On the Winding Road to Independence: Probing the Present Legal Status of Tibet in the Context of International Law (Third Part)*

TIBET’S AMBIGUOUS POSITION IN INTERNATIONAL LAW: CONCLUSIONS

“On the eve of the Chinese invasion in 1950,
Tibet was not under the rule of any foreign country.”
 
Salvador P Lopez, Former Philippine Ambassador, 1965

A plethora of voices cannot just blend in unison. On a certain end, one can clearly hear the reverberating Chinese clamor for reclaiming Tibet, louder as it has been before, as they assert with all their souls and hearts that Tibet has long been an autonomous part of China. On the other end, one can barely hear the undying whisper of a devastated Tibet, softer as it has gone through the ages, as they proclaim with all resilience that Tibet has been a sovereign and independent state. Given a spectrum with these two diverging extremes, placing either one or the other in the middle ground is not a viable, if not feasible, option. At this critical juncture, either you go for integration and depose the claim for independence of the other, or you go for total independence coupled with self-determination and denounce the measures for integration of the other. Unfortunately, the question of Tibet’s legal status had already come that far. The subject has already bewildered a legion of curious and great minds as the complexity of the question and its answer is far beyond what words could utter. Furthermore, resolving Tibet’s legal status is not as easy as settling a petty dispute between a close friend nor is it as mundane as describing one’s face in the mirror. Should this predicament remain unsolved, the present situation will just result in depressing repercussions which will make things much complicated as the course of events is in the present.

The former sections of this paper tackled substantially the past and present socio-political history of Tibet. A sheer amount of light has been shed in this matter because this will prove to be a great help in tipping the scales of this analysis and deriving an array of conclusions with regard to the issues being resolved. Indeed, that a larger portion of this paper has been devoted to the insinuation of Tibetan history underscores the paramount significance of its contribution in the generalizations which will be laid down hereafter. After all, it is history which can best serve as a witness to all events which transpired in a nation. But before going on the important facts and points, let this be clarified first: a few pages will never be sufficient if one is provided a task to give a comprehensive analysis of the question of Tibet in the context of international law. Events after events unfold as time passes by. Some of these events may be essential while others may even be more relevant in relation to the issue. However, all of these events cannot just be identified and included in this paper. On the other note, it is supposed that a few pages will be sufficient to answer some basic questions which can somehow pour enlightenment on some confused minds. Once again, enumerated herein are the questions which shall answered by this study:

(1)  Does China, by virtue of its historical arguments, hold the right of claiming Tibet as part of its territory?
(2)  What are the implications of the Chinese claim of sovereignty over Tibet?; and
(3)   What is the present legal status of Tibet in the international realm?

By Virtue of Fallacious Historical Arguments: On China’s Claim of Sovereignty Over Tibet

It has been stated earlier that Tibet was an expansionist power in Asia back then. Further, it was considered as one of the mightiest powers in Central Asia. Even the T’ang Emperors of China admired Tibet’s strength and reportedly admitted that “Tibet had become the most powerful State in Asia by the eighth century”[1]. Commencing from the reign of Tibet’s most influential emperor, Songtsen Gampo, it can be maintained that Tibet has always been a sovereign country and, at any point in its history, has never subjected herself under Chinese dictatorship[2]. As for its conduct of international relations among states, ample evidences can be drawn from numerous bilateral treaties, agreements and conventions concluded by Tibet between and among various sovereign states including China. All throughout this time, Tibet was sovereign and not under the influence of any foreign control[3].

The genesis of the Mongol Empire came sooner. As it has been narrated earlier, the Tibetan leaders during that time, adhering to its policy of nonviolence, established a Cho-yon relationship among the Mongol Khans and Princes. In the passage of time, the Cho-yon relationship has been made manifest by Tibet and the Manchurian China. Again, this relationship is of sui generis type. In that context, one must not consider any state as superior or inferior to the other. The relationship, hence, exemplifies equal sovereignty as shown by the fact that “the Chinese and Tibetan rulers often conferred honours upon each other.”[4] During the course of the existence of the Cho-yon relationship among the Mongol and Manchu rulers, Tibet possessed independence and remained as a sovereign state[5].

Years after the downfall of the Manchu Dynasty in China, the newly-founded People’s Republic of China made it clear that it would rigidly adhere to its policy of “liberating” the entire people of China which include the Tibetans. As things turned from bad to worse, China launched all its efforts in order to integrate Tibet in the Mainland.

