The Bougainville Independence Referendum and the ‘Duty to Consult’

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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.

The ‘duty to consult’ under the BPA

The BPA obliges the PNG and Bougainville governments to ‘consult over the results’. In ordinary English, the word ‘consult’ may be understood as some sort of minimal communication before acting unilaterally; seeking (and seriously considering) input or advice; or negotiation and decision-making on a mutual basis. While the first two senses suggest a procedural requirement which, once satisfied, does not limit the final authority of the decision-maker, the latter sense requires decisions to be taken mutually. A contextual interpretation of the BPA suggests that the parties to the agreement intended to establish an obligation of this latter nature.

The BPA contains numerous references to requirements to ‘consult’.   Some are framed in clearly unilateral terms. For example, in preparing a draft constitution for autonomous Bougainville, the constitutional commission is required to “consult widely with the people of Bougainville to understand their views”. Unlike such provisions, however, the requirement to consult following the referendum is framed in terms of a duty of the government and the autonomous Bougainville government to consult (i.e. each other). That the two governments are framed both as duty-bearers and rights-holders strongly suggests an obligation of a mutual nature: i.e. that the parties must not only genuinely discuss “the results of the referendum” but also take any decision mutually.

The PNG Constitution itself sets out an onerous general definition of consultation. Article 255 states that:

[i]n principle, where a law provides for consultation between persons or bodies, or persons and bodies, the consultation must be meaningful and allow for a genuine interchange and consideration of views.

Elsewhere, the constitutions of Mexico and Canada impose similar consultative obligations in relation to indigenous peoples. In the leading Haida Nation case, the Canadian Supreme Court found that while the constitutional duty to consult indigenous groups did not impose a “duty to reach agreement […] the commitment is to a meaningful process of consultation in good faith”. Further, “[t]he scope of the duty is proportionate to […] the seriousness of the potentially adverse effect upon the right or title claimed.” Such obligations, while procedurally onerous, are unilateral in nature and therefore arguably different to the duty under the BPA. Nevertheless, they support the view that there is an evolving understanding across several jurisdictions that where a duty to consult groups of people affected by governmental decision-making is imposed, at a minimum it must be ‘meaningful’. The greater the extent to which the decision-making impacts the group, the more ‘meaningful’ it must be.

The ‘duty to consult’ in international law

The BPA and PNG Constitution provide only that the governments of PNG and Bougainville must consult. However, it is not the PNG government which decides on Bougainville’s independence but rather the PNG parliament which, by the terms of the instruments, is to exercise the ‘final decision-making authority’. It could therefore be suggested that while the PNG government has a duty to engage meaningfully on the outcome of the referendum, if and when the matter proceeds to the PNG parliament, PNG will have effectively discharged its obligations.  

Here, however, wider international law comes into play. Similar to duties recognised in constitutional law, an international legal duty to consult in good faith indigenous peoples regarding executive or legislative measures that may affect them is fast evolving. The principle of self-determination is also widely recognised to include the right of ‘peoples’ to genuine consultation. While there is no clear definition of a ‘people’, relevant criteria are considered to include cultural, racial or ethnic distinctiveness, a subjective sense of uniqueness, and a connection to a particular geographic area (Michael P. Scharf, ‘Earned Sovereignty: Juridical Underpinnings’ (2003) 31 Denver Journal of International Law and Policy 373). As recognised by the ICJ and in the ILC draft articles on state responsibility, international legal obligations attach to all branches of government, so that the duty to consult extends to parliamentary deliberations.

The population of Bougainville is diverse, however Bougainvilleans, in addition to including a number of indigenous groups, share a common sense of identity distinct from the rest of the country, based in part on their darker skin colour and cultural closeness with the neighbouring Solomon Islands (Bougainville: The Peace Process and Beyond, report of the Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, 27 September 1999, pages 15-16). As the Bougainvilleans are no longer subject to colonial administration, and enjoy significant self-government, it cannot be argued that they enjoy a right to external self-determination leading to independence (see e.g. the Canadian Supreme Court’s decision in Reference re Secession of Quebec). However, they enjoy ‘the right to be taken seriously’: i.e. a right of genuine consultation in respect of their ‘freely expressed will’ (Jan Klabbers, ‘The Right to Be Taken Seriously: Self-Determination in International Law’ (2006) 28(1) Human Rights Quarterly 186).

