UN as Protector or Abuser of Human Rights?

What is a colony?

It is “A region politically controlled by a distant country,” a territory and its people under the political control of a remote or foreign administration. A colony, or “non-self-governing territory”, is also external to UN membership although the occupying or foreign administrating State may be a member of the UN, see UN Charter chapter XI.

West Papua and West Papuan people become subject to a Dutch colonial claim during the 19th century and were subject to that foreign rule when the Dutch in 1962 signed an agreement asking the United Nations as a foreign power to occupy and administrate West Papua’s affairs. The agreement commonly known as the ‘New York Agreement‘ was drafted by the American government for the Netherlands, Indonesia, and the United Nations to sign.

What is a trust territory?

It is concept created in chapter 12 of the Charter (constitution) of the United Nations, it is a colony for which the United Nations and its Security Council in the form of the “Trusteeship Council” has accepted responsibility.

One type of “trust territory” is a colony which the colonial power and United Nations has voluntarily placed under the “trusteeship system”, see Article 77 part 1(c) of the UN Charter. But chapter 12 of the Charter has mistakes:

1. UN trusteeship does not require consent of the colony, and
2. a “trusteeship agreement” does not need to use the word trusteeship or tell the world’s public that the UN has made the territory subject to the trusteeship system.

What are the “General Assembly” and “Security Council”? They are organs (part) of the United Nations defined in chapters 3, 4, and 5 of the UN Charter. Only the Security Council under chapter 7 articles 42 and 48 may use UN forces, but the General Assembly can direct UN forces to occupy a colony by approving a trusteeship agreement under article 85 and chapter 12 of the UN Charter. 

Is West Papua a trust territory?

The General Assembly approved the New York Agreement in 1962 by making General Assembly resolution 1752 (XVII), see 17th session of the General Assembly. Also in 1962 UN troops occupied West Papua, see UN Historical Summary and the 1962 UN Yearbook — pages 124-128.

West Papua has never been on the agenda of the UN Security Council nor has the territory been the subject of any Security Council resolution. Neither under its chosen name West Papua nor the colonial names, West New Guinea, Netherlands New Guinea, Irian Jaya, Irian Barat, nor the current Indonesian Province name.

Conclusion: Yes, West Papua is a UN trust territory because that is the only way that General Assembly resolution 1752 (XVII) was able to authorise the deployment of UN troops from Pakistan to occupy the colony of West Papua.

Conclusion: Yes, when you read the requirements of chapter XII of the Charter of the United Nations you will discover that the 1962 agreement is written in accordance with each of the several requirements, including the final requirement that it be approved by the General Assembly. The 1962 agreement has the form and exercises the functions of a trusteeship agreement because is is a trusteeship agreement for the United Nations to accept responsibility for West New Guinea, West Papua.

Why would the UN do this without telling the public?

Because the UN’s largest contributor the United States wanted the colony to be in the hands of Indonesia, see US Dept. of State Summary; and Indonesia would not sign the agreement if it was publicly understood that West Papua would be an UN trust territory.

When would UN trusteeship end?

The UN Charter makes one provision for ending its international responsibility in article 78 of the UN Charter:

Article 78
The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.

Did the “Act of Free Choice” change anything?

No, the event which Indonesia calls the “Act of Free Choice” was not recognised by the United Nations (either the General Assembly or International Court of Justice) as either a referendum or a display of “self-determination” by the West Papuan people. It does not matter what Indonesia says, nor does it matter what Jakarta’s supporters like Australian Senator for New South Wales Bob Carr say. Only the International Court of Justice (ICJ) has jurisdiction to say with authority if the people of West Papua have granted their sovereignty to a foreign power, and without a ICJ decision only a majority agreement by the UN General Assembly would have any meaning at the United Nations.

The 1962 agreement (the New York Agreement) does describe the normal requirement for recognition of the people’s decision by the UN General Assembly majority; a vote by all male and female adults who are not foreign nationals.

What are the international obligations of the United Nations to a trust territory?