In order to grasp fully the arguments being utilized by China in justifying its claim of sovereignty over Tibet, it will be more appropriate to revisit history since China’s arguments are purely historical in nature. One of these arguments is stated as follows[6]:

The friendship of the Third Dalai Lama (in 1578 A.D.) with Altan, king of Mongolia, gained considerable significance when Altan’s grandson became the Emperor of China (the first of the Manchurian line) and invited the fifth Dalai Lama to China. On this occasion it is recorded (both by Tibetans and foreigners) that the Chinese ruler escorted the Tibetan King many days journey on his entry into China.

Using this as evidence, the Chinese assume that the Dalai Lama, when he visited China during that time, has fully submitted to the Emperor of China who was then a Mongolian King. Further, they argue that since the Yuan Dynasty (1279-1368), Tibet was nominally controlled by the Mongol Leaders by virtue of suzerainty[7]. China has long asserted suzerainty over Tibet as the Chinese would maintain. But this historical account has been interpreted in a decontextualized and ill manner. The Cho-yon relationship has characterized all sorts of relationship between the Dalai Lama and the Mongols. To reiterate, this type of relationship was merely based on religion wherein the Mongols, and later the Chinese, have agreed that the Dalai Lama will serve as their Spiritual Guide[8]. Neither state nor party has displayed total submission whatsoever. Moreover, no suzerainty over Tibet was exercised by China because the control over external affairs remained to be in the hands of the Dalai Lama and his government. If one will disregard history, it could be seen as suzerainty only in the sense that the Dalai Lama relies on his “patron” as the source of his, and consequently the State’s, protection against menacing forces.[9] But if the sui generis nature of the relationship will be taken into the light, it could not be viewed as suzerainty anymore but rather as an inevitable upshot of this mutual relationship. Evidently, the arguments presented by the Chinese are fallacious and absurd; thus, these cannot be used as justifications for the Chinese claim of sovereignty over Tibet. The fact still remains, as Professor van Walt van Praag points out, that[10][t]hroughout its domination by the Mongols, Tibet remained a unique part of the Empire and was never fully integrated into it.”

By and large, it has been found out that: (1) Tibet has never pledged submission to any foreign state; (2) The Cho-yon relationship must be viewed in the proper historical context where it must apply; and (3) Tibet, from the Imperial Era up to the downfall of the Manchu Dynasty, was never assimilated to China. Professor van Walt van Praag also shares the same sentiments[11]:

…The State of Tibet never ceased to exist. The exercise of sovereignty by the Tibetans was restricted by the Manchu involvement in the affairs of Tibet, but that did not result in the extinction of the independent State, which continued to possess the essential attributes of statehood.

In the classic international law, there are five recognized modes by which a State could acquire a legal title to a territory. These are (1) accretion; (2) prescription; (3) conquest or subjugation; (4) cession and (5) occupation[12]. It must be noted, however, that acquiring territories through conquest, subjugation or occupation is being considered now as a less acceptable way of territorial acquisition in the contemporary international law. But in the case of China, neither did she allege that she acquired sovereignty over Tibet by means of resorting to any abovementioned mode nor did she, at the very least, claim that she acquired Tibet as a consequence of its military occupation following the country’s occupation in 1949-1950[13]. Rather, China founded her claims on mere historical arguments, if not theories, alleging that Tibet has always been an integral part of her for centuries. As a notable professor of Public International Law posits, historical arguments are usually the ones being resorted by a State to justify her actions if these cannot be justified anymore through legal terms[14]. Therefore, in the framework of the present international law, the arguments being presented by China are not acceptable.

Several Breaches of International Law: On the Implications of the Chinese Claim

tibet-human-rights
A Chinese soldier kicking a dead Tibetan monk. (Photo taken from http://www.ciccib.wordpress.com)

The Chinese claim of sovereignty over Tibet depicts too many implications. But before going further, some things must be put into emphasis. If China’s claim of sovereignty over Tibet is valid, then all the affairs of Tibet, including the chaotic disarray which besets Tibet in the present, falls within her own jurisdiction; but if, on the other hand, China’s claim of sovereignty over Tibet is invalid, then China’s notorious actions in Tibet are a legitimate object of international concern such that it brings into fore serious breaches of numerous conventions and agreements where China is a signatory.[15]

Under the Seventeen-Point Agreement

As it was mentioned in the preceding section, the Seventeen-Point Agreement was a convention between China and Tibet which intently aims to stipulate provisions on the incorporation of Tibet on China’s terms[16]. Apparently, the agreement leans solely in the interests of China. As such, the Dalai Lama uttered his reluctance to accede to China’s terms and requests. However, as the Dalai Lama had feared, the delegates were subjected to pressure and forced to sign the agreement[17].
In varying degrees, China violated salient provisions of the treaty. As the International Commission of Jurists (ICJ) identifies, these are[18]:

(1)   Obligation to allow national regional autonomy to Tibet (Articles 3, 4, 5  and 6)
(2)   Freedom of religions belief and the protection of monasteries (Article 7)
(3)   Trade policy and respect for the property of the Tibetan people (Articles 9 and 10); and
(4)   Reforms in Tibet (Article 11).

