T

he ongoing controversy surrounding the Aceh provincial flag under qanun (bylaw) No. 3/2013 arises from the fact that it resembles the flag of the now defunct secessionist group the Free Aceh Movement (GAM).

As well as taking a legal approach to this issue, it can also be discerned from the application of human rights principles. The establishment of special autonomy status in Aceh is a form of intrastate agreement that is derived from the Aceh people'€™s right to self-determination. As this right allows people to freely determine their own political status, the Acehnese have the right to forge their legitimate claims politically, including the creation of a local flag, as enshrined under the Helsinki peace accord that Indonesia and the GAM signed in 2005.

Theoretically speaking, such an intrastate autonomy agreement has several important advantages, especially when it is contested with the threat of secession. A. Buchanan (2004) speaks of three advantages.

First, uncoupling the right to secede from legitimate interests that groups may have in various forms of intrastate autonomy is liberating. It allows groups to get what they need without the risks involved in secession.

Second, states will be more receptive to legitimate claims for autonomy if they are assured that they can respond to these without implicitly recognizing the group'€™s right to secede.

Third, the justice-based account of the unilateral right to secede focuses attention on the need to provide better protection for human rights.

Human rights have two essential elements: the permission or liberty and a correlative obligation. On the one hand, self-determination provides people with the permission or liberty to determine their own political status and natural resources. On the other, it places a limitation on the correlative obligations of people exercising their rights. As for the issue of the Aceh flag, while national laws allow this province to design its own flag freely, the Acehnese will also weigh up the limits or correlative obligations that should be respected in exercising the right to self-determination.

Under Article 1, paragraph 3 of the International Covenant on Civil and Political Rights, member states shall promote the realization of the right of self-determination and shall respect that right in conformity with the provisions of the charter of the United Nations (UN).

At this point, we may pinpoint the nexus between these norms, that the realization of the right to self-determination has to be within the UN'€™s principle objective of maintaining peace and security. As a result of this, member states have to preserve international peace and security to promote this right. In brief, the exercise of the right to self-determination shall not obstruct international peace and security.

Another set of limitations on exercising the right to self-determination is that it should also be limited by the rights of others. Arguably, in exercising this right, every person must take into account the other'€™s human right and failing to do so could be regarded as an infringement of human rights. The exercise of self-determination in this context must regard the national interest as a whole.

Departing from these limitations of self-determination, we turn to the illegitimate rule of the Aceh flag. First, given the resemblance of the flag with the GAM'€™s, the complaint of the central government is legitimate , as the flag itself could revive old hostilities. The home minister'€™s rejection of the qanun is justified under human rights norms, as the restriction is expressly stipulated by law and is necessary in a democratic society for the protection of national security and public order.

Second, the respect of the rights of others, that is to say other provinces or the nation as a whole, would justify the legality of the self-determination exercise.

Self-determination is a process rather than an end,  '€œa continuum of rights'€ that provides '€œa plethora of possible solutions'€ (Pomerance, 1982). From a human rights vantage point, the practice of this right in Aceh through special autonomy status should focus on the legitimate purpose of achieving justice and prosperity.

The writer is a researcher at the Human Rights Research and Development Agency, the Law and Human Rights Ministry. The views expressed are personal.