the Legal Cornerstone to Tibet's Future
Written by Eva Herzer, of the Tibet Justice Center
The legal case of Tibet rests on two distinct pillars. First, the right to territorial integrity and second the right to self-determination. Both of these rights, separately, give the Tibetan people the choice to determine their future political, economic, social and cultural status.
The options as to a future political status include independence, an autonomous arrangement or theoretically total integration into the Chinese state.
The right to territorial integrity is the right of a sovereign nation to retain control over its territory. In other words, this is what we sometimes refer to as Tibet's historical right or claim. Thus if Tibet can show that she was sovereign prior to the Chinese invasion, then she is entitled to continued and future sovereignty, which means she has the right to decide on her future political, social, cultural and economic status. While Chinese and Tibetan history is intertwined in several significant ways, many scholars, including the International Commission of Jurists, have come to the conclusion that Tibet's historical claim to sovereignty is valid and that Tibet, if it so chooses, is entitled to have its sovereign status restored. Other scholars, many politicians and of course China, disagree with that conclusion. My own conclusion is that Tibet was a sovereign nation, minimally, from 1913 until 1949 when it was invaded by the People's Republic of China. This alone is sufficient to conclude that China's military annexation was unlawful. Additionally, China's theory that Tibet became a part of China during the Mongol period in the 13th century is blatantly absurd, since under this type of argument China could claim most of Asia, which was under Mongol rule as well, and India could claim most of its neighbors, who were also under British rule. While Manchu influence on Tibet was substantial, it was not unlike that of many protectorate relationships between sovereign nations today and, in any event, that influence had faded away by the end of the 19th century. A detailed discussion of this history is not within the scope of my topic today, but I recommend to you "The Case of Tibet", a study published by the TPPRC. It addresses Tibet's historical claim and provides a detailed discussion of Tibetans' right to self-determination and was written by lCLT's Dennis Cusack, who is here with us today, and Dr. Michael van Walt.
The problem with historical arguments is that history can be interpreted in many different ways. Nations and peoples sometimes become interdependent, and instead of a historical picture emerging in clear blacks and whites, it comes out in shades of gray, which are subjects of interpretation. China rests her case against Tibet solely on her historical interpretation that Tibet has always been a part of China and therefore concludes that Tibet has no right to determine its future. Interestingly, and for good reasons, China has been mostly silent on Tibet's right to self-determination.
Tibet's second legal pillar is the right to self-determination. This right is separate and independent of Tibet's territorial or historical claim. In other words, even if Tibet was a legitimate part of China in the past, Tibetans today have the right to self-determination. The right to self-determination is a cornerstone of the UN Charter which in Chapter 1, Article 1 (2) states: "The purposes of the United Nations are: ...To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples..."
In 1970, the UN General Assembly passed a declaration, which elaborates on the right to self-determination (Declaration on Principles of International Law Concerning Friendly Relations and Cupertino among States in Accordance with the Charter of the UN) as follows:
"... All peoples have the right to freely determine, without external interference, their political status and pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with provisions of the Charter".
It is important to note that the right to self-determination is the right of peoples, not the right of just any group of individuals. However, there is no genuine dispute that Tibetans are a people, which under international law is defined as a group of people with a common historical tradition, a racial identity, a shared culture, linguistic unity, religious affinity, a territorial connection and a common economic life.
Given that Tibetans are a distinct people, there is no legal dispute that they have the right to self-determination. Even the United Nations General Assembly, repeatedly, in 1961 and 1965, explicitly recognized the Tibetan people's right to self-determination and called on China to respect this right. Tibetans thus stand on firm legal ground when they insist on the exercise of their right to self-determination. At the same time, because the Tibetan case is based on this internationally recognized right, China is legally incorrect when it claims that all matters concerning Tibet are Chinese domestic affairs. The advantage of using the right to self-determination as the basis for Tibet's case thus is manifold. It avoids the slippery slope of historical interpretation. By removing the historical debate, it makes the deeply ingrained beliefs of many Chinese people that Tibet always was a part of China irrelevant and has the benefit of a face saving solution. Further, it internationalizes the Tibetan issue and legitimizes the requests of internationals that China complies with its international legal obligations vis-à-vis Tibet.
