to the Universal Declaration of Human Rights states that:
It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
International law guarantees the right of freedom of expression and freedom of assembly.
7. UDHR Article 19 of the Universal Declaration of Human Rights states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20 states that
"Everyone has the right to freedom of peaceful assembly and association."
Many provisions of this Declaration are now customary international law and binding on all states, including Indonesia.
Attending a rally to show support for the actions of Parliamentarians is within the protection of Articles 19 and 20.
ICCPR
Indonesia acceded to the International Covenant on Civil and Political Rights in February 2006. Article 19 of this Covenant states that:
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Everyone shall have the right to hold opinions without interference.
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Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
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The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
General Comment 10, emphasises that any restriction on the exercise of freedom of expression must be provided by law, must be "necessary," and must not put the right itself in jeopardy.
Article 21 guarantees the right of peaceful assembly:
"The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of health or moral and the freedoms of others."
Attending a rally to show support for the actions of Parliamentarians is well within the protection of Article 21.
8. Beating of individuals
This is contrary to international law. Article 7 of the ICCPR states that
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
The objectives of this article are to protect the mental and physical dignity and integrity of the individual. Indonesia has a duty under international law to protect its citizens from violence by its police force.