Abstract
The right to self-determination and territorial integrity are amongst the cardinal principles of international law mostly utilised in determining the territory of a state. Both principles are equally protected and guaranteed under international law, and any attempt for total or partial disruption of a territory violates the right to self-determination of peoples. The relation between the two principles is evident in Chagos Advisory Opinion issued by ICJ which states that a former colonial territory detached by a colonial power violates the right to self-determination unless such detachment is based on freely expressed will of the people of the concerned territory. The Chagos Archipelago was originally detached from Mauritius by the UK prior to its independence in 1968. A similar situation was also apparent in Western Papua, in which the Dutch administration attempted to detach it from Indonesia prior to the transfer of sovereignty in 1949 under the name of Dutch Western New Guinea. This attempted detachment became one of the biggest arguments used in supporting Papuan independence since it was narrated that the territories were under a different administration. This article argues that such detachment is considered a disruption of territorial unity, which ultimately violates the right to self-determination of people. Furthermore, it also argues on how Indonesia has sovereignty over Western Papua. Those issues will also be discussed through the lens of international politics, especially in terms of the existence of state interests, both related to the former colonial countries and the international community in addressing the two cases.
Highlights
The end of World War II has significantly transformed global order, and more importantly, the face of international law as we know
The relation between the two principles is evident in Chagos Advisory Opinion issued by ICJ which states that a former colonial territory detached by a colonial power violates the right to self-determination unless such detachment is based on freely expressed will of the people of the concerned territory
There are two take outs that are worth analysing in this article, namely (1) How the court interpret the customary nature of the right to self-determination under the backdrop of decolonization and its position with another principle, namely territorial integrity and (2) as the consequence of the second question, the obligation of the UK and international community regarding the problem of the purported detachment
Summary
The end of World War II has significantly transformed global order, and more importantly, the face of international law as we know. 26 There were numerous concerns given by countries, including by newly independent countries, that if the scope of this right was not contained within the boundaries of colonial administration as formulated under uti possidetis principle, will lead to a breakup of states with diverse linguistic, religious, or ethnicity This position was endorsed by U Thant, the UN Secretary General in 1970 that the UN will not accept secession as a logical consequence if self-determination was given to “all people” without any certain limitations. This approach was set to balance the interest of achieving stability of borders of a newly independent country while maintaining the ideals of every persons’s right to express their future as a single territorial unit freely.36 This approach of having the primacy of territorial integrity of territories acquired under uti possidetis was upheld in UNGA resolution 1514 (XV), which is considered as the legal basis of rapid decolonization in the second half of the 21st century. This was upheld in Chagos Advisory, which will be discussed below
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