West Papua and International Law


The following study first appeared in the West Indian Law Journal vol 34, no. 1. May 2010WEST INDIAN LAW JOURNAL VOL 34 NO. 1 MAY 2010 (click here to download)

Written by Melinda Janki

In 1969 West Papua, a former Dutch colony, was classified as an
Indonesian province following an act of self-determination carried out under
Indonesian administration. This paper examines the act of self-determination and
concludes that it was a violation of the right of self-determination held by the West
Papuan peoples under international law. The paper examines Indonesia’s territorial
claims and argues that these claims do not justify Indonesian sovereignty over West
Papua. The paper concludes that Indonesia’s presence in West Papua is illegal and
that this illegality is the basis for continuing conflict in West Papua. The paper ends
by suggesting that there should be a proper act of self-determination in accordance
with international law, to settle finally the international status of West Papua.

1. The historical background

New Guinea, the world’s second largest island, lies to the north of Australia. It has been
inhabited for thousands of years by Papuan peoples, who are ethnically and culturally
distinct from the Asian peoples of the neighbouring Indonesian archipelago. During the
19th century colonial powers divided the island. The eastern part became the two
colonies of British Papua and German New Guinea. After the First World War, these two
colonies were merged into a single League of Nations mandate which was administered
by Australia. This territory attained independence in 1975 as the sovereign state of Papua
New Guinea. Also in the nineteenth century, Holland acquired the western half of the
island of New Guinea and renamed it the Netherlands New Guinea. Since the Dutch had
very little presence on the island they administered the Netherlands New Guinea territory
as a part of the Netherlands East Indies.

In 1949, after armed rebellion in parts of the Netherlands East Indies, a Round Table
Conference was held in The Hague to discuss independence. The conference resulted in
the “Charter for the Transfer of Sovereignty”1 by which the Netherlands agreed to grant
independence to the territories comprising the Netherlands East Indies but not to the
Netherlands New Guinea. On 27th December 1949, the Netherlands transferred
sovereignty over the territories in the Netherlands East Indies to the newly created federal
Republic of the United States of Indonesia. In August 1950, President Sukarno replaced
the federal Indonesian state with a unitary Republic of Indonesia which joined the United
Nations on 28th September 1950.

The Netherlands New Guinea remained a Dutch colony under Dutch rule. In April 1961,
a West New Guinea Council2 was inaugurated. In December 1961 this Council adopted a
national anthem and a national flag – the Morning Star. The Council also called on all
nations to respect the Papuan right of self-determination. In response President Sukarno
called for the “liberation” of West Papua from Dutch rule. Armed Indonesians infiltrated
West Papua. They were captured by the Papuan Volunteer Corps and handed over to the
Dutch authorities. In January 1962 three Indonesian ships entered Dutch waters and fired
on a Dutch plane. Dutch frigates sank one of the Indonesian ships. The survivors
admitted that their objective had been to land in West New Guinea and destroy the Dutch
defences.3 In August 1962, the Netherlands and Indonesia, under diplomatic pressure
from the United States to settle the issue, entered into a bilateral treaty – the “Agreement
Concerning West New Guinea (West Irian)”4 which became known as the New
York Agreement. On 1st October 1962, in accordance with this treaty the Netherlands
transferred its colonial administration of West Papua to a United Nations Temporary
Executive Authority (UNTEA). UNTEA transferred administration to Indonesia on 1st
May 1963. The New York Agreement expressly provided for the right of selfdetermination
for West Papua. Article XX stated that:
the act of self-determination will be completed before the end of 1969.
In 1969, Indonesia conducted the act of self-determination exercise, through what it
called an “act of free choice.” The Indonesian Minister of Home Affairs reported to the
United Nations that the act of free choice:
……was completed in good order, and the result, unanimously adopted as the wishes
of the entire people of West Irian is as follows: to remain united within the Republic
of Indonesia and reject separation from the territory of the unitary state of the
Republic of Indonesia.

West Papuans have consistently rejected the results of the act of free choice on the
grounds that the act was fraudulent and violated their right of self-determination.
Indonesia asserts that West Papua had no right of self-determination and that the territory
belonged to Indonesia before the act of free choice.6 Despite arrangements for special
Guinea and West New Guinea. The West New Guinea council adopted the name West Papua. Indonesia
has called the area West Irian, Irian Jaya (victorious Irian) and West Papua. In 2003 Indonesia divided
West Papua into two new areas named Papua and West Irian Jaya. Indonesia also refers to West Irian Jaya
as West Papua. For simplicity and historical accuracy ‘Netherlands New Guinea’ and ‘West Papua’ will be
used for the entire area that was formerly held by the Dutch and which now comprises Papua and West
Irian Jaya (West Papua).

(University of Hawai’i Press 2002)
4 Reprinted as an official document in 57Am. J. Int’l Law 493-700, No. 2 (April 1963)
5 Report of the Indonesian Government to the Secretary-General concerning the conduct and results of the
act of free choice in West Irian, pursuant to Article XXI of the New York Agreement of 1962, appended to
Document A/7641. (hereafter Indonesian Report)
6 Questioning the Unquestionable: An overview of the Restoration of Papua into the Republic of Indonesia.
Permanent Mission of the Republic of Indonesia to the United Nations, New York, 2003 (hereafter
Questioning the Unquestionable)
autonomy for West Papua, indigenous7 Papuan resistance to Indonesian rule continues,
often through the simple act of flying the Morning Star flag – an offence punishable with
long prison sentences.8 There are reports of egregious violations of the rights of Papuans9
and Archbishop Desmond Tutu has stated that over 100,000 Papuans have died since
Indonesia took over administration in 1963.10 In 2007, the United Nations Special
Rapporteur on Torture, while noting that torture was widespread in Indonesian detention
facilities, specifically named the Wamena facility in the Papuan Highlands.11
West Papua’s claim to self-determination and Indonesia’s competing claim to sovereignty
are governed by international, not domestic, law. It is necessary to assess the legal merits
of these competing claims and to understand the legal rights held by both parties under
international law if there is to be a peaceful solution to the conflict.

2. Self-determination in International Law
The West Papuan claim that the act of free choice was a violation of self-determination is
valid only if two conditions are met–
a) first, West Papua must have possessed a substantive legal right to selfdetermination
at the time of the act of free choice in 1969; and second,
b) the act of free choice must have clearly violated the procedural requirements set
by international law.
(a) The substantive right
During the 20th century self-determination evolved from a vague political principle to a
substantive, but at times controversial, legal right. As Quane points out:
The right of peoples to self-determination is an elusive concept. There is no clear
definition of “peoples” or of what the right entails. Instead there are numerous and at
times conflicting interpretations of self-determination.

This paper focuses exclusively on one aspect of self-determination – the legal right of the
West Papuans, as colonial peoples, to choose their international status i.e. the legal right
of West Papua to external self-determination in the context of decolonisation. Legal
7Under a transmigration programme funded by the World Bank (http://go.worldbank.org/DGOJI5R050) large
numbers of Javanese were transferred to West Papua. In this paper the term Papuan or indigenous Papuans
is used only to refer to the autochthonous Papuan peoples and not the settlers.
8 Two notable cases are those of Filep Karma, a civil servant, and Yusak Pakage a student, jailed for fifteen
and ten years respectively for peacefully raising the Morning Star.
9 See HUMAN RIGHTS WATCH, Out of Sight, Endemic Abuse and Impunity in Papua’s Central Highlands,
10 http://www.unpo.org/content/view/435/236/;
see also James Crawford, The Right of Self-determination in International Law; Its Development and
Future, in P ALSTON (ED) PEOPLES’ RIGHTS 7 (Oxford University Press, Oxford 2005); M POMERANCE,
SELF-DETERMINATION IN LAW AND PRACTICE (Martinus Nijhoff, The Hague, 1982);
arguments regarding secession (in the sense of breaking up an existing state), will not be
considered since it is trite law that a colony is entitled to independence.13 As Emerson
….the transition from colonial status to independence is not regarded as
secession, whether or not it is achieved by force of arms, but rather as the
“restoration” of a rightful sovereignty of which the people have been
illegitimately denied.14
This view is supported by the Supreme Court of Canada which confirmed that:
The right of colonial peoples to exercise their self-determination by breaking
away from the “imperial power” is now undisputed….15
The first mention of self-determination in a multilateral treaty is in Article 1 (2) of the
Charter of the United Nations (the “Charter”) which states that one of the purposes of the
United Nations is:
to develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples…..
This language is repeated in Article 55 and indicates that in 1945 self-determination was
a goal of the United Nations, not a right of colonies. Cassese considers that the Charter
did not impose legal obligations on Member States16 and Higgins argues that if any rights
to self-determination were created by Article 1(2) these were merely:
the rights of peoples of one state to be protected from interference by other states
or governments….The concept of self-determination did not then, originally, seem
to refer to a right of dependent peoples to be independent, or indeed, even to
In 1945, when the Charter came into effect, only States were subjects of international
law. The rights established in the Charter were held by States and not by other kinds of
territories. In 1949 the various territories which made up the Netherlands East Indies had
no legal right, either individually or collectively, to self-determination. They attained
independence through military and political pressure. When Indonesia came into
existence as a State in 1949, it acquired a Charter right to self-determination i.e. a right to
determine its future without interference from other States. Netherlands New Guinea
which remained a Dutch colony had no right to self-determination under Article 1(2) or
Cambridge 2002) p75; Lowe, International Law, 47 (Oxford University Press, Oxford 2007)
15 Reference re Quebec, 37 ILM [1998] page 1372 at paragraph 132; See also CASSESE , INTERNATIONAL
LAW, 113 (Oxford University Press, Oxford 2001).
