THE REPUBLIK MALUKU SELATAN DECLARED

Anticipating the ultimate annihilation of a federated state of Indonesia and alarmed by the rapid engulfment of much of the area to Javanese control of the Republic of Indonesia, on 25 April 1950, the Republik Maluku Selatan (Republic of the South Moluccas) was formed by the Malukan people and it declared its separation from both the East Indonesian State and from the United States of Indonesia. The Malukans were acutely aware that no plebiscites had been carried out and that none were planned for either their own determination nor the determination of any other of the many nations incorporated in the Netherlands East Indies.

The Republic of Indonesia unsuccessfully attempted to negotiate a settlement with the Republik Maluku Selatan and finally on 13 July 1950, they landed armed forces on the Malukan islands of Buru and Ceram. The Malukan forces were depleted at the time because about 4,000 of them who had been incorporated into the Royal Netherlands East Indian Army (KNIL) but transferred to the Royal Netherlands Army (KL) in 1950 were not able to join local Malukan armed forces. The Government of Republik Maluku Selatan sent appeals to the United Nations on the 26th 29th, 31th of July, the 2nd, 11th, 14th of August, and on the 28th of September 1950. The United Nations Commission for Indonesia, in its concern for the civilian populations, communicated its readiness to give assistance to the Indonesian Government (the new unitary state) on 4 August and again on 25 September in order to help peacefully resolve the conflict.

The Indonesian Foreign Minister Dr. Mohammad Hatta, in his reply on 30 September, responded that it was the belief of his government that intervention by the United Nations Commission for Indonesia would not be of use because it would constitute only an encouragement for the "rebels" who may see the apparent international attention as an affirmation of their case. In the meantime, Indonesian forces landed on and attacked the main South Moluccan island of Amboina.

On 6 October 1950, the United Nations Commission for Indonesia once again tried to ask Indonesia to

halt the present military operations in the South Moluccas, and, even at this late stage, to further explore the possibility of a peaceful settlement by accepting the Commission's offer of good offices.

The Indonesian government, however, dismissed the offer of assistance by repeating previously stated reasons. The Commission sent a report of their attempts to secure a peaceful settlement, asking the United Nations Security Council to "reinforce the Commission's authority by calling upon the Indonesian Government to utilize the existing machinery for a peaceful solution of this problem which is provided by the presence in Indonesia of the United Nations Commission for Indonesia". The request by the Commission was debated in the Security Council on 30 October 1950, but the debate was adjourned and not resumed.

On 5 December 1950, the Malukan forces were forced to withdraw to Ceram. These forces have continued to exist and to carry out limited military actions against the Indonesian forces. The United nations Commission for Indonesia ceased to exist in 1955. The Malukan question is still unresolved.

MALUKAN SELF-DETERMINATION

The United Nations through its United Nations Commission for Indonesia, the government of Indonesia and the government of the Netherlands all promised the people of Maluku the opportunity to express their wishes regarding their governance and the international status of their country. The Round Table Conference Agreement and the earlier bi-lateral agreements clearly grant the Malukans the right to self-determination. Even absent that express recognition of the right to determine their status, the Malukan people meet all international law tests for the right to self-determination.

The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to freely determine political status and to pursue economic, social and cultural development. The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The right to self-determination is indisputably a norm of jus cogens.

The two important United Nations studies on the right to self- determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self- governance.

The Malukan claim to self-determination even absent the express agreement is particularly strong. The Malukan people have a different ethnic and cultural background from the Javanese who predominate in other island groups in the area. Malukans are Melanesians rather than Malayan/Mongoloid, the ethnic background of the Javanese. Malukans speak Amboinese, a separate language from the widely used Malay-based language of much of Indonesia. Malukan culture, customs and manners strongly identify with those of traditional Melanesian cultures. Malukans are predominately Christian, testimony to the long years of colonial domination by the Netherlands.

Prior to colonial rule, the Malukan people enjoyed self- governance. They were not under domination by other groups in the area but maintained their islands and traditional culture intact. Even through the long years of colonial rule, the Malukans remained politically and culturally intact except for the adoption of Christianity as their religion. The islands comprising Maluku are clearly identifiable, having gained fame as the Spice Islands centuries ago. Finally, the Malukan people have both a will and a capacity for self-governance. Malukans in exile have formed provisional governments, and the political agenda of the people and their leaders has remained intense since 1950. The summary execution (by firing squad) of the Malukan leader Dr. Chris Soumokil in 1966 further strengthened the resolve of the people and their military units to maintain the struggle. Repeated attacks by Indonesian authorities on Malukan culture and people since then also merely strengthen Malukan resolve.

Because the Malukan people have the right to self-determination, the armed conflict that occurs periodically between Malukan forces and those of Indonesian should be considered a war of national liberation in exercise of the right to self- determination. In any case, the armed conflict is by applicable humanitarian law including the Geneva Conventions. Violations of human rights must, therefore, also be considered as violations of humanitarian law when relevant.