Article 76
The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be:
to further international peace and security;
to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement;
to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and
to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals, and also equal treatment for the latter in the administration of justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80.

Article 87
The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may:
consider reports submitted by the administering authority;
accept petitions and examine them in consultation with the administering authority;
provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and
take these and other actions in conformity with the terms of the trusteeship agreements.

Article 88

The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire.

General Assembly resolution 1514 (XV)
1514 (XV). Declaration on the granting of independence to colonial countries and peoples
The General Assembly,
Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm …
Declares that:
1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.
4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
6. 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 of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.
947th plenary meeting,
14 December 1960.

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But, can people say West Papua is not a trust territory?

A common mistake is to look for a word formular, a specific phase you would like to see in a document; but there is no requirement in Chapter XII for an agreement to use the word “trusteeship”. A logical reason neither the New York Agreement or the General Assembly approval resolution 1752(XVII) use the word trusteeship is because Indonesia was uncomfortable with the legal reality; Indonesia would not sign the agreement unless the UN and the agreement did not use the word trusteeship. Another mistake by people new to the trusteeship question, is to confuse the ‘System’ of UN Charter chapter XII with the ‘Council’ of UN Charter chapter XIII. There is no need for the Trusteeship Council to be the UN administrator, and in fact Article 81 of the Charter requires the agreement to “designate the authority which will exercise the administration of the trust territory.” The creation of the UNTEA was a means of satisfying the requirements of Chapter XII while not putting the colony under the control of the Trusteeship Council which Indonesia would not accept, and without putting the UN administration under Indonesian control which the Netherlands would not accept. This is ALSO the reason that article 12 of the New York Agreement gave the UN the option of allowing Indonesian administration or not, because the Dutch insisted the UN had to have the option.

A third common mistake is to look to un.org web pages expecting that those are authoritative sources of information; but they are not. All the web pages at un.org are covered by disclaimers in their copyright and terms of use policy statements; the website clearly warns users that they use the information there at their own risk. Most importantly, the office workers writing the web pages and who assembled the Non-self-governing territory lists are not lawyers putting their names to the un.org web page claims denying the colonial status of West Papua.

Only the International Court of Justice (ICJ) has jurisdiction to decide if West Papua is a trust territory, but common sense says West Papua is, and the media should be asking “Is West Papua a trust territory?”

Technically this means the current President of the Trust Territory under rule 1 of the Council’s rules of procedure should be calling an immediate meeting of the Trusteeship Council to exercise General Assembly resolution 171 (III) so the ICJ can answer the question.

It also means every member of the UN has a moral and probably legal obligation to transmit their wish for the General Assembly to ask the ICJ the same question.

As a member of the Security Council and neighbour to West Papua, Australia should be eager to fulfil its obligations by asking the question at the Security Council. But is Australia a honest UN member or will it put its trade relationship with Indonesia ahead of regional human rights?

Who are the members of the Trusteeship Council? The members of the Security Council plus whichever UN member is in occupation of trust territory; see chapter 13 of the UN Charter.

The last statement by the United Nations about the territorial status of West Papua was in a document describing Indonesia as the “current administrator.” Please remember that ALL the web-pages at un.org are covered by UN disclaimers to the effect: “This site may contain advice, opinions and statements of various information providers. The United Nations does not represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided by any information provider, any User of this Site or any other person or entity. Reliance upon any such advice, opinion, statement, or other information shall also be at the User’s own risk.”

Please also be aware that Indonesia and Reuters have been publishing misinformation about a UN General Assembly resolution in 1969, and that too many academics fail to read the document themselves because they assume Reuters understood and revealed the entire story… General Assembly resolution 2504 (XXIV) says nothing about the sovereignty of West Papua, and does not claim to have revoked UN trust status of the territory which was and still is being administrated by Indonesia pending an “act of self-determination” when the UN will hopefully acknowledge the sovereign choice of the West Papuan people.

The United Nations issue

The United Nations appears to be in abeyance of the United Nations Charter and has been since 1962, which would be issues the media could query in New York and Geneva.

