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Wednesday, June 11, 2008

Self Determination: A Case for Tibet

Both by Chinese domestic law and international law, Tibetans have a legitimate right to self-determination which need not necessarily realise the Chinese fear of secession. Tsewang Phuntsok argues

The right of peoples to self-determination remains one of the sacrosanct principles of international law in the 20th century. From the American Declaration of Independence (1776) to the Treaty of Versailles (1919), the Charter of the United Nations (1945), the General Assembly's Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), the International Bill of Rights (1966), and the General Assembly's Declaration on Friendly Relations (1970), all have affirmed to the right to self-determination. Criticisms of its ambiguity and perceived restriction to the context of decolonisation notwithstanding, this right has been aspired to and practiced widely by various groups of people in their fight for political rights, ranging from autonomous status to complete independence in the post-cold war period. The right to self-determination can, therefore, be applied for both internal and external purposes.

The question therefore arises whether Tibetans are entitled to make a legitimate claim to the right to self-determination under international law? Will the realisation of this right for the Tibetans unilaterally lead to secession from the People's Republic of China? To address these questions, we need to understand the legal provisions in respect to the right to self-determination, both in Chinese domestic law as well as international law and to see whether the Tibetans qualify for the right to self-determination.

We also need to define the position of His Holiness the Dalai Lama and his Government-in-Exile to resolve the issue of Tibet.

Lenin's view of self-determination

The Chinese concept of self-determination was borrowed from the former Soviet Union. While the principle of self-determination has for long been associated with the popular, democratic will of people, the first half of the twentieth century - when anti-colonial nationalist movements were raging in Asia and Africa - saw anti-imperialist Marxist-Leninists redefining self-determination along the line of decolonisation. The emphasis was shifted from popular will to "national oppression" as a criterion, which implied that applicability of the principle of self-determination was restricted only in the context of colonialism.

Moreover, in Lenin's redefinition, national self-determination in a colonial context meant secession of a territory, while the same principle in a socialist context meant only self-government. This glaring contradiction and inconsistency however didn't stop the principle of self-determination from being enshrined in the Soviet Constitutions of 1924, 1936 and 1977 respectively, each of which recognised the right of each Union Republic "to freely secede from USSR".

The Chinese communists too, in their struggle against capitalist imperialism, imbued Lenin's redefinition of self-determination in their ideology. The principle of self-determination remained a part of the Communist Chinese ideology until 1934, prior to which it had in 1921 envisaged a separate federal republic for Mongolians, Tibetans and Uighurs; and in 1928 promised self-determination for non-Chinese social groups.

The Chinese Communist Party's position on national self-determination for minorities (or nationalities) is clearly reflected in the Constitution of the Chinese Soviet Republic formulated in November 1931: "The Soviet government in China recognises the right of self-determination of the national minorities in China, their right to complete separation from China, and to the formation of an independent state for each national minority. Thus the Mongols, Moslems, Tibetans, Koreans and others inhabiting the territory of China enjoy the complete right to self-determination, that is, they may either join the Union of Chinese Soviets or secede from it and form their own state as they may prefer."

The Nationalist China too, under the leadership of Dr. Sun Yat-Sen, initially quite clearly supported the right to self-determination for nationalities inhabiting China. In the manifesto of the first Chinese Nationalist Congress published in 1924, Dr. Sun wrote: "The Kuomintang solemnly declares that the right of self-determination is recognised for all the nationalities inhabiting China; following the victory of the revolution over the imperialists and militarists there will be established a free and united (formed on the basis of a voluntary union of all nationalities) Chinese republic."

The Chinese Nationalists, however, completely abandoned this policy soon, both in theory and practice. Similarly, in the face of Japan's China attack and particularly after the ascendancy of Mao as the undisputed leader in 1934, the Chinese Communist Party's position on the right to self-determination departed from their earlier policy and from Lenin's stand and became closely associated with self-government or regional autonomy.

Thereafter, regional autonomy offered as a political substitute for self-determination has remained the basic policy for resolving the problems of nationalities. The primary driving force behind Mao's denial of self-determination to non-Chinese nationalities was his belief that the new Socialist China must inherit all the territories which were either ruled by imperial China or claimed by it, and that the Chinese are the most revolutionary people and only they can help the non-Chinese nationalities to a higher stage of historical development. Mao later used this stance of racist supremacy as an ideological justification for Chinese hegemony and Chinese expansionism in non-Chinese areas under the banner of autonomous status. Prof. Dawa Norbu argues that if the essence of "regional autonomy" in the context of Communist China is Han hegemony in the name of "Central leadership", and Han expansionism in the name of "development" of "border regions", then it constitutes a serious case of "national operation" (a basic Leninists' criterion for the claim of self-determination in the socialist context).

