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CLARIFICATION FOLLOWING EVENTS OF SPRING 2008

May 2008, Far Eastern Economic Review (Hong Kong), "Tibet's Legal Right to Autonomy" by Paul Harris:
 
The Chinese government claims Tibet as an “inalienable” part of its territory, and anyone who questions this is subject to vitriolic attacks by the official Chinese media. If they are themselves Chinese and live in China, they are “splittists” and liable to be imprisoned. Those from outside China are “anti-China” and “interfering in China’s internal affairs.”

However, to the Tibetans and most people in the world outside China who are familiar with Tibet’s situation, this is an international problem crying out for a mediated solution. Therefore one must start with how international law might support Tibetans’ rights to self-determination.

Nobody disputes that the Tibetans are a distinct people with their own language and culture, who form a large majority of the population of Tibet.  Moreover, Tibet is controlled by the Chinese government by means of military occupation for the benefit of the Chinese state. Tibet is a country “under foreign military occupation, and its people are subject to alien subjugation, domination and exploitation” within the meaning of the United Nations Resolutions on Colonial Peoples and on Friendly Relations. The severity of the repression the Tibetans have undergone, combined with the threadbare nature of China’s territorial claim to Tibet, mean that if the universal right of peoples to self-determination has any meaning, it must extend to Tibet.

Self-determination

By the time the U.N. was set up after World War II, it was generally recognized that peoples had the right of self-determination. Article 1.2 of the United Nations Charter states that the purposes of the United Nations include the development of friendly relations among nations based on respect for the principle of self-determination of peoples. It can therefore be said that all states which have become members of the U.N. by ratifying the United Nations Charter—including China—have accepted the principle of respect for the self-determination of peoples.

The United Nations Charter was followed by the Universal Declaration of Human Rights. The rights in the Universal Declaration were elaborated in two more detailed international covenants which, unlike the Declaration itself, are treaties intended to have legal force. Article 1 of the International Covenant on Civil and Political Rights states: “All peoples have the right to self determination. By virtue of that right they may freely determine their political status.” The ICCPR has been ratified by 161 of 192 United Nations member countries. Five other countries, including China, have signed but not ratified. A nation which is a signatory of a international treaty, such as the ICCPR, is obliged under international law to “refrain from acts which would defeat the purpose and object of the treaty.” China is therefore bound, both by its adherence to United Nations Charter and by its signature of the ICCPR, to respect the principle of self-determination of peoples.

However, there was no consensus about what the right to self-determination meant when it was included in the ICCPR. Western countries were generally reluctant to include it, but felt obliged to do so in response to the aspirations of recently independent countries to end European colonialism in those places where it still existed.

Since the ICCPR came into effect in 1976 there has been widespread concern that if the right to self determination in Article 1 is applied literally, it would lead to the break-up of many existing states. This applies particularly to Africa, whose national boundaries are mostly colonial-era constructs, but also to numerous other states with ethnic minority populations who form a majority in particular regions. A consensus emerged that the right to self-determination for the purposes of ICCPR Article 1 applies only to entire populations living in independent states, entire populations of territories yet to receive independence and territories under foreign military occupation.

This is a restrictive definition which excludes numerous groups who would in ordinary language be regarded as “peoples.” It gives no encouragement to some peoples with a long history of struggle for independence, such as the Kurds.

China’s present control over Tibet dates from 1950 when the People’s Liberation Army invaded Tibet and defeated the Tibetan Army at Chamdo. China claims that Tibet was already part of China when it invaded, based on a claim to sovereignty over Tibet by the Qing imperial dynasty dating from the 18th century. More recently China has claimed that its rule over Tibet can be traced to the rule of Tibet by the Mongols—known in China as the Yuan dynasty.

There are at least three major historical difficulties with China’s claim. Firstly, it is doubtful whether the relationship between the Qing and the Yuan on the one hand, and Tibetans on the other, was really one of sovereign and subjects. The Kangxi Emperor occupied Tibet in 1720. After his death in 1722 this occupation continued under his successor the Yongzheng Emperor until 1728, and there were further Chinese invasions in 1750 and 1792. However, after the end of the occupation in 1728, and after each of the later invasions, the Chinese armies withdrew and Tibet had virtually complete independence in practice.

