The Uti Possidetis Principle on West Papua

The Uti Possidetis Principle
The Uti Possidetis Principle on West Papua

When it comes to discussions about Papua—especially West Papua—The Uti Possidetis Principle (Prinsip Uti Possidetis) is part of the history of Papua. What principle is it?

About The Uti Possidetis Principle

Uti Possidetis Principle
Uti Possidetis Principle

This Latin phrase means: Just as you own. By definition, Uti Possidetis is the principle in international law which states that territories and other properties related remain in the hands of their owners at the end of the conflict, unless an agreement regulates different matters.

According to US Legal, this principle applies if the agreement does not include conditions regarding the ownership of properties and territories taken during the war. This principle is rooted in Roman law. It comes from the Latin phrase “posa positatis“, which means: You get to keep what you own. This principle allows the warring parties to claim any territories captured during the war.

The examples are plenty in history. This is just one of them:

King James I of England had used this principle at the beginning of the 17th century. Although he recognized Spanish authority in areas in the western hemisphere which were effectively controlled by Spain, he refused to recognize Spain’s exclusive claim to the entire region to the west of longitude 46 ° 37 ‘W as stipulated by the Tordesillas Agreement.

The Uti Possidetis Principle (Prinsip Uti Possidetis) has recently been modified to become Uti Possidetis Juris. This principle is to establish the borders of a newly independent state from its invaders by ensuring that the borders follow the old colonial territorial boundaries.

This principle was first applied in South America in the 19th century after the Spanish invaders were cast out. The same principle was also applied in both Africa and Asia right after European countries left the continents. Even Yugoslavia and The Soviet Union had applied this principle after these two nations were torn apart.

In fact, Uti Possidetis Juris was also confirmed by the International Court of Justice in the case of Burkina Faso vs Mali in 1986:

“[Uti possidetis] is a general principle, logically related to the phenomenon of independence, wherever it occurs. The aim is that the independence and stability of new countries are not threatened by disagreements between brothers that are triggered by border changes after states that [previously] reigned [from these countries].”

Then, what does The Uti Possidetis Principle (Prinsip Uti Possidetis) have anything to do with Papua, specifically West Papua?

The Uti Possidetis Principle and Papua (especially West Papua)

Uti Possidetis Principle
Uti Possidetis Principle on West Papua

According to Professor Eddy Pratomo from The Faculty of Law, Diponegoro University in Semarang, there have been different views regarding the joining of Papua with Indonesia. However, Indonesia’s sovereignty over Papua has been valid since the proclamation of independence on August 17, 1945.

Has Papua always been a part of Indonesia since August 1945 or since the moment of Pepera (Penentuan Pendapat Rakyat or The Act of Free Choice) in 1969? Professor Eddy Pratomo, who is also a former Indonesian ambassador for Germany, stated that the basis of this question was very clear. This is related to The Uti Possidetis Principle (Prinsip Uti Possidetis) or Uti Possidetis Juris.

Following the “ Uti Possidetis Juris ” principle, the borders of a country follow the borders of that country when it is still colonized. In this case with Indonesia since then, the boundaries of their territory followed the boundaries of the territory when it was still named the Dutch East Indies. That had also included Papua.

Based on that, Indonesia then inherited the boundaries of the Dutch colony which later became NKRI (Negara Kesatuan Republik Indonesia or The Unitary State of the Republic of Indonesia) after the proclamation of independence. Regarding Pepera, Professor Eddy Pratomo stated that this Act was an effort from the UN (United Nations or PBB – Perserikatan Bangsa-Bangsa) to resolve the matter of bilateral conflict between Indonesia and The Netherlands.

Pepera existed because the Dutch had postponed the handover of West Papua to Indonesia through the Round Table Conference (or KMB – Konperensi Meja Bundar) back in 1949. Ethnic differences had been the reason behind this, although it was very clear that the Dutch had only wanted to keep West Papua with them.

According to the Dutch, West Papua should’ve been their own country instead of being a part of Indonesia. However, Indonesia reasoned that—since Papua had also been part of the Dutch East Indies—then it had to become a part of Indonesia after the declaration of their independence on August 17, 1945.

Because of this disagreement, KMB was concluded without a final decision regarding Papua. The matter was then taken to the UN (United Nations). The UN then processed the Pepera Act. At that time, West Papua was still named West Irian. Through the deliberation, it was decided that West Irian—alias West Papua now—was to join the Republic of Indonesia.

In short, even without the Pepera Act in 1969, Papua—especially West Papua—has already been part of Indonesia. This is according to The Uti Possidetis Principle (Prinsip Uti Possidetis) or Uti Possidetis Juris.