CASSESE, SELF-DETERMINATION OF PEOPLES, 43 (Cambridge University Press, Cambridge 1995)
17 R HIGGINS, PROBLEMS AND PROCESS 112 (Clarendon Press, Oxford 1994).
Article 55.
The Netherlands New Guinea was dealt with under Chapter XI of the Charter which
covered non-self-governing territories such as colonies. Article 73 of this chapter
required the administering power to assist the peoples of a non-self-governing territory to
attain self-government progressively. This did not amount to a right to self-determination
for non-self-governing peoples since a right would be exercisable immediately, and a
right to self-determination would include independence not just self-government.
Nevertheless, self-determination for colonial peoples evolved through this Chapter and
through Chapter XII (trust territories). The turning point was the General Assembly’s
“Declaration on the Granting of Independence to Colonial Countries and Peoples” (the
Declaration)18 which proclaimed that:
Paragraph 2 All peoples have the right to self-determination; by virtue of that
right they freely determine their political status.
Paragraph 5 Immediate steps shall be taken in Trust and Non-self-governing
territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those
territories without any conditions or reservations, in accordance
with their freely expressed will and desire, without any distinction
as to race, creed or colour, in order to enable them to enjoy
complete independence and freedom.
Although General Assembly resolutions are not legally binding, the Declaration is a
statement of general norms of international law and evidence of an emerging legal rule.
Brownlie considers that, “The Declaration regards the principle of self-determination as a
part of the obligations stemming from the Charter, and is not a ‘recommendation’ but is
in the form of an authoritative interpretation of the Charter.”19 His view is supported by
the text of the Declaration. Paragraph 1, states that:
the subjection of peoples to alien subjugation, domination and exploitation
constitutes a denial of fundamental human rights, is contrary to the Charter of
the United Nations and is an impediment to world peace and cooperation.
(emphasis added)
Paragraph 2 describes self-determination as a right and Paragraph 3 emphasises that the
right is not to be delayed:
Inadequacy of political, economic, social or educational preparedness should
never serve as a pretext for delaying independence.
18 GA Res. 1514 (XV), December 1960
19 I BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 15 (7th ed. Oxford University Press, 2008)
The implication is that colonial powers have had fifteen years since the Charter came into
effect to fulfil their obligations under Article 73 and that by 1960 colonial peoples had a
right to independence. Other factors indicate that the Declaration had legal significance.
It was passed without any votes against and with only nine abstentions.20 Arguably such
abstentions could be regarded as acquiescence since any real objection could have been
expressed by a negative vote.21 The Declaration followed several resolutions which
recommended States to uphold self-government and the right of peoples of non-selfgoverning
territories to self-determination.22 The General Assembly took steps to
promote the right to self-determination by establishing in its next session a Special
Committee on Decolonisation to:
…make suggestions and recommendations on the progress and extent of the
implementation of the Declaration.23
The Declaration was cited ninety-five times in the next six sessions of the General
Assembly – evidence of a consensus on the part of States that the Declaration described a
general legal standard by which a State’s behaviour could be judged. State practice also
suggests that States considered themselves to be under a legal obligation. Between
December 1960 when the Declaration was made and the end of 1970, colonial powers
relinquished their authority over millions of people and twenty-nine new States came into
The Declaration was affirmed by the Security Council in several of its resolutions24 and
Crawford describes it as having acquired “quasi-constitutional status”25 The International
Court of Justice (the Court), confirmed the legal effect of the Declaration, as enunciating
“the principle of self-determination as a right (emphasis added) of peoples”, and as
providing the basis for the process of decolonisation.26 In its Advisory Opinion on the
Legal Consequences for States of the Continued Presence of South Africa in Namibia
notwithstanding Security Resolution 27627 the Court noted the significant role of the
Declaration in the development of self-determination as a right:
………the subsequent development of international law in regard to non-selfgoverning
territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to all of them………A further important
20 Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, United
Kingdom and United States of America all abstained
21 BLEICHER, The legal significance of the re-citation of General Assembly resolutions, 63 Am. J. Int’l L.
449, No. 3 (July 1969)
22 For example. GA Res.: 9 (I), 421 (V), 545 (VI), 637 (VII), 83 7(IX), 1314 (XIII)
23 GA Res. 1654(XVI) The situation with regard to the implementation of the Declaration on the granting
of independence to colonial countries and peoples
24 For example S.C.: 183(1963), 202(1965), 217(1965),218 (1965), 301 (1971), 377(1975)
26 Western Sahara (Nature of Legal Ties and their Relation to Decolonisation and Self-Determination),
Advisory Opinion I.C.J. Reports 1975 p12 (at paragraph 57) (hereafter Western Sahara Opinion)
27 I.C.J. Reports 1971 p16 (hereafter Namibia Opinion 1971)
stage in this development was the Declaration on the Granting of Independence to
Colonial Countries and Peoples (General Assembly Resolution 1514 (XV)) which
embraces all peoples and territories ‘which have not yet attained independence’.
The behaviour of the General Assembly as a body, the practice of individual States and
the opinions of the Court indicate that by1960 self-determination had evolved into a legal
right held by the peoples of non-self-governing territories and that the Declaration was
evidence of the new rule of international law. Even if the new rule did not come into
effect in 1960, there is no doubt that self-determination had evolved into a legal right by
1969 when the act of free choice was held in West Papua.
Indonesia not only voted for the Declaration, but was:
a co-sponsor and ardent supporter of the historic landmark resolution on
However, Indonesia has advanced two arguments against West Papua’s right to selfdetermination.
The first argument is that West Papua had already exercised selfdetermination
as part of the:
greater “self-determination” of the whole Indonesian people, already pronounced
and effectuated with the proclamation of Indonesian independence on 17 August
1945 to free the Netherlands East Indies – from Sabang to Merauke – from
colonial rule.29
This ‘proclamation’ of Indonesian independence was a statement which Sukarno, then
leader of a rebellious Indonesian faction, read out at his house. It did not mention
Merauke (a part of West Papua) or Sabang. It merely stated:
We the people of Indonesia hereby declare the independence of Indonesia.
Matters which concern the transfer of power and other things will be executed by
careful means and in the shortest possible time.
The ‘proclamation’ was a political claim to independence for “Indonesia” an entity which
did not exist de facto or de jure and which was not recognised by a single State in 1945.
The ‘proclamation’ did not mention Netherlands New Guinea and there is no evidence
that West Papuans took part in the proclamation. On the contrary, Mohammed Hatta
(Indonesia’s first vice-president) stated during the Round Table Conference in 1949 that
the Papuans were not entitled to self-determination because
the great majority of them were not in a position to express their desires.30
28 Questioning the Unquestionable p25
29 Indonesian Report paragraph 65
30 M HATTA, Colonialism and the Danger of War, As-ian Survey Vol. 1, No. 9 (Nov., 1961) p10
It is contradictory for Indonesia to argue that the Papuans were capable of exercising selfdetermination
in 1945 in the ‘proclamation’ but by 1949 were no longer capable of
deciding their future.
The ‘proclamation’ had no legal effect on any other territory in the Netherlands East
Indies. The territories continued to be under Dutch sovereignty until independence in
1949. West Papua’s legal right to self-determination under the Declaration in 1960 could
not be compromised merely because a separate group of people had made an
unsuccessful claim to political self-determination twenty-five years earlier.
Indonesia’s second argument31 was that the Declaration had no relevance for West Papua
because paragraph 6 of the Declaration states that:
Any attempt aimed at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes and principles
of the Charter of the United Nations.
Paragraph 6 is open to different interpretations, none of which supports Indonesia’s
contention that Resolution 1514 (XV) cannot apply to West Papua. The Declaration deals
with the rights of colonial peoples and territories. In 1960 West Papua was legally a
Dutch colony, classified under international law as a non-self-governing territory and
listed by the United Nations as such. Indonesia was a separate state. Paragraph 6 was not
relevant because West Papua was not legally a part of Indonesia and therefore selfdetermination
by West Papua did not affect Indonesia’s territorial integrity. As the
Netherlands pointed out:
….an independent national unit comprising both Indonesia and New Guinea had
never existed and therefore the territorial integrity of the Indonesian Republic
could not be disrupted by the recognition of the right of self-determination for the
Papuan people.32
Another possible interpretation of Paragraph 6 is that it establishes the principle that the
right to self-determination under the Declaration does not provide a basis for secession.