As what the Article 60 of the 1969 Vienna Convention on the Law of Treaties stipulates, a material breach can be considered a cause for the suspension or termination of a treaty[19]. As defined by the Vienna Convention, a material breach is the “violation of a provision essential to the accomplishment of the object or purpose of the treaty”[20]. If such is the case, the Tibetan government can be relieved from adhering to the provisions of the agreement.

Under the Universal Declaration of Human Rights

As approved without dissent, the Universal Declaration of Human Rights (UDHR) has been considered as “generally accepted standards of behavior for any state and to this extent can be considered as part of international law.”[21] Though the UDHR holds no binding force, still it is imperative for any State to abide with the provisions of the declaration.

In an enormous scale, China has violated the fundamental and inherent rights of the Tibetans. The ICJ has produced a comprehensive report about the subject as it provided a summary of the rights of the Tibetans which have been duly denied to them. Some of which are as follows[22]:

(1)   Life, liberty and security have been violated.
(2)   Forced labour has been inflicted on the Tibetans
(3)   Torture and cruel and degrading treatment have been inflicted
(4)   Rights of home and privacy have been violated.
(5)   Freedom of movement within a state and the right to leave and return to Tibet have been denied.
(6)   Marriages have been forced upon unwilling parties.
(7)   Property rights have been violated.
(8)   Freedom of religion and worship have been systematically denied.
(9)   Freedom of the expression and communication of ideas is totally lacking; and
(10)  Freedom of association is denied.

The present situation in Tibet has already been provided in the preceding section. Again, to extensively identify all the violations of rights which the Chinese Government inflicted on the Tibetans is to provide an extremely lengthy narrative which cannot be all included in this paper as time and space constraints would not allow. Nevertheless, the rampant human rights violations have been an issue of international concern over the decades. Dr Lobsang Sangay[23], the incumbent Kalon Tripa (Prime Minister) of the Central Tibetan Administration, has reportedly stated that:

After 60 years, the situation in Tibet, instead of improving, is becoming worse. Tibetan people do not enjoy the universality of fundamental human rights under China. Under the current circumstances, democratic freedom is a dream. The spate of over 44 self-immolations in Tibet since 2009 is proof of the utterly suffocating life in Tibet.

Under the Convention for Prevention and Punishment of Genocide

Genocide, as far as the contemporary international law is concerned, is probably the most atrocious if not the gravest crime known to the law of nations. As pursuance of the resolution by the United Nations General Assembly, the Convention for Prevention and Punishment of Genocide has been undertaken on 9 December 1942[24]. But before creating an allegation of genocide, one must circumspectly deliberate and consider first the evidence which should be reasonable enough to support such allegation[25].

According to a report issued by the ICJ, the atrocities happening in Tibet can already be considered as tantamount to genocide. As a clear and explicit evidence of the actus reus of the alleged genocide in Tibet, the report finds out that “there has been widespread killing of Buddhist monks and lamas in Tibet.”[26] Also, it brought into account the wanton killings of many Tibetans in the region. These can be considered as a violation to the Article II (a) of the Convention[27].

In his discussion of the importance of the concept of sovereignty in political discourse, Professor Inis Claude, Jr. writes that “[t]o claim sovereignty is also to incur international obligations. Sovereignty is a declaration of political responsibility for governing, defending and promoting the welfare of a human community.”[28] A humungous speck of irony can be noticed to the Chinese claim of sovereignty over Tibet in relation to how Professor Claude conceptualized sovereignty. By violating the UDHR, China has explicitly tainted its reputation as a State which should defend and promote the welfare of the human community. In addition, Professor Claude asserts: “Sovereignty stands for the acceptance by states of a significant measure of accountability.”[29] China, regardless of Tibet’s status, has incurred multifarious breaches of various generally accepted rules of international law. As such, she must be liable and accountable to any breach she had done whatsoever.

