Écritique No. 2
© 1997 Canonymous Press
by Daniel Smith
N O T E S
--All translations from non-English sources are the author's unless otherwise noted.
1. See generally H.L.A. Hart's The Concept of Law, Oxford, 1961, where Hart draws upon Wittgenstein's idea of family resemblances--Familienähnlichkeiten--to underscore that the use of a general term, such as 'law', need not in every instance share all the same qualities of that term. Following Gottlob Frege, Wittgenstein in turn stresses in Bemerkungen über die Grundlagen der Mathematik, MIT, 1967, p. 23, that "it is not the quality of an object that is ever 'essential,' but rather the mark of a concept" that is essential. The relevance here is that the concept of self-determination is not delimited by a core of criteria that will all be met in each and every case; rather, in any given case there will be a core claim that includes some but not necessarily all of the relevant characteristics of self-determination. This is particularly important to recognize given the unique nature of many if not most self-determination claims.
2. Joseph R. Stryer, On the Medieval Origins of the Modern State, Princeton, 1970, p. 9.
3. Id. at 5.
4. Ibid.
5. Id. at 6.
6. Id. at 6 and 7.
7. Id. at 9.
8. Id. at 9 and 10. In the Soviet Union, for example, such nationalism was ever-present and compelled the union's eventual demise when the secessionist republics were able to assert self-determination, the central government finally too weak to halt them.
9. Id. at 12. Emphasis added.
10. For a perspicacious analysis of the function of ideology in political relations, see Louis Althusser's "Ideology and Ideological State Apparatuses (Notes towards an Investigation)" in Lenin and Philosophy and Other Essays, Monthly Review Press, (trans. Ben Brewster). Therein, at 128, Althusser observes that "in order to exist, every social formation must reproduce the conditions of its production at the same time as it produces, and in order to be able to produce." A social formation such as a state is therefore constantly engaged in sustaining a framework--an ideology--which will ensure the continuation of its very existence. The resulting ideology, operating essentially as a kind of political homeostasis, blinds one to the viability or desirability of alternative structures. These are resisted strongly by ideological state apparatuses functioning in the realms of law, education, politics, culture, and religion, among others. Althusser's analysis thus goes far, it would appear, in explaining why states will exercise extraordinarily coercive means to counter not only external but internal challenges to their territorial sovereignty.
11. Sarah Wambaugh, A Monograph on Plebiscites, Oxford University Press, 1920, pp. 1-34.
12. Id. at 19-22.
13. W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, Nellen Publishing, New York 1977, p. 75 (quoting Ray S. Baker and William E. Dodd, eds., The Public Papers of Woodrow Wilson, Vol. 1, Harper Brothers Publishers, New York, 1927, p. 180).
14. Thomas M. Franck, "The Emerging Right to Democratic Governance, American Journal of International Law, Vol. 86, January 1992, p. 53 (quoting M. Pomerance, Self-Determination in Law and Practice, 1982, p. 4).
15. W. Ofuatey-Kodjoe, op. cit., p. 94.
16. Id. at 96.
17. Ibid.
18. I.V. Stalin, "Marksizm i natsionalnii vopros," in Sochineniia, Vol. 2, 1946, p. 310.
19. Id. at 301 (emphasis in the Russian original).
20. Ibid. at 296 (emphasis in the Russian original).
21. See generally Patrick Thornberry, "Self-Determination, Minorities, Human Rights: A Review of International Instruments," International and Comparative Law Quarterly, Vol. 38, 1989, 867-889.
22. See generally Lea Brilmayer, "Secession and Self-Determination: A Territorial Interpretation," Yale Journal of International Law, Vol. 16, 1991, 177-202.
23. Christopher Beckwith, The Tibetan Empire in Central Asia, Princeton Univ. Press, 1987, p. 11.
24. Ibid. at 13.
25. Ibid. at 17-8.
26. Ibid. at 14-5. Emperor is the meaning the Chinese associate with btsanpo, though it is transcribed phonetically as zan-pu .
27. Michael C. van Walt van Praag, The Status of Tibet: History, Rights, and Prospects in International Law, Westview Press, 1987, p. 2.
28. Id.
29. Fang Kuei Li and W. South Coblin, A Study of the Old Tibetan Inscriptions, Institute of History and Philology, Taipei, 1987, p. 35. Treaty translated by Fang Kuei Li and Coblin.
30. Ibid. at 79-81. Prof. Coblin, an eminent Sinologist and Tibetanologist at the University of Iowa, has related in person the impassioned regard that Tibetans hold for this document.
31. Walt van Praag, p. 4.
32. Ibid. at 5.
33. Melvyn Goldstein, A History of Modern Tibet, 1913-1951, Univ. of California Press, 1989, p. 44.
34. Walt van Praag, pp. 6-7.
35. Ibid. at 10-17.
36. Ibid. at 19-27.
37. Ibid. at 25 (quoting E. Sperling, "The Status of Tibet According to Tibetan and Chinese Sources," Tibetan Messenger 9, No. 1, 1980, p. 15).