By United Nations action and omission of actions, human rights have been suspended in the colony of West New Guinea (West Papua) since it became a UN administrated colony (trust territory) in 1962. Hundreds of thousands of people have been killed, unknown numbers have been raped, and a nation has been denied its freedom (self-determination) for fifty years.

Under the United Nations Charter, conditions in every colony must be reported to the organisation either under article 73(e) of the Charter, or under articles 87 and 88 of the Charter if it is a “trust territory”. But the United Nations ceased monitoring conditions in the colony of West New Guinea (West Papua) in 1962, and has not attempted to implement articles 73(e), 87, or 88 of the UN Charter since then.

Why? Gold, money, profits, the common reason for turning a blind eye to genocide and colonial mining.

Background to the American mine and New York Agreement

The colony has the world’s richest gold and copper deposit, Ertsberg, which the Rockefellers and other shareholders of the Freeport corporation want. In 1961, a Freeport director Robert Lovett got his friend McGeorge Bundy appointed as the national security adviser in Washington DC from where they could influence US foreign policy to their benefit.

Legally, the United Nations can not buy or sell people (slavery) but under chapter 12 of the UN Charter it can become the administrator of an entire colony until they are allowed to decide their sovereignty, self-determination by public vote which still has not been allowed in West Papua.

Like any con-artist or liar, the corporations and their friends told different stories to different people, they told the US President that sacrificing West Papua would save the world from communism, they told the other UN members that sacrificing West Papua would save the world from war with Indonesia, and they told the lawyers that the transfer of administration from the Netherlands to the United Nations was for benefit of the Papuan people. Those were conflicting lies. The truth is simple, the Freeport directors wanted a cheap mining licence for West Papua’s gold, copper, silver, etc. which they purchased from General Suharto in 1967. They had no intention of allowing the “act of self-determination” promised to be allowed by 1969.

The mine is worth billions of dollars to the Indonesian Generals and the American shareholders, they had no intention of allowing the “act of self-determination” defined in the 1962 UN agreement. And they will still do anything they can to prevent West Papua being mentioned at the UN General Assembly.

When the UN General Assembly made resolution 1752 (XVII), the UN officer workers were required to add West Papua to names of Trust territories for discussion by the UN Trusteeship Council (Security Council members). For fifty years the friends of the Freeport and Bechtel corporations have been asking the United Nations office workers to look the other way, to prolong colonial rule and mining of West Papua (West New Guinea). To — arguably — allow murder, rape, and mining in West Papua; and the UN administrative staff have done so.

Freeport was the first foreign mining license General Suharto signed and businessmen continue to make untold billions of dollars from the arrangement. Those businessmen can and do exercise influence in Washington and among the UN General Assembly membership.

The West Papuan people had already chosen independence, but the American media did not report this. Electoral rolls had been created and in January 1961 the colony elected representatives for a New Guinea Council which in April 1961 became their part of the administration of West New Guinea. Six months later the New Guinea Council heard of the American plan, and to prevent the terror of Indonesian rule it created this manifesto of independence declaring their people’s wish to be free, to become an independent nation called West Papua which wanted to “live in peace and to contribute to the maintenance of world peace.”

America and then the UN has ignored the West Papuan wish for freedom, for human rights, for their independence.

The request — action you can take

PLEASE help raise the issue of West Papua at the General Assembly of the United Nations.

Bureaucrats, dishonest people, and ignorant people will try to stop you and stop any NGO from raising West Papua at the United Nations. But please do not let that stop your efforts — please email me with news of any headway or road-blocks which you encounter.