Resolving the Enigma: On the Present Status of Tibet

In the realm of international law, a state has always been characterized as an entity which is fundamentally composed of territory, people, government and sovereignty[30]. It can be affirmed that Tibet, basing from what has been discussed so far, possesses these attributes. However, this passé description of a state is insufficient as to qualify all the transformations which the world system has undergone in the contemporary era. For the purpose of this study, it would be more appropriate to add two requisites: (1) internal supremacy and (2) external independence[31].

As Professor Claude defines, internal supremacy is achieved when “a sovereign state is able to show political supremacy in its own territory. The government must convincingly maintain its supremacy over all other potential authorities within the territory and population.”[32] Ever since China occupied Tibet, the Tibetan Government has never accepted Chinese domination over its land. The Dalai Lama has been firm in stating that his is the only legitimate government, and other than it, there is none[33]. Though the incumbent Tibetan Government has been established in exile at Dharamsala, India which exists for almost forty years now, it has never lost its political supremacy over Tibet. From the words of Professor Franz Michael[34]:

Recent events have clearly demonstrated that the large majority of the six million Tibetans at home has not abandoned its faith or its loyalty to the Dalai Lama who has come to personify more than ever the Tibetan religio-political order and national identity.
Amidst the physical presence of the Chinese troops in Tibet, an overwhelming majority of Tibetans still recognize Tibet at its legitimate government. Indubitably, Tibet holds internal supremacy.

The external dependence, on the other hand, is possessed when “the state [demonstrates] actual independence of outside authority, not the supremacy of one state over others but independence of one state from its peers.”[35] [Emphasis supplied]. On this note, Professor Claude clarifies that the concept of sovereignty must not be equated to the notion of supremacy over other states. Instead, it must denote independence or, at least, the assertion of independence in practice[36]. In this context, one could say that what China, in its policy of integration, asserts over Tibet is not sovereignty (as she consistently claims) but just mere supremacy. In essence, one is different from the other. The persistent assertion of independence from China’s grasp has long been epitomized by the Tibetan people and their Government.  In 1912, the Dalai Lama himself reaffirmed that Tibet is and has been independent[37]. He has campaigned vigorously to various parts of the globe to propose that Tibet be recognized as an independent state[38]. This he has achieved with success. In 1949, Nepal has formally recognized the Tibetan Government[39]. In 1950, Mr Salvador Lopez, former Ambassador of the Philippines, has referred to Tibet as an independent nation and added that “…on the eve of the Chinese invasion in 1950, Tibet was not under the rule of any foreign country.”[40] He goes on by branding the Chinese occupation as “the worst type of imperialism and colonialism past and present”[41]. A Representative from Nicaragua has also asserted that the Chinese occupation in Tibet was “an act of aggression…perpetrated by a large State against a small and weak one.”[42] Former Irish Representative Franz Aiken has condemned the repression to which the Tibetans were being subjected.[43] Even the Government of the United States has also expressed the same sentiment. Having said all these things, some facts can be drawn[44]. As Professor Herminio Harry Roque, Jr maintains: “The attitude of most foreign governments with whom Tibet maintained relations implied the recognition of Tibet’s independent status”.[45] [Emphasis supplied]. As the Tibetans had not professed submission to Chinese rule nor had it pledged surrender to any other foreign power, it follows then that Tibet is, at present, independent from its peers. The present international relations with neighboring countries which Tibet maintains can serve as evidence to this. Therefore, the second criterion is possessed by Tibet.

With the justifications hereby presented, it can be conclusively asserted that Tibet has fulfilled the elements of statehood. Thus, from the dawn of its history up to the present, Tibet has remained as a State.

