This Tuesday, April 25th, 2023, marks the 73rd anniversary of the South Moluccas Republic (RMS). This is because on April 25, 1950, the founders of the RMS, on behalf of the people of South Moluccas, proclaimed the establishment of the RMS State.
The main question in this discussion is whether the RMS is a legitimate state or a separatist movement against the Unitary State of the Republic of Indonesia (NKRI).
Apparently, the accusation that RMS is a separatist movement against NKRI has been exploited by Jakarta’s elites to encourage the escalation of Moluccan conflict tension, so that the children of the Moluccas kill each other and destroy without knowing the cause and definite purpose of the conflict. The answer to the question in question (whether RMS is a legitimate state or a separatist movement) is quoted from some of the defense materials of the RMS Case Defendant’s Legal Counsel in the Ambon District Court in 2020, featuring the following experts:
Hendry Reinhard Apituley, as an international law expert who has repeatedly attended United Nations (UN) forums, sworn in the court, essentially stated that:
‘The RMS, proclaimed on April 25, 1950, meets all the legal requirements as a state under international law. The proclamation of the RMS on April 25, 1950, is an implementation of the right to self-determination by the people of South Moluccas. In international law, the people of Moluccas (South Moluccas) as a nation, namely the Moluccan – Alifuru nation, have the right to determine their own destiny as a state.’
The legitimate RMS state was then conquered by annexation (illegally) by the NKRI, which was only established on August 15, 1950. The establishment of NKRI in 1950 is not legal under international law because it was not carried out through a popular vote as required by international law. The illegitimate conquest of the RMS State by the NKRI does not cause the RMS State to disappear. The RMS still exists, and its existence is recognized even though its people are now citizens of the NKRI, its territory is now part of the NKRI (one of the provinces of the NKRI), and its government is currently in exile in the Netherlands. International law opposes the methods of conquering a state by annexation.
Ghazaly Ohorella, as an international law expert in his capacity as the Head of the Indigenous Peoples of the World at the UN, under oath at the Ambon District Court hearing, explained among other things:
‘From the research conducted, it turns out that RMS is not an abbreviation for the Republic of Moluccas Salam, nor is it an abbreviation for the Republic of Moluccas Sarane, but an abbreviation for the South Moluccas Republic. The RMS was proclaimed by the will of the Moluccan community, which includes both Muslims and Christians.’
According to International Law, it can be said that the RMS declaration in 1950 met the main requirements. The three main requirements are based on the Montevideo Convention. The first requirement is population, the second is territory, and the third is government, and all three requirements have been met by the RMS; therefore, the independence of the RMS can be seen and recognized as independence by International Law. From the 3 requirements mentioned above, it can be seen that the first requirement, the existence of a population, is still present, where the Alifuru people are also still in the Moluccas; the second one is still there as well because according to the Montevideo Convention, it is recognized that the territory requirement must consist of land and waters, not a platform outside those two things; and the third is that although the RMS does not have a permanent government, it does not lose its status as a state when one of the three requirements is absent. For example, Germany during the Nazi determination in Germany did not have a government, but the country did not lose its status as a state; similarly, Somalia, which for years did not have an effectively functioning government but did not lose its status as a state. Therefore, in this case, it is seen that the RMS still does not lose its status as a state just because it is seen that its government is no longer in the Moluccas.
Noelle Higgins (Faculty of Law and Government, Dublin City University) in her writing titled: ‘Opinion on the Status of the RMS,’ which has been translated by the Language Studies Center of Pattimura University – Ambon (originally submitted to the trial) explains, among other things, the following:
The South Moluccas Republic (RMS) has the right to independence under international law. This opinion will be discussed in the following sections:
- In various legal instruments, namely the Linggadjati Agreement, the Renville Agreement, and the Round Table Conference Agreement, the people of South Moluccas were given the right to self-determination.
- The South Moluccan community exercised these rights through a proclamation of independence in 1950 and continued to fight for that independence after their leader, Mr. Soumokil, passed away in 1966.
- Meanwhile, the Indonesian government illegally used force to take over the South Moluccan territory in 1950. and still has de facto control over this territory. The South Moluccan community formed their own government in exile in the Netherlands, with the official authority of the RMS territory transferred to the Indonesian government. Mr. J.G. Wattilete has been the President of the Government in Exile since April 17, 2011. South Moluccas became a member of the Unrepresented Nations and Peoples Organization in 1996 and is represented there by the RMS.
- The illegal annexation by the Indonesian government of the South Moluccan territory does not eliminate the right of the South Moluccan people to self-determination and also does not erase the existence of the RMS, which has been accepted by law based on jurisprudence.
- The existence of the RMS does not depend on recognition by other states, under the doctrine of international law recognition.
