The people of West Papua claim the external right to selfdetermination — and their independence

The right to self-determination refers to the creation of independent States in the context of decolonisation (‘external self-determination’). International law is the law applicable to disputes involving self-determination and decolonisation and the International Court of Justice provides the forum for dispute resolution. In the post-colonial context self-determination refers to the recognition of minority rights and the right all peoples to determine their own future, economic, social and cultural development within the confines of the state (‘internal self-determination’). In more recent years, this internal right to self-determination has been used, for example, to ensure indigenous peoples have right of approval of development planned on or near traditionally owned lands. An aspect of self-determination is to be free from violence and human rights abuse. External Self-Determination: The Claim to Independent Statehood The people of West Papua claim the external right to selfdetermination  and our independence on the basis of applicable rules of customary international law regarding decolonisation, which states that ‘the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights’ and the UN Charter. This law is reinforced by State practice, pursuant to which countries around the world have gained independence from their former colonial powers. Indonesia argues that, at its independence in 1945, the territory of the Dutch East Indies included West New Guinea. West Papua is therefore part of Indonesia because post-colonial states are generally formed from the former colony. This is where Indonesia distinguishes West Papua and East Timor: East Timor was a former colony of Portugal and not part of the Dutch East Indies, like West Timor and West Papua. However, this distinction is simplistic and simply serves to obfuscate the debate. The real issue is the identification of the pertinent unit of self-determination: was it the entire colony of the Dutch East Indies, including West New Guinea? The short answer is no: subsequent events and the practice of the international community with respect to West New Guinea recognised the independent right of West Papuans to independence, separate from Indonesia. Successive General Assembly resolutions note the creation of the independent state of Indonesia and its admission to the UN, but specifically note that the new territory of Indonesia excluded West New Guinea, which would continue under Dutch control and ultimately gain independence. The UN and the Netherlands recognised that West New Guinea was a ‘non-self-governing territory’, which meant the territory had the right to independence and the international community had an obligation to assist them achieve it. Therefore, in 1963 West Papua was a colony over which Indonesia had administrative power, responsibilities inherited from the UN transitional authority (UNTEA), which in turn had taken over administration from the Netherlands, the original colonial power. The AOFC in 1969 is cited by Indonesia as justifying Indonesia’s integration of West Papua. Indonesia was required by its obligations under UN Charter, the New York Agreement and general international law to hold an act of self-determination in West Papua in accordance with international practice. International law required that West Papua’s integration with Indonesia ‘should be the result of the freely expressed wishes of the [Papuan] 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’. These conditions were clearly not met in the 1969 vote. Legal commentators have dismissed the Indonesian administered AOFC as a ‘spurious exercise’, which amounts to a substantive betrayal of the principle of self-determination.

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