by Akihisa Matsuno, OSIPP, Osaka University
Self-determination beyond decolonisation
Self-determination has legal and political dimensions. The right to self-determination is cited in the UN Charter and the two Covenants of Human Rights, but basically the international community failed to consistently apply this right beyond the cases of decolonisation. The newly born states have been mostly hostile to the notion of self-determination of a population under their sovereignty, the world powers feared further instability if colonial boundaries were not respected, and there was a technical difficulty in defining ‘a people’.
And even among the cases of decolonisation, political factors such as Cold War and powerful country’s interest often obstructed smooth exercise of the right to self-determination. Unless such political factors were somehow removed, an act of self-determination was not possible. This reality sometimes has prolonged a self-determination conflict to the unbearable extent. In the case of East Timor, it took twenty-four years for the Cold War factor to become irrelevant and for the obstinate ruler to be removed. The case of Western Sahara has stumbled in a deadlock as the Middle East factor, America’s war on terror and France’s hegemonic ambitions are still there blocking pressures on Morocco to comply with the UN standards of decolonisation.
The case of West Papua seems to pose at least two questions regarding self-determination. One is about the applicability of the right to self-determination itself: whether the people of West Papua had the right to self-determination when the decolonisation of the territory started and specifically at the time the New York Agreement was signed. The other is what sort of political factors play behind the issue of self-determination for West Papua. These are actually old questions. But here I want to reexamine these questions in the light of recent developments of self-determination in the world politics. The last two decades have seen a number of cases of self-determination occurring outside the context of decolonisation. Some resulted in the establishment of a new separate state, others in the integration of a disputed territory with some degree of autonomy. If the self-determination of West Papua is to be debated again internationally, these new trends will be important together with traditional arguments.
Kosovo: self-determination as a remedy
The independence of Kosovo, which the Assembly of Kosovo declared on 17 February 2008, was a case of remedial secession. No states claimed that the people of Kosovo had the right to self-determination, and self-determination occurred there not as a matter of the right, but as a remedy. After negotiations over the final status of Kosovo failed to reach agreement, the UN Secretary General’s special envoy, Martti Ahtisaari, proposed independence of Kosovo between the unviability of its reintegration into Serbia and the unsustainability of continued international presence there. Kosovo’s returning to Yugoslavia is not a viable option, he explains in his report, because ‘Belgrade could not regain its authority without provoking violent opposition’. Long history of enmity, mistrust and antanogism, the actions by the Milosevic regime, Koso_o Albanians’ armed resistance and brutal repression by Belgra_e caused a humanitarian crisis that eventually led to the NATO’s military intervention. The subsequent establishment of international presence created a situation in which Serbia exercised no governing authority. He writes, ‘This is a reality one cannot deny; it is irreversible.’ (S/2007/168)
But Serbia and Russia challenged the independence declaration of Kosovo. These governments succeeded in persuading the General Assembly to agree to the referral of the case to ICJ for an advisory opinion. The ICJ’s advisory opinion delivered in July 2010 was that the Kosovo’s declaration did not violate any general international law because international law contains no prohibition on declaration of independence.
In retrospect, we must say that in reality the territorial integrity of Serbia was neglected. The protection of people in Kosovo apparently had more weight than the territorial integrity of Serbia. So, how about the legality of recognition of an independent state of Kosovo by other states? Logically, if an independence declaration per se is not illegal in international law, the recognition of it cannot be illegal either. However, the US and EU asserted that Kosovo was a unique case and that it by no means would be used as a precedent because they were aware of the danger that such recognition of secession without consent of the mother state would influence the situations of secessionist movements in other areas (Borgen, 12-3).
Whatever the interpretation of the US and EU was, the case of Kosovo apparently did create a precedent provoking a ‘recognition battle’ between Russia and (mostly) Western governments. The cases in point are South Ossetia and Abkhazia. Russia officially recognised South Ossetia and Abkhazia as sovereign states in August 2008, six months after the independence declaration of Kosovo. Although its position over Kosovo was that secession could occur only when the mother state accepted it, Russia recognised the secessions of the two areas without consent of their mother state Georgia. Here Russia too, as can be expected, asserts that South Ossetia is a unique case.