OPINIONS ON MALUKAN SELF-DETERMINATION

The issue of Moluccan self-determination has been before relevant bodies in the Netherlands. The following is a brief synopsis of some of them.

1. Resolution passed by the Netherlands Branch of the International Law Association on 24 June 1950: The Netherlands Association for International Law, meeting in Rotterdam on 24 June 1950, having taken cognizance of a letter from J.P. Nikijuluw . . . in which he asks the Association to pass an opinion of the legal position of the South Moluccas . . . with regard to the obligation of the Republic of the United States of Indonesia and the Kingdom of the Netherlands to recognize this legal position; Considering:

That the Amboinese population inhabiting the territory of the South Moluccas is a "population of a territory" as referred to in art. 2 sec. 1 of the Agreement of Transitional Measures . . . so that this population has the right to form itself into a separate "component State" in the manner therein provided, and thereupon, by virtue of art. 2 sec 2 of the Agreement on Transitional Measures, to acquire the opportunity to accept or reject the final Constitution of the Republic of the United States of Indonesia - i.e. to remain a part of the Republic or to withdraw from it. . . .

is therefore in the opinion that the Republic of the South Moluccas had the right to proclaim its independence and is lawfully entitled to preserve that independence against all others, in order to realize its right, derived from art. 2 of the Agreement on Transitional Measures, to negotiate with the United States of Indonesia and the Kingdom of the Netherlands concerning a special relationship with these two States.

2. The Judgement of the President of the Arrondissement Court of Amsterdam of 2 November 1950:

On the 2nd of November 1950, in an action brought by the Republik Maluku Selatan (South-Moluccan Republic) against the N.V. Koninklijke Paketvaart Maatschappij (Royal Packet Company Ltd.) the President of the Arrondissement Court of Amsterdam gave a decision on the question whether this Republic is to be regarded as a state, therefore as competent to be a party to a civil lawsuit, and on the question whether the proclamation of the independent Republik Maluku Selatan on the 24 of April 1950 was a lawful exercise of the right to self-determination . . .. Considering, further, that the disputed question, whether the recognition of a State is essential for its capacity to appear as a party to a civil action, need not be answered in the present case, because the recognition of the Republik Maluku Selatan (which exists in fact, as has been considered above) by the Netherlands is contained in the Netherlands act of Parliament of 21st December 1949, State Gazette J 570 (Transfer of Sovereignty over Indonesia Act), by which the said Agreement on Transitional Measures was ratified and thereby became a part of the Act; That the Kingdom of the Netherlands, which itself fulfilled the agreement with the Republic of the United States of Indonesia, may not in good faith blame the population of the territory of the South Moluccas for acting as it was entitled to do by international law when the other party violated the agreement. (underlining added).

3. The Judgement of the Court of Appeal in Amsterdam of the 8th February 1951:

Even when still entirely under Netherlands rule the territory of the South Moluccas, by reason of its geographical situation and the race, culture, and common interests of its population, formed a natural and organic unity, with its own local system of government. ... The agreement of Linggadjati of 25 March 1947 ... between the Netherlands Government and the Government of the Republic of Indonesia ... contained, in so far as relevant here, the following provisions:

in article 3: "The United States of Indonesia shall comprise the entire territory of the Netherlands Indies with the provision, however, that in the case the population of any territory, after due consultation with the other territories, should decide by democratic process that they are not, or not yet, willing to join the United States of Indonesia, they can establish a special relationship for such a territory to the United States of Indonesia and to the Kingdom of the Netherlands."

Article 4: "(1) The component parts of the United States of Indonesia shall be the Republic of Indonesia, Borneo, and the Great East without prejudice to the right of the population of any territory to decide by democratic process that its position in the United States of Indonesia shall be arranged otherwise."

Article 5: "(1) The constitution of the United States of Indonesia shall be determined by a constituent assembly composed of the democratically nominated representatives of the Republic and of the future partners of the United States of Indonesia to which the following paragraph of this article shall apply."

"(2) Both parties shall consult each other on the method of participation in this constituent assembly by the Republic of Indonesia, by the territories not under the authority of the Republic and by the groups of the population not, or insufficiently, represented with due observance of the responsibility of the Netherlands Government and the Government of the Republic, respectively."

Further, the Renville principles, agreed upon 17th January 1948 as the basis for the political discussion between the Netherlands and R.I. [Government of the Republic of Indonesia], in so far as is relevant here, provided:

"2. It is understood that neither party has the right to prevent the free expression of popular movements looking toward political organizations which are in accord with the principles of the Linggadjati Agreement."

"3. It is understood that decisions concerning changes in administration of territory should be made only with the free and full consent of the populations of those territories."