As Emerson points out:
…once the newly created or newly independent state is in existence, no further
resort to self-determination is tolerable.33
Paragraph 6 supports this principle that the self-determination unit is the non-selfgoverning
territory. Since West Papua was not a part of Indonesia in 1960 there was no
question of secession from Indonesia. Paragraph 6 could not apply to West Papua, a
Dutch colony, but it did apply to the various territories within Indonesia (for example
Madura, Aceh, the Moluccas). These areas which were former sultanates and territories
31 Questioning the Unquestionable, 25
32 UN Doc A4954 quoted in Sureda p146 fn 37
33 EMERSON ibid p464
were part of Indonesia in 1960. They could not rely on the Declaration in order to claim
independence – although Paragraph 6 does not extend to prohibiting secession on other
An alternative interpretation is that the purpose of Paragraph 6 is to stop a colonial power
from dividing up a territory with the intention of defeating the self-determination of the
peoples within that territory. Applying this interpretation to the facts does not affect West
Papua’s legal rights. Paragraph 6 came into effect in 1960. It cannot be backdated to
1949 in order to make it illegal for the Netherlands to separate Netherlands New Guinea
from the rest of the territories in the Netherlands East Indies. Such backdating is
forbidden by the inter-temporal rule by which the effect of an act has to be determined by
the law at the time when the act was carried out, and not according to the law at some
later date.34 Secondly, the Dutch made no attempt to divide the non-self-governing
territory of West Papua into smaller units after the Declaration. Indonesia’s argument,
that Paragraph 6 could take away West Papua’s right to self-determination as a non-selfgoverning
territory, is incompatible with the basis of self-determination as set out in the
rest of the Declaration and as such this argument conflicts with the entire decolonisation
Indonesia’s argument that West Papua did not have a right to self-determination is
untenable for another reason. The 1962 New York Agreement expressly provided for the
right of self-determination for West Papua and imposed a treaty obligation on Indonesia
under Paragraph (d) of Article XVIII to conduct the act of self-determination “in
accordance with international practice.” Both the Netherlands and Indonesia undertook to
be bound by West Papua’s decision. The text and effect of the New York Agreement
negate any subsequent claim by Indonesia that West Papua did not have a right to selfdetermination
under customary international law or under Indonesia’s specific treaty
obligations. On the contrary, West Papua’s legal right to self-determination in 1960 was
more firmly entrenched by 1969 with strict procedural requirements imposed under
international law.
(b) The procedural requirements
If the above analysis is correct, then West Papua had a substantive legal right to selfdetermination
in 1969. The next question is whether that right was validly exercised in
the act of free choice. The procedural requirements for self-determination were developed
by the General Assembly through its interpretations of Article 73 of the Charter. Article
73e provides that administering powers have an obligation to transmit to the Secretary-
General statistical and other technical information relating to social, economic and
educational conditions in the non-self-governing territory. This obligation applies to
member states which “have” or which “assume” such responsibilities. In the case of West
Papua, Article 73 imposed obligations on the Netherlands from 1945 and on Indonesia
from 1963 when Indonesia took over as the administering power.
34 Island of Palmas Case (Netherlands/United States of America) RIAA Vol. II(1949), p829; see also
BROWNLIE, ibid p124-5
An administering power has to know when a territory has achieved self-government in
order to know when its reporting obligation under Article 73e has come to an end. The
General Assembly addressed this issue in Resolution 567 (VI)35 which listed two factors
as “essential” – political advancement and the opinion of the population. Political
advancement had to be sufficient to enable the population to decide upon the future
destiny of their territory with due knowledge. Their opinion had to be freely expressed by
informed and democratic processes as to the change in status which they desired. These
conditions were repeated in General Assembly Resolutions 648 (VII)36 and 742 (VIII).
General Assembly Resolution 637 (VII) specified that the freely expressed wishes of the
people concerned should be ascertained through plebiscites or other democratic means,
preferably under the auspices of the United Nations.
Although not legally binding, these resolutions are evidence of an emerging rule of
international law, particularly as colonial powers and the United Nations applied these
principles and held plebiscites in British Togoland Trust Territory (1956), French
Togoland (1958) and British Northern Cameroons (1959). These principles were
reinforced in 1960 by Resolution 1541(XV) “Principles which should guide Members in
determining whether or not an obligation exists to transmit the information called for
under Article 73e” which clarified the obligations imposed on States by Article 73e. This
resolution was passed the day after the Declaration and was an interpretation of the
Charter; as such, it amounts to a statement of existing law. The Court considered that:
certain of its provisions give effect to the essential feature of the right of selfdetermination
(emphasis added) as established in Resolution 1514 (XV).37
General Assembly Resolution 1541(XV) confirmed that after 1960:
A Non-Self-Governing Territory can be said to have reached a full measure of
self-government by:
(a) emergence as a sovereign independent state;
(b) free association with an independent state; or
(c) integration with an independent state.
The resolution did not set any procedure for independence, this being the fullest
expression of self-determination and therefore the desired result. It set strict procedural
requirements for free association as a limited form of freedom. Principle IX set even
stricter requirements for integration:
(a) The integrating territory should have attained an advanced stage of selfgovernment
with free political institutions, so that its peoples would have the
35 Future procedure for the continuation of the study of factors which should be taken into account in
deciding whether a territory is or is not a territory whose people have not yet attained a measure of selfgovernment
36 Factors which should be taken into account in deciding whether a Territory is or is not a Territory to
whose people have not yet attained a full measure of self-government;
37 Western Sahara Opinion, paragraph 57
capacity to make a responsible choice through informed and democratic
(b) The integration should be the result of the freely expressed wishes of the
territory’s peoples acting with full knowledge of the change in their status,
their wishes having been expressed through informed and democratic
processes, impartially conducted and based on universal adult suffrage
(emphasis added).
At any time in its existence as a non-self-governing territory, West Papua could have
attained independence without following any strict procedural requirements. But by 1969,
a decision to integrate with an existing State could be legitimate only if it met the
requirements of Principle IX of General Assembly Resolution 1541(XV).
3. Assessment of the Act of Free Choice
Having assessed the procedural requirements under international law it is now necessary
to consider whether the act of free choice met these requirements for universal adult
suffrage, freely expressed wishes, advanced self-government, free political institutions,
full knowledge of the change in status and the need for the exercise of self-determination
to be conducted impartially. This assessment of the act of free choice is based on the facts
set out in the Indonesian Report and the “Report by the Representative of the Secretary-
General in West Irian, submitted under article XXI, paragraph 1, of the Agreement
between the Republic of Indonesia and the Kingdom of the Netherlands concerning West
New Guinea (West Irian).”38
The United Nations did not implement the act of free choice but provided advice through
a team headed by a representative of the Secretary-General (the United Nations
representative) as provided for in the New York Agreement. On the question of universal
adult suffrage the United Nations representative advised Indonesia that he:
could suggest no other method for this delicate political exercise than the
democratic, orthodox and universally accepted method of “one man one vote.”39
Indonesia argued this was not possible because:
In West Irian there exists, as is generally known, one of the most primitive and
underdeveloped communities in the world.40
Indonesia’s argument is untenable. International law does not permit a State to use
primitiveness as a reason for preventing dependent peoples from deciding their future.41
38 Appended to UN Document A/7723. Hereafter, UN Report.
39 UN report Paragraph 82
40 Indonesian Report paragraph 65
“PRIMITIVENESS.” 12 Can. Y.B. Int’l. 38 1974
That principle was established as early as 1946 when South Africa attempted to integrate
South West Africa (now Namibia). Integration was to take place on the basis of a tribal
referendum in which the chief gave the decision of his tribe to a native commissioner
appointed by the Government of South Africa. Individual Africans were not allowed to
vote. The General Assembly refused to accept that South West Africa could be
incorporated into South Africa:
the African inhabitants of South West Africa have not yet secured political
autonomy or reached a stage of political development enabling them to express a
considered opinion which the Assembly could recognise on such an important
question as incorporation of their territory.42
If the people were “too primitive” to take part in the self-determination exercise, they
were also “too primitive” to understand the nature of the change being proposed. The
General Assembly refused to approve the integration on the grounds that no valid
decision could be made until the people of South West Africa were sufficiently advanced
to understand the meaning of incorporating their territory into South Africa. Resolution
1541(XV) was further evidence of a legal principle that dependent peoples should be
protected against integration until they could make a valid choice on the basis of
universal adult suffrage. Indonesia’s argument that the Papuans were too primitive for
universal adult suffrage does not make the act of free choice legitimate, but reinforces the
fact that both the process and the result were invalid.
In reality there was no evidence in 1969, that the Papuan peoples were any less
competent than other peoples to decide their future. Between 1959 and 1961 when the
colony was still under Dutch administration, West Papuans voted directly for regional
councils. In December 1968, the General Assembly, including Indonesia, reaffirmed the
inalienable right of the peoples of Papua and New Guinea to self-determination, and
called upon Australia, the administering power, to:
hold free elections under United Nations supervision on the basis of universal
adult suffrage (emphasis added) in order to transfer effective power to the
representatives of the people of the Territories.43
If universal adult suffrage was possible for Papua and New Guinea, how it could be
legitimately denied to West Papuans who were essentially the same peoples living on the
same island and separated only because of a border created by the colonial powers?