At the political level at least, if there are more than one similar ‘unique’ cases, they are no more unique. What the above cases imply, despite of these governments’ completely opposing views over specific situations, is that ‘secession can be a legal remedy in extreme cases (Borgan, 22)’. So, the question will be what constitutes ‘an extreme case’. Since there is no consensus, it is relative, political and a matter of proportion.
South Sudan: self-determination long due
Sudan became an independent state in 1956, but plunged into a prolonged civil war between North and South. There were significant ethnic, linguistic, religious and social differences between North and South, and in fact the British ruled them as separate entities. The history of Sudan seems to suggest that lack or low level of integration, natural or historical, between areas ruled by the same colonial power can be a reason for the establishing of a separate state. This means that colonial boundaries are not as absolute as usually assumed.
The 2005 Comprehensive Peace Agreement included the right to self-determination of the people of South Sudan. The recognition of the right to self-determination of the people of South Sudan goes back to the 2002 Machakos Protocol, and it was further confirmed in the 2004 Declaration in Nairobi. An interesting logic that had emerged in the process attracts us, that is the juxtaposition of the ‘unity’ of Sudan and the ‘right to self-determination’ of a population within its borders. The Machakos Protocol says, in its Agreed Principles, that ‘the unity of the Sudan, based on the free will of its people, democratic governance, accountability, equality, respect, and justice for all citizens of the Sudan is and shall be the priority of the parties and that it is possible to redress the grievances of the people of South Sudan and to meet their aspirations within such a framework (1.1). It also says, that ‘the people of South Sudan have the right to control and govern affairs in their region and participate equitably in the National Government (1.2)’, and (but) that ‘the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status (1.3)’. It further says, that ‘the people of the Sudan share a common heritage and aspirations (1.5)’.
These articles are of course a result of political compromise between the Sudanese government and the resistance organisation of the South Sudanese, SPLM/A. The term ‘people’ is used to designate two different groups: the people of South Sudan and the people of Sudan of which the people of South Sudan is a part. The point is to allow a people within the state boundary to exercise the right to self-determination to determine their future status.
Even more interesting is the UN Security Council Resolution 1547 (2004) on the establishment of a UN advance team for Sudan on 11 June 2004. Its fourth preambular paragraph, ‘Reaffirming its commitment to the sovereignty, independence and unity of Sudan’, exists without any contradiction with the fact that the resolution backs the settlement of the problem that firmly upholds the right to self-determination of a people within that very sovereign state.
East Timor: Indonesian interpretation of self-determination
Here I suggest examining the case of East Timor. Internationally the question of East Timor was a question of the right to self-determination and independence of the people of East Timor as a typical issue of decolonisation. It was a case of delayed exercise of the right to self-determination and independence due to certain political factors. Therefore the Popular Consultation was the realisation of that recognised right. But the case was not so simple for Australia and Indonesia because both states had claimed that Indonesia had sovereignty over East Timor.
When Prime Minister John Howard as a result of ‘policy adjustments’ on East Timor in 1998 urged then Indonesian President B. J. Habibie to address the East Timorese demand for an act of self-determination (DFAT, 28), he was asking that a population within the state, whose sovereignty over the territory in question Australia once gave de jure recognition to, be allowed an opportunity for an act of self-determination. President Habibie followed his advice, and by the People’s Consultative Assembly’s decision that recognised the result of the Popular Consultation Indonesia cut off the relations with East Timor.
Indonesia has never verbally explained her interpretation of the nature of the Popular Consultation. Indonesia has never said that it was an act of self-determination by the people of East Timor. The official word ‘Popular Consultation’ implied that the people of East Timor was ‘only to be heard’ because the decision whether East Timor will separate from Indonesia or not rested on Indonesia (its MPR). At least such an interpretation was possible under the terms of the agreement. Indonesia understandably needed to present the act as a domestic process, but this very interpretation inevitably created a precedent that a population under Indonesia’s sovereignty had an opportunity to express their collective will whether they wanted to remain in Indonesia or to separate from it. This amounted to the right to secession, although it wasn’t presented as such. For Australia and Indonesia self-determination was a political remedy to the unsustainable situation they faced.