- Self-Determination in International Agreements
The Linggadjati Agreement[1] was signed in 1947 by Indonesia and the Netherlands and mediated by the United Kingdom. Based on the provisions of this agreement, the Netherlands recognized Indonesia’s sovereignty over Java, Sumatra, and Madura. This area was planned to be given the term ‘United States of Indonesia’. This was done by the Sukarno administration without the agreement of the local indigenous community. However, references to self-determination are mentioned in the text of the agreement. According to Article 3[2], ‘The United States of Indonesia consists of the entire Dutch East Indies territory with the provision that in the democratic process, those who do not, or are not yet willing to join the United States of Indonesia can establish special relations with the United States of Indonesia and the Kingdom of the Netherlands.’
The Security Council formed the United Nations Committee of Good Offices in 1947[3], which was later renamed the United Nations Commission for Indonesia[4]. The committee was established to facilitate peace negotiations between Indonesia and the Netherlands and was composed of Australia, Belgium, and the United States. In 1948, the committee’s work led to the mediation of the Renville[5] Agreement, agreed upon aboard the American ship Renville. The agreement consisted of a ceasefire plan and various principles intended to form the basis for a political agreement between the parties[6]. Once again, the focus was on implementing the right to self-determination for the people planned to be part of the United States of Indonesia. Article 2 of this Agreement states:
‘It is understood that no party has the right to prevent the freedom of expression of social movements, making them a political organization in accordance with the principles of the Linggadjati Agreement.’
Point 3 further states ‘that it has been understood that decisions regarding administrative changes in the territory should be made only with the full and free consent of the population in the territory…’
In November 1949, the Round Table Conference Agreement was negotiated in The Hague under the auspices of the United Nations Commission for Indonesia. Its primary purpose was to formulate an agenda for the transfer of sovereignty from the previous colonial power, the Netherlands, to the United States of Indonesia, in accordance with the Renville principles. Article 2 (1) of the Third Agreement (Transitional Measures) of the Conference states:
‘The division of the United States of Indonesia into constituent states will ultimately be determined by the Constituent Assembly in accordance with the Provisional Constitution of the United States of Indonesia, with the understanding that voting will be held among the populations of the territories designated by the Government of the United States of Indonesia on the recommendation of the United States Commission for Indonesia, or another United Nations organ under the supervision of the United Nations Commission for Indonesia or other intended United Nations, regarding the issue of forming separate constituent states.’
Article 2 (2) states:
‘Each constituent state must be given the opportunity to ratify the legitimate constitution. In the case of a constituent state not ratifying the constitution, it is allowed to negotiate a special relationship between the state with the Republic of Indonesia and the Kingdom of the Netherlands.’
After arranging the transfer of sovereignty from the Dutch East Indies to an independent Indonesia, in this agreement, the Netherlands established fifteen federal states. The Federal Constitution was created in 1949, and this document also briefly discusses the issue of self-determination. This constitution allows for ‘internal self-determination’, which is understood as the right of every person to decide their status within the federal structure of the United States of Indonesia. The Dutch East Indies officially ceased to exist on December 27, 1949[7], and the Republic of Indonesia was established. Upon joining the UN in 1950, the RIS had become the Unitary State of the Republic of Indonesia[8].
All these legal instruments promise the right to self-determination for the people of South Moluccas. The people of South Moluccas have chosen to exercise this right through the proclamation of independence.
- Proclamation of Independence of the RMS
On April 25, 1950, before the Proclamation of the Republic of Indonesia, the people of South Moluccas declared the establishment of their state, the Republic of South Moluccas, consisting of the territory of the Moluccas people. This republic declared its separation from East Indonesia and the State of Indonesia. In response, the Republic of Indonesia sought to negotiate an agreement with the RMS. When negotiation efforts failed, the Republic of Indonesia deployed armed forces to the Buru and Seram islands in Moluccas to suppress resistance against the United States of Indonesia and forcibly seize the territory. The Moluccas forces were unable to withstand the onslaught[9].
It is essential to note that South Moluccas never officially ‘joined’ the Republic of Indonesia, where the Republic of South Moluccas had already existed before the formation[10] of the Republic of Indonesia. The voting to determine the will of the people of Moluccas, as promised in various instruments including the Linggarjati Agreement, was never carried out. The President of the Republic of Indonesia, Soekarno, began to move to unite all of Indonesia, against the wishes of those who preferred Indonesia to remain a federal state. When the Jakarta government began to integrate the territories of other federal states into the Republic of Indonesia through decrees and even the use of violence, the idea of forming a unitary state met with much resistance in many regions, including South Moluccas. Therefore, the RMS is not a separatist movement, but a sovereign state that had declared its independence before the establishment of the unitary state of Indonesia.