By 1969, the United Nations had developed ways to accommodate populations at
different educational levels. The United Nations legal counsel in his “Note on the
Question of Self-determination for Western New Guinea”44 advised the United Nations
Secretary-General that literacy was not considered a necessary qualification as ballots
42 UNGA65(I)
43 GA Res. 2427 (XXIII)
44 UN: Series 100, Box 2, File 7, under cover of a note dated 29 June 1962 from C. A. Stavropoulos Legal
Counsel to U Thant Acting Secretary-General.
bearing symbols or having different colours had been used in other situations. Therefore
it would have been possible to conduct the act of free choice on the basis of “one man:
one vote” as required by international law, international practice and the terms of the
New York Agreement.
However, the Indonesian government dismissed universal adult suffrage as propaganda
by the Free Papua Organisation45 and instead, Indonesia created eight consultative
Assemblies covering the regions of Merauke, Djajawidjaja, Paniai, Fak-Fak, Sorong,
Manokwari, Tjenderawasih and Djajapura. Each assembly consisted of individuals from
three different groups which had been selected by Indonesia as groups that represented
Papuan society. The first group comprised appointees of various political, social, cultural
and religious organisations. The role of the appointees was not to express the wishes of
the Papuan people, but to represent the views of the organisation which had appointed
them. Indonesia decided which organisations were eligible to take part. Organisations
which favoured an independent West Papua were not legally recognised and therefore
could not take part. The second group comprised tribal chiefs chosen by local councils in
consultation with those concerned. It is unclear who was actually involved. The third
group of members of the consultative assembly comprised members of the existing
regional councils with some additional representatives being elected by the people of the
United Nations observers witnessed the election of one hundred and ninety five (195)
members and were informed of the results for the other eight hundred and thirty-one
(831) members. Instead of universal adult suffrage, the consultative assemblies
comprised one thousand and twenty-six people (1026) out of a population estimated by
the United Nations representative at the time to be approximately one million people.
The requirement for “freely expressed wishes” suggests an atmosphere in which Papuans
could discuss and debate freely. This was not the case. The United Nations representative
noted that:
…the Administration [Indonesia] exercised at all times a tight political control
over the population.46
“Freely expressed wishes” requires a decision without fear of reprisals. The act of free
choice took place against a background of intimidation. A few months before the act of
free choice, it was reported that Major Soewondo of the Indonesian army had told two
hundred village chiefs:
I am drawing the line frankly and clearly. I say I will protect and guarantee the
safety of everyone who is for Indonesia. I will shoot dead anyone who is against
45 Indonesian Report paragraph 31
46UN Report paragraph 251
(RoutledgeCurzon 2003) p148
During the act of free choice, tribal chiefs were taken from their communities to the
district capital. Some of their families remained behind “in the care of the Government”48
to be released when the act of free choice was completed.
“Freely expressed wishes” also suggests a vote usually a secret ballot. However the
participants in the act of free choice were not permitted to vote. They were required to
reach their decisions through the Javanese system of musyawarah which aims for group
consensus. Musyawarah does not record positions for or against. The discussion
continues until each person accepts the final decision which is then the collective decision
of all. Indonesia argued that musyawarah had to be used for the act of free choice because
under the New York Agreement the method had to have:
a reasonable chance of being accepted (by way of musyawarah) by the local
representative councils in West Irian itself as explicitly required by article XVIII
(a) of the New York Agreement.49
This is a misrepresentation of Article XVIII (a) which merely required Indonesia to
consult the representative councils on the procedures and methods to be followed for
ascertaining the freely expressed wishes of the population. The New York Agreement
specifically required arrangements to be made for the eligibility of all adults to participate
in the act of self-determination and for the act of self-determination to be carried out in
accordance with international practice (Article XVIII (d)). The role of the representative
councils was to provide advice on how to comply with international practice given the
conditions in West Papua. These councils were prohibited by the New York Agreement
from suggesting a process that did not meet international standards. Their advice should
have been about the procedures that would ensure universal adult suffrage given the
terrain, the remoteness of some areas, the numbers of people, the available modes of
communication and transportation etc.
Furthermore Indonesia informed the councils that the act of free choice was not
necessary, that West Papua was already a part of Indonesia, that the system of “one man,
one vote” was not possible and that the act of free choice would be carried out through
consultative assemblies using musyawarah.50 This made it impossible for the councils to
fulfil their role under the New York Agreement. By this action Indonesia violated its
treaty obligations under the New York Agreement as well as the rights of the Papuan
peoples to self-determination under international law.
The deliberations of the eight assemblies were not held in a free atmosphere. They took
place in the presence of high ranking Indonesian officials including the Minister of Home
Affairs, the Governor/Head of the West Irian Provincial Government, the Chairman of
the West Irian Provincial House of Representatives, a Brigadier-General and the Chief of
the Information Service. These officials did not merely observe the act of self
48 Indonesian Report paragraph 48
49 Indonesian Report paragraph 27
50 UN report paragraph 95
determination – they informed the different assemblies what the “right” decision would
be. The Governor informed each assembly that the peoples of West Papua had already
expressed their desire not to be separated from Indonesia and that the right answer was to
remain with Indonesia. The Minister informed the assemblies that the act of free choice
was the finishing touch in the efforts to safeguard the unity of the nation and there was no
alternative but to “remain within the Republic of Indonesia.”51
Instead of the act of self-determination taking place on a single day, it was spread over
several weeks so that each representative would know what the previous assemblies had
decided. The deliberations of the first assembly in Merauke were broadcast on all radio
stations throughout West Papua so that:
people in all regions of West Irian had been enabled to follow all the proceedings,
speeches and decisions of the session.52
After the first three assemblies had made their decisions, President Suharto sent a
telegram to the Minister of Home Affairs expressing his gratitude to the people of West
Irian. This telegram was read out during the proceedings of the remaining five
assemblies. Even so, at Manokwari the Governor felt it necessary to remind the assembly
of the unanimous decisions made by the previous four assemblies. The Indonesian
government frankly admitted that the individuals who took part were not able to express
their views freely through the musyawarah system:
Those who observed the prevailing atmosphere and spirit of the consultative
assembly sessions for the act of free choice in the eight Regencies and those who
possess a keen knowledge about the political background of the dispute on West
Irian, will understand why it would have been very difficult, politically and
psychologically, for anyone to contradict and go against the overwhelming desire
of the consultative assembly sessions supported by very strong arguments to
maintain the established political status of West Irian safeguarding the unity and
territorial integrity of the free and independent Republic of Indonesia, from
Sabang to Merauke.”53
In order to act with full knowledge of the change in their status, the peoples of a non-selfgoverning
territory must have adequate information. This condition was not met in the act
of free choice. The United Nations representative reported that:
During my tours of the Territory I noticed with concern that the people had not
been given adequate information regarding the forthcoming act of free choice.54
Indonesia asserted that it had adequately performed its duty to inform the people by
51 UN Report paragraph 195
52 Indonesian Report Paragraph 50
53 Indonesian Report paragraph 65
54UN Report paragraph 49
putting information in the newspapers and using radio broadcasts. However in its report
the Indonesian government admitted that newspapers and radio were not sufficient to
overcome the severe communication difficulties:
….everything has to be explained orally and personally to the people; especially
in the interior the people cannot be called by radio or television, nor can they be
informed by means of newspapers. Most of the adult population in the interior
are illiterate; radios are very rare.55
Not satisfied with the Indonesian efforts, the United Nations representative requested the
Indonesian authorities to prepare and disseminate to the West Papuans, a document
explaining the act of free choice in brief and simple terms. The Indonesian authorities
refused on the grounds that the act of free choice had been “a source of controversy and
conflict” among politically minded people in West Papua. Instead the government would
disseminate information:
…..taking due account of the political and psychological situation [and] in a
manner that would not disturb the normal working of the Provincial
The Indonesian position as explained to the United Nations was that:
In the interior [of West Papua] in particular it was obviously not easy to make
simple illiterate people understand what the New York Agreement and the act of
free choice really meant. One could not talk much about these things. 57
If, as Indonesia claimed, the Papuans were not able to understand the issue, then they
could not make the informed decision required by international law, and therefore the act
of free choice was invalid.
In order to make a free choice the dependent peoples must understand their options. The
Papuan representatives were asked to choose:
(a) whether they wish to remain with Indonesia or (b) whether they wish to sever
their ties with Indonesia.58
The legal effect of each choice is obscure. To “remain” with Indonesia implies that there
is no change in status. It does not suggest any further surrender of sovereignty. If the
Netherlands had asked the Papuan peoples whether they wished to remain with the
Netherlands or to sever their ties, a decision to remain with the Netherlands would not
have been accepted by the General Assembly or Indonesia as integration with the
Netherlands. It could only have meant the continuation of Dutch administration until such
55 Indonesian Report paragraph 43
56 ibid paragraph 51
57 ibid paragraph 24
58 UN Report paragraph 248
time as West Papua achieved independence or made a decision for free association or
integration in accordance with international law.
Indonesia was in a similar position to the Netherlands since Indonesia took over
“administration” from the Netherlands via UNTEA. Indonesia possessed no recognised
legal rights over West Papua, only the obligations of an administering power as well as
the obligations set out in the New York Agreement. Indonesia could not validly acquire
sovereignty over West Papua unless the Papuans were asked in unambiguous terms
whether they wished to surrender their sovereignty and become a part of Indonesia and
not merely whether they wished to “remain with Indonesia”.