Conclusion and future implications

In the case of Bougainville, the ‘duty to consult’ under the BPA and PNG Constitution would seem to require that the two governments seriously discuss the referendum result and take any decision in relation to it mutually. In addition, international law requires that once the matter comes before the PNG parliament, the legislature engage in genuine and meaningful consultations with the Bougainvilleans.

Whatever the response, developments in Bougainville are likely to have important implications, not only for the region, but also for peacemaking practice and international law. Despite research suggesting that autonomy is often ineffective as a peacemaking device, autonomy together with a commitment to a future independence referendum has been practiced in secessionist disputes elsewhere; most notably in Sudan.  In this respect, it is seen a practical compromise between the extremes of independence and status quo.

Unlike in respect of Bougainville, however, the legal framework for Sudan clearly recognised the right of Southern Sudan to self-determination and provided for a legally binding referendum. It is notable that nowhere in the BPA or PNG Constitution is self-determination mentioned–most likely due its connotative association with secession (it is, however, mentioned in the Bougainville Constitution). In the hopefully unlikely event circumstances in PNG deteriorate over the next several months, it may be that secessionist groups will in future be far less willing to accept BPA-like compromises and will demand, if not immediate independence, then at least formal recognition of the right to self-determination and a legally binding referendum.

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Kishor Dere says

December 31, 2019

It is indeed a good analysis of right to self-determination, and right to be consulted. William rightly holds that in the case of Bougainville, the ‘duty to consult’ under the BPA and PNG Constitution necessitates the two governments analyze the outcome of referendum and decide it together. International law also demands that once the issue reaches the PNG parliament, the legislature hold fruitful consultations with the Bougainvilleans. References to Quebec and South Sudan are noteworthy.

Aditya Roy says

January 1, 2020

Dear William,
A thought provoking article. However, on that Quebec thing, the Supreme Court declined to grant external self detrmination in the case of Francofone Peoples but the Court said that in three circumstances, the right to external self-detrmination exists.
1. In the case of colonisation,
2. In the case of Foreign military occupation, and
3. Where the part of the population is denied acess to Government to pursue its political, economic, social or cultural development
In these circumstances, a right of Remedial Secession might arise.

Thanking You
Aditya Roy

Robert McCorquodale says

January 3, 2020

This is a helpful commentary, thanks.
Do you think that the duty to consult or the outcome of any consultation is affected by the current status of Bougainville, being that it has a free association with PNG?
This free association is a much greater form of autonomy than in most internal self-determination situations. Free association is provided for expressly in Resolution 1541 in 1960, which also included independence and merger as being the three main forms of what is now known as external self-determination. In Bougainville's situation, its free association means that the PNG government currently only has powers in Bougainville over foreign affairs and international trade, and other related areas (such as defence and currency).

William Underwood says

January 6, 2020

Hi Robert, you raise a good question. My first thought is that whether Bougainville may be considered to be in a free association with PNG is more relevant to external rather than internal self-determination. Nevertheless, the division of powers between the territories may affect the duty to consult inasmuch as the duty extends to state decision-making which affects the people(s) concerned, and if the national government/parliament does not have the power to decide the relevant issue it does not (at least as a matter of law) have the capacity to affect those people(s). In the case of the Bougainville referendum, however, the BPA and PNG Constitution clearly provide that it is the PNG parliament that has final decision-making authority.

John Braithwaite says

January 6, 2020

William, do you think it is relevant that the Bougainvillian parties to the peace process wanted a binding referendum, but finally relented on the issue to pressure from the international community, particularly from then Australian Foreign Minister Alexander Downer? This pressure was asserted as confidence that if there is an overwhelming vote for independence, the international community will be certain to demand that the PNG parliament honour an overwhelming will of the people in the referendum.

William Underwood says

January 8, 2020

Hi Prof. Braithwaite, your point certainly underlines that deferring a key issue of contention in a peace agreement (in this case whether PNG will recognise Bougainvillean independence) may help to reach an interim solution but lead to unpredictable consequences further down the track, particularly where expectations remain high but the political context may have shifted. There are often trade-offs and limitations, however in the longer-term it may help to have the kind of certainty as to outcomes which was present in the Sudanese Comprehensive Peace Agreement but not the BPA.