205 Critchley to Burton

Memorandum BATAVIA, 11 February 1949

Attached is a rough translation of a copy of the informal proposals for an early transfer of Sovereignty, which I have referred to in my recent telegrams. [1]

The proposals are attributed to East Indonesia, but the initiative was almost certainly Dutch.

As expected the proposals envisage the retention by the Netherlands of wide powers which are inconsistent with a real transfer of sovereignty. They are, of course, unacceptable to the Republican leaders.

ENCLOSURE

TOP SECRET

NOTE OF EAST INDONESIA CONCERNING A POSSIBLE TRANSFER OF SOVEREIGNTY AT SHORT NOTICE

INTRODUCTION

1. It should be understood in advance that no proposals for the settlement of the Indonesian issue can achieve satisfactory results unless they are acceptable to the majority of the Indonesian people.

2. It is therefore essential that an attempt should be made to achieve concurrence between the leaders of the B.F.O. (Federal Consultation Conference) and leading personalities and government members from Republican territories.

3. In its mid-January session, the B.F.O. announced that consultation with prominent people from Republican territories, notably from among Republican Government circles, is essential.

The term 'prominent people' was meant to include in the first place Republican government members who, owing to certain circumstances, at present are not in a position actually to exercise their administrative authority.

4. These Republican leaders appeared to be in principle not disinclined to enter into consultations, provided the B.F.O.

should be prepared to acknowledge their status as the Government of the Republic, while on the other hand they made known that they refused to enter into consultations as mere prominent individuals (Sultan of Jogja).

5. This puts before the B.F.O. the following alternatives:

a. to give up consultation with those 'prominent people', consultation with whom they had considered desirable in their mid- January meeting, and to proceed without them to the formation of an interim federal government. In that case the interim federal government would have to proceed to an early constitutional organization of the former republican territories which, for several member states would constitute an unacceptable solution;

b. to try to meet the wishes of the prominent Republicans so that consultations can immediately be started and a solution perhaps found.

6. The Government of East Indonesia thinks that the second alternative (sub b) should be chosen.

7. It has arrived at this choice on the following grounds:-

a. formation of an Interim Federal Government, which could not nationally or internationally be regarded as expressing the general aspirations of the entire Indonesian nation, has no sense and would do more harm than good for a settlement of the Indonesian issue.

b. For the formation of an Interim Federal Government which would be acceptable nationally as well as internationally, the co- operation of prominent leaders and government members from the Republican territories is fundamentally essential;

c. The only leaders from Republican territories who are at the moment available, are the most important members of the Republican government. These leaders have gained international recognition and are in wide circles in federal territory (specifically in East Indonesia) regarded as leaders and government members of the Republican territories.

d. If the B.F.O. does not wish immediately to have to face unacceptable consequences, it will have to go to some pains to meet the desires of the 'prominents' from Republican territories, whose wishes are congruent with the international views and opinions nursed in wide circles among the population in federal territories.

8. The Government of East Indonesia is of the opinion, that the B.F.O. should meet the expressed wish of the 'prominents' from the Republican territories, by issuing a statement to the effect that it is prepared as a body to regard these 'prominents' as government members of the Republic, representing the Republic.

9. By this means the B.F.O. would ensure, among several essential conditions:

a. that the federal principle of equal position and equal rights for the member states (component regions) remains undisputed.

b. that the popular will should in the end determine the status of the Republic as well as the manner in which it shall be incorporated in the future sovereign and free U.S.I.

10. A statement to the same effect by the Netherlands Government, preceding or coinciding with the statement of the B.F.O., would probably immediately open the way to a contact with Republican leaders, as desired by the B.F.O.

11. It would be incorrect and might even prove fatal if the B.F.O.

should, prior to such contact, officially commit itself to a different, concrete and detailed plan for an early transfer of sovereignty (the B.F.O. till now has accepted the B.I.O. Decree [2] as a starting-point). This would create an ultimative impression.

12. It would be better if a commission appointed by the B.F.O. to establish the initial, tentative contact with the Republican leaders, were to approach them with regard to such a plan. If during the tentative conversations they should appear willing to co-operate in this plan, then the B.F.O. after having discussed the report of its contact commission could immediately adopt a resolution relating to such a plan.

13. By that time the B.F.O. may have learned whether the Netherlands Government would be prepared to co-operate to implement such a plan.

14. In the second stage, that of consultations between the B.F.O.

and the Republican leaders or government members (the so-called Indonesian conversations which the B.F.O. considers necessary for a settlement of the Indonesian issue), a plan for accelerated transfer of sovereignty could be discussed and elaborated in concrete and in detail.

