The New York Agreement: Legal Basis to Restore West Papua Into the Republic of Indonesia

As far as Indonesia was concerned, West Papua was legally and constitutionally a part of the Netherlands East Indies. It is also an indisputable fact that the core of the Indonesian freedom struggle during the years 1945-1949 was independence for all of its people on the entire Indonesian archipelago comprising all of its islands. Proceeding from this basic premise, Indonesia viewed West Papua as an integral part of its territory that was forcefully occupied by the Dutch colonial authorities.

Consequently, Indonesia has since 1950, assiduously sought to reach a peaceful settlement both within and outside the United Nations. Imbued by the desire to bring back West Papua into the fold of the Republic, it accepted in principle the Bunker proposal and expressed its willingness to discuss it further. Indonesia, thus welcomed the initiative of the Acting Secretary-General to bring the parties together for informal discussions under his guidance. As noted in the previous chapter, after long years of conflict, the Bunker proposal resulted in the conclusion of the New York Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea or West Papua (UN Doc. A/51~O) on 15 August 1962. Instruments of ratification were exchanged between the two countries during 20-21 September 1962.

Salient Features of the Agreement

One of the salient features of the Agreement (Article II) was to provide for the initial transfer of administration of West Irian by the Neth¬erlands to an interim UN authority – UNTEA – on 1 October 1962 and subsequent transfer from UNTEA to Indonesian control after 1 May 1963 (XII). In this context, it should be noted that the Agreement provided for the first phase of the UNTEA administration (Article IX, X, XI) which included, inter alia, the rapid replacement of top Netherlands officials with non-Netherlands and non-Indonesian officials. Furthermore, it authorized UNTEA to employ Indonesian personnel to disseminate the terms of the Agreement to the Irian Jayan population and to promulgate new laws.

The second phase of the Agreement (Article XII, XIII) envisaged the transfer of all or part of the administration to Indonesia and the replacement of United Nations security forces by Indonesian security officers. This meant the complete and final end of colonial rule as demanded by Indonesia. Following this significant event, the Secretary-General in his report (UN DOC.A/5.578) informed the General Assembly of the unique and highly successful cooperation that existed between UNTEA, Indonesia and the Dutch officials from 1 October 1962 to 1 May 1963. Reflective of such cooperation after long years of conflict, the Governments of Indonesia and the Netherlands established liaison missions to UNTEA on 1 October 1962, headed by Dr. Sudj arwo Tj ondronegoro and Mr. L.J. Goedhart respectively

Following his consultations with the Government of Indonesia and the United Nations Administrator, the Secretary-General’s Chef de Cabinet, Mr. CV Narasimhan announced in Jakarta that the transfer of administration would take place on 1 May 1963 and the replacement of Dutch officials by Indonesian officials would be accelerated. Following that announcement, Mr. CV Narasimhan representing the Secretary-General, attended the ceremony transferring full administrative control from the United Nations Administrator to the representative of the Republic of Indonesia and the United Nations flag was subsequently lowered.

It should be noted that throughout this period, from the transfer of Dutch administration to UNTEA and later from UNTEA to the Republic of Indonesia, the process was carried out peacefully and proceeded without an incident. The people of IrianJaya were helped to adjust to the inevitable changes resulting from the agreement. Every effort was exerted to ensure a smooth transition, including the continuation of essential public services and utilities as well as employment.

The return of West Papua to Indonesia generated great enthusiasm among the peoples. Apart from fulfilling the provisions of the Agreement (Article XV), Indonesia was determined to ensure that West Papuas would enjoy the fruits of their new-found freedom. To assist them in these chal¬lenges, hundreds of Indonesians – teachers, scientists, doctors and nurses and civilian administrators – joined in the effort of UNTEA. From the outset, Indonesia had actively assisted UNTEA in the opening of new schools and public projects in the territory, such as scientific and agricultural projects. Remote areas of West Papua received special attention from the Indonesian Government. What was particularly heartening was that the population of the island voiced its enthusiasm by wholeheartedly participating in the nation-building process. Also noteworthy, was that a few hours after the UNTEA departed, the Indonesian Government appointed a native son of West Papua to the high office of Governor of the province. Such an appointment was more than what was called for in the Agreement, namely, to accelerate the participation of the people in the local government.