Soekarno’s violent actions to control South Moluccas after the proclamation of the Republic of South Moluccas independence constitute a violation of South Moluccas sovereignty and infringement of the right to self-determination of the people of the region.
- Government in Exile
The RMS acted as a government in exile in the Netherlands after its leaders fled Moluccas in the 1950s. This government in exile has continued to fight in various forms and has demanded independence ever since. The struggle continued after the imprisonment and execution of RMS leader, Mr. Soumokil, in the 1960s with the same intent and purpose. Since then, the RMS has continued to oppose the Indonesian government’s rule over South Moluccas, albeit intermittently. The RMS was revived in the late 1990s, with new demands for Moluccas independence. The RMS has continued as a governing body since its establishment and has reclaimed power over the territory of South Moluccas. The Indonesian government has banned the group and has taken harsh action. They and anyone suspected of being an RMS member or anyone who raises the RMS flag will be arrested. The treatment of RMS members by the Indonesian government sometimes forces the RMS not to be prominent, but nevertheless, they have never surrendered authority over the territory to any other entity and have consistently maintained their demands for self-determination and independence from Indonesia.
With the recognition of new states, the decision to recognize governments in exile is often a political one. Regarding the issue of governments in exile during World War II, Oppenheimer stated that:
‘Recognition of various governments that were in London after the invasion of their countries in Europe clearly conformed to the long-established and clear principle of International Law that military occupation does not affect the sovereignty of that state. The party in power at that time was not the legitimate successor of sovereignty in the occupied territory, but rather a government based on coercion carried out as an act of war. Refusing recognition would also be contrary to the meaning of the League of Nations Covenant and the principle of the Briand-Kellogg Pact that war is prohibited as an instrument of national policy and that neither violence nor military conquest is a legitimate right to acquire territory[11].’
The existence of the RMS is somewhat different from the European countries occupied during World War II, where those European countries were already legitimate and had been independent sovereign states for some time beforehand, while the issue of the RMS status was never clarified at the time of the establishment of the Indonesian state. Nevertheless, the Indonesian government took control of the territory in 1950 after the RMS independence declaration through the illegal use of violence. Therefore, this occupation can be seen as an aggressive act, and the RMS government in exile is a legitimate representative of the state. The RMS has been prevented from exercising effective control over the territory of South Moluccas by the Indonesian government. This began in 1950 when Indonesian forces used violence against the people of South Moluccas who had proclaimed independence and continued when Indonesian armed forces have continued to use force against any efforts made by the RMS to regain de facto control over the territory. The Indonesian government, by banning the RMS, has prevented the RMS from establishing a government in the area, thus prolonging the exile of the RMS government. They demonstrated authority over the territory of South Moluccas by joining the UNPO in the 1990s.
The authority of the RMS over the territory of South Moluccas has also been highlighted in jurisprudence, which has also recognized the right to self-determination of the people of South Moluccas, the legitimacy of the RMS independence proclamation, and the existence of the state under RMS authority.
Tuesday (25/4/2023). Photo: Special
- RMS Recognition in Legal Decisions and Jurisprudence
The Dutch International Law Association issued a resolution in June 1950 on South Moluccas in response to JP Nikijuluw’s request that:
‘… the people of Ambon residing in the territory of South Moluccas are a ‘population in a territory’ as referred to in Article 2, Section 1 of the Transitional Action Agreement… so that these people have the right to form themselves into a separate ‘State’ in the manner provided, after which, based on Article 2, Section 2 of the Transitional Action Agreement, they have the opportunity to reject the Constitution of the United States of Indonesia – that is, to remain part of the Republic or separate themselves from it…’
This resolution stated that ‘The Republic of South Moluccas has the right to proclaim its independence and is legally entitled to defend that independence from any party, to realize its rights arising from Article 2 of the Agreement on Transitional Measures, to negotiate with the United States of Indonesia and the Kingdom of the Netherlands regarding special relations with both these states[12].’
The Amsterdam Court also touched on the right to self-determination of the people of South Moluccas in 1950. At that time, the RMS had filed a case against NV Koninklijke Pakketvaart Maatschappij (Royal Packet Company Ltd.)[13]. The President of the Court questioned whether the RMS was a state, and whether the RMS could be a party in civil actions. The President of the court also discussed the issue of whether the proclamation of RMS independence was the legitimate exercise of the right to self-determination. First, it was stated that the Netherlands had recognized the RMS in the Dutch Parliament Act of December 21, 1949, State Gazette J570 (Act on the Transfer of Sovereignty over Indonesia), by which the Transitional Action Agreement was ratified. It continued that ‘In good faith, the Kingdom of the Netherlands, which has fulfilled its agreement with the Republic of the United States of Indonesia, should not blame the population in the territory of South Moluccas for acting as already regulated by international law when the other party violates the agreement.’[14]
The case was submitted to the Amsterdam Court of Appeals, which issued a decision in February 1951. This decision[15], which referred to the provisions on self-determination contained in the Linggarjati and Renville Agreements, stated that ‘although still fully under Dutch control, the territory of South Moluccas, due to its geographical location and racial, cultural, and common interests of its population, has formed a natural unity, with its own local government system.’ In this regard, the Court decided that:
- The South Moluccan society is a territorial society which, according to the provisions of the Linggarjati, Renville agreements, and Article 2 of the Agreement on Transitional Measures, can meet the requirements for the implementation of the right to self-determination.
