The Principle of Uti Possidetis Juris as it applies to post – colonial conflicts is called into question this week after the International Court of Justice handed down the Chagos Archipelago Advisory Opinion.http://dailypost.vu/…/article_b7c91ff6-2cdc-5df6-9b89…
Indonesia for decades since the 1960s considered the boundaries drawn up by colonial masters provided by international law, and pushed the international law principle of Uti Possidetis Juris to justify its claim to sovereignty over West Papua.
This was a period in which Indonesian embassies have been able to keep governments around the world insulated from the story of Papua. There was a problem. West Papua was ‘ the pebble in Jakarta’s shoes’, and Indonesian embassies were peddling historical inaccuracies and covering up human rights abuses that are happening in West Papua.
The strong point for Indonesia was the principle of Uti Possidetis Juris (“as you possess”) which formed the basis for Indonesian sovereignty in West Papua. In international law, the principle is applied to cases where states inherit and retain the boundaries drawn up by their colonial masters.
Uti Possidetis Juris is also taken to “signify that the parties to a treaty are to retain possession of what they have acquired by force during the war. This seemed to be the case in the Chagos Island International Court of Justice ruling or advisory opinion handed down this week which puts Britain and US on notice as to what the international best – practice is. They both preach it to the world. Of course, these democratic principles are accorded to all civilized nations in the 21st century including self – determination particularly given the colonial context. https://www.theguardian.com/…/un-court-rejects-uk-claim…
There were a number of wrong assumptions with the Indonesian signature illegal claim to sovereignty over West Papua based on the Uti Possidetis Juris principle of international law. Firstly, Indonesian colonial history differed with the rest of the East Indies colony under Dutch rule. The fact is West Papua was never part of the Dutch East Indies that was created by the Netherlands in the 17th century. The Dutch had control mainly over the two Muslim and one Hindu Empires that existed in the area now comprising the Republic of Indonesia.
West Papua became a colony of the Netherlands 200 years later in the 19th century as Dutch New Guinea.
West Papua therefore did not have a shared colonial history with the entity now called the Republic of Indonesia.
Secondly, the Indonesian declaration of independence in 1949 did not include West Papua after fighting its war of liberation against the Netherlands. The Indonesian Republic and its decolonization experience evolved separately from West Papua’s decolonization thesis because it was a separate colonial possession and was being prepared by the Netherlands for its political future and independence in the early 1960s.
For instance, at the time Indonesia invaded West Papua in 1962, West Papua had a Constituent Assembly, a coat of arms, national anthem and all the character of a nation awaiting independence. It means the principle of Uti Possidetis Juris does not form a basis for Indonesian claims over West Papua. Instead, West Papua is an annexed territory and one that has been occupied ever since the 1962 invasion by the Indonesian military.
Thirdly, UN Resolution No. 2504/1969 does not constitute an agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian) that was embedded in the Act of Free Choice of 1969 so as to cater for a referendum exercise. And, where West Papuans as a people could freely exercise their rights to self-determination.
The history of the fraud of West Papua is now well – documented. United Nations Secretary General gave free reign to the Indonesians to conduct the Act of Free Choice, but by all accounts the Act of Free Choice was never a referendum.
For instance, only 1026 Melanesians from a population of about 1.2 million people were selected by the occupying Indonesian military to decide the fate of the whole of the West Papuan to either be integrated into the Republic of Indonesia or become an independent sovereign state.
And, the evidence of a UN – sponsored referendum that did not meet any standard or requirement of international law on the right to self-determination, as it existed then, and as it exists now, has come to light. If only 1026 Papuans took part then the voting was not free and fair.
Besides, there was intimidation by the Indonesian military for Papuans to cast their votes in favor of integration into the existing Indonesian Republic. An Indonesian army officer, with a gun pointed to the heads of the Papuan leaders warned:
“You have to choose Indonesia not Papua. If you don’t choose Indonesia, then I will kill you, all of you”. The result of the referendum was an overwhelming “in favor” vote to be integrated into the Indonesian Republic.
In the aftermath of the events of this week, Indonesia has been under a lot of pressure to exploit its last options. One of them is to tell the world the truth – and say sorry!
The Chagos Islands ruling or advisory opinion by International Court of Justice puts into perspective the 1969 “Act of Free Choice” given the clear evidence available today that it was a sham and a total disregard of the democratic principles that is accorded to all civilized nations.
The democratic principles accorded to all civilized nations includes the West Papua issue having the benefit of being progressed, and escalated, towards debate by the UN General Assembly for resolution based on international intervention by MSG and PIF, as well non – state actors like the World Council of Churches.
In recent months, internationalization of the West Papua issue has paid dividends.
Vanuatu officials had a scheduled meeting in Geneva with U.N. High Commissioner for Human Rights Michelle Bachelet. Among them was an exiled Papuan leader, and West Papuan pro – independence umbrella group ULMWP chief Benny Wenda, who presented a voluminous petition signed by about 2 million indigenous Papuans to Bachelet.
The petition called for an independence referendum for West Papua.https://www.abc.net.au/…/west-papuans-fight…/10584336
The International Court of Justice may hand down the West Papua Advisory Opinion sooner than expected.
(Photo Caption: Mauritius Oral Submission team – ICJ; Vanuatu legal team was on the panel represented by Jennifer Robinson; Chagos Island; Chagos Islanders demand their homeland to be returned; ULMWP petition – called for independence referendum for West Papua is before the UNHRC; ULMWP Chairman Benny Wenda – petition signed by up to 2 million indigenous Papuans was a civilized process to involve the UN in the West Papua issue)