"11. A sovereign State on a federal basis under a Constitution which will be arrives at by democratic process." and in point 6 of the Additional Principles:

"6. Should any state decide not to ratify the Constitution and desire in accordance with the principles of articles 3 and 4 of the Linggadjati Agreement, to negotiate a special relationship with the United States of Indonesia and the Kingdom of the Netherlands, neither party will object."

The Van Royen-Roem agreement of 7th May 1949 also presupposed a federal Indonesian State, subject to the absolute right of self- determination of the Indonesian Peoples, as affirmed by the agreements of Linggadjati and Renville . . .. On account of the foregoing facts, circumstances, and evidence that Court is of opinion that for the present it must be held: 1. that the people of the South Moluccas are a people of territory. which, under the provisions of the agreements of Linggadjati and Renville and of art. 2 of the Agreement on Transitional Measures could qualify for the exercise of the right to self-determination.

2. that the possibility of realizing this right of self- determination in this manner was in effect taken away from the people by the creation of the said territory by the creation of R.I. of an unitarian state for the whole of Indonesia under its own leadership and supreme authority contrary to what was agreed to in the above-mentioned pacts and at the Round Table Conference;

3. that, viewed in the light of 1 and 2, the proclamation of the Republik Maluku Selatan . . . was permissible in the given circumstances;

4. that the authority of the Republik Maluku Selatan and its Government over the inhabitants of the territory of the South Moluccas, as regards duration, nature, and extent, satisfies . . . sufficiently the conditions of stability and effectiveness to be regarded as the authority of an existing State.

4. The Judgement of the Supreme Court of Justice for New Guinea, given on the 7th of March 1952: The Agreements were signed by the Government of the Kingdom of the Netherlands, the Government of the Republic of the United States of Indonesia, and by the United Nations Commission for Indonesia. The parties who have signed sign not only to the agreements but to the obligations entailed. The parties who have signed must make legitimate efforts to enforce that to which they have agreed.

INTERNATIONAL ACTION

Since the demise of the United nations Commission for Indonesia there has been no regular effort by the international community to resolve the long-standing crisis in Maluku.

According to basic principles of international law, the governments of both the Netherlands and Indonesia (the successor state to the Republic of the United States of Indonesia are responsible for and obligated to insure implementation of the Agreements, including the peoples' right to self determination. As discussed above, the government of the Netherlands did express concern to the United Nations Commission for Indonesia at the time Indonesia was consolidating power as a unitary state in violation of the Round Table Conference Agreements. However, there has been very little action by the Netherlands government since, in spite of the unresolved situation of many Malukans still residing in the Netherlands.

In 1994, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities introduced a resolution on Indonesia mentioning, inter alia, the Moluccas and Acheh, but failed to take action on it.

At this point, the international community should act as follows:

1. Governments should communicate to Indonesia that they do not recognize Indonesian sovereignty over Maluku.

2. The United Nations Commission on Human Rights and its Sub- Communications should, directly through specific resolutions and indirectly through the reporting of thematic rapporteurs, address the situation in Maluku, including presentation of the numerous and very serious human rights and humanitarian law violations perpetrated by the government of Indonesia and its forces in Maluku.

3. The United Nations should address the situation in Maluku as one of a non-self-governing territory and should accordingly place Maluku under the trustee system of the United Nations until a plebiscite of Malukans is held which determines the wishes of the Malukan people.

CONCLUSION

The government of Republik Maluku Selatan was a legitimate government and was wrongly overturned by the government of Indonesia. The Malukan people are entitled to the exercise of self-determination because this was explicitly granted them by history and express agreement of the governments of the Netherlands and Indonesia and acknowledged by the United Nations. The government of Indonesia illegally occupies Maluku and should withdraw its people and military forces immediately. The people of Maluku should be given the opportunity to reorganize their government in Maluku or, if it is their wish, to indicate by plebiscite or other means of free choice, their wishes for their governance. The government of the Netherlands and the United Nations as a whole should carry out initiatives to restore the right to self-determination to the Malukan people.

 BIBLIOGRAPHY

(United Nations documents are cited in the text and footnotes and therefore not listed here. With the exception of the materials prepared by the Malukan government, most of the materials cited here are of general reference value. This author relied on the actual UN documents).

Republik Maluku Selatan, Department of Public Information, The Legal Position of the Republic of the South Moluccas in the International Legal Order No. 8 A. (1952).

Republik Maluku Selatan, Department of Public Information, The South Moluccan Case in the United Nations Machinery No. 12 Submitted to the United Nations, [1954?].

Foster, Colin, "The United Nations and Indonesia," (Carnegie Institute, Int'l Conciliation No. 459 (1950). Suter, Keith, "West Irian, East Timor and Indonesia," (Minority Rights Group #42, 1976).

Taylor, Alistair, Indonesian Independence and the United Nations, (1960).

Van Kaam, Ben, The South Moluccas, (1980).