- The possibility of realizing the right to self-determination is taken away from the people who form the state by the establishment of the Indonesian People as a unitary state under its own leadership and supreme authority. This is contrary to what was agreed upon in the pacts and at the Round Table Conference.
- Viewed from Article 1 and 2, the proclamation of the Republic of South Moluccas is allowed in such circumstances.
- That the authority of the Republic of South Moluccas and its Government over the population in the South Moluccas territory, in terms of duration, nature, and scope, meets… the conditions of stability and effectiveness to be considered as the authority of an existing State is sufficient.’[16]
The Supreme Court of New Guinea also issued a decision discussing the status of the RMS in March 1952, in De Republiek Maluku Selatan v De Rechtspersoon Nieuw-Guinea[17]. The case was brought by the Republic of the Moluccas after a cargo ship carrying copra was seized and sold by New Guinea authorities. The court ruled that the plaintiff was entitled to the proceeds of the sale because it was believed that the RMS had been legitimately established in April 1950 through the implementation of self-determination guaranteed by Linggadjati, Renville, and the Round Table Agreements. When the RMS established itself as a free state, it severed relations with Indonesia and acted as a sovereign state. Therefore, its legal personality or recognition as an international legal subject as a state cannot be denied. The New Guinea court also argued that since the RMS had severed ties with Indonesia, all rights and powers of the government were automatically replaced, including those related to native produce. Therefore, neither Indonesia nor the Copra Authority had any interest in the shipment.
These testimonies recognize the existence of the RMS as a sovereign state and the legality of the RMS government.
- Recognition Issues
The Montevideo Convention outlines the characteristics required for an entity to achieve the requirements of statehood in Article 1, as follows;
‘A state as a subject of international law must have the following qualifications: (a) a permanent population; (b) a defined territory that has; (c) a government; and (d) the capacity to enter into relations with other states.’
The requirements of a permanent population and a defined territory can be met if referring to the territory and population covered by the declaration establishing the RMS in 1950. Furthermore, as outlined above, the RMS has had representation that has acknowledged itself as a government in exile for most of the time since 1950.
Regarding the fourth condition, Shaw states that:
‘The capacity to enter into relations with other states is an aspect of the existence of the concerned state entity and an important indicator inherent in the recognition by other states.’[18]
While it is stated that this capacity is not limited to sovereign states because non-sovereign parties can also establish legitimate relations. A continuation of the statement is that:
‘The ability to establish legitimate relations with other parties or states at will is essential for a sovereign state. If this cannot be done, the entity cannot become an independent state. The focus here is not on political pressure by one state on another, but rather on the inability to enter into a legitimate or legal relationship[19].’
The issue is not whether the RMS has exercised its right to establish legal relations with other states, but whether it has the capacity to do so. This capacity can be illustrated by the RMS’s membership in the UNPO. Entering legitimate relations with other states certainly depends on the attitude taken by other states regarding the RMS’s government in exile. This is often a political decision, and there is no clear rule established in international law regarding that decision. History has shown that each country takes a very different approach when it comes to recognizing entities that easily meet the Montevideo Convention’s requirements.
There are two theoretical approaches to state recognition, namely the constitutive theory and the declaratory theory. The constitutive theory ‘states that recognition by other states that make a new state valid and give it rights and obligations as a subject of international law (legal identity), not the process of gaining its independence[20]. This theory states that recognition by other states is required for an entity to enjoy its state status. However, this justification fails to address the issue that an entity can meet all the characteristics of statehood but may be denied recognition due to political interests. The declaratory theory ‘adopts the opposite approach and is slightly more consistent with practical reality. It maintains that recognition is merely the acceptance by states of an already existing state. A new state will acquire capacity in international law not based on the consent of other parties but based on certain situations and conditions[21].
Although the RMS does not have formal recognition by other states, the RMS has existed since 1950 and its existence has been recognized in jurisprudence. This meets the declaratory recognition theory.