The potential problem with the right to self-determination is that the law is not settled as to the scope of its implementation. When a people wishes to implement its right to self-determination by seeking full independence and a state does not want to give up control over the territory, claiming the right to territorial integrity, a tension is created, which must be resolved. Some scholars argue that a people who have the right to self-determination may choose any option, including independence or complete secession. Others argue that the right only extends to self-determination within the framework of the state. However, this dichotomy can be resolved by looking to the underlying principles of international law and by balancing the legitimacy of the state's assertion of its territorial integrity claim and the people's request for independence or secession.
A careful analysis of the tension between the Tibetan people's right to self-determination, including the right to choose independence, and China's claim to territorial integrity leads to the conclusions that this tension must be resolved in favour of Tibet for several reasons:
- The Vienna Declaration of 1993 states that territorial integrity can only be invoked by legitimate governments conducting themselves in compliance with the principles of equal rights and self-determination of peoples. A state's legitimacy derives from satisfaction of its duties to its citizens.
These duties are:
- to protect the population,
- to promote the economic, cultural, social and spiritual welfare of the people it governs,
- to promote respect for human rights and fundamental freedoms and
- to promote self-determination and equal rights.
When a state does not promote these interests but instead represses the people, destroys their culture and economically exploits them, it loses legitimacy as a government and cannot prevail on its claim of territorial integrity. - The tension between Tibet's right to self-determination and China's claim to territorial integrity must also be resolved in favour of Tibet because China, in violation of the norms set forth in the Universal Declaration of Human Rights (UDHR), deprives the Tibetan people of their right to democratically elect its political representatives. In particular the UDHR provides for the right to:
"... to take part in the government of one's country directly or through freely chosen representatives" and "the will of the people shall be the basis of that authority of the government." - Lastly, the Tibetans' right to self-determination should be enforced as against China's claim to territorial integrity and when doing so it will advance the fundamental values of the international community. Affording Tibetans the broadest latitude in exercising their right to self-determination, i.e. allowing for the choice of independence, would promote the fundamental interests of the international community in a number of ways.
It would:
- enhance international peace by creating a demilitarized buffer zone between China and India, the world's most populous states. This potential benefit is enhanced by the fact that Tibet is very unlikely to become an aggressor since its culture promotes tolerance and respect.
- Promote respect for human rights and fundamental freedoms. Tibetan independence would result in a democratically governed Tibetan state based on international law and it would preserve and save from assimilation and extinction a unique people and culture.
Therefore, from a legal point of view, Tibetans should be allowed, by virtue of their right to self-determination, to freely choose their future political status, including independence. This conclusion is based, if I may summarize, on the following grounds:
- Tibetans are a distinct people;
- As a people, they have the right to self-determination and
- This right should trump China's conflicting claim to territorial integrity because:
- China, by repressing Tibet, has not conducted itself as the legitimate government of the Tibet people,
- China has not allowed Tibetans to freely select their political representatives and
- Allowing Tibet the broadest latitude in exercising its right to self-determination will promote the international values of peace and adherence to human rights.
Having said that Tibetans legally are entitled to fully exercise their right to self-determination, let us explore for a few minutes what options this entails.
There are three basic options:
- Independence, on one extreme,
- Total integration into the Chinese state, on the other extreme, or
- Autonomy or self-governance within the Chinese state ("the Middle Way")
The major obstacles to independence are not legal but political. I will not elaborate on this point, though I know that many Tibetans favour this option, since I believe we are all too aware of the formidable political problems which this approach faces. Since I have not yet met a Tibetan who favours a total integration into the Chinese state, "I will not take time to discuss that option either. The third option for self-determination is an autonomous arrangement between the Tibetan people and China, or in His Holiness's words, an arrangement for genuine self-governance. As you all know, "His Holiness proposed negotiating such an arrangement in Strasbourg in 1988. The executive and legislative branches of the TGIE are currently in the process of discussing the terms of a possible autonomous arrangement which could meet the needs of the Tibetan people.