PLAN FOR TRANSFER OF SOVEREIGNTY AT SHORT NOTICE 15. Before the beginning of the first session of the B.F.O. in July 1948, a note [3] had been drafted on behalf of the Government of East Indonesia, in which was developed a plan for a speedy transfer of sovereignty. At that time a different solution (viz.

early establishment of an Interim Federal Government, envisaged in the Bandung Resolution [4], etc.) was more favoured, so the East Indonesian plan was not placed on the agenda. The note of the East Indonesian Government has, of course, to be viewed in an entirely different light now as the political situation has greatly changed since then. But this note may still serve to indicate the possibilities of an immediate transfer of sovereignty to a National Indonesian federal government, and therefore the note is attached as an appendix.

16. In this plan it is assumed that transfer of sovereignty at very short notice would be feasible if all efforts were immediately concentrated on the formation of a national Indonesian federal government for the U.S.I. which, though of a provisional nature, could immediately take over sovereign powers.

17. This Government would not have to pass through an interim period, in which it would attend to internal Indonesian affairs so far as possible and make preparations for the transfer of sovereignty. It would instead have to take over sovereignty immediately, and in a provisional bilateral treaty, to be signed simultaneously, undertake to provide for numerous matters, that have to be liquidated or developed in cooperation with the Netherlands.

18. This conception would therefore imply that a great many preparations for the transition to a definite new legal order would have to take place, not during an interim period, but after the transfer of sovereignty, and under the provisions of a provisional bilateral treaty which would afterwards be replaced by a final statute or by final treaties.

19. It could be assumed that the Netherlands would be prepared to accept this conception if the following items were dealt with in the bilateral treaty:

1. the creation of a Netherlands-Indonesian Union;

2. safeguarding of Netherlands and foreign interests, notably those in the sphere of financial and economic affairs;

3. the requirements relating to the democratic and federal structure of the U.S.I. from which should result respect of fundamental rights and the rights of the racial groups, and personal and material integrity.

4. the liquidation of the military question.

20. The note referred to in paragraph 15, included an outline of a provisional bilateral treaty to be concluded between the Netherlands and the U.S.I. This outline does not pretend to treat the matter under consideration exhaustively, and will doubtless require reconsideration or supplementation in all kind of matters.

It is pointed out perhaps superfluously, that the contents of the bilateral treaty will be laid down later in consultations between the Netherlands Government and the representatives of the territories which will participate in the future sovereign U.S.I.

Therefore notice should be taken in the first place of the latest political developments in the Indonesian question.

The outline referred to reads as follows:

21. OUTLINE OF A TREATY BETWEEN THE NETHERLANDS AND THE USI Nature of the treaty 1. The treaty has the nature of a basic agreement. It remains in force and binding on both parties insofar and as long as no subsequent treaties have been concluded by the parties, with regard to the subjects it covers.

Elements of the Treaty 2. The Treaty shall provide for the immediate establishment of a Netherlands-Indonesian Union founded upon the basic principles laid down in the Linggadjati Agreement [5] and the Renville Principles. [6] It shall also contain preliminary provision concerning the function and organization of the Union. It shall arrange for the institution of High Commissions in the Netherlands and in Indonesia as organs of either treaty party in the territory of the other, and eventually as Union organs.

The Netherlands High Commissioner shall have, beside his Union functions, also the functions resulting from the treaty.

3. The U.S.I. shall give the respective racial groups the opportunity for self-determination in a democratic way on the basis of provisions to be laid down jointly by the parties.

4. The U.S.I. will guarantee the fundamental rights and liberties laid down in the United Nations Charter.

5. The constitutional structure of Indonesia shall be founded on the principles of federalism and democracy.

6. The Constitutional structure of the U.S.I. shall contain guarantees for a proper administration of justice under the ultimate supervision of a Federal Supreme Court, with the understanding, however, that this supervision does not necessarily imply the power to test legislation of the U.S.I. or of the member states on the federal constitution.

7. The U.S.I. acknowledges that the status of the principalities within the federation shall in first instance be determined by regulations to be drawn up by the individual member states in whose territories the principalities are situated with the consent of the Crown. [7]

Pending such regulations the existing regulations will remain in force.

8. The constitutional structure of the U.S.I. shall contain safeguards for minority rights, which include also constitutional rights as well as the right to a separate cultural life.

9. Pending the establishment of independent Indonesian representation abroad, the Kingdom organs shall attend to the interests of the U.S.I. with due consideration for the treaty provisions. The establishment and organization of independent Indonesian representations shall be done in co-operation with the Kingdom.

10. The U.S.I. shall take over all financial and economical obligations of the Netherlands Indies Government, and also those of the Netherlands Government which have been contracted on behalf of Indonesia. The U.S.I. shall institute a proper financial and economic policy, and shall guarantee the rights of Netherlands and foreign corporate bodies. Pending further rules and treaties for the elaboration of the abovementioned obligation, the Netherlands and Netherlands Indies laws governing this subject will remain in force as U.S.I. laws, subject to the possibility of modifications mutually agreed to by the treaty parties. However, these laws will not be implemented through Netherlands and Netherlands Indies organs, but the U.S.I. shall set up its own organs, which in exercising their authority are subject to agreement with the Kingdom High Commissioner for Indonesia.