Another central aspect of the Agreement was the act of free choice or the ascertainment of the wishes of the Irian Jayan people (Article XVII) to take place six years after the administration had been formally and fully transferred to Indonesia. The latter provision was a compromise solution to meet the demands of the Netherlands and was to be held by the Indonesian Government to ascertain the wishes of the Irian Jayan people. As had been clarified by the Representative of Indonesia to the United Nations (A/PV I 155, page 544-545, paras 203-205), the purpose of agreeing to the idea of self-determination was to promptly reach a peaceful resolution of the West Papua question which does not mean its exercise in the strict, traditional and orthodox sense. This is due to the fact that Indonesia had never considered Irian Jaya as another country On the contrary, it was a matter of historical record that West Papua was part and parcel of Indonesia. The period of six years was to allow for its people to become reacquainted with the rest of Indonesia after having been divided by the colonial authorities.

As to the act of free choice, the Secretary-General’s functions were limited by the terms of the Agreement (Article XVI). In sum, the Agreement left the method and procedure to be followed in the act of free choice to the Indonesian Government (Article XVIII) which was to decide in consultation with the existing local representative councils in West Papua itself as legal representatives of its people. This was the real content and meaning of these provisions. Disregard of these critical provisions contained in the Agreement has led to deliberate misinterpretations.

For Indonesia, the implementation of the first part of the bilateral Agreement was satisfactory. As to the second part, it considered the act of free choice after six years to be conducted by the Indonesian Government and not the United Nations was a compromise to avoid the resumption of conflict. It was only with such assurances that the Indonesian Parliament adopted and ratified the Indonesian-Netherlands Agreement of 1962 on 1 September 1962.

The Agreement was of supreme national importance to Indonesia from the viewpoint of building its nation and national reconstruction which at the time was still in a period of growth and consolidation. Towards this end, the Agreement was a valuable contribution for it succeeded in bringing about a better level of understanding between Indonesia and the Netherlands as well as demonstrating in the early years of the United Nations its success in bringing about a settlement between two of its member States. (1127th  meeting of the General Assembly plenary  session of 21 September 1962)

In this regard, it is pertinent to point out that the Agreement resolved the following two basic issues : the restoration of the territorial integrity of the Republic of Indonesia; and revalidation of the right of self-determination for the people of West Papua. The Agreement contained 29 articles, supplemented by an exchange of letters and other annexes aimed towards serving the interests of the IrianJayan people like the rest of fellow Indonesians. It was this fraternal spirit that would guide Indonesia in its task of administering the territory following the departure of UN TEA. The people of Indonesia were so determined to help them that contributions flowed in from all over the country, from the rich and poor alike to promote the development of IrianJaya. In meeting its responsibilities, Indonesia viewed as its first duty the restoration of harmony among the people of West Papua itself as well as with the rest of the Republic. It did not view this challenge as something new or innovative. As a country comprising of numerous ethnic and regional groupings spread over 3,000 islands, the Indonesian people had always endeavored to live up to their motto of “Unity in Diversity”.

The bilateral Agreement in resolving the dispute between Indonesia and Netherlands facilitated the normalization of bilateral relations on 13 March 1963 when the two countries exchanged diplomatic representatives.

GENERAL ASSEMBLY RESOLUTION 1752 (XVII)

With the adoption of General Assembly resolution 1752 (XVII) on 21 September 1962, the United Nations undertook an experiment in international administration in the process of settling a dispute. This view was expressed by the representative of Australia during the meeting of the General Assembly in 1963, stating:

“The United Nations undertook a novel role in the assistance which it gave towards the successes of the means which were found for resolving the dispute, and even more in its subsequent provisions of a temporary administrative authority for the territory”. (1253th meeting — 6 November 1963)