New practice in cases on Recognition
The declaration of independence by Kosovo on February 17, 2008, shifted international attention to the issue of the right to separate and the right to independence of a state. Serbia requested the International Court to issue an advisory opinion on the following question:
‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’[22]
The ICJ’s decision on Kosovo indicates that the declaration of independence is in accordance with international law, interpreting ‘in accordance with’ as ‘not violating’. The Court emphasized the existence of the right to independence for certain categories of people and the absence of a prohibition in international law on declarations of independence.
The International Court’s Advisory Opinion on Accordance with the International Law of the Unilateral Declaration of Independence in respect of Kosovo states the following in relation to declarations of independence;
‘During the second half of the 20th century, international law on self-determination developed in such a way as to create a right to independence for peoples in non-self-governing territories and for peoples subject to subjugation, domination, and exploitation by others.’[23]
Meanwhile, the International Court also touched on the principle of territorial integrity specifically outlined in Article 2.4 of the UN Charter. (Paragraph 80) The ICJ then stated that:
‘In general, international law does not contain provisions prohibiting declarations of independence, which can be enforced. Thus, it can be concluded that the declaration of independence of February 17, 2008, does not violate international law.’[24]
More than 80 countries have recognized Kosovo as an independent state, but the international community has not reached an absolute decision, as many countries have not recognized it. While many EU members have recognized Kosovo, Spain has not. Russia has also not recognized it. The decision to grant recognition or not is essentially a political decision. Countries with interests in separatist movements within their own borders tend to not recognize and emphasize the territorial integrity of Serbia. Other countries, without the same concerns, have expressed their recognition. Although recognition may have a significant impact on the effectiveness of a state, the ICJ’s advisory opinion clarifies that the legality or claims or declarations of independence do not depend on the attitude of other states. Therefore, the recognition or non-recognition of the RMS by other states does not affect the existence or legitimacy of the RMS.
In conclusion, in my (Higgins) opinion, the RMS has existed, and continues to exist, as a state since its proclamation of independence in 1950. The RMS Government in Exile has never revoked its declaration of independence. The fact that other states have not The Linggadjati Agreement, between the Dutch Government and the Government of the Republic of Indonesia, was signed on March 25, 1947. See Charles Cheney Hyde, ‘The Status of the Republic of the Republic of Indonesia in International Law’ 49 Columbia Law Review (1949), pp. 955-66 and MC Ricklefs, A History of Modern Indonesia Since c. 1300, 2nd edition. (Stanford, California: Stanford recognized the RMS does not change this status at all under the declaratory theory of recognition.
The continued presence of Indonesia in the South Moluccas territory should be seen as an occupation, rather than a government, considering the RMS declaration of independence. Indonesia’s presence has disrupted the RMS’s ability to govern effectively, but this does not negate the RMS’s claim over the South Moluccas territory. The administration of South Moluccas was handed over to the RMS Government in Exile in 1966, and this group has remained the de jure government since then.
The core of Noelle Higgins’ opinion is that the RMS meets the legitimate requirements of a state according to international law. The RMS state was then unlawfully conquered (annexed) by the Republic of Indonesia. The conquest of the RMS by Indonesia does not cause the RMS to disappear. The RMS continues to exist with its government in exile in the Netherlands. International law opposes the annexation of a state by force.
Semuel Waileruny in his book ‘Uncovering the Conspiracy Behind the Maluku Conflict’ mentions the names of several scholars, including Gesina van der Mollen, Karen Parker, Kapeyne van der Capello, Hendrik Jan Rethof, Kruls, Gerad Louwrens Tichelman who refer to the RMS as a legitimate state. Also, in his writing titled ‘Understanding the South Moluccas Republic Through a Scholarly Approach,’ he mentions the names of those scholars in addition to Noelle Higgins and Eric de Brabandere with their strong juridical analysis. Brabandere from the Grotius Centre for International Studies 1 at Leiden University (Netherlands) argues (translated by Hendry Reinhard Apatuley) that:
This subject has the starting point that, concerning the RMS state, various courts in the future have explicitly and implicitly accepted that the RMS is a state under international law, as the RMS was recognized by the judges of the courts of the Kingdom of the Netherlands, based on its international legal status as a subject before the courts of the Kingdom of the Netherlands. Although the RMS has not received much recognition by other states internationally, this does not affect the existence of the RMS or the continuity of its existence. The declaratory theory of international recognition accepted in international law now includes that the recognition of a state is merely a political act of the state government, which is independent of the existence and continuity of a state under international law.
Since the enforcement of the principle of prohibition of the use of force in international relations, as mentioned in the UN Charter, Chapter I, Article 2, paragraph (4), states ‘that a country cannot annex another country’s territory by use of force and/or military power’. The military control of one country over another does not have a principal impact on the survival of the other country; the sovereignty of the annexed state remains, even though the effective control of the annexed state cannot be fully exercised.
