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