Self-determination in International Law

Since the American Declaration of Independence in 1776, the principle of self-determination has attained great prominence in international law and politics, so much so that it has been incorporated into numerous international legal instruments of the United Nations including the United Nations' Charter. Both the General Assembly's 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples and the first articles of the International Covenants, forming part of the International Bill of Rights, declare: "All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

However, the ambivalence of the provisions of the 1960 Declaration and the failure to define "peoples" both in the Declaration and International Covenants led to the advancement of alternative theories concerning the intended beneficiary.

In reality, the right to self-determination means the right of a people "to freely determine their political status and freely pursue their economic, social and cultural development", the exercise of which can lead to "the establishment of a sovereign and Independent State, free association or integration with an independent State or the emergence into any other political status freely determined by a people". Thus, the right to self-determination is, in fact, more of a procedural than a substantive right. The focus is on the voluntary nature of the decision-making process, rather than on the substantive result, as clearly reflected in the shift in understanding the scope of the right to self-determination and unprecedented events that have unfolded since the end of the Cold War.

As the Honourable Justice Minister Michael Kirby of the International Commission of Jurists has argued, the right to self-determination is not a right which belongs to governments or states, but one that belongs to the people as a "people". The UNESCO Experts Committee on Peoples' Rights holds that there are a number of characteristics by which the existence of a distinct "people" can easily be defined. In their final report and recommendations, the Experts Committee laid down four criteria: (1) A group of individual human beings who enjoy some or all of the following common features: a) A common historical tradition; b) Racial or ethnic identity; c) Cultural homogeneity; d) Linguistic unity; e) Religious or ideological affinity; f) Territorial connection; g) Common economic life. (2) The group must be of a certain number who need not be too large (e.g., the people of micro-states) but must be more than a mere association of individuals within a state. (3) The group as a whole must have the will to be identified as a people or the consciousness of being a people-allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have the will or consciousness. (4) Possibly the group must have institutions or other means of expressing its common characteristics and will of identity.

Self-Determination in Tibet's case

The Tibetan people have a long and undeniably rich common historical recorded tradition in the form of royal chronicles or ancient Tibetan chronicles (rGyalrab) and religious histories (Chos-'byung). There are also numerous authoritative historical works in English based on original Tibetan and other reliable sources. The Tibetan people as a race trace their origin to a monkey (father) and a rock ogress (mother) known in Tibetan as pha spre-wu byan-chub sempa, ma drag-srinmo; this is quite different from the Chinese who credit their racial origin to the "Yellow Emperor".

The Tibetan people enjoy not only a common culture, they also possess a unique civilisation comparable to any other great civilisation of Europe and the East. Tibet's rich culture is not only confined to its geographical boundary, but is spread also India (Ladakh and Sikkim), Nepal, Bhutan, China, Manchuria, Mongolia, and Russia (Buryatia, Tuva and Kalmykia). The Tibetan people enjoy a high degree of linguistic unity-a spoken Tibetan language with several regional dialects which are inter-communicable and an absolutely uniform script, derived from the Indian Gupta Devanagari script. The Tibetan people have a common religion known as Tibetan Buddhism. The multiplicity of schools within Tibetan Buddhism reflects a rich diversity. But all the schools are founded on the teachings in the two Tibetan Buddhist canons, bka-'gyur and bstan-'gyur. The Tibetan people have a common territory which is known in Tibetan as bod kha-wa sGang-chen gyi jong , the Plateau of Tibet (the Chinese now refer to it as Qinghai-Tibet Plateau). Within this geographical location, the Tibetan people over the centuries have created their common ethnogenic myths and historical tradition, cultural and linguistic identity, and common economic life. The Tibetan economy is based on highland agro-nomadic pastoralism, distinctly different from the rice-and-wheat-farming of the traditional Chinese economy.

As for the fulfillment of the remaining three criteria in the Tibetan case, The Tibetan population of six million (the number even acknowledged by the PRC) is a sizeable number to be entitled to claim to be a "people" under the international law; The Tibetan people have been expressing their common characteristics through the institution of bod bShung dGa lDen pho drang pyChokle rNam rGyal (the Tibetan Government) headed by His Holiness the Dalai Lama, their spiritual and temporal leader, since the year 1642; and as for the consciousness (or will of the people) of being a "people", even Tibetans who have been forced out of their homeland for nearly half a century remain deeply conscious that they are part and parcel of the Tibetan race and Tibetan tradition. A similar consciousness has also been demonstrated more strongly, at the risk of greater repercussion, by the Tibetan people inside Tibet.