FOOTNOTES


[1]  van Walt van Praag, op. cit., p. 119.
[2]  van Walt van Praag, loc.. cit..
[3]  van Walt van Praag, op. cit., pp. 119-120.
[4]  See the ‘Manifesto by Tibetan Leaders” at ICJ, op. cit., p. 145.
[5]  van Walt van Praag, op. cit., pp. 124-127.
[6]  This argument has been one of the arguments being used by the Chinese in reclaiming Tibet. See the ‘Manifesto by Tibetan Leaders” at ICJ, op. cit., pp. 145-146.
[7] Wang (2002) defines suzerainty as a form of “sovereignty in internal affairs by a State but the control over external affairs remains a prerogative of  a stronger outside power.” See Wang, op. cit., p. 181.
[8]See the ‘Manifesto by Tibetan Leaders” at ICJ, op. cit., pp. 145-146.
[9] As van Walt van Praag asserts: “The concept of suzerainty was first applied to inter-State relations in the period of inter-dynastic relationships, when rulers, and not their people, were endowed with legal as well as political sovereignty and were capable of receiving and giving allegiance to one another.” See van Walt van Praag, op. cit., p. 105.
[10]  See van Walt van Praag, op. cit., p. 6.
[11]  See van Walt van Praag, op. cit., p. 127.
[12]  van Walt van Praag, op. cit., p. 178.
[13]  Save Tibet, op. cit. p. 7.
[14] Professor of International Law Herminio Harry L. Roque, Jr, also the present Director of the Institute of International Legal Studies at the University of the Philippines (UP) Law Center, has presented an oral lecture entitled ‘The Military Occupation of Tibet and the Tibetization of the West Philippine Seas’ held at the UP College of Law on 27 July 2012.
[15]  Save Tibet, op. cit., p. 6.
[16] ICJ, op. cit., p. 21.
[17] See “Sino-Tibetan Agreement: Incorporation in China’s Terms” at van Walt van Praag, op. cit., p. 147.
[18]  ICJ, op. cit., pp. 21-57. For the full text of the agreement, see “Agreement on Measures for the Peaceful Liberation of Tibet” [DOCUMENT 10] at ICJ op. cit, pp. 137-139.
[19] Joaquin Bernas, SJ. (2009). Introduction to Public International Law. Quezon City: Rex Printing Company. p.43.
[20] Ibid, p. 44.
[21]  See Violation of Human Rights (Section B) at ICJ, op. cit., p. 58.
[22]  See Violation of Human Rights (Section B) at ICJ, op. cit., pp. 58-59. The text provides some evidence of the violation of specific articles in the Declaration of Human Rights.
[23] Message from the Kalon Tripa Regarding ‘Respect for the Tibetan People’s Fundamental Rights and Democratic Freedom’ (2012). Dharamsala, India.
[24] See The Question of Genocide (Section C) at ICJ, op. cit. p. 68. For the full text of the Convention, see “Text of the Convention for the Prevention and Punishment of Genocide, December 9th, 1948,” at ICJ, op. cit., pp. 72-74.
[25]  The Question of Genocide (Section C) at ICJ, loc. cit.
[26]  The Question of Genocide (Section C) at ICJ, op. cit. pp .68-71
[27]  The Question of Genocide (Section C) at ICJ, loc. cit.
[28]  Inis Claude, Jr. (1995). Law, Power and the Sovereign State: The Evolution and Application of the Concept of Sovereignty. Pennsylvania: Pennsylvania State University Press. p.12.
[29]  Inis Claude, Jr., op. cit., p. 12.
[30]  These attributes were stipulated in the 1933 Montevideo Convention on Rights and Duties of States. See Bernas, op. cit., p.72.
[31]  From the words of Professor Claude: “It is often said that to attain sovereignty a territorial entity must demonstrate internal supremacy and external independence. “ See Inis Claude, Jr., op,cit. pp. 36-37.
[32]  Inis Claude, op. cit. p. 37.
[33] Professor van Walt van Praag writes that “to this day, the Dalai Lama and his government challenge the legitimacy of the Chinese presence in Tibet and claim to be the sole legitimate government of the country.” See van Walt van Praag, op. cit., p. 184.
[34]  See van Walt van Praag, op. cit., pp. 184-185.
[35] Inis Claude, op. cit. p. 34.
[36] Inis Claude, op. cit. p. 47.
[37]  van Walt van Praag, op. cit., p. 184.
[38] See Wang, op. cit. p. 184.
[39] Professor Roque, in his report entitled ‘The Military Occupation of Tibet and the Tibetization of the West Philippine Seas’ held at the UP College of Law on 27 July 2012 has stated this.
[40]  See van Walt van Praag, op. cit. p. 185. Also, the Kalon Tripa from his message (as cited earlier) also mentioned Mr Lopez, stating that “the role of the Philippines at the debate has been vital and historical.”
[41]  van Walt van Praag, loc. cit.
[42] van Walt van Praag, op. cit. pp.185-186.
[43]  van Walt van Praag, op. cit., p. 186
[44] van Walt van Praag, loc. cit.
[45]  Taken from Professor Roque’s presentation entitled ‘The Military Occupation of Tibet and the Tibetization of the West Philippine Seas’ held at the UP College of Law, 27 July 2012.

 

*Paper submitted during our Political Science 185 (Public International Law) class.

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