38. Ibid. at 23.
39. Ibid. at 17.
40. Ibid. at 31.
41. Id. (quoting Papers Related to Tibet (Cd. 1920) No. 66, GOI to IO, 8 Jan. 1903).
42. Ibid. at 31-38.
43. Ibid. at 39 (quoting Convention Between Great Britain and Russia, 1907).
44. Ibid. at 39-46.
45. Ibid. at 46.
46. Goldstein at 58-59.
47. Ibid. at 60.
48. Walt van Praag at 50.
49. Goldstein at 65.
50. Walt van Praag at 50-54.
51. Ibid. at 55.
52. Ibid. at 56-58.
53. Ibid. at 62-74.
54. Ibid. at 86.
55. Goldstein at 540.
56. Ibid. at 543.
57. Ibid. at 554.
58. Ibid. at 556.
59. Ibid. at 570-75.
60. Ibid. at 564-65.
61. Ibid. at 585.
62. Ibid. at 611-14.
63. Walt van Praag at 88 (quoting C. Brandt, et al., A Documentary History of Chinese Communism, Cambridge, 1952, p. 64).
64. Ibid. at 142-46.
65. Ibid. at 146 (quoting Dept. of State to British Embassy, Aide-Memoire, 30 Dec. 1950, FRUS 6 (1950) p. 613). Emphasis added.
66. Ibid. at 147-49.
67. Goldstein at 763.
68. Walt van Praag at 160.
69. Brijesh Narain Mehrish, India's Recognition Policy towards the New Nations, Oriental Publishers, 1972, p. 55 (quoting Foreign Policy of India: Texts of Documents 1947-58, Lok Sabha Secretariat, 1958, pp. 87-93).
70. Walt van Praag at 161-64.
71. International Commission of Jurists, The Question of Tibet and the Rule of Law, Geneva, 1959.
72. U.N.G.A. Res. 1353 (XIV). For the full text of this and other resolutions see Appendix A.
73. Swarn Lata Sharma, Tibet: Self-Determination in Politics among Nations, Criterion Publications, 1988, p. 136.
74. Legal Inquiry Committee on Tibet, Tibet and the People's Republic, Geneva, 1960, p. 5.
75. Ibid. at 11.
76. Ibid. at 3.
77. Id.
78. Ibid. at 4-5.
79. U.N.G.A. Res. 1723 (XVI).
80. Sharma at 125.
81. U.N.G.A. Res. 2079 (XX).
82. Walt van Praag at 167.
83. Sharma at 123.
84. Legal Inquiry Committee on Tibet at ix.
85. The Chinese have never actually claimed otherwise. They instead assert the Tibetans are a people--or national minority--legitimately integrated into the People's Republic.
86. Tibet is currently termed an autonomous region, or zi zhi qu, within the PRC. Literally, zi zhi means "self-governing" and is also the term used to signify the principle of self-determination in the Chinese version of Article 1(2) of the U.N. Charter; rather inconsistently, zi jue, which literally is "self-determination," is employed in Article 55 (see Du Heng Zhi, Guo Ji Fa Da Gang, Taipei, Vol. 2, 1986, p. 643.). The problem of translation is generally overlooked in international law, the presupposition being that legal concepts can be perfectly mapped from one language--usually English--to the next. This is assuredly a mistaken view. For a brief discussion of the difficulties in translating genocide (a neologism created in 1944 by the Polish Jewish lawyer Raphael Lemkin) into Chinese, see Hungdah Chiu, "The Development of Chinese International Law Terms and the Problem of their Translation into English," in Contemporary Chinese Law: Research Problems and Perspectives, ed. Jerome Cohen, Harvard Univ. Press, 1970, p. 139.
87. The Legislative Affairs Commission of the Standing Committee of the National People's Congress of the PRC, The Laws of the People's Republic of China: 1979-82, Peking, 1987, p. 415. Emphasis added. (The dichotomy of big-nation/little-nation chauvinism echoes a distinction drawn by Lenin in his writing on self-determination). For an interesting analysis of ethnocentric assumptions prevalent in Western scholarship, see Janet Ainsworth, "Interpreting Sacred Texts: Preliminary Reflections on Constitutional Discourse in China," Hastings Law Journal, Vol. 43, January 1992, pp. 273-300. Her main point is that hermeneutical exegesis of classical Chinese texts is open-ended, and that, moreover, this thinking pervades modern constitutional construction; therefore, without an awareness of the oftentimes hortatory nature of traditional Chinese morality, modern legal texts can be easily misconstrued. For anyone familiar with the Confucian classics, this observation is particulary incisive.
88. For apparently opposing views, though neither article discusses genocide as such, see Brilmayer, supra, fn. 23 ("[T]he remedy for maltreatment is better treatment by the current government, not permission to set up a new state in the same location. Maltreatment alone does not give rise to a territorial claim; such claims must be independently established.") and Avishai Margalit and Joseph Raz, "National Self-Determination," The Journal of Philosophy, Vol. 87, 1990, pp. 439-461 ("[A] history of persecution is neither a necessary nor a sufficient condition for the instrumental case for self-government."). It should be emphasized that the Tibetans have a valid territorial claim under conventional international law irrespective of genocide and human rights violations; what is articulated here is a new right, that of guaranteed secession in cases of genocide: therefore, a fortiori, their claim to independence is a valid one. And, finally, there can be no 'statute of limitations' for genocide.
I. The Concept of Self-Determination in International Law
II. The Contextual Basis of Tibet's Claim to Self-Determination
III. Tibet's Right to Self-Determination and the Politics of Remedies
Appendix: U.N. Resolutions on Tibet
Écritique is published by Canonymous Press
ISSN 1061-1479
© 1997 Canonymous Press