The above facts clearly demonstrate that the Tibetans are a distinct people under international law, fully entitled to the right to self-determination. This fact was endorsed by the London Conference of International Lawyers on Issues Relating to Self-Determination and Independence for Tibet in January 1993. The United Nations Economic and Social Council resolution (1991/10) E/CN.4/1992/37 of January 5, 1992 not only endorsed that the Tibetan people are a distinct people under international law, but also observed that "Tibet is an occupied country" and "Tibetans are a people under colonial or alien domination".

Although the international legal instruments of the United Nations clearly state that "all peoples enjoy the right to self-determination, international law restricts the application of this right, at least as a peremptory norm, to peoples under colonial domination and exploitation or under alien subjugation.

The concept of alien subjugation has not been greatly explored by international legal experts, but in general it is accepted that the concept of alien subjugation is wider in scope than the classical decolonisation cases. The United Nations has applied the concept of alien subjugation in relation to the Palestinian people in the Israeli Occupied Territories, Cambodia under Vietnam, Namibia under South Africa, Kuwait under Iraq, all outside the context of European colonialism.

In the post-Cold War era, the Tibetan case has similarities with both Kuwait and the Baltic States. But while the people of Kuwait regained their right to self-determination and independence from Iraq with strong support from the United States in the form of military action, mandated by the United Nations Security Council resolution 678 (1990), the Tibetan issue has remain unresolved because China, which is a permanent member of the Security Council, easily vetoes any move challenging its interest. But, whatever the present situation may be, Tibet was an independent country on the eve of the Chinese invasion in 1949-50 and the Chinese occupation of Tibet is not only illegal, it also constitutes an act of "aggression" in the context of international law. Such illegal acquisition of territory is not permissible under the UN Charter, the 1970 Declaration of Friendly Relations, and the 1974 Definition of Aggression.

When the Baltic States seceded from the former Soviet Union, the international community viewed their situation as qualitatively different from other Soviet Republics, because of their prior existence as independent states-a status which was undone by a coerced treaty of annexation. Based on this argument, the Baltic people were able to define their circumstances as a form of alien occupation, adding a legal force to their political claims to self-determination. Likewise, Tibet had remained an independent state before the Chinese invasion and occupation, and it was annexed to China under a forced treaty.

Therefore, the concept of alien occupation and alien subjugation are very relevant to Tibet. In fact, Richard Falk, Professor of International Law and Practice and Fellow at the Center for International Studies, Princeton University (USA), strongly believes that the Tibet case is stronger than the Baltic Republics' case. Prof. Falk stated that reservations about the application of self-determination are irrelevant in the case of Tibet and the reality of Tibet as a country essentially occupied by a foreign power must be appreciated.

During the UN General Assembly debates on Tibet in 1959, 1961 and 1965, many delegates asserted that the Tibetans formed a distinct people whose traditional autonomy or independence was threatened by the alien rule imposed by China. In 1959, El Salvador denounced the "invasion of Tibet by foreign forces" and New Zealand referred specially to the prohibition against subjecting a people to alien subjugation, domination and exploitation. In 1961, Ireland considered the terms of GA resolution 1514 on the granting of independence to colonial countries and people applicable to Tibet as Tibetans constituted a people subjected to alien subjugation, domination and exploitation. In 1965, Costa Rica considered the situation in Tibet as one of neo-imperialism and called upon the UN to assist Tibet to "throw off the yoke of foreign domination". The Philippines, India, Thailand, Ireland and New Zealand also gave similar statements. These debates, and the 1961 UN General Assembly resolution on Tibet calling for the "cessation of practices which deprive the Tibetan people of their fundamental rights and freedoms, including their right to self-determination", show that the Tibetan question was considered in the context of a distinct people under alien subjugation and domination.

China's fear of secession and Tibetan Self-Determination

That Tibet was an independent country invaded by the PRC through military force and that its current status under international law is that of a country under alien subjugation remain without doubt. But, more important than the historical position is the popular will of the people, which has now become a new foundation of the political claim or the legitimacy of governmental control over peoples in the modern world. The Tibetan people have frequently demonstrated their will or consciousness through a series of peaceful pro-independence demonstrations in 1959, 1969, the 1980s and 1990s in Tibet. This in itself entitles the Tibetan people to make a legitimate claim to total independence or secession from the PRC.