In view of the fact that differing interpretations have been expressed as to the role of the United Nations on the issue of West Papua, it is essential to understand that the New York Agreement between Indonesia and the Netherlands was a bilateral instrument concluded between the two parties themselves and was not reached on the basis of any resolution or any other mandate of the United Nations General Assembly The underlying factor, which called on the Secretary-General to assume an intermediary role was in response to pressing international circumstances. Subsequent measures taken by the Secretary-General, including the establishment of UNTEA and the dispatch of the Special Representative, Ambassador Fernando Quiz¬Sanz of Bolivia, were based primarily on the provisions of the Agreement itself. In addition, the fact that the financial expenses were borne by the Governments of Indonesia and the Netherlands reflected the limited role of the United Nations. (Funding for this whole operation was borne equally by the Governments of Indonesia and the Netherlands in line wtth the Agreement (XXIV). A sum of $ US 10 million was made available for three years. This fund became the United Nations Fund for West Papua (FUND WI) and was entrusted to the Secretary-General)

Under such circumstances the only course of action available for the General Assembly was to take note of the Agreement through the adoption of a resolution 1752 (XVII). The statement by the President of the General Assembly, Carlos Sosa Rodriguez, of Venezuela, during its 18~ session is pertinent:

“(a)s I understand it, the only decision required of the General Assembly in connection with the Secretary-General’s report (Al 5578) is to take note of the report”.

Also relevant to point out was the statement by the representative of India, Mr. Chakravarty at the 1 8th session of the General Assembly when he expressed the following detailed viewpoint:

“Year after year we have represented that West Papua is an integral part of thdonesia. Despite opinions to the contrary, my delegation had always held the view that when, by the Round Table Conference of 1949, the Kingdom of the Netherlands unconditionally and irrevocably transferred complete sovereignty over Indonesia to the Republic of Indonesia, what was transferred was complete sovereignty over the whole of the former Netherlands East-Indies. Sovereignty over West Papua, which was an integral part of the Netherlands East Indies, therefore, also passed on to the Republic of Indonesia. The administration of West Papua remained with the Netherlands pending a determination of the question of its political status, not of its sovereignty through subsequent resolutions”.

From those statements, it is apparent that the United Nations from the outset had a clear understanding that West Papua was a bilateral matter concerning an unresolved issue of decolonization in the territory of the Indonesian Republic. More precisely, the United Nations was aware that the whole process was an effort on behalf of Indonesia to facilitate the exer¬cise of its full control and sovereignty over the last part of what was once the Netherlands East-Indies.

As a consequence of the internationally accepted principle that colonial boundaries constitute the borders of newly independent states, it follows that all the territories, which once were a part of the Netherlands East-Indies, have since been transferred to Indonesia. This fundamental tenet has long been recognized under the principle of “usi possidentis”. Reflecting this new reality, United Nations documents of 1963 show that the issue of West Papua was removed from the agenda of Trust and Non-Self-Governing territories. The question of West Papua has always been a case of an incomplete decolonization process of Indonesia the facts of which have been already been set out in other sections of this publication.

It is a matter of record that this process of transition to independence has not been smooth when states are intent on holding on to their colonies and putting a strong resistance to having these territories seized from them. West Papua offers a striking example. In this case, Indonesia struggled to protect its territorial integrity for over half a decade and that obviously brought home to the international community the importance of ensuring an orderly and peaceful decolonization process.

The adoption by the United Nations General Assembly in 1960 of the historic Declaration on the Granting of Independence to Colonial Countries and People reflected the legitimate aspirations of the vast majority of mankind for freedom and independence. It is significant to note in this context, that the definition of self-determination was qualified in that
Declaration:

“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 which are the United Nations”.

It is apparent that the aforementioned formulation is aimed towards preventing the fragmentation of a nation and thereby a threat to its national cohesion. The rationale for this position for both newly independent states and the former colonial powers was based on pragmatism.

“The reasoning behind this principle (the sanctity of borders) was quite clear; without it, the newly decolonized states would be condemned to fight each other over the unrealistic borders established by the haphazard nature of the conquests by the colonizers. (Rotund Rich in a paper on Problems of Self-Determination in Central and Eastern Europe delivered at dcc New Dimensions of the Right to Self-Determination : its implications for the World and Australia in the l99O’s”, Seminar organized by the Human Rights Council of Australia.)

Finally, the principle of sanctity of borders was reaffirmed in the 1970 Declaration on Principles of International law concerning Friendly Relations and Cooperation among States. This Declaration served to preserve the former boundaries and underpinned the claims of states that internal conflicts fall within the ambit of domestic jurisdiction and are not subject to external scrutiny.

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