Secondly, neither dynasty made Tibet a part of metropolitan China. If it was a political relationship at all, it was one of dependency—what today we call a colonial relationship. It is therefore a basis for concluding that Tibet is a colony and so entitled to self-determination.

Thirdly, and most importantly, there was no relationship—either similar to that between Tibet and the Qing dynasty, or similar to the modern concept of sovereignty—between Tibet and the Chinese Republic, which succeeded the Qing dynasty in 1911. In 1912 the 13th Dalai Lama made a formal declaration of Tibetan independence. Although the Chinese Republic responded by laying claim to Tibet, it never exercised any control over it, save for certain far eastern regions where there had always been an ill-defined borderland. Tibet was entirely independent of foreign control between 1911 and 1950.

Even if China’s historical claim was much stronger than it is, this would not provide a justification for invasion of an independent country. Most countries were at one time under alien rule. In 1911 Ireland was under British rule, as it had been for centuries, Finland was ruled by Russia and Korea was ruled by Japan. The setting up of the United Nations was expressly intended to prevent the kind of aggressive wars, based on spurious or doubtful claims to historical rule or cultural identity, pursued by both Nazi Germany and Imperial Japan.

China has frequently attempted to justify its invasion on the basis that Tibetan society was feudal and backward, and that China therefore brought liberation to the Tibetan peasantry from feudal domination. Scholars agree that the pre-1950 Tibetan regime was backward. One aspect of its backwardness was its failure to appoint ambassadors to other countries or to apply to join the United Nations until invasion by China was imminent. However this failure was not due to lack of independence but due to the absence of a clear sense of the need for a modern state to maintain relations with other states.

At the risk of stating the obvious, the fact that a country is backward cannot justify invading it. Backwardness was often advanced as a justification for 19th century colonialism, what Rudyard Kipling called “The White Man’s burden” when he encouraged the United States to colonize the Philippines. The fact that China relies on the “backwardness” argument to support its occupation of Tibet is a further indication of a classic colonial occupation.

One month after China invaded Tibet on Oct. 7, 1950, the Tibetan government appealed for help to the U.N. No assistance was forthcoming, and Tibetan forces were easily overwhelmed by the Chinese, with the bulk of the Tibetan Army surrendering at Chamdo.

After the surrender the Chinese Government embarked on what would now be called a “charm offensive” in Tibet. Tibetans were given money by People’s Liberation Army representatives, and encouraged to accept Chinese occupation on the understanding that their traditional way of life would be unchanged and that Tibet would enjoy a high degree of autonomy.

In 1951, China and representatives of the Dalai Lama signed the “17 point agreement for the Peaceful Liberation of Tibet.” It provides that “the Tibetan people have the right of exercising national regional autonomy under the unified leadership of the Central People’s Government” (Article 3); that “the Central People’s Government will not alter the existing political system in Tibet” (Article 4), and “will not alter the established status, functions and powers of the Dalai Lama” (Article 4).

These autonomy provisions were never observed. The Chinese Communist Party rules Tibet, as it rules China, through a centralized party organization, whereby each organ of government is shadowed by an organ of the party. These party organs are accountable only to the Chinese Communist Party headquarters in Beijing. In Tibet the new Chinese authorities insisted on taking all important decisions and interfered on an increasing scale with the daily life of Tibetans. In response to the harshness of Chinese rule, the Tibetans rose in revolt in 1958. The revolt was easily crushed by China, and in 1959 the 14th Dalai Lama and some 80,000 other Tibetans fled into exile in India.

The severity of Chinese repression in Tibet since that date is well-documented. There is severe repression of Tibetan Buddhism, which in 1997 was labeled as a “foreign culture.” Virtually all classes in secondary and higher education are taught in Chinese, not Tibetan, resulting in a high drop-out rate among Tibetans. Urban development has generally benefited Chinese immigrants, large numbers of whom have moved to Tibet and now comprise about 12% of the population.