However, responding positively to the 1979 offer of Deng Xiaoping to discuss anything "other than independence" and also considering the long-term benefit to both the Chinese and Tibetan people, His Holiness the Dalai Lama, spiritual and temporal head of the six million Tibetans, came out with the most modest, "middle-way" solution to the Sino-Tibetan conflict. In his 1987 Five-Point Peace Plan for Tibet announced on Capitol Hill in Washington DC, the Dalai Lama called for the conversion of Tibet into a zone of peace, respect for the Tibetan people's human rights and democratic ideals, protection of Tibet's fragile environment, a halt to the Chinese population transfer into Tibet, and earnest negotiations between the Tibetan and Chinese peoples. A framework for the negotiations on the future of Tibet was laid down in his speech to the European Parliament at Strasbourg in the following year; this later came to be popularly known as the Strasbourg Proposal. In the proposal, His Holiness the Dalai Lama demanded that "the whole of Tibet known as Cholka-Sum (U-Tsang, Kham and Amdo) should become a self-governing democratic political entity founded on law by agreement of the people for the common good and the protection of themselves and their environment, in association with the People's Republic of China". The proposal further stated that "the government of the People's Republic of China could remain responsible for Tibet's Foreign Policy". The Dalai Lama's Strasbourg Proposal demanded only internal self-determination and renounced the idea of separating Tibet from China.

Although the international community applauded the initiative as a reasonable approach, Beijing reacted negatively to the Strasbourg Proposal and the Five-Point Peace Plan announced earlier by saying that "both attempt to tamper with history, distort reality, and deny Tibet's status as an inalienable part of China's territory under Chinese sovereignty". Beijing labelled the Strasbourg Proposal "independence in disguise" and declared that "the independence, semi-independence, and disguised independence of Tibet will not do and the People's Republic of China will not make any concession on the question of sovereignty".

There may be some basis for the Chinese misgivings over the proposal. As "free association or associated statehood" is the basis of future relationship with China laid down in the Proposal, the United Nations' General Assembly resolution 742 (VIII) of 1953 and 1541 (XV) of 1960 clearly states that the people of an associated State retain the right to modify unilaterally its status by democratic means, presumably toward independence. But this inference should not pose any obstacle to Sino-Tibetan dialogues and should not serve as a basis for apprehension among the Chinese leadership. His Holiness has repeatedly made it public that he is "not fighting for complete independence or separation from China". He made it categorically clear at the Second International Conference of Tibet Support Groups in Bonn (Germany) in June 1996. He told his supporters that: "…if my main goal or objective were to pursue total independence then I could adopt a position of claiming independence for the areas governed by the Tibetan Government before 1950. But my main concern is the protection of Tibetan culture, because the Tibetan culture has the potential to create a peaceful human society, a compassionate society at peace with nature and the environment".

Similarly, in his March 10, 1999 political statement to the international public and the Tibetan people both in and outside Tibet, he stated clearly that: "I sincerely believe that my 'Middle Way Approach' will contribute to stability and unity of the People's Republic of China and secure the right for the Tibetan people to live in freedom, peace and dignity…a just and fair solution to the issue of Tibet will enable me to give full assurance that I will use my moral authority to persuade the Tibetans not to seek separation". These statements clearly indicate that His Holiness the Dalai Lama is serious, consistent and sincere in his terms.

Moreover, if Tibetans enjoy meaningful self-rule, a genuine form of autonomy, and if there exists a self-regulatory mechanism for the resolution of differences, then these safeguard internal self-determination in the fullest sense, which is what His Holiness the Dalai Lama is demanding for the six million Tibetans. His demand is genuine in the sense that the right to self-determination is not the right entitled to a State, but to a people. In other words, the Dalai Lama is willing to forego the demand for a complete secession from the PRC if all the Tibetans living on the Plateau of Tibet are given a genuine right to internal self-determination.

His Proposal reflects that he is a moderate and pragmatic leader, who is keen to resolve the Sino-Tibetan conflict peacefully bearing in mind the long-term benefit to both the Tibetan and Chinese peoples. Most importantly, he is the only leader who commands total loyalty of six million Tibetans and could persuade them to accept a settlement which falls short of total independence. In his absence, it will be very difficult to resolve the conflict through dialogues and negotiations. Thus, His Holiness the Dalai Lama is Beijing's best bet for resolving the Tibet issue without a separation from China.

Tsewang Phuntsok

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