Earlier this month, the Bougainville island region of Papua New Guinea (PNG), announced that almost 98% of Bougainvilleans voting in the recent independence referendum had voted in favour of leaving PNG. The referendum is a key element of the 2001 Bougainville Peace Agreement (BPA), which, following a ten-year armed conflict, provided for special autonomy and a vote on independence to be held within 10-15 years. The result, however, is non-binding, and there have been suggestions that PNG may not be supportive of Bougainville’s secession. What then, are the legal rights of the Bougainvilleans and the obligations of PNG?
The legal framework of the referendum
The legal framework for the referendum includes the BPA – signed by the PNG government and Bougainville leaders – the PNG Constitution, which incorporates the BPA into PNG domestic law, and wider international law. The BPA and the PNG Constitution provide that the referendum was to be held once the conditions of weapons disposal and ‘good governance’ were met. Good governance is to be determined taking into account internationally accepted benchmarks including “democracy and opportunities for participation by Bougainvilleans, transparency, and accountability, as well as respect for human rights and the rule of law”. The PNG and Bougainville governments are to “consult over the results of the Referendum”, the outcome of which is “subject to ratification (final decision-making authority)” of the PNG Parliament.
Suggestions that the referendum result could be overlooked by PNG on the basis that Bougainville had not met the conditions of weapons disposal and/or good governance should be dismissed; both the BPA and PNG Constitution are clear that these conditions relate to the scheduling of the referendum and not (the implementation of) the outcome. Of course, such factors may be considered by the parties during the post-referendum political process, but they are not an argument that the process itself need not have taken place. Read the rest of this entry…