A further defect in the act of free choice is that the Papuans were not offered
independence. Higgins considers that in self-determination:
What is important is that a proper range of choice is laid before a dependent
people and that they are given the opportunity to express their choice.59
Resolution 742 (VIII)60 recommended that a population should have freedom of choice
between several possibilities including independence. While this is not a legally binding
requirement it suggests that independence should be offered unless there are appropriate
reasons for not offering it. According to the United Nations representative:
The petitions opposing annexation to Indonesia, the cases of unrest in
Manokwari, Enarotali and Waghete, the flight of a number of people to the part of
the island that is administered by Australia, and the existence of political
detainees, more than 300 of whom were released at my request show that without
doubt certain elements of the population of West Irian held firm convictions in
favour of independence.
The history of West Papua suggests that a proper choice would have included
independence – the Papuans did not join the Indonesians in their fight for independence in
1945, they resisted Indonesian attempts to “liberate” them from Dutch rule in 1961 and
they called on all States to recognise their right to self-determination.
The process for selecting the questions in the act of free choice was defective in that it
differed from international practice. In 1962 the United Nations legal counsel advised61
that the usual procedure for self-determination was for the United Nations to seek the
views of the local population in order to permit a precise formulation of the questions to
be asked. The major opposition groups would be consulted so that the questions would
reflect the full range of political demands. The questions would then be included in a
General Assembly resolution and incorporated into a special law. In contrast, the
59 HIGGINS p119
60 Factors which should be taken into account in deciding whether a Territory is or is not a Territory whose
people have not yet attained a full measure of self-government.
61 UN: Series 100, Box 2, File 7, Note on the question of self-determination in relation to Western New
Guinea, under cover of a note dated 29 June 1962 from C. A. Stavropoulos, Legal Counsel to U Thant,
Acting Secretary-General.
questions in the act of free choice were taken verbatim from the New York Agreement.
The Papuans were not asked in 1962 when the treaty was made, nor in 1969 when the
questions were set, nor at any time in between, for their views on what questions should
be put in their act of self-determination.
At the time of the act of free choice, Papuan political parties were banned and decisions
in West Papua were made through official bodies whose members were appointed by the
Indonesian government, not elected by the Papuans. The apparent decision to integrate
West Papua with Indonesia could not be valid since international law, as stated in
Resolution 1541(XV), and as established by international practice required selfgovernment
and free political institutions for such a decision to be valid, and these
conditions were not met.
Resolution 1541(XV) required the act of self-determination to be impartially conducted
and provided that the United Nations could supervise when necessary. By 1969 state
practice was for the administering power to conduct a plebiscite or elections with United
Nations involvement and supervision. But in West Papua the act of self-determination
was not supervised by the United Nations or carried out by the Netherlands as the
administering power. It was conducted by Indonesia, a neighbouring state which had for
twenty years asserted a territorial claim to West Papua and which at the time of the act of
free choice claimed that West Papua was already a part of Indonesia. Although officials
of the United Nations were present, their role was limited to advising, assisting and
participating in the arrangements for the act of free choice but not carrying out the act of
free choice itself. The United Nations did not ensure that the act of free choice met the
requirements of international law and practice62 and:
UN participation probably served merely to lend respectability to a questionable
“act of self-determination.”63
The act of free choice failed to meet any of the criteria for a valid act of selfdetermination
under international law. Forcing 102264 individuals (or less than 0.2% of
the Papuan population) to declare in favour of ‘remaining with Indonesia’ is not a legally
valid decision to integrate. In commenting on the act of free choice, Sureda concluded
there was a blatant disregard for the necessary freedom and the required
information to make the “act of free choice” meaningful.65
Pomerance dismisses the act of free choice as “a pro forma and spurious exercise.”66
Cassese describes the integration of West Papua into Indonesia as “a substantial denial of
62 For a full description see SALTFORD, The United Nations and the Indonesian Takeover of West Papua,
1962-1969 (RoutledgeCurzon 2003)
64 Four did not take part
65 SUREDA p316
self-determination, a pseudo–choice, a charade and a substantive betrayal of the principle
of self-determination.”67 The flaws in the act of free choice and the consensus of legal
commentators indicates that West Papuans are correct to say that the act of free choice
was not a valid exercise of their right to self-determination under international law.
4. Indonesia’s territorial claims
Since the act of free choice was invalid, it cannot provide a legal basis for Indonesia to
exercise sovereignty over West Papua. Indonesia’s sovereignty would have to be legally
validated in some other way. In “The Restoration of Irian Jaya into the Republic of
Indonesia”, issued in 2001 by the Indonesian Permanent Representative to the United
Nations, Indonesia states that:
Indonesia’s right of sovereignty rests on two grounds: first it had succeeded to
Dutch sovereignty over the whole of the Netherlands East Indies, including Irian
Jaya; second, there were historical ties between the rest of Indonesia and Irian
These two assertions rest on a number of legal and political arguments, some of which
are contradictory. Indonesia claims that it possessed sovereignty before the act of free
choice because:
…sovereignty over Papua had already been transferred to Indonesia under the
terms of Article 1 [of the Charter of the Transfer of Sovereignty] and that the
issue was only how the administration of Papua would be transferred.69
Article I of the Charter of the Transfer of Sovereignty has two parts. Article I(1) stated
that the Netherlands unconditionally and irrevocably transferred its sovereignty over
Indonesia to the Republic of the United States of Indonesia. Article I(2) provided that
The Republic of the United States of Indonesia accepts said sovereignty on the
basis of the provisions of its Constitution.
This Constitution established the Republic of the United States of Indonesia with sixteen
states and territories. The Netherlands New Guinea was not one of the sixteen states or
territories; neither did it form a part of any of them. The Netherlands refused to transfer
the Netherlands New Guinea so this territory was dealt with in Article 2. This article
stated that since Indonesia and the Netherlands could not agree:
The status quo of the residency of New Guinea shall be maintained with the
stipulation that within a year from the date of transfer of sovereignty to the
Republic of the United States of Indonesia the question of the political status of
67 Cassese, Self-determination, p84 -85
68 http://www.indonesia-ottawa.org/current_issues/papua/Restoration%20of%20Irian%20Jaya.pdf
69 Questioning the Unquestionable 15
New Guinea be determined through negotiations between the Republic of the
United States of Indonesia and the Kingdom of the Netherlands.
A subsequent exchange of letters confirmed that under this article West Papua would
continue under the government of the Netherlands.70 Indonesia’s argument that
sovereignty (but not administration) had been transferred may be a misunderstanding of
the position under international law. Since West Papua was, in 1949, a non-selfgoverning
territory under Article 73, the Netherlands’s position, as the colonial
government, was more accurately described as that of an administering power in relation
to the Papuan peoples although it exercised sovereignty as against other States, including
Indonesia. The text of Article 1 and Article 2 make it clear that the Netherlands did not
transfer sovereignty or any other interest in the Netherlands New Guinea to Indonesia.
Article 2 did not impose any legal requirement on the Netherlands to transfer the
Netherlands New Guinea to the Republic of the United States of Indonesia at a later date.
It is arguable that at most this article merely obliged the Dutch to continue negotiations
with the Republic of the United States of Indonesia for one year. In August 1950, when
President Sukarno unilaterally replaced the federal state with the unitary Republic of
Indonesia he violated the terms of the Charter of Sovereignty. President Sukarno’s action
removed any possibility of West Papua becoming a state within the federal system
created under the Charter of Transfer of Sovereignty, and therefore removed the basis
upon which the Dutch had agreed to continue negotiations.
The year for negotiations expired without the Netherlands and Indonesia reaching any
agreement over the Netherlands New Guinea. The Charter did not provide for more
negotiations, for arbitration or for the dispute to be submitted to the Court. Under
international law and domestic law, the Netherlands New Guinea continued to be a Dutch
colony and the Netherlands continued to exercise sovereignty. On 11th September 1956,
Article 1 of the Dutch Constitution was amended to include West Papua:
The Kingdom of the Netherlands comprises the territory of the Netherlands,
Surinam and the Netherlands Antilles and Netherlands New Guinea.
After gaining independence in 1949, Indonesia was unable to assert any rights or perform
any actions that would indicate it had any sovereignty over the Netherlands New Guinea.
Instead, in 1962, Indonesia was forced to concede in a legally binding treaty, the New
York Agreement, that the Netherlands New Guinea had a right to the free exercise of
self-determination and that Indonesia would be bound by that decision.
Indonesia has argued that:
…the decolonisation process was incomplete since the Netherlands, by keeping
Papua under its control, failed to fully transfer the sovereignty and territorial
integrity of Indonesia.71
70 L. Metzemaekers The West New Guinea Problem, 24 Pacific Affairs, 137, No. 2 (June 1951)
71 Questioning the Unquestionable 7
This argument conflicts with the previous claim that sovereignty over Netherlands New
Guinea was transferred under the Charter of Transfer of Sovereignty. Indonesia cannot
simultaneously argue that sovereignty was transferred but not transferred. The
decolonisation process would be incomplete only if the Netherlands was under a legal
obligation in 1949 to grant independence to the Netherlands East Indies as a whole unit,
but this was not the case. In 1949 colonial peoples may have had a political and moral
right to independence but the legal right to self-determination was still evolving.
