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Act of Free Choice in West Papua Pp Cambridge Books Online http://ebooks.cambridge.org/ Sovereignty, Statehood and State Responsibility Essays in Honour of James Crawford Edited by Christine Chinkin, Freya Baetens Book DOI: http://dx.doi.org/10.1017/CBO9781107360075 Online ISBN: 9781107360075 Hardback ISBN: 9781107044258 Chapter 12 - An analysis of the 1969 Act of Free Choice in West Papua pp. 209- 228 Chapter DOI: http://dx.doi.org/10.1017/CBO9781107360075.017 Cambridge University Press 12 An analysis of the 1969 Act of Free Choice in West Papua thomas d. musgrave∗ 1Introduction This chapter will examine the so-called ‘Act of Free Choice’, which took place in West Papua in 1969, and which resulted in the incorporation of West Papua into Indonesia. ‘West Papua’ is the name by which the Papuans themselves refer to their homeland. The territory was originally known in colonial times as West New Guinea, and the territory is referred to as ‘West Irian’ in Indonesia. In this chapter the term ‘West Papua’ will be used to refer to the territory, except in those instances when it has been officially referred to either as West New Guinea or West Irian. The population of West Papua will be referred to as ‘Papuans’. Leaders of the West Papuan independence movement assert that the population of West Papua was not accorded any real opportunity to exer- cise its right of self-determination upon the decolonisation of the territory in 1969. They argue that the so-called ‘Act of Free Choice’ administered by Indonesia was manipulated so as to ensure that West Papua was absorbed into Indonesia, without the true will of the population hav- ing been taken into account. As a result, the events surrounding the Act of Free Choice remain a source of deep and abiding grievance amongst Papuans. Indonesia, on the other hand, has always denied that there was anything untoward about the Act of Free Choice, and that West Papua was legally incorporated into Indonesia and now forms an integral part of the country. Recently no less a personage than Indonesian President Yudhoy- ono, referring to West Papua, declared that there ‘exist no manipulations * I wish to acknowledge my research assistant, Ms Anne Thomas, and to express my heartfelt thanks to her for her very helpful contributions to this chapter. 209 Downloaded from Cambridge Books Online by IP 81.110.90.40 on Sat Oct 24 00:17:30 BST 2015. http://dx.doi.org/10.1017/CBO9781107360075.017 Cambridge Books Online © Cambridge University Press, 2015 210 thomas d. musgrave of history that must be revised’.1 This chapter will examine the events leading up to and involving the 1969 Act of Free Choice, in the context of the legal requirements of the right of self-determination as it existed at that time, in order to ascertain whether the West Papuans were indeed denied a real opportunity to exercise their right to self-determination, and, if so, to analyse the consequences which flow from such a denial. 2 The development of self-determination in international law In examining the legality of the 1969 act of self-determination in West Papua, it is first necessary to consider the status of self-determination in international law at that time. Up until World War II, self-determination had for the most part been solely a political process. Since then, it has increasingly become an established legal right in international law. This began with its inclusion in the Charter of the United Nations (UN), in Articles 1(2) and 55. Self-determination was not defined in the Charter, but in the 1950s it came to mean the process of decolonisation, for a majority of the members of the General Assembly. Colonies, or ‘dependent territories’, were addressed in Chapters XI, XII and XIII of the Charter. Although the term ‘self-determination’ was not utilised in these chapters, the fact that the term was increasingly associated with decolonisation meant that the provisions of these chapters were understood to constitute a primary application of the principle. The UN Charter categorised these territories into two types: trust ter- ritories, which were addressed in Chapters XII and XIII of the Charter, and non-self-governing territories, which were addressed in Chapter XI. West Papua had been declared to be a non-self-governing territory by the General Assembly in 1960,2 and therefore the provisions of Chap- ter XI applied to it. Chapter XI comprised two articles, Articles 73 and 74. Article 73 obliged Member States administering non-self-governing territories to develop self-government in those territories. However, the Charter had not defined when a territory would be considered to be non-self-governing, nor when it would cease to be non-self-governing.3 1 Jennifer Robinson, ‘Self-determination and the Limits of Justice: West Papua and East Timor’ in Helen Sykes (ed.), Future Justice (Albert Park, Victoria: Future Leaders, 2010), 177. 