Implications for West Papua
Now we want to see the case of West Papua in the light of these new events. At the beginning of this paper I pointed out that there are two problems in relation with the self-determination in West Papua. One is the applicability of the right to self-determination, and the other is political factors behind the West Papuan self-determination.
I have argued that the right to self-determination of the people of West Papua was a major premise of the whole New York Agreement. The Agreement explicitly refers to ‘the exercise of the right to self-determination’ in Article 21, and says that ‘the act of self-determination will be completed before the end of 1969’ (Article 20). If ‘the right to self-determination’ had not been involved in the process, there would have not been such a phrase. Throughout the Agreement ‘the act of self-determination’ is used interchangeably with ‘an act of free choice’. The manner the act of free choice would be to be arranged is rather clearly described in Article 18 such as the eligibility of all adults (pointing to ‘one man one vote’), and a clear formulation of question as to whether the people wish to remain with Indonesia or to sever their ties with Indonesia. This sentence presumes that the right to self-determination referred to in the Agreement included the right to independence. As a party to the Agreement, the Indonesia’s official position should be that the people of West Papua at the time had the right to self-determination and independence, and that that right was to be exercised through the so-called act of free choice in 1969.
However, what Muridan calls the ‘nationalist’ position in Indonesia sees the matter differently. That position sees West Papua (West New Guinea) as an inseparable part of the people of Indonesia (Muridan, 8), and therefore as an implication there is no such right to self-determination for the population there. Would it then say that the New York Agreement was merely a tactical matter and that the act of free choice was only a face-saving measure for the Dutch? This line of argument, however, would pose a huge logical problem to Indonesia because it means that Indonesia had defied the internationally mediated process and the subsequent ‘recognition’ process by the UN over the act of free choice.
Here the case of South Sudan seems to be relevant. The recognition of the right to self-determination of the people of South Sudan occurred in spite of the fact that the British transferred sovereignty to one Sudan. This British action was later seen to have ignored significant ethnic, linguistic, religious and social differences between North and South that were real and the historical reality that North and South were administered as if they were separate entities.
So, even if we adopt the Indonesia’s ‘nationalist’ position that West Papua was a part of the Dutch East Indies, the automatic inclusion of West Papua into the Republic of Indonesia is not necessarily supported. At least the legitimacy of colonial boundaries, once ‘respected’ and never challenged, is now shaking and cannot be claimed without questions. To judge on this matter we need to look into the details of the reality on the ground: how far the Dutch administered West New Guinea and the rest of the archipelago as one colony, and how far the colonial administration united people politically in the archipelago so that racial, ethnic, linguistic, religious and social differences would become irrelevant for being together as one people.
Like South Sudan, West Papua has developed distinct identity because of racial, ethnic, linguistic, religious and social differences with the rest of the Dutch East Indies. The recognition of this difference was reflected in the difference of opinion among the Indonesia’s political leadership at the times of bilateral negotiations and was a cause of considerable reluctance on the part of the Dutch to treat West Papua together with the rest of the Dutch East Indies. The subsequent development of Papuan nationalism under the post-war Dutch administration cannot be regarded as something that was merely brewed by political engineering of the Dutch.
Klabbers presents an interesting argument. He writes, ‘(W)hat is clear, though, is that courts and tribunals are not in the habit of equating self-determination with secession; instead, secession increasingly comes to be viewed as a new possible “right” in its own right, separate from a right to self-determination.’ (Klabbers, 198)
Meanwhile, the case of Kosovo has spread the idea that state sovereignty is not an absolute concept, and has stimulated debates on Humanitarian Intervention and Responsibility to Protect (R2P). These are still being debated and there is no clear consensus about them. This paper does not review all those arguments. However, the current consensus is that the use of force to intervene a different country is only ‘legal’ with a UNSC resolution. And an intervention must be a last resort. The NATO’s intervention in Kosovo was carried out without a UNSC resolution, but it was regarded as ‘legitimate’ later with a series of UNSC resolutions that ‘recognised’ the result as acceptable. Here the central theme is ‘legitimacy’ of an intervention and not exactly its ‘legality’, and ‘legitimacy’ may come from a range of sources including ‘justness’ of an action. All these arguments suggest that state and morality are seen more related to each other than before, and this explains the fact that what’s happening within the borders of a sovereign state is increasingly under international scrutiny. If a humanitarian crisis with the scale of Kosovo, Rwanda or Darfur once again occurs somewhere on the globe, the international community may face more difficulties in resisting to calls for an intervention.