Indonesia’s claim to West Papua was political, not legal, and it was inherently
contradictory. As As Sureda points out,
The Indonesian argument of territorial integrity relies on two assumptions: first it
implicitly accepts the constitutive recognition by the Netherlands of an entity
administered under the name of Netherlands East Indies; second it assumes that
this entity at a certain moment acquired such a personality that the administering
country was stopped from making further territorial changes to it.72
In order to identify the Netherlands East Indies as the only valid entity for independence,
Indonesia would have to concede that the Netherlands had the power over a period of
three hundred years to arrange a variety of territories and states into the Netherlands East
Indies. Indonesia would then have to demonstrate that by 1949 the Netherlands had
legally lost the power to add territory to or subtract territory from the Netherlands East
Indies. But in 1949, there was no legal rule which prevented the Netherlands from
continuing to alter the boundaries of the territories in the Netherlands East Indies. As the
Commission of Jurists in the Aaland Islands Case stated:
…in the absence of express provisions in international treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty of
every State. Positive International Law does not recognise the right of national
groups, as such, to separate themselves from the State of which they form part by
the simple expression of a wish, any more than it recognises the right of other
States to claim such a separation.73
The Netherlands therefore had the legal competence to dispose of any part of the
Netherlands East Indies and to retain the Netherlands New Guinea. A further difficulty
with the Indonesian argument is that even after Resolution 1514 (XV) in 1960, there was
no legal obligation to preserve the integrity of a colonial unit if division was considered
to be a better means of promoting self-determination – the British Cameroons was
separated into two territories which voted separately on their future; Rwanda and Burundi
emerged as two independent sovereign states out of the Belgian administered territory of
Indonesia claimed that the Netherlands should have transferred sovereignty in 1949
72 Sureda P 146
73 Report of the Commission of Jurists, 5-6, LNOJ Sp Supp No 3 (October 1920)
74 Resolution 1746 (XVI)
because the Netherlands New Guinea was then a part of Indonesia’s territory. In an
explanatory memorandum for the General Assembly in 1954 Indonesia asserted that:
West Irian [West Papua] is and always has been – historically as well as
constitutionally (legally) – an integral part of Indonesia, that is to say, also, the
Netherlands East Indies.75
This statement assumes that Indonesia is the same as the Netherlands East Indies but that
is the very claim which has to be proved. Before the Dutch created the Netherlands East
Indies there was no historical entity called Indonesia, only various kingdoms, sultanates
and chiefdoms. After the Second World War, there were three separate entities called
Indonesia, none of which was the same as the Netherlands East Indies and none of which
included the Netherlands New Guinea. In December 1946 the Netherlands created the
state of East Indonesia (Timur Besar) over the islands to the east of Borneo and Java but
excluding the Netherlands New Guinea.76
On 25th March 1947, in a ceasefire known as the Linggadjati Agreement, the Dutch
recognised a republic of Indonesia as having de facto authority over Java, Madura and
Sumatra, but no authority anywhere else in the Netherlands East Indies and certainly not
over West Papua which lay to the east of East Indonesia. The Dutch retained de facto
control of the rest of the Netherlands East Indies and de jure sovereignty over all of the
constituent territories, including the de facto republic of Indonesia. In December 1949 the
Netherlands created and recognised the Republic of the United States of Indonesia
(Republik Indonesia Serikat) which did not include the Netherlands New Guinea. At no
time then was West Papua a part of any entity called “Indonesia.”
Indonesia has argued that the Netherlands violated the legal principle of Uti Possidetis
Juris by retaining the Netherlands New Guinea because it meant that the borders of
Indonesia were different to the borders of the Netherlands East Indies colony. This is
merely a variation of the above argument that West Papua was a part of the new
Indonesian simply because it was part of the Netherlands East Indies. It is also a
misapplication of the legal principle. Uti Possidetis Juris applies to the settlement of
post-colonial boundary disputes.77 As explained by the Court in the Burkino-Faso/Mali
case the purpose of Uti Possidetis Juris is:
to prevent the independence and stability of new States being endangered by
fratricidal struggles provoked by the challenging of frontiers following the
withdrawal of the administering power…the essence of the principle lies in its
primary aim of securing respect for the territorial boundaries at the moment when
independence is achieved.78
75 UN Doc A/2694, 143, quoted in Sureda
76 H Arthur Steiner Post War Government of the Netherlands East Indies, 9 The J. of Politics 624-652, No.
4 (Nov. 1947)
77 Harris, Cases and Materials on International Law, p227 (Sweet and Maxwell, London 2004)
78 ICJ Reports 1986, 566
Uti Possidetis Juris cannot be used to redraw the boundaries of the newly independent
State to conform to pre-independence boundaries – the principle specifically forbids
territorial changes based on the notion of a pre-colonial entity:
While it is clear that colonial territories have a ‘separate and distinct status’,
they do not possess separate sovereignty and the line that is protected is that in
existence at the moment of independence not that existing at some unclear point in
the past.79
Uti Possidetis Juris protected the borders of the new Indonesia against an external threat
from any other State which might claim part of Indonesia’s territory on the grounds that it
belonged to an entity that existed before colonisation. The principle also protected
Indonesia against the threat of internal secession from smaller units claiming a right to
independence on the basis of a historical entity. Conversely Uti Possidetis Juris required
Indonesia to respect the boundaries of other States including the boundaries of their
colonial possessions, such as the Netherlands New Guinea and Portuguese Timor (East
Timor), irrespective of any historical association that might be claimed.
Indonesia has asserted that the Security Council:
…clearly acknowledged the true question of Indonesia and the inseparability of
Papua from the young republic.80
This is a political, not a legal, argument, and it is contradicted by the behaviour of the
Indonesian representatives. When they lobbied the Security Council in August 1947 their
list of Indonesian territories did not include Netherlands New Guinea and the colony was
therefore not included in the concept of “Indonesia”81 as defined by the Indonesian
representatives themselves. Furthermore none of the Security Council resolutions
mentions Netherlands New Guinea. Several resolutions are instructions to the
Netherlands and the de facto republic of Indonesia (which excluded the Netherlands New
Guinea) to cease hostilities.82 Resolution 30 (1947) approves the Linggadjati Agreement.
Resolutions 41(1948) and 55 (1948) approve the “Truce Agreement between the
Government of the Kingdom of the Netherlands and the Government of the Republic of
Indonesia signed at the Fourth Meeting of the Committee of Good Offices with the
Parties on 17 January 1948”83 (Renville Principles). The Renville Principles did not
mention Netherlands New Guinea. They restated Dutch sovereignty over all of the
Netherlands East Indies (which included the Netherlands New Guinea) and provided for
self-determination through a plebiscite in Java, Madura and Sumatra by which these
populations could decide whether they wanted to be a part of the de facto republic of
Indonesia or whether they wanted to form different states in the proposed Republic of the
79 Shaw, The Heritage of States: the principle of Uti Possidetis Juris today, British Yearbook of Int’l Law
p113 (Oxford University Press, Oxford, 1996)
80 Questioning the Unquestionable p17
81 Saltford p5
82 Resolutions 27 (1947), 32(1947), 36 (1947), 63(1948), 65 (1948)
83 Reprinted in 2 Int’l Organisation, No. 2 (Jun., 1948), pp.404-406
United States of Indonesia. The Renville Principles endorsed the Linggadjati Agreement
and did not affect the status of the Netherlands New Guinea.
In Resolution 67 (1949) the Security Council approved the Linggadjati Agreement and
the Renville Principles and authorised the United Nations Commission for Indonesia to
invite Indonesian representatives to take part in the independence negotiations to be held
in the Netherlands. This Commission was authorised to observe the elections to be held
throughout Indonesia for the delegates to a constituent assembly for the proposed new
state. No elections were held in Netherlands New Guinea and no Papuan representatives
were sent to the conference. This strongly indicates that the Security Council and the
United Nations Commission for Indonesia did not consider Netherlands New Guinea to
be a part of Indonesia or of any settlement between the Netherlands and its Indonesian
Indonesia’s second argument that there were historical ties is incorrect. The basis of this
claim is that:
In 1660 a treaty was concluded between Tidore and Ternate, under the auspices
of the Dutch East Indies Company, which stated that the Papuans, and all of their
islands, belonged to the King of Tidore.84
However the authority of the Sultan of Tidore was not recognised by the Papuans. In
1858, a Dutch steamer visiting Humbolt Bay, on the northern coast, was met with
hostility from the Papuans even though the son of the Prince of Tidore, their supposed
ruler, was on board.85 The British Foreign Office, which examined the matter closely in
1884, concluded that:
There is an entire absence of official evidence as to the nature, extent and
duration of the supremacy exercised, or claimed, by the Sultan of Tidore on any
part of the Mainland, or even in the Peninsula, of New Guinea86…
……there is no evidence of the Sultan’s authority having ever been recognised by
the natives on any part of the Mainland [of the island of New Guinea], or of his
people having ever visited any part of it.87
The Sultan of Tidore could not transfer sovereignty over the territory of West Papua to
the new state of Indonesia if he did not have it. Furthermore whatever claims Tidore
might have had were mostly extinguished by the Dutch who annexed West Papua in 1828
and recognised Tidore’s interest in only four small areas.88 The Dutch also made treaties
84 Questioning the Unquestionable p9
85 Alfred W Wallace, The Malay Archipelago Vol II; available at http://www.authorama.com/malayarchipelago-
86 Memorandum by Sir Rawson W. Rawson on the Claims of Holland to New Guinea, 1884 Public Record
Office Kew FO 881/5002 p11 (hereafter FCO memo)
87 FCO Memo p12
88 FCO Memo p5
directly with Papuan chiefs and tribes89 thereby suggesting some legal recognition of
indigenous Papuan sovereignty at that time. An Indonesian claim that Tidore had
historical ties to West Papua would either fail on the facts or it would apply to only a
small part of West Papua. But even if such historical ties existed, they were not legally
capable of overriding the legal right held by the Netherlands to retain the Netherlands
New Guinea in 1949.