11. Pending the issue of rules and conclusions of treaties concerning the nationality of U.S.I. citizens and of the rights granted by either party to the nationals of the other party, the existing Netherlands and Netherlands Indies laws are to remain in force, on the understanding that the U.S.I. organs in charge of the implementation of those laws for non-Netherlander Dutch subjects, shall be appointed by the U.S.I.

12. a. Existing international obligations contracted by the Kingdom with respect to military assistance, relating to U.S.I.

territory, shall, pending regulations for taking over the obligations by the U.S.I. be acknowledged by the latter and be fulfilled by the Kingdom with regard to U.S.I. territory.

b. Pending the formation of U.S.I. armed forces and regulations for eventual co-operation in defence matters between the treaty parties, the U.S.I. shall not declare war nor make peace except in concurrence with the High Commissioner of the Kingdom.

c. The Kingdom is bound to co-operate in the organization of a separate Indonesian naval force, an Indonesian national army and an Indonesian air force.

d. Pending the formation of the armed services referred to under c, pending the creation of rules and treaties referred to under a, the High Commissioner of the Kingdom shall be supreme commander of all Kingdom land and naval forces present in U.S.I. territory. The strength of land and naval forces present at the time of the treaty is signed shall be made known to the U.S.I. Government.

This strength may be modified by agreement of the parties, in which due consideration should be given to the obligations referred to under a. The U.S.I. can request the High Commissioner to put these forces, entirely or partly, at their disposal.

e. Pending the issue of rules and conclusion of treaties concerning the transfer to the U.S.I. of control of the federal forces for maintenance of internal peace and order and for national defence, the prescriptions related to the employment of these forces shall without modification remain in force as U.S.I.

prescriptions, on the understanding that (except in the case of the provisions laid down under d, the words 'Governor General' shall be substituted by the words 'the High Commissioner in concurrence with the Government of the U.S.I.' and, furthermore, that instead of the authorities mentioned therein there can be appointed other authorities subject to agreement with the High Commissioner.) ARBITRATION 14. Differences between the treaty parties with regard to the interpretation and implementation of this treaty shall be subjected to the decision of an arbitration court, consisting of experts to be appointed by either party on a parity basis. Should an arbitration court formed in this manner fail to arrive at a decision, either party shall appoint three non-subject experts, who shall between them supplement the arbitration court. The arbitration court in the final form shall decide. The decision of this arbitration court is binding.

15. The treaty shall be initialled by the governments of either party and shall be ratified when the latter have been authorized by law to do so.

22. If the plan for acquiring an early transfer of sovereignty should be accepted and effectuated, it is necessary as soon as possible to proceed with the formation of a national federal government, which at the time of the transfer of sovereignty shall assume the rule over the U.S.I. and shall sign the provisional treaty referred to under paragraph 17, as a qualified treaty partner.

23. In order to achieve such a government, it is advisable:

A. as soon as possible-if possible as early as on March 1-to establish an Interim Federal Government, adopting the B.I.O. as a starting-point, which interim government should concentrate specifically on preparations for an early transfer of sovereignty rather than on administration during the interim period, i.e. on preparations for a provisional agreement with the Netherlands, to be signed simultaneously with the transfer of sovereignty; or B. as soon as possible to form a national federal government, which shall enter office at the time of the transfer of sovereignty, shall sign the treaty, and assume authority. This will therefore be the first government of the sovereign and independent U.S.I. In this case the preparatory activities which under the solution Sub A would be carried out by the interim federal government will be effected instead by representatives of the federal territories and of Republican territory in collaboration.

24. Whichever of the abovementioned alternatives should be adopted, it shall in any case be necessary to set up a commission to draw up a provisional treaty in co-operation with the Netherlands Government.

25. It appears advisable in case of adoption of a plan of this kind, immediately to fix a time schedule, setting a fixed date for the transfer of sovereignty, e.g. on April 15, 1949. At the latest by that date the formation of a national federal administration shall have been completed and a draft provisional treaty shall have been prepared.

26. Furthermore a period shall have to be defined within which must be achieved the substitution of the provisional treaty by a final treaty. This period would eventually be from April 15, 1949 till January 1, 1950.

27. The duration of such period must not be unilaterally made subject to the achievement o[r] non-achievement of an agreement with the Netherlands with regard to the Union in particular, and with regard to financial, economic and military questions in general.

1 Documents 192 and 203.

2 See note 1 to Document 74.

3 Not published.

4 See Document 220 in Volume XIII.

5 Appendix I in Volume XI.

6 Documents 23 and 24 in Volume XIII.

7 The last six words can eventually be substituted by the following:-'The Crown shall terminate the existing political contracts at the time these regulation come into force, if satisfied that these regulations have been voluntarily accepted by the principalities'.

[AA : A1838, TS383/6/1, i]