The principle of ‘debellatio’, which justifies the acquisition of territorial sovereignty using force (aggression), followed by occupation (annexation) and/or conquest (conquest) by one country over another, does not dissolve the annexed state. In this regard, the principle ‘ex injuria jus non oritur’ sets aside the principle ex factis jus oritur’. That the use of violence (violence) and/or power (power) cannot result in the annexation of another state. And that the RMS state government cannot fully exercise its power over its territory due to the annexation and/or conquest of the RMS state territory by the Indonesian government with violence and/or military force, does not mean that the RMS as a sovereign and independent state has been disbanded and/or has died. The existence of the RMS government in exile strengthens the opinion that the RMS as a state still exists and remains alive.
Another international law expert, Hendrik Jan Roethof (1960: 118), states that:
‘The RMS state has a legal status far exceeding other states whose sovereignty has been recognized and has been accepted as a member of the United Nations…’
It is very clear that the RMS state is not part of the Republic of Indonesia, because on August 15, 1950, the RMS government, which was effectively in power in the capital Ambon (South Moluccas), never joined the government of the Republic of Indonesia (which was proclaimed on August 17, 1945). Even after August 19, 1950, the RMS did not become part of the United States of Indonesia (NIT) because the NIT was in total destruction by the state of the Republic of Indonesia. The fact that on April 25, 1950, the South Moluccas government declared the severance of all political relations with the NIT and the Republic of Indonesia (RIS), and the RMS state had the right to do so because the constituent body of the RIS, as regulated in the transitional agreement of the Dutch-Indonesian Round Table Conference, did not carry out the provisions as established in the transitional agreement itself, due to unlawful actions that rendered the articles in the transitional agreement as dead letters, and affected the government itself… Formally, the action of the South Moluccas government is correct, and this is in accordance with the universal international law treatment in matters such as the following: the existence of the ‘principle of the right to self-determination’, as formulated by Wilson under the motto:
‘People should not be bartered regarding sovereignties as if society were a game of property and pawnshops…’.
From the beginning, we can see that there is a significant difference between this situation and the transfer of sovereignty to the Indonesian government and parliament, in that they were not freely elected but appointed. This difference is of ‘fundamental’ significance when one considers the legislative character of the RMS state proclamation.
Another international law expert, J. D. Karen Parker, explains that:
The formation of the RMS state through a plebiscite mechanism (determining public opinion) was carried out in Tulehu, Ambon Island, as an implementation of the ‘right to self-determination’ according to international law provisions, as also regulated in the agreements at the Dutch-Indonesian Round Table Conference (RTC)[25], which granted the peoples of the Dutch East Indies (including the Alifuru people in the Moluccas) a prerogative right to refuse integration into the Republic of the United States of Indonesia (RIS), either by casting negative votes in a pre-merger plebiscite or by refusing to approve the final Constitution of the RIS state’ (Parker, 1996: 9).
Furthermore, Parker (1996: 13) argues that ‘despite the absence of recognition that can be relied upon regarding the right to self-determination for the people of the South Moluccas, the people of the South Moluccas have met all the requirements and/or testing of international law concerning the right to self-determination’. ‘The RMS state government is a legitimate government, unlawfully overthrown by the Indonesian government. The people of the South Moluccas have the right to self-determination, because this right to self-determination has specifically been granted to them (the people of the South Moluccas) by history and affirmed in the agreement between the government of the Kingdom of the Netherlands and the government of the Republic of Indonesia, and recognized by the United Nations. The South Moluccas have been unlawfully occupied by the government of the Republic of Indonesia and/or the Republic of Indonesia, which must immediately withdraw its Indonesian people and its military forces. The people of the South Moluccas must be given the opportunity to recognize their government in the South Moluccas or, if desired, determine their choice by holding a plebiscite that will determine a government in accordance with their wishes (the people of the South Moluccas). The government of the Kingdom of the Netherlands and the United Nations must take the initiative in an effort to restore the right to self-determination to the people of the South Moluccas.
Meanwhile, Gesina Hermina Johanna van der Mollen (1960: 72) argues that:
‘There are 3 (three) principle requirements that must be met before an entity can be accepted as a state within the community of nations. There must be a TERRITORY with marked boundaries, where there is a PEOPLE who wish to form a legitimate society, and there must be a GOVERNMENT that manages administration. ‘
These qualifications were fully possessed when the RMS proclaimed its independence as a sovereign state. The South Moluccan people, who make up the South Moluccan society, are mostly educated people from the easternmost region. They are politically and culturally far more advanced than many other races. They were well aware of the purpose of their actions on April 25, 1950, and they were well prepared for ‘self-government’. Their government administration was well-organized from the beginning, and the government had no difficulty in exercising its authority. The legitimate position of the RMS as a sovereign and independent state has not changed since April 25, 1950. Considering the RMS issue from a legal perspective, there is no doubt about its existence as a state under modern international law. Once again, it should be emphasized that the RMS state has legitimately exercised its right to self-determination according to (international) law.