5. The impact of Indonesia’s territorial claims
Although Indonesia’s territorial claim is weak, and therefore unlikely to be recognised as
giving rise to a legal right to West Papua, it is still important to consider whether a
territorial claim is legally capable of trumping West Papua’s right to self-determination
and therefore capable of overcoming the invalidity of the act of free choice. In 1962, after
considering Indonesia’s claim to West Papua the United Nations Legal Counsel advised
There appears to be a strong presumption in favour of self-determination in
situations such as that of West New Guinea irrespective of the legal stands or
interests of other parties to the question.90 (emphasis added)
This opinion is consistent with the evolution of international law. Sureda considers that
by 1969 the constant practice of the General Assembly in referring to Resolution 1514
(XV) and the right to self-determination:
gives evidence of a new rule of international law whereby title to a colonial
territory cannot validly be opposed to the claims of self-determination by the
people of that territory.91
The legal rule as elaborated by the Court in the Western Sahara case is that once the right
of self-determination exists, the State which claims the territory must allow the people of
the territory to have a free and genuine choice. As Judge Dillard explained in his separate
concurring opinion:
It seems hardly necessary to make more explicit the cardinal restraint which the
legal right of self-determination imposes. That restraint may be captured in a
single sentence. It is for the people to determine the destiny of the territory and
not the territory the destiny of the people.92
Exceptions to this rule have been limited to cases such as colonial enclaves (e.g. Goa, Ifni
and Walvis Bay,) or more controversially to territories such as Las Malvinas/Falklands
and Gibraltar where, it is argued, there is no indigenous population. In dealing with
89 FCO Memo p21
90 UN: Series 100,Box 2, File 7, Stavropoulos to U Thant, 29th June 1962; attached to a memorandum from
Stavropoulos to Rolz-Bennet 17th July 1969
91 Sureda p222
92 Western Sahara p114
exceptions the Court noted that:
The validity of the principle of self-determination defined as the need to pay
regard to the freely expressed will of peoples, is not affected by the fact that in
certain cases the General Assembly has dispensed with the requirement of
consulting the inhabitants of a given territory. Those instances were based either
on the consideration that a certain population did not constitute a “people”
entitled to self-determination or on the conviction that a consultation was totally
unnecessary in view of special circumstances.93
West Papua does not fall within either of these exceptions. The West Papuans were
recognised as peoples for the purposes of Resolution 1514 (XV) by the Netherlands, the
United Nations General Assembly, the Decolonisation Committee, and Indonesia. The
United Nations was involved in the discussions that lead to the New York Agreement and
the confirmation of West Papua’s right to self-determination. The General Assembly took
note of the New York Agreement and authorised the Secretary-General to appoint a
representative to assist and participate in the arrangements for self-determination.94 As
Blay points out:
The terms of the New York Agreement and the UN’s involvement unambiguously
reflected the rejection of the territorial integrity principle in favour of selfdetermination
for West Irian…the West Irian case illustrates the legal proposition
that, in decolonisation, the principle of self-determination generally pre-empts
claims of territorial integrity.95
On that basis even a strong territorial claim by Indonesia would not justify the acquisition
of sovereignty which was not based on the wishes of the population freely expressed in
accordance with international law.
6. The legalisation of sovereignty over West Papua
Indonesia did not acquire sovereignty under the New York Agreement or the Charter of
the Transfer of Sovereignty. Neither the act of free choice nor Indonesia’s territorial
claims provides a legal basis for Indonesia to exercise sovereignty over West Papua.
Indonesia’s acquisition of West Papua must therefore be an illegal annexation similar to
Indonesia’s temporary acquisition of East Timor in 1975.96 The question is whether that
annexation has since become legitimate.
It has been suggested that the international community has validated the act of free choice
and therefore by implication the annexation. According to Franck
93 Western Sahara paragraph 59
94 UNGA 1752(XVII)
95 S K BLAY Self-determination versus territorial integrity in decolonisation 18 N.Y.U.J. Int’l L. & Pol.
441 (1985-1986)
In the decolonisation of West Irian, the United Nations, in a controversial, deeply
divisive vote…..voted to accept as valid the Indonesian-organised “act of free
This view conflicts with the history, text and purpose of Resolution 2504(XVII). Article
XXI of the New York Agreement required the United Nations representative and
Indonesia to report to the Secretary-General who was then required to report to the
General Assembly on the conduct and results of the act of self-determination. The United
Nations General Counsel advised the Secretary-General to present the actual reports to
the General Assembly rather than summarising them because
….whether justified or not, there have been widespread doubts as to whether a
really genuine opportunity is being provided for a free expression of the popular
will in the present case and the Secretary-General should therefore avoid the
impression that any evidence or material is being suppressed or altered….98
The two reports were attached to the report which the Secretary-General presented to the
General Assembly. Resolution 2504 (XVII) merely states that the 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 15 August 1962 between the
Republic of Indonesia and the Kingdom of the Netherlands concerning West New
Guinea (West Irian).
The tasks given to the United Nations representative were limited to advising, assisting
and participating in the arrangements for the act of free choice. The actual arrangements
were Indonesia’s sole responsibility under the New York Agreement and the United
Nations representative had no authority to approve or disapprove. The United Nations
representative had carried out his tasks even if, as the Secretary-General pointed out, the
Indonesian Government did not always follow the advice given.
The General-Assembly’s role was restricted under the New York Agreement to receiving
the Secretary-General’s report. The General Assembly had no authority to approve or
disapprove of the act of free choice. As the United Nations General Counsel pointed out:
It is difficult, in any circumstances, to see what useful action the General
Assembly could take …. the Agreement is one between Indonesia and the
Netherlands, and the United Nations is in no way a party to it.99
Resolutions approving something less than independence contain language noting that the
population has freely exercised its right to self-determination.100 For example, resolution
97 FRANCK, THE STEALING OF THE SAHARA 70 Am. J. Int’l L. 694, (1976)
98 UN: Series 100, Box 2, File 7, Memorandum from Stavropoulos to Rolz-Bennet (17th July 1969)
99 Stavropoulos to Rolz-Bennet UN inter-office memorandum 17 July 1969
849(IX) which approves the integration of Greenland into Denmark provides a clear
[The General Assembly]
Paragraph 3. Commends the action of [Denmark] in including in its delegation
to the General Assembly representatives elected by the national
council of Greenland for the purpose of furnishing information on
constitutional changes in Greenland;
Paragraph 4. [Took] note that when deciding on their new constitutional status,
through their duly elected representatives, the people of Greenland
have freely exercised their right to self-determination. (emphasis
Similarly, Resolution 748 (VIII) confirming that the United States no longer has an
obligation to transmit information on Puerto Rico under Article 73e of the United Nations
Charter, notes that the people of Puerto Rico have “expressed their will in a free and
democratic way” and have “effectively exercised their right to self-determination.”
Resolution 2504(XVII) does not mention self-determination or that West Papua has
ceased to be a non-self-governing territory. It does not amount to United Nations
approval of the act of free choice or even to approval of the reports that were presented.
There is no other resolution of the General Assembly (or of the Security Council) which
approves the act of free choice or confirms that West Papua has freely exercised its right
to self-determination. In the absence of any resolution approving the act of free choice, it
is difficult to conclude that the United Nations has expressed its approval of the
integration of West Papua into Indonesia.
It is doubtful whether even an explicit approval by the General Assembly could validate
Indonesia’s presence in West Papua. As Cassese points out:
..as a result of the principle of self-determination it is no longer possible for valid
legal title to be acquired where territories are annexed in breach of selfdetermination.
He cites as an example Indonesia’s incorporation of East Timor where there was no direct
expression of the will of the people and Indonesia relied on a decision made by an
unelected assembly while East Timor was under Indonesian military occupation.102
Similar conditions existed in West Papua. Less than 0.2% of the population in West
Papua took part in the act of free choice and they were not allowed to vote. Secondly
West Papua was under Indonesian military occupation. As early as 1963 when UNTEA
transferred administration to Indonesia there were 15,000 Indonesia troops in West
Papua.103 The United Nations Decolonisation Committee even states that the Netherlands
New Guinea joined Indonesia in 1963 as Irian Jaya.104 If so it means that Indonesia
annexed West Papua before the act of free choice. The same factors which made the
annexation of East Timor illegal existed in the case of West Papua. Why then is the
annexation of East Timor illegal but not the annexation of West Papua? Cassese argues
…in some exceptional instances the acquisition of authority over a territory in
breach of self-determination can be subsequently validated by the recognition or
acquiescence of other member states of the international community.105
He cites only two examples – Goa and West Papua. The case of Goa can be distinguished
on the grounds that it was a colonial enclave which did not have a right to selfdetermination.