Although the UN is designed for benefit of its members and not citizens of the world, there are avenues for raising matters with the organisation:

• You can lobby UN members to raise West Papua at the UN General Assembly. For example the Vanuatu parliament endorsed an agenda item about West Papua to be faxed to the office of the UN Secretary-General in 2009 until a Indonesian funded company offered Vanuatu a business project in exchange for dropping the fax.
• 
  Even if you don’t want to help West Papua, you can get millions of dollars for your country by convincing it to announce that it is going to submit a West Papua agenda item for the next UN General Assembly, in response to which the Indonesian and American businessmen will rush to offer your nation money in exchange for not sending the fax.
•  
• the Trusteeship Council still exists and its current President is the French representative elected in 2009, Mr Nicolas de Rivière. If you successfully lobby him, he can call a meeting of the Trusteeship Council at any time he deems necessary, and the Council has been granted permission by General Assembly resolution 171 (II) to ask the International Court of Justice (ICJ) for advice on matters such as West Papua.
•  
• I have been told that the World Federation of United Nations associations have been granted observer status at the General Assembly and are allowed to submit advice on matters the Federation believes to be of importance for the General Assembly. So by joining your local United Nations Association, you could begin to lobby for the Federation to raise the issue of West Papua with the General Assembly.

The Agreement

Under the United Nations charter, chapter 12, the organization can become the administrator of a colony pending decision by the colony whether it wants independence or not; “self-determination” of its sovereignty. Also under chapter 12 of the charter the UN can allow one of its members to be the administrator pending the vote on self-determination.

In September 1961, the Netherlands announced that it wanted the colony to become a United Nations trust territory, without Indonesia being allowed to occupy Papua. But America refused to support UN trusteeship unless Indonesia became the administrator of the UN territory.

In New York, America drafted an agreement which in accord with chapter 12 of the UN charter took effect when the UN General Assembly approved the deal. The United Nations in October 1962 asserted a hostile occupation which denied permission for public rallies in Papua and refused to hear petitions under article 87 of the UN charter; and as administrator, the UN in May 1963 chose to allow Indonesia to occupy and administrate the colony pending an “act of self-determination” no later than 1969.

The agreement became a “trusteeship agreement” when the United Nations General Assembly endorsed the agreement in resolution 1752 (XVII), as required of a trusteeship agreement under article 85 of the UN charter.

But in 1967, Indonesia sold mining rights of the colony to the Freeport corporation.

To enforce that mining arrangement, neither Indonesia or America would allow West Papua to become free. To ensure America would ignore the struggle for freedom, the newly appointed Henry Kissinger gave advice — an adviser who years later became a member of the board of the Freeport mining corporation.

No “act of self-determination” as promised in the agreement has ever been allowed in the colony, and neither Indonesia nor the United Nations Secretary-General have yet exercised their parts of the agreement (articles 14-20, and article 21 of the agreement).

Instead of fulfilling the trusteeship agreement, an Indonesian General in 1969 selected 1022 men whom he alleged represented the colony for an Indonesian process he called an “act of free choice”. Purportedly the choice was to either raise their hands when told or their families would be killed and their villages burnt to the ground. Instead of expressing outrage at the inhuman conduct of the “act of free choice” the UN General Assembly made resolution 2504 saying Indonesia had conducted something called “act of free choice” and neither Indonesia or the Netherlands were objecting.

The rule of law requires that the United Nations and Indonesia allow the “act of self-determination” they promised in the New York Agreement.

Trusteeship

The Charter of the United Nations is written so that once the UN becomes the administrator of any colony, the territory will remain a “trust territory” even if the UN decides to allow one of its members to take over the administration of the trust territory. The only provision which the UN charter makes for “trust territory” status to end is article 78: “The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.”

In other words, West Papua will remain a UN Trust territory until West Papua has determined its sovereignty (an act of self-determination), and has been accepted as a sovereign United Nations member by the other members. Or the International Court of Justice exercises its sole judicial jurisdiction to the same effect.

The rule of law requires that the United Nations members allow the “self-government” and “peace” they promised in the United Nations Charter.

The rule of law requires the UN members to protect the human right of “self-determination” promised in General Assembly resolution 1514 (XV), and resolution 1541 (XV).

The rule of law requires the United Nations to allow the “act of self-determination” it promised in the trusteeship agreement.