In an autonomous arrangement, governmental powers would be divided between a Tibetan autonomous government and the Chinese state. The powers to be divided include the powers to determine, administer and control matters of:
- Cultural affairs
- Transportation
- Education
- Postal and telecommunications systems
- Official language
- Law and order
- National symbols
- Administration of justice
- Health and social services
- Currency and monetary policy
- Economy
- Determination of citizenship
- Taxation
- Foreign policy
- Natural resources
- Defense
- Environmental policy
- Customs, border control, immigration
The term autonomy by itself is vague and rather meaningless. It makes therefore little sense to support or reject the notion of an autonomous Tibet, unless the autonomy is defined as a particular distribution of governmental powers. Depending on how these powers are divided, an autonomous arrangement either results in negligible self-governance or substantial self-governance. The current Tibet Autonomous Region is an example of negligible self-rule. The only governmental power, which theoretically lies in the Tibetan autonomous government's hands, is the power over cultural affairs. However, since the Communist Party controls that government, even that one power does not, in practice, lie in Tibetan hands. Examples of substantial self-governance include Liechtenstein, Andorra, San Marina, Tatarstan, Catalonia and Greenland. Another example is His Holiness's Strasbourg proposal, which allocates most governmental powers to Tibetans and would give to China only defense and some foreign affairs powers.
Negotiation for an autonomous arrangement must also include careful consideration of post- agreement implementation, enforcement and conflict resolution provisions and allow Tibetans to void the agreement if it is not honored by China. A detailed analysis of autonomy is not within the scope of this talk but I would like to refer you to a 700-page study conducted by ICLT and UNPO on this issue, which you can order from ICLT and a 30-page summary of which I would be glad to mail to you.
In conclusion, Tibetans, as a people, have the right to self-determination and therefore have the right to determine their future political, economic, social and cultural status. This status could take the form of independence or of an autonomous arrangement for self-governance within the framework of the Chinese state. The decision of which option to pursue is that of the Tibetan people. It is for this reason that many Tibet supporters and I advocate for the Tibetans' right to self-determination, rather than for independence, autonomy or any other option for implementation of this right. The Tibetan people can reach this decision either by delegating their authority to His Holiness, or to their elected exile government, or by calling for a referendum to be carried out in Tibet, which of course involves a host of political problems.
I hope this short explanation of the right to self-determination and the options it provides has been helpful to your understanding of the legal framework of the case of Tibet. It is our job as Tibet support groups to build the political pressure necessary for the creation of an international political environment in which the Tibetan people will be free to exercise their right to self-determination.
In closing, I would like to say that I think the time is ripe for this Tibet support movement to elevate its effectiveness to the next level. If we are efficiently organized, put strategic action plans in place and co-ordinate ourselves, we have the potential to activate hundreds of thousands of people in support of Tibet. In this spirit, I hope that we will leave Berlin with a new Tibet Support Group Network in place and with an elected steering committee to help us translate our ideas and good intentions into an effective and coordinated action in support of the Tibetan people.
Review
- Legal Basis for the Case of Tibet to Determine its Future Political Status: and/or
- Territorial Integrity, based on past sovereignty
- Right to self-determination
- Options as to Future Political Status under A or B:
- Independence
- Some from of Autonomy (Distribution of governmental powers between Chinese and Tibetan Governments)
- Full Integration into Chinese State
- Methods for Deciding on which Option to Choose:
- Delegate Power to His Holiness the Dalai Lama
- Delegate Power to Elected Exile Government
- Referendum in Tibet and/or Exile
- A Combination of the above
