Harison Citrawan, Jakarta | Mon, 09/05/2011 8:00 AM Jakarta Post
Papua has once again come under not only the national but also the international spotlight. The situation was exacerbated by a leaked document about the Indonesian Army titled Autonomy of Papuan Separatists, on the Internet.
Many human rights activists were quick to voice criticism over the report. E. Pearson from the Human Rights Watch, for instance, wrote a subtle piece in the Huffington Post on Aug. 20, in which he clearly argues that the acts of some international supporters of Papuans are legitimate and lawful as they were not intended to harm Indonesia’s national integrity.Certainly, in terms of human rights protection, an international cooperation should be deemed legal and legitimate, as in no matter what circumstances, human rights should be protected.
Nevertheless, the current discussion over the situation in Papua would not be sufficient to answer another significant issue in Papua of whether or not a group of indigenous Papuans, such as the Free Papua Organization (OPM), could take up arms and wage a lawful “battle for self-determination”.
The OPM’s prolonged battle, not to mention the current situation on the ground that could be described as armed conflict, is mainly based on the group’s demand to exercise their right to self-determination.
By doing this, I presume, a group of people should have the privilege of taking up arms to fight for “liberation”. It is of course undeniable that one may find such demand in any other part of the world.
Last week, the Sri Lanka’s Liberation Tigers of Tamil Elam (LTTE), to name a few of those so-called “self-determination groups”, filed a case against the European Union (EU) with the European Court of Justice. By banning the organization, through putting them on the EU’s terrorist hit list in 2006, they argued that the EU had violated international law.
In an interview in the magazine International Justice Tribunal, the attorney for the LTTE, Victor Koppe, says that in the pursuit of self-determination, the LTTE consequently has both the right to resistance and to use arms as it is in an armed conflict. He mainly based such understanding on the UN Charter.
Of course, the situation in Sri Lanka might be quite different from the one in Papua, but can such reasoning be applied to the OPM’s battle for self-determination?
The right to self-determination is indeed tricky in terms of legal terminology. The unclear parameter of the right is as old as the application of the right and dates back to the decolonization era in the 1960s up to late 1980s.
In discussing the legitimacy of the battle for this right, initially, I would convey several norms acknowledged in the United Nations (UN) practice.
It is clear, that within the ambit of the UN Charter, all member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Nonetheless, one possible lawful exemption on the prohibition of use of force is the act of self-defense.
In its Resolution 3070 (XXVIII), 1973, the General Assembly: “reaffirms the legitimacy of the peoples’ struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle”.
Furthermore, in the General Assembly Resolution 2625 about the Declaration on Principle of International Law, it solemnly proclaims at least two important principles related to this issue.
First, the principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations, and second, the principle of equal rights and self-determination of peoples.
Based on the aforementioned laws, it can be concluded that states have the duty to refrain from the use of force upon people exercising the right to self-determination. It is also important to note that in international law discourse, the right of peoples to self-determination is today a right erga omnes (right toward all).
Thus, in order to gain legitimacy, one possible legal argument of the “self-determination groups” would be the act of self-defense. However, there is yet any exact answer for this as the international community is still divided on this issue.
On the one side, some countries, mainly Afro-Asian countries, affirm the right to use force on the basis of that the colonial or suppressive power aggression itself is a violation of the UN Charter, therefore any counter attack against it should be deemed legitimate. On the other side, some countries, mainly the West, argue that peoples do not have the same status as the states enjoy in international law.
Therefore, any privileges or rights in international law are not applicable to the peoples.
To conclude, back to the OPM’s battle, it is not always clear whether it should be deemed as legitimate under the current international law. One thing for sure is that the laws do not specifically rule such possibility of using arms and the states, presumably, will not grant an international legal status over them on their struggle for statehood.
Consequently, in terms of concept, it would be intractable for the OPM to struggle for statehood, following J. Crawford who opines that “a state is not a fact in the sense that a chair is a fact; it is a fact in the sense in which a treaty may be said to be a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules”.
The writer is a staffer at the Human Rights Research and Development Agency under the Law and Human Rights Ministry. The opinions expressed are his own.