Tibetans are routinely detained for long periods without charge or sentenced to long prison sentences for peacefully advocating independence or maintaining links with the Dalai Lama. Torture and ill-treatment in detention is widespread. Freedom of expression is severely restricted. Peaceful political demonstrations are invariably broken up and their participants arrested. Tibetan culture is treated as inferior to Chinese culture, and most key posts in the government and the economy are held by Chinese. Those few Tibetans who are able to enter Chinese government service do so at the cost of alienation from their own people and culture. Tibet’s environment and natural resources are ruthlessly exploited in the interests of China. Overall the situation bears marked similarities in all these respects to the situation of Algeria under the French or of Uzbekistan and Kyrgyzstan under Soviet Russian rule.

Tibet’s status has been given renewed topicality by the recent independence of Kosovo. The recognition of Kosovo would seem to extend the right of self-determination beyond the traditional colonial or foreign occupation situation. Kosovo was never a colony, and the Serbian Army had withdrawn long before the independence issue was determined. The only coherent legal basis for recognizing the exercise of self-determination by the Kosovo people in the form of an independent state is that, prior to that independence and while under Serbian rule, the Kosovar Albanians were subject to “alien subjugation, domination and exploitation.”

If Kosovo has a right to self-determination, the right of Tibet is infinitely stronger. The catalogue of gross oppression, the second class citizen status of Tibetans under Chinese rule, and the identity of Tibet as a country are all much clearer than in Kosovo’s case.

Autonomy and Independence

Self-determination need not mean independence. In many situations, autonomy within a larger nation state offers the best of both worlds, combining the benefits of being part of a large state in terms of defense, foreign relations and economic opportunity, with preservation of local laws, customs and culture from outside interference. Hong Kong is a good example.

The Dalai Lama has repeatedly said that he favors autonomy for Tibet within China, provided that it is meaningful autonomy. Such is his authority with the Tibetan people that they would probably support autonomy in any referendum in which he expressed support for it. However unless there is a change in Chinese government thinking, real autonomy does not appear to be on offer. This is shown by the continuing aggressive denunciation and misrepresentation of the Dalai Lama by Chinese official spokespersons.

Unless real autonomy is offered, self-determination in Tibet is bound to mean independence. China may hold down the Tibetans by force for a long time, but, as the example of Ukraine and Russia shows, even hundreds of years of repression is unlikely to extinguish the longing for self-determination among what are, incontrovertibly, a people.

  • Mr. Harris is a Hong Kong barrister and founding chairman of the Hong Kong Human Rights Monitor. This essay is adapted from an article originally commissioned and approved by the magazine of the Hong Kong Law Society, and then rejected as too sensitive after an extraordinary meeting of the society’s editorial board.

 

Comments by an Indian Military Man 

TRAGEDY OF TIBET by N. K.  Pant

One wonders why has the world at large been a mute witness to the ruthless butchery of Tibet’s docile population at the hands of the Chinese Communists for so long? Why was the extreme agony and profound misfortune of innocent inhabitants of the Shangri-La sidelined when Mao’s monstrous red army overran the tranquil land in 1950 forcing its spiritual and temporal ruler Dalai Lama and thousands of his subjects to flee the country and take shelter in friendly India?  Why did the myopic leadership in New Delhi at that time quietly acquiesced to Beijing’s military assault on the unique serenity of the Himalayan plateau justifiably called roof of the world? History will perhaps have to provide difficult answers to the foregoing questions when the future generations come across the description in their history books telling them that once upon a time in not so distant past, there was a country called Tibet inhabited by meek and mild people. 

The People’s Republic of China (PRC) now views the culturally and historically distinct region as integral part of the Communist country. Ever since the Communist China brutally occupied Tibet, it has vigorously formulated and implemented a cleverly visualized plan of swamping the Tibetan culture with the very aim of obliterating its identity. The PRC has left no stone unturned during its more than half a century’s iron fisted rule, in forcing repressive and tyrant local governments on the hapless people and fostering grave human rights climate in the region. It is now learnt that Tibetans will become a minority in their own land of birth in the next few years as swarms of ethnic Chinese immigrants from the mainland move in to take part in a new official drive to develop the region’s economy. A Chinese official was recently quoted as saying that infusion of investment and influx of skilled labour to Lhasa and elsewhere will bring unprecedented prosperity and stability to the remote Himalayan region. What he did not say that it would also sound a death-knell to the Tibetan way of life and culture.