2 John Saltford, The United Nations and the Indonesian Takeover of West Papua, 1962–1969 (London, New York: Routledge, 2003), 180. 3 Thomas D. Musgrave, Self-determination and National Minorities (Oxford University Press, 1997), 69, 70. Downloaded from Cambridge Books Online by IP 81.110.90.40 on Sat Oct 24 00:17:30 BST 2015. http://dx.doi.org/10.1017/CBO9781107360075.017 Cambridge Books Online © Cambridge University Press, 2015 an analysis of the 1969 act of free choice in west papua 211 Consequently the General Assembly sought to define and elaborate these issues in a number of Resolutions adopted in the 1950s, and to exert pressure on administering states to end the non-self-governing status of such territories as quickly as possible. Amongst the many Resolutions adopted by the General Assembly in this regard, the two most important ones were Resolution 1514(XV) of 14 December 1960 and Resolution 1541(XV) of 15 December 1960. Resolution 1514(XV) was entitled ‘The Declaration on the Granting of Independence to Colonial Countries and Peoples’. This Resolution equated self-determination with decolonisation. This can be seen in the juxtaposition of paragraphs 1 and 2. Paragraph 1 condemned the ‘subjec- tion of peoples to alien subjection and exploitation’ and declared that this was ‘contrary to the Charter of the United Nations and is an impediment to promotionofworldpeaceandco-operation’.TheResolutionthenlinked the reference to ‘peoples’ in Article 1 to their right to self-determination in Article 2: All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.4 The preamble declared ‘the necessity of bringing to a speedy and uncon- ditional end colonialism in all its forms and manifestations’. Para- graphs 3 and 5 provided further elaboration in this regard. Paragraph 5 called for the immediate transfer of ‘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’. This grant of independence to non-self- governing territories was not to be delayed, according to paragraph 3, by any inadequacy of political, economic, social or educational prepared- ness. Paragraph 6 emphasised that the process of decolonisation was not to affect or alter the territorial boundaries of the newly independent State from the boundaries which had defined it as a colony: 4 Para. 2 simply reiterated the identical wording of Art. 1(1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Although these two covenants did not open for signature and ratification until 19 December 1966, and did not come into force until 1976, common Art. 1(1) had been drafted in its final form and approved by the General Assembly in 1955. Downloaded from Cambridge Books Online by IP 81.110.90.40 on Sat Oct 24 00:17:30 BST 2015. http://dx.doi.org/10.1017/CBO9781107360075.017 Cambridge Books Online © Cambridge University Press, 2015 212 thomas d. musgrave 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. Resolution 1514(XV) was adopted by the General Assembly by a vote of eighty-nine in favour, none against, and nine abstentions. Both Indonesia and the Netherlands voted for the Resolution.5 The day following the adoption of Resolution 1514(XV) the Gen- eral Assembly adopted Resolution 1541(XV). This Resolution was also directed at dismantling colonialism. It laid down twelve principles with regard to Article 73 of the Charter and non-self-governing territories. Principle I specified that Chapter XI applied to territories which were ‘known to be of the colonial type’. Principle VI set out the three ways in which a non-self-governing territory could obtain a full measure of self- government: independence, free association with an independent State or integration with an independent State. General Assembly Resolutions up to this point had stressed that independence was ‘the normal and expected way in which a full measure of self-government would be achieved’.6 It was therefore assumed in Resolution 1541(XV) that independence would be the usual outcome of an act of self-determination, and as a result Resolution 1541(XV) did not enumerate conditions for the attainment of independence by a non-self-governing territory. For the other two types of self-government, which were seen to be derogations from the normal and expected outcome of independence, the Resolution did lay down conditions.
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