International law experts affiliated with the Dutch Branch of the International Law Association (de Nederlandse Vereniging voor Internationaal Recht – NVIR) at their meeting in Rotterdam (Netherlands) on June 24, 1950, agreed that the proclamation of the RMS was an implementation of the right to self-determination according to international law. It was further explained:
That the government of the Kingdom of the Netherlands, which complies with the agreement with the RIS itself, may have unknowingly violated the inhabitants of the South Moluccas, who took legitimate action under international law when one party – against the other party – violated the agreement. Also, the Amsterdam Court of Appeals decision on February 8, 1951, stated that:
When the entire territory of the South Moluccas was still under the rule of the Kingdom of the Netherlands, this territory, for reasons of geographic location and/or situation, race, culture, and general interests of the population, already constituted a natural and genuinely original unity, with its own system of government. Based on the Linggarjati Agreement, the Additional Principles of ‘The Agreement Renville’, ‘the van Royen-Roem Agreement’, and Article 2 of ‘the Transitional Agreement’, the Court considers the following:
- The South Moluccan community, which is territorially in accordance with the agreements mentioned above, can meet the criteria for implementing ‘the right to self-determination.
- The possibility of realizing ‘the right to self-determination’ in this way has been taken away from the South Moluccan population when the territory was created during the establishment of the ‘Republic of Indonesia’ (RI) in the form of the ‘Unitary State of the Republic of Indonesia’ (NKRI) for the entire territory of the Dutch East Indies under the leadership and supreme authority of the RI itself, which is contrary to what has been agreed upon in the agreements mentioned above.
- Considering the two points above, the proclamation of the ‘Republic of South Moluccas’ (RMS) as a state can be justified considering the situation at the time.
- The authorities of the RMS and its governance over the population of the South Moluccas, considering their duration, nature, and existence, have sufficiently met the criteria of conditions, stability, and effectiveness to be treated as the legitimate authorities and/or government of the proclaimed state, namely, the Republic of South Moluccas.
The appellate decision was commented upon by N. J. C. N. Kapeyne van de Capello (1960: 90) as follows:
‘….. The series of facts that create legal precedents and this is more clearly outlined in a decision issued by the High Court in Amsterdam (Netherlands) on February 8, 1951. The Court considered the facts stating that the proclamation of independence of the RMS as a state should be considered as a method of enforcing the right to self-determination by or on behalf of the people of the South Moluccas, as it was permitted by the people. Whether clear or not, it is the fact that the RMS, right or wrong, has exercised the right to self-determination recognized by the UN, fundamentally the same for all people. The RMS was proclaimed by its Representative Body before the existence of the NKRI and had no constitutional relationship with the NKRI, and it is not a domestic issue of the NKRI….’.
The ‘Court Decision’ (Raad van Justitie) in New Guinea on March 7, 1952, states, among other things, that:
‘The agreements signed by the government of the Kingdom of the Netherlands, the Indonesian government, and the UN supervisory commission for Indonesia (United Nations Commission for Indonesia (UNCI)) are not only related to the signing of the agreements themselves but also bear responsibility for the implementation of the obligations as stipulated in those agreements. The parties signing the agreements must legitimately strive to uphold what they have agreed upon together.’
Similarly, with the decision of the Raad van Justitie in New Guinea on July 3, 1954, in the dispute over the capture of the ‘Hoa Moa’ ship flying the RMS flag while transporting copra on a journey in New Guinea territory. The consideration of the Raad van Justitie in New Guinea is whether the RMS is a state, so that the ship flying the RMS flag is the property and the sovereign right of the concerned state. Through the evidence presented and in accordance with the signed agreements, it is legally and convincingly proven that the RMS is a legitimate and sovereign state, so it is appropriate for the ship to use the RMS state flag and be equipped with RMS state documents.
There are still many International Law experts who explain the RMS as a legitimate state. In the future, I will conduct a study of Constitutional Law to prove whether the RMS is legitimate as a state or as a separatist movement against the NKRI.
Hopefully, this can serve as scientific discussion material and a learning experience for the children of Maluku to be more rational and objective.