This has already started happening with full official blessings. More and more people from all parts of overcrowded China have migrated to the territory to start life afresh with new businesses and seek employment. The influx still continues unabated. It is estimated that about three fourths of the capital Lhasa’s population is already of Han origin and the graph is showing an upward trend. Consequently, this has resulted in Chinese in becoming the lingua franca with Tibetan language being gradually pushed back to the ‘once upon a time’ syndrome of the past. The pictographic Shin Hua characters have already replaced Tibetan as the medium of instruction in the educational institutions in the occupied territory. The shops display the Chinese signboards in the city’s markets selling goods imported from the mainland dealing a deathblow to the native cottage industry. The long Chinese tyrannical rule which has already celebrated its golden
jubilee, is making its best efforts to annihilate Tibet’s cultural heritage and distinct historical identity arduously nurtured by its people during the preceding thousand years.

India, in fact, committed a grave historical blunder in 1950 when the triumphant red army menacingly marched into Lhasa in 1950. Strangely, British India had maintained military outposts in Tibet but the rulers of free India clearly lacking strategic vision and basking under the false glow of non-alignment decided to dismantle them in 1954. New Delhi should have opposed tooth and nail these belligerent developments in its northern Himalayan neighbourhood but it quietly bowed to Beijing’s military occupation of Tibet recognizing the region as Chinese territory. For this grave lapse, we had to pay a heavy price as the PRC followed the invasion of Tibet by laying claims to large chunks of Indian territory and finally in 1962, massive columns of Red army from their bases in Tibet launched an all out attack on our Himalayan borders which were till then considered impregnable. The wily communists now donning business suits, thus invented a complicated border problem with India and till date continue to evade its settlement despite holding numerous meetings with Indian External Affairs Ministry officials during the last couple of years. 

The Dalai Lama too had some time back pleaded that India take the Tibetan issue as its own and back Tibetan struggle for freedom. He feels that with its long border a free Tibet could assure India peace from the northern side. The Tibetan pontiff also expressed fears that China might change the course of the Brahmputra sooner than the later, which will prove unimaginably disastrous for India. Beijing even has plans to link Tibet with mainland cities by rail and this will surely drastically change the very demographic character of the country. 

The world has come to hold the Dalai Lama in high esteem for his pragmatic approach. He indisputably represents the opinion of the most Tibetans and his moral authority transcends Tibetan interests. The international community has honoured the Tibetan leader with the coveted Noble Peace Prize and now realizes the Chinese duplicity and hazards of subjugating a helpless race. The US waking up to Beijing’s deceitfulness on the Tibetan issue had sometime back appointed a Tibet coordinator in the State Department. The present coordinator Mrs. Paula Debriansky told a Congressional hearing a few
months back that resolution of Tibet issue would remove a major impediment to further US engagement with China. The US wants Tibet to be allowed to maintain its unique religious and cultural identity. Washington also has warned China it risks fanning resistance in Tibet and is harming its global reputation by refusing a dialogue with the region’s spiritual leader. 

In the changed global power scenario, a unique opportunity has knocked at New Delhi’s doors to seriously weigh its options and change the passive stance on the Tibetan issue. It must use its improved political, diplomatic and commercial clout with China to impress upon its leaders to end repressive rule and at least grant a genuine internal autonomy to Tibetans. The ageing Dalai Lama has also lately modified his stance and agreed to return to his homeland if such favourable conditions are created in his country. Tibetan tragedy could perhaps form part of the Indian Prime Minister Atal Bihari Vajpayee’s agenda of discussions when he pays an official visit to China in the coming months. 

Wg Cdr NK Pant (Ret'd),
J-121, Sector-25, Jal Vayu Vihar, Noida-201301 , India

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