Taking Papua issue to ICJ

The Jakarta Post , Jakarta | Wed, 04/26/2006 10:50 AM | Opinion

Charles Honoris, Tokyo

The issue of the Papuan asylum seekers has worsened the already shaky relations between Indonesia and Australia. The Indonesians claim that by giving visas to the 42 Papuans, the Australian government was showing support for Papuan independence and meddling in Indonesia's internal affairs, since there is no known persecution of the Papuans.

Australia, on the other hand, claims that it is the right of the receiving country to determine whether the asylum seekers suffered a clear and present threat in their homeland.

In Indonesia, politicians reacted emotionally. A member of the House of Representatives, Permadi, for example, called on the government to expel the Australian ambassador. Others wanted the government to sever relations with Australia. In Canberra, Senator Bob Brown, too, used this issue to fight his domestic political battles.

While politicians and cartoonists from both countries exchanged in mudslinging, it is not yet clear how the issue is to be solved. Certainly, severing diplomatic relations would not be the way out, as both countries are significant trade partners. In fighting international terrorism, both countries have shown superb cooperation, which is vital for the annihilation of al-Qaeda cells in Southeast Asia.

One possible approach to resolve this issue, which has rarely been suggested, is to bring this case to the International Court of Justice (ICJ) in The Hague. The ICJ decided a similar case in 1950 involving Colombia and Peru.

When a Peruvian political leader, Victor Haya de la Torre, led a failed revolt, he fled and sought asylum at the Colombian Embassy in Lima. The government of Peru, however, refused to grant safe conduct for him to leave Peru.

The Colombians brought the case to the ICJ and called for a decision recognizing Colombia's right to define whether Torre's offense was a criminal or political one. The Court, however, ruled against Colombia.

One reason why the issue of bringing the case of the Papuan asylum seekers to the ICJ is never publicly brought up is that when it comes to the International Court of Justice, Indonesia has had a bad experience. In the case of sovereignty over Sipadan and Ligitan islands, the ICJ decided against Indonesia's claims and recognized Malaysia's sovereignty over the two islands.

This decision was responded to with shock and awe by the Indonesian public, which, prior to the decision, was constantly assured by the government that the decision of the court would be favorable to Indonesia.

However, the decision by the ICJ on the case was not without legal justifications. The court's decision was based on customary international law, that since the Malaysian government had sanctioned diverse activities on the two islands for decades, sovereignty over Sipadan and Ligitan islands belonged to Malaysia.

The other downside of this approach is the costs of litigating this case. During the Sipadan-Ligitan case, the Indonesian government spent over Rp 16 billion in legal fees. One politician even said that the disputed islands were worth even less than the money spent on lawyers.

Would the expenses of litigating the Papuan asylum case be worth the cause? I personally think that it would be worth it, as a decision by an international tribunal would provide legal certainty and set a precedent for future conduct when similar cases arise.

At the least, the disputing parties could, through a UN body, ask for an opinion from the ICJ. An advisory opinion would not be binding, but it could be used as a guideline in dealing with this issue.

Six decades after the United Nations was established, many argue that the international institution is facing a major crisis. One reason is that states tend to ignore the existence of international institutions and the rule of international law. The U.S., for example, took unilateral action in its invasion of Iraq, even when the UN and the vast majority of international law experts condemned it as a breach of international law.

The writer is a student of political science and law at International Christian University, Tokyo

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