While a military intervention on behalf of West Papua is very unlikely, political pressures regarding human rights violations are possible. It might be that the issue of self-determination is going to the background in Western Sahara or West Papua for some reasons (this must be analysed in more details somewhere else) but that a more moral question behind self-determination is coming to the fore, and this is more substantial. I think that this shift in construction of sovereign responsibility also worked in the case of East Timor. For many including those realists with no sympathy to the cause of the East Timorese, the situation on the ground looked a ‘failure’, and they could understand that the failure that lasted for 24 years significantly contributed to the revival of the claim on self-determination for the people of East Timor. This factor, ‘failure’ in governing, did not exist at the time decolonisation started, and therefore did not constitute an originally necessary condition for an act of self-determination. It was a completely new factor that turned out to be there after many years. If this interpretation is right, the world now tends to see the issue of self-determination not in terms of its original legality alone but more in terms of contemporary situations of functioning morality within the state borders.
The current situation of the Indonesian government over the problem of West Papua resembles that of the problem of East Timor in the late 1980’s. There were serious human rights abuses, the area was closed to foreign media, influx of migrants was marginalising locals and causing simmering resentment, local leaders began to think that the government policies had failed, and there was an emerging young generation of locals who were educated under the Indonesian system as Indonesian children nonetheless refused to identify themselves as Indonesians. These young people were increasingly vocal and continued to expose ‘unsustainability’ of the situation. Indeed the unsustainability of the situation in West Papua seems to be a truth. Only it takes some more time for the world to realise the truth.
References (not all quoted)
Borgen, Christopher J. 2009. The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia. Chicago Journal of International Law; Summer 2009; 10, 1, pp. 1-33.
Buchanan, Allen. 1992. Self-Determination and the Right to Secede. Journal of International Affairs; Winter 1992; 45, 2, pp. 347-65.
DFAT: Department of Foreign Affairs and Trade. 2001. East Timor in Transition 1998-2000: An Australian Policy Challenge. Canberra.
Drooglever, Pieter. 2009. An Act of Free Choice: Decolonization and the Right to Self-Determination in West Papua. Oxford: One World Publications.
Farer, Tom J. 2003. The Ethics of Intervention in Self-Determination Struggles. Human Rights Quarterly; May 2003; 25, 2, pp. 382-406.
Hannun, Hurst. 1998. The Right of Self-Determination in the Twenty-First Century. Washington and Lee Law Review; Summer 1998; 55, 3, pp. 773-80.
Holder, Cindy. 2006. Self-Determination as a Universal Human Right. Human Rights Review, July-September 2006, pp. 5-18.
Kapitan, Tomis. 2006. Self-Determination and International Order. The Monist; April 2006; 89, 2, pp. 356-70.
Klabbers, Jan. 2006. The Right to be Taken Seriously: Self-Determination in International Law. Human Rights Quarterly; February 2006; 28, 1, pp. 186-206.
Muridan, S. Widjojo. ed. 2009. Papua Road Map: Negotiating the Past, Improving the Present and Securing the Future. Jakarta: LIPI, Yayasan TIFA and Yayasan Obor Indonesia.
Ramet, Sabrina P. 2000. The So-Called Right of National Self-Determination and Other Myths. Human Rights Review, October-December 2000, pp. 84-103.
Reus-Smit, Christian. 2001. Human rights and the social construction of sovereignty. Review of International Studies; 2001; 27, pp. 519-38.
S/2007/168. 26 March 2007. Report of the Special Envoy of the Secretary-General on Kosovo’s future status.
Saltford, John. 2003. The United Nations and the Indonesian Takeover of West Papua, 1962-1969. London and New York: RoutledgeCurzon.
Wellman, Christopher H. 1995. A Defense of Secession and Political Self-Determination. Philosophy and Public Affairs; Spring 1995; 24, 2, pp. 142-71.
Osaka School of International Public Policy