Is China’s claim of sovereignty over Tibet legitimate?*

ImageTibet was once a forbidden land until the People’s Republic of China (hereinafter referred to as China) declared to the entire world that she wanted to “liberate” the people and defend the national patrimony of the Motherland. Eventually, all the territories on the Mainland were “liberated” save for one: Tibet. With that goal in mind, the Communist forces, then headed by Mao Zedong and Zhu De, promised that the Republic will be able to “liberate” Tibet sooner just as what they have done to other territories. Because of her rigid adherence to its policy of “liberating” the entire people of China (including the Tibetans), China launched all its efforts in order to integrate Tibet in the Mainland. The predominant Chinese sentiment was, time and again, challenged by Tibetan leaders, declaring valiantly that Tibet has not lost its sovereignty at any period of its history.

To be able to give a sound analysis to this so intricate an issue, two questions must be answered:

(1) Does China, by virtue of its historical arguments, hold the right of claiming Tibet as part of its territory?

(2) What is the present legal status of Tibet in the international realm?

This article tackles the first question. The second question will be tackled in a separate article.

Some fallacious arguments

China, to justify its occupation over Tibet, went into its classic historical arguments; some of which are as follows:

(1) Tibet’s relationship with the Manchu emperors is a symbol of submission to the Chinese sovereignty.

(2) The Third Dalai Lama, when he visited China, fully submitted to the Emperor of China who was then a Mongolian King.

(3) Since the Yuan Dynasty (1279-1368), Tibet was nominally controlled by the Mongol Leaders by virtue of suzerainty.

Historical accounts were, however, interpreted by China in decontextualized and ill manner.

Adhering to Tibet’s policy of nonviolence, the Tibetan leaders of the past established a Cho-yon relationship among the Mongol Khans and Princes[1]. This relationship is of sui generis type. That is to say, any state should not be considered as superior or inferior to the other. The relationship exemplifies equal sovereignty as shown by the fact that the Chinese and Tibetan rulers conferred honors upon each other. It is a relationship between equally sovereign states which mutually avowed to protect the interests of one another through their peculiar ways and capacities.

The Cho-yon relationship characterized all sorts of relationship between the Dalai Lama and the Mongols. This type of relationship was merely based on religion wherein the Mongols, and later the Chinese, agreed that the Dalai Lama will serve as their Spiritual Guide. 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. The Dalai Lama relying on his “patron” as the source of his, and consequently the State’s, protection against menacing forces is not a manifestation of suzerainty but rather an inevitable result of this mutual relationship. Evidently, the arguments presented by the Chinese to justify their claims are fallacious and absurd.

Territorial acquisition in the framework of contemporary international law

In 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. In contemporary international law though, acquiring territories through conquest, subjugation or occupation is considered as a less acceptable way of territorial acquisition. 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. 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. More often than not, historical arguments are usually the ones being resorted by a State to justify her actions if these are not justifiable anymore by legal ones. Therefore, in the framework of present international law, the arguments being presented by China are not acceptable.

Breaches of international law

China’s notorious actions in Tibet are a legitimate object of international concern such that it brings to fore serious breaches of numerous conventions and agreements where China is a signatory. Some of these agreements include the Seventeen-Point Agreement[2], the Universal Declaration of Human Rights, and the Convention for the Prevention and Punishment of Genocide.

For instance, the International Commission of Jurists (ICJ) identified China’s violations under the Seventeen-Point Agreement which are, namely:

(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).

Article 60 of the 1969 Vienna Convention on the Law of Treaties stipulates that a material breach can be considered a cause for the suspension or termination of a treaty. 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”. As violations were committed by China, it follows then that the Tibetan government can be relieved from adhering to the provisions of the agreement.

Based from the arguments presented, it is clear that the military occupation of China in Tibet is an intrusion of its sovereign rights and a serious violation of the international law. Therefore, the legitimacy of China’s claim of sovereignty over Tibet cannot be warranted anymore as this undermines the interest of the international community of nations. After all, Tibet did not cease to exist as a State.

Note: The editor wants to cite Professor Michael van Walt van Praag’s work, “The Status of Tibet: History, Rights and Prospects in International Law” (1987) which enormously helped him in dealing with the issue of Tibet. The image was taken from the CNN International.


[1]The Cho-yon (“priest-patron”) relationship is a special type of relationship among states which was exclusively exemplified by Tibet on the conduct of its international relations. Mongols, a newly emerging Central Asian power back then, conquered Tangut, the neighboring territory of Tibet in the north. In an effort to curb the conquest, the Tibetan leaders thought it best to enter into an agreement with Kublai Khan, the emperor of the Mongols during that time, where they pledged their political allegiance and religious blessings in exchange for patronage and protection.

[2]The Seventeen-Point Agreement was a convention between China and Tibet which stipulates provisions on the incorporation of Tibet on China’s terms. Apparently, the agreement leans solely in the interests of China. It is for this reason that 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.

 

*This article was published at ‘A Different View’, the official online blog of the International Association for Political Science Students (IAPSS), on 24 August 2013. To read the articles written by my colleagues, just click this link: http://iapss.org/index.php/publications/blog-a-different-view/articles

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