The author is a Human Rights & Indigenous Peoples Advocate in Maluku
This article is an earlier (Indonesian) translation of an opinion piece: Semuel Waileruny, S.H., M. Sos entitled: Is the Republic of South Maluku (RMS) a Legitimate State or a Separatist Movement Against the Republic of Indonesia? (International Law Review): https://titastory.id/apakah-republik-maluku-selatan-rms-sebagai-negara-yang-sah-ataukah-sebagai-gerakan-separatis-terhadap-nkri-kajian-hukum-internasional/
Reference:
[1] The Linggadjati Agreement, between the Dutch Government and the Government of the Republic of Indonesia, was signed on March 25, 1947. See Charles Cheney Hyde, ‘The Status of the Republic of the Republic of Indonesia in International Law’ 49 Columbia Law Review (1949), pp. 955-66 and MC Ricklefs, A History of Modern Indonesia Since c. 1300, 2nd edition. (Stanford, California: Stanford University Press, 1993), pp. 224-5.
[2] The Linggadjati Agreement, between the Dutch Government and the Government of the Republic of Indonesia, was signed on March 25, 1947.
[3] Security Council Resolution 27 (1947), S/459. The United Nations also dealt with the ‘Indonesian Question’ in other Security Council Resolutions; Resolution 30 (1947), S/525, I; Resolution 31 (1947), S/525, II; Resolution 32 (1947), S/525, III; Resolution 36 (1947), S/597; Resolution 63 (1948), S/1150; Resolution 64 (1948), S/1164; Resolution 65 (1948), S/1165.
[4] Security Council Resolution 67 (1949), S/1234.
[5] Good Offices Committee USS RENVILLE, January 17, 1948, Documents S/AC.10/CONF.2/2. 18 Department State Bull. 334 (1948).
[6] See MC Ricklefs, A History of Modern Indonesia Since c. 1300, supra note 18, pp. 226-7.
[7] See Homer G. Angelo, ‘Transfer of Sovereignty over Indonesia’ 44 American Journal of International Law (1959), pp. 569 – 72. This constitution annulled the 1945 UUD and was replaced in 1950 with the Temporary Constitution. The original Indonesian constitution was restored in 1959.
[8] Karen Parker, Republic of Maluku: The Case for Self-Determination, footnote 8. See also George McT. Kahin, ‘Indirect Rule in East Indonesia’ 22 Pacific Affairs (1949), pp. 227 – 38.
[9] Approximately 4,000 Moluccas troops who had been incorporated into the Royal Netherlands East Indies Army but transferred to the Royal Netherlands Army in 1950 could not join the local Moluccas forces – see Karen Parker, Republic of Maluku: The Case for Self-Determination, footnote 11. Regarding Moluccas forces, see Richard Chauvel, Nationalists, Soldiers and Separatists (Leiden: KITLV Press, 1990), pp. 365 – 8.
[10] See NJCM Kappeyne Van De Coppello, ‘Relation to the United Nations’, The Republic of the South Moluccas, available at: http://www.transitionalgovernmentofrms.com/fkm_html/RMS%20Research.htm, last accessed 02/10/06.
[11] Oppenheimer, FE, ‘Governments and Authorities in Exile’ 36 (4) The American Journal of International Law (October 1942), pp. 571-572.
[12] See Karen Parker, Republic of the Moluccas: The Case of Self-Determination, Brief Paper, presented to the 1996 UN Human Rights Commission Session, Geneva, available at: http://www.webcom.com/hrin/parker/m.html, last accessed on 18/09/06.
[13] See ‘De Republiek Maluku Selatan v De Rechtspersoon Nieuw-Guinea’ 48 American Journal of International Law (1954), p. 511.
[14] See Karen Parker, Republic of the Moluccas: The Case for Self-Determination, Briefing Paper, submitted to the 1996 UN Human Rights Commission Session, Geneva, available at: http://www.webcom.com/hrin/parker/m.html, last accessed on 18/09/06.
[15] NV Koninklijke Paketvaart Maatschappij v de Republik Maloekoe Selatan, Nederlandse Jurisprudentie 1951, p. 241, No. 129.
[16] Karen Parker, Republic of the Moluccas: The Case for Self-Determination, Briefing Paper, submitted to the UN Human Rights Commission Session in 1996, Geneva, available at: http://www.webcom.com/hrin/parker/m.html, last accessed on 18/09/06.
[17] Nederland’s Jurisprudentie 1953, p. 161, No. 100. See ‘De Republik Maluku Selatan v De Rechtspersoon Nieuw-Guinea’ 48 American Journal of International Law (1954), p. 511.
[18] Shaw, Malcolm. International Law, 5th Edition, Cambridge University Press 2003. p. 181
[19] Shaw, Malcolm. International Law, 5th Edition, Cambridge University Press 2003. p. 181
[20] Shaw, Malcolm. International Law, 5th Edition, Cambridge University Press 2003. p. 368
[21] Shaw, Malcolm. International Law, 5th Edition, Cambridge University Press 2003. p. 369
[22] Paragraph 1.
[23] Paragraph 79.
[24] Paragraph 84
[25] This UN conference took place at the Paleis op de Dam, Amsterdam (Netherlands), on December 27, 1949.
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