The illegality was in India’s use of force. West Papua is a completely
different legal question. The General Assembly, the Netherlands and Indonesia all
confirmed that West Papua had a legal right to self-determination. One consequence of
Cassese’s argument would be to create a rule of international law which applies to only
one situation – West Papua.
It is also doubtful whether recognition and acquiescence by States are capable over time
of validating Indonesia’s sovereignty. By accepting administrative responsibility for a
non-self-governing territory, Indonesia became bound by Article 73 of the Charter which
provides that administering powers which acquire responsible for non-self-governing
recognise that the interests of the inhabitants of those territories are paramount,
and accept as a sacred trust the obligation to promote to the utmost within the
system of international peace and security established by the present Charter, the
well-being of the inhabitants of these territories (emphasis added).
The Court has confirmed that the existence of the sacred trust puts legal restrictions on
what a State may do. Although its opinions relate to the sacred trust under the mandates
system established by the Covenant of the League of Nations, the principles declared by
the Court are general principles of international law on the nature of the sacred trust. The
sacred trust is not merely a moral obligation but has a binding legal character106 and
…two principles were considered to be of paramount importance: the principle of
non-annexation and the principle that the well-being and development of such
peoples form “a sacred trust of civilisation.”107
103 SALTFORD p61
104 http://www.un.org/depts/dpi/decolonization/trust2.htm
106 Namibia Opinion 1971, paragraph 47
107 International Status of South West Africa: Advisory Opinion, I.C.J. Reports 1950. p128 at 131
Indonesia’s annexation of West Papua is incompatible with the sacred trust. More
importantly for West Papua, the sacred trust can only come to an end when it has
achieved its purpose.108 The sacred trust is not static but evolves:
The Court must take into account the changes which have occurred in the
supervening half century and its interpretation cannot remain unaffected by the
subsequent development of law, through the Charter of the United Nations and by
way of customary law … these developments leave little doubt that the ultimate
objective of the sacred trust was the self-determination and independence of the
peoples concerned.109
On this basis Indonesia is still under a legally binding obligation to permit a genuine act
of self-determination in West Papua. Sir Muhammad Zafrulla Khan, the President of the
Court, in a separate opinion, stated that autonomy or any other form of local selfgovernment
amounts to a denial of self-determination as envisaged in the Charter of the
United Nations. Indonesia’s attempts to establish special autonomy for West Papua
within the framework of the Indonesian State are a denial of West Papua’s right to selfdetermination.
The sacred trust continues until West Papua has validly exercised selfdetermination.
It follows that even if other States recognise Indonesia’s de facto control
of West Papua, that recognition does not make West Papua a legal part of Indonesia’s
territory, since such States would be acting contrary to the legal requirements of the
sacred trust.
The New York Agreement provided for the future self-determination of West Papua and
indicates that the sacred trust continued even though the territory was under temporary
administration by the United Nations. As Ralph Wilde points out
In considering the effect of territorial administration by international
organisations on status and territorial title, therefore, it is not enough merely to
consider the degree of administrative prerogatives exercised. One must also
establish the basis on which the prerogatives are exercised. In particular, one
must consider whether or not they are exercised on behalf of the territory as a
juridical unit and, if so, what assumption about the status of the unit is being
The status of West Papua was that of a non-self-governing colony with a right to selfdetermination.
Indonesia assumed administration of West Papua as the inheritor of
colonial duties from the Netherlands via UNTEA, including the sacred trust to ensure
self-determination for West Papua and the treaty obligations in the New York Agreement.
Until West Papua freely exercises its right to self-determination it remains a colony and
Indonesia’s presence in West Papua is illegal. The General Assembly has declared:
108 Namibia Opinion 1971. paragraphs 55 and 61
109 Namibia Opinion 1971paragraph 53
Press, 2008)
the further continuation of colonialism in all its forms and manifestations a crime
which constitutes a violation of the Charter of the United Nations and, the
Declaration on the Granting of Independence to Colonial Countries and Peoples
and the principles of international law.111
And as Sureda points out:
…the presence of the metropolis in its colonies has gradually been considered to
be illegal unless confirmed by an act of self-determination. This seems to indicate
that, within the context of colonialism, self-determination has become a
peremptory norm of International Law whereby a state’s title to a territory having
colonial status is void.112
Orakhelashvili also considers that:
The right of peoples to self-determination is undoubtedly part of jus cogens
because of its fundamental importance even if its peremptory character is
sometimes disputed.113
Since self-determination is a peremptory norm in the context of decolonisation only the
West Papuans (and not the General Assembly or States) can justify Indonesia’s presence
in their territory and convert Indonesia’s status from colonial power to legitimate
In the Namibia Opinion 1971, the Court held that South Africa had created an illegal
situation and was under a legal obligation to put an end to the illegality by withdrawing
its administration.114 It is arguable that since Indonesia as an illegal administering power
Indonesia is also under a legal obligation to terminate its presence in West Papua. In the
same opinion the Court held that other States should not recognise the illegal situation
and should refrain from lending support to South Africa. The Court repeated this
principle of non-recognition in its opinion on the Legal Consequences of the Construction
of a wall in the Occupied Palestinian Territory115 stating that the construction of the wall
was a breach of Israel’s obligation to respect Palestine’s right to self-determination and
…all States are under an obligation not to recognise the illegal situation arising
from the construction of the wall in the Occupied Palestine Territory, including in
and around East Jerusalem. They are also under an obligation not to render aid
or assistance in maintaining the situation created by such construction.116
111 Resolution 2621(XXV)
112 SUREDA p353; See also Cassese ibid p111
113 ORAKHELASHVILI, Peremptory Norms in International Law, p50 (Oxford University Press, Oxford,
114 paragraph 118
115 I.C.J. Reports 2004 p136 hereafter Construction of the Wall
116 Para 159
Applying the Court’s reasoning to West Papua suggests that States should not recognise
Indonesia’s presence in West Papua nor act in ways that support the current occupation.
The Court has also confirmed that the right of self-determination has evolved so that
today it is a right erga omnes:
Portugal’s assertion that the right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character,
is irreproachable…it is one of the essential principles of international law.117
The ICJ repeated this principle in its opinion on the Construction of the Wall:
The Court indeed made it clear that the right of peoples to self-determination is
today a right erga omnes.118
A right erga omnes is a concern of all States and therefore all States have a legal interest in
its protection.119
7. Conclusion
In 1949, after the creation of the Republic of Indonesia, West Papua was a non-selfgoverning
colony and was recognised as such by the United Nations and by the
Netherlands, the then administering colonial power. In 1963 when Indonesia took over
administrative responsibility for West Papua, the territory remained a non-self-governing
colony with a substantive right to self-determination under international law. That right
was recognised by Indonesia in the New York Agreement – a bilateral treaty that was
approved by the United Nations – thereby reinforcing the fact that Indonesia did not
legally have sovereignty over West Papua.
Indonesia’s presence in West Papua is that of a colonial administration which can be
made permanent only if the peoples of West Papua vote for integration through a selfdetermination
exercise held in accordance with the procedural requirements of
international law. The only self-determination exercise has been the invalid act of free
choice held in 1969 which does not authorise Indonesia’s presence in West Papua and
cannot legally convert Indonesia’s administrative responsibility to sovereignty.
Indonesia’s acquisition of West Papua in 1969 remains an illegal annexation which
cannot be validated by the international community since it was a violation of the sacred
trust under the Charter. Since the acquisition cannot be validated, West Papua is not
legally a part of Indonesia’s territory but a non-self-governing territory under occupation.
Independence for West Papua would be the restoration of Papuan sovereignty and not a
violation of Indonesia’s territorial integrity. Indonesia therefore would not be able to rely
on paragraph 6 of the Declaration.
117 East Timor (Portugal v. Australia), Judgment I.C.J. Reports 1995, at paragraph 29,
118 paragraph 88
119 Barcelona Traction Light and Power Company ltd, Second phase I.C.J. Reports 1970 p3 at paragraph 33
Since the right of self-determination in a colonial context has become a peremptory norm
and since it is a right erga omnes, the interests of the international community as a whole
are violated by Indonesia’s illegal presence in West Papua. Indonesia’s use of the army to
pacify West Papua amounts to a forcible denial of the right of self-determination and is a
further violation of international law. Resolution 2625 (XXV) states that
In their actions against, and resistance to, such forcible action in pursuit of their right to selfdetermination,
such peoples are entitled to seek and receive support in accordance with the
purposes and principles of the Charter.
States should therefore recognise that West Papua is an Indonesian colony with a separate
and distinct status and act to ensure that the egregious violations of human rights are
brought to an end.
As the ICJ stated in relation to the Namibian peoples:
….all States should bear in mind that the injured entity is a people which must look to the
international community for assistance in its progress towards the goal for which the sacred trust
was instituted.
It follows that the international community of States are also under an obligation to
ensure that Papuans are allowed to exercise freely their right to self-determination.