As was documented in a US Department of State record, America for its own benefit created this Agreement signed by the Netherlands, United Nations, and Indonesia agreeing on terms for their occupation and administration of West New Guinea as a colony until the Secretary-General of the United Nations reports “to the General Assembly on the conduct of the act of self-determination and the results thereof” and “The parties … recognize and abide by the results of the act of self-determination.”

It is not relevant to the United Nations territorial status of West Papua whether agreement has yet been completed, but as it happens the agreement will not be completed until a UN Secretary General can fulfil the above mentioned requirement of noting an “act of self-determination” as required by article 21 of the agreement.

As an international agreement involving the United Nations, only the International Court of Justice has jurisdiction to resolve any debate if it exists.

In legal terms, Indonesia abandoned its claim of sovereignty in 1962 by signing the New York Agreement agreement in exchange for administrating the colony for up to seven years before allowing an “act of self-determination” as defined in the agreement.

Indonesia has NO RIGHT to sell mining licenses to Freeport or BP, no right to fly the Indonesian flag over the Morning Star. Sovereignty and property rights belong to the West Papuan people, it always has, and they are NOT property to be traded between foreign powers.

West Papua became subject to the Trusteeship system when the General Assembly including Indonesia and the Netherlands supported resolution 1752 (XVII).

The last United Nations statement

The last UN statement about West Papua free of disclaimers appears to have been in this document from the 1970s which states:

Administrative History
The United Nations Temporary Authority in West Irian (UNTEA) was formed to administer West Irian, which is located on the island of New Guinea. In 1963 Dutch New Guinea became Irian Barat, which in 1973 changed its name to Irian Jaya and is currently administered by Indonesia. UNTEA administered West Irian from October 1962 to May 1963. The administrator was Djalal Abdoh.

Please note that the web-pages being published at un.org are subject to disclaimers in their “terms of use” and or “copyright” notices; such as: “This site may contain advice, opinions and statements of various information providers. The United Nations does not represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided by any information provider, any User of this Site or any other person or entity. Reliance upon any such advice, opinion, statement, or other information shall also be at the User’s own risk.”

A side-note: 1969 (but important for Ban Ki-moon) The “act of free choice” event in 1969 is irrelevant because it was not an act of self-determination, nor did the Secretary-General or General Assembly claim it was.

The events in 1969 were irrelevant because they did not affect the sovereignty of West Papua and therefore did not affect trust territory status. In fact the same administrator, Indonesia, remained in administration of the colony.

As it happens, the New York Agreement was not successfully concluded. Although the General Assembly in Resolution 2504 (XXIV) mistakenly alleged the Secretary-General had completed his task, but that task in article 21 of the agreement is not completed until the Secretary-General reports on an act of self-determination.¹

The Petition

I have drafted this petition which I invite members of the West Papuan community if you wish to, to endorse and publicly deliver copies of the letter directly to the President and members of the United Nations Trusteeship Council. I believe West Papua is a United Nations trust territory which the United Nations Trusteeship Council should be asking about and should be asking the UN Special Committee of Decolonization about.

Legal concepts: Sovereignty

Neither the Netherlands nor the United Nations owned the sovereignty of the Papuan people and their homelands.

Just as Americans exercised self-determination in 1776, so, too, does every nation have the right to chose independence or to be subject to some other governance.

Neither the Netherlands nor the United Nations could give Indonesia something which they did not own; the Agreement was a grant to allow each to occupy and enforce control of the colony, but it also was an agreement to allow and recognise self-determination.

Sovereignty still belongs to the people of West New Guinea until they decide it belongs to their own or some other government, a process called self-determination which the United Nations has not yet recognised to have been exercised.

Jakarta had no legal right to sell a mining license to Freeport in 1967 or to BP now. The Indonesian Generals have no legal entitlement to cut down the forests of West Papua. And Jakarta has no legal right to try and divide West Papua against itself, or to delay self-determination contrary to it’s signature on the Agreement and contrary to it’s alleged acceptance of United Nations General Assembly resolution 1514 (XV).

Published: http://dissidentvoice.org/2013/03/un-as-