There was an interesting issue in The Jakarta Post in the last few weeks regarding the peace effort in Papua, particularly the issue around the struggle of the Free Papua Movement (OPM).
In this article, I attempt to briefly discuss the applicability of the exercise of the right to self-determination as a legal basis for human rights remedy for the Papuans as people in the context of international law.
As most people probably know, the OPM bases its struggle on the peoples’ right to self-determination, which to some extent presumably allows indigenous peoples in certain territories to secede from an existing sovereign state. However, can they actually put this right as a legal basis?
The right of self-determination has a long history in international relations. It started after World War I, when US president Woodrow Wilson and his “Fourteen Points” speech, up until today’s dual-core international human rights covenants.
History shows the concept’s development from a purely political consideration into a legally binding principle, apparently gaining jus cogens or peremptory norm status in international law.
Most countries, including Indonesia, have ratified the Civil and Political Rights Covenant and the Social, Economic and Cultural Rights Covenant, which in the common Article 1 acknowledge the existence of all peoples’ right to “freely determine their political status and freely pursue their economic, social and cultural development”.
Nonetheless, in today’s interpretation and as states’ practice shows, the exercise of the right of self-determination is legally accepted only on the basis of decolonization.
A people or nation has the right to opt and decide its own political opinion and legitimate government free from foreign occupation on their own land; and further in some occasions, some writers also refer to decolonization as merely from European or pseudo-European occupation.
Hence it is somehow doubtful to invoke legitimacy of the right to secede stemming from the idea of self-determination.
However, the longevous accepted interpretation apparently may not be able to answer the recent post-modern world phenomenon regarding the claim of national statehood of, for instance, Kosovars, Serbs, Eritreans, East Timorese or even in this case West Papuans, which are entirely different compared to the post-World War II decolonization. Those situations have gone beyond the decolonization context.
Thus I do agree with a broader interpretation of the applicability of the right of self-determination within the ambit of international human rights treaties.
International law already provides a guideline in interpreting a provision through the Vienna Convention on the Law of Treaty; having interpreted from the plain meaning of such a provision, we have to base from the object and purpose of the treaty as well.
Therefore, the right to self-determination must be seen in the light of efforts of every nation to achieve a common standard of human rights, so, as the Universal Declaration of Human Rights says, “every man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression”.
Furthermore, the emergent role of international human rights norms in these last decades, which has
also seen the role of the individual as a subject of international law become more prominent, together with efforts to reconcile the state-centered paradigm with the human rights approach, provide an
opportunity for international jurists to analyze this issue from a new perspective.
The generally acknowledged “people” as the subject of the right of self-determination must not be referred solely to the population of a state, but should also embrace the minorities and indigenous peoples within the state.
While the era of decolonization has come to an end, the exercise of the right of self-determination as a collective human right – in the form of secession – has been contended with the principle of territorial integrity; and in almost every event, the principle of territorial integrity prevails.
Nevertheless, it is an important task for the international community to strike the balance between principles in international law.
M. Pomeranche says that “such complexity can only be handled by means of a flexible approach that sees self-determination as a continuum of rights, as a plethora of possible solutions”. Yes, the right of self-determination is a process, not a goal.
Nevertheless, since I am a proponent of the concept of “remedial” self-determination, there is always a “right” to secede for indigenous peoples from a sovereign state – but only in exceptional circumstances, particularly when gross violations of human rights have occurred.
Secession in such circumstance should be a remedy for the people in order to bring to reality freedom, justice and peace in the world.
There have been several cases of how the international community gave support to secede for Bangladeshis, Eritreans and East Timorese, which to some extent may also resolve an endless dispute between nations and prevent the occurrence of the threat to the peace.
The writer is a master’s student of international law and the law of international organizations (human rights) at Rijksuniversiteit
Groningen, the Netherlands.
