Écritique No. 2
© 1997 Canonymous Press
by Daniel Smith
II. The Contextual Basis of Tibet's Claim to Self-Determination
The evolution of the concept of self-determination surveyed in Part I points out the clear need to articulate the contextual basis of any claim to self-determination. Such a claim must therefore include by its very nature the historical relation between the people seeking self-determination and the people opposing it. In the case of Tibet's claim of self-determination vis-à-vis China, the history between the two peoples is very long indeed.
The earliest historical sources, including the Old Tibetan Chronicle, are rather sparse in details concerning the exact origin of the Yarlung dynasty, which came to rule the Tibetan Empire. The first king, however, is said to have descended from on high by a "sky-rope," which he cut unwittingly, thus preventing his return to heaven at the end of his reign. [23] These early reports are considered the oldest evidence of "the sacral character of the dynasty as well as its autochthony." [24] After conquering Central Tibet and the Tibetan Plateau, the consolidated Tibet of the Yarlung Dynasty had its inital contacts with the Chinese in 608 and 609 AD, when two embassies were dispatched to pay tribute to the Chinese court and apparently also to discuss the disposition of the Aza, a nomadic people lying between Tibet and China and recently defeated by the Chinese. [25] The paying of such tribute was a common practice among states bordering China and is not indicative of Tibetan subordination to China. In fact, Chinese references to the Tibetan btsanpo, or emperor, are glossed with the same word the Chinese used for their own emperor, or tian-zu, Son of Heaven. [26] Under their first great emperor, Songtsen Gampo (ca. 620-649), the Tibetans developed a written language and promulgated a legal code. [27]
In the seventh and eighth centuries, Sino-Tibetan relations were marked by frequent military exchanges, culminating in peace treaties in both 783 and 821. [28] The latter treaty was signed by the Chinese in Chang-an in 821 and by the Tibetans in Lhasa in 822, where it was inscribed on a stone pillar--still extant--in both Tibetan and Chinese. [29] The Tibetan version (in part) declares:
The two great countries, Tibet and China, guard the land and the frontier now in their possession. All to the east of that (frontier) is the land of Great China, and all to the west is indeed the land of Great Tibet. Thereafter both sides shall not struggle like enemies, shall not lead armies into war, and shall not invade and seize each other's territory.
And, it concludes:
Thus the sovereigns and ministers of both Tibet and China together declared and swore an oath. After the text of the treaty was accurately written, the two great rulers affixed their seals. [30]
The text of the treaty is therefore an unequivocal acknowledgement by both Tibet and China of their mutual independence and sovereignty. The treaty clearly delimits borders, recognizing the agreed upon frontier as the bounds of their respective territories. Although this treaty in itself is not decisive in determining the validity of Tibet's present-day claim to self-determination--due to its very ancientness--it is nevertheless of immense importance in establishing the fact that the Tibetans as a people are historically distinct from the Han Chinese. Moreover, the treaty establishes that the Tibetans were not only ethnically distinct, but possessed their own territory.
The Treaty of 821 proved effective in stemming further hostilities for over twenty years between China and Tibet. But with the assassinations of two Tibetan rulers in rapid succession, internecine rivalries precipitated an "Age of Disintegration" for the Tibetan Empire, which fractured into warring principalities. China itself was not without difficulties during this period. The collapse of the Tang dynasty in 907 lead to a prolonged dormancy in Sino-Tibetan relations lasting through the Five Dynasties (907-960) and the Song Dynasty (960-1279). [31]
The ascendency of the Mongol Empire in the twelfth and thirteenth centuries brought Tibet under the sway of the Mongols. Summoned to the court of Genghis Khan's grandson, Prince Goden, the Tibetan Lama Dakya Pandita was invested with temporal authority over Tibet, which was still fragmented. [32] Their relationship was termed chö-yön, an expression resulting from the abbreviation of two Tibetan words: chöney, "that which is worthy of being given gifts and alms" and yöndag, "he who gives gifts to that which is worthy." [33] The relation therefore was one of priest to patron, the priest (or Tibetan Lama) attending to the spiritual needs of the patron, and the patron (or Mongolian Emperor) attending to the material needs of the priest. The religion the Tibetans introduced to the Mongols was of course Buddhism. Mongolian domination over its empire, which included the Chinese conquered during the Yuan Dynasty (1279-1368), was thereby considered legitimated by the spiritual authority conferred by the Tibetan religious hierarchs. Even though the chö-yön relation provided for dual sovereignty--spiritual and temporal--it ended in 1350 when Tibet reasserted its independence and became unifed once again. In parallel fashion the Chinese overthrew the Mongols and thus began the Ming Dynasty (1368-1644). [34]
Tibet became a thoroughly theocratic state when the fifth incarnation of the Dalai Lama gained both spiritual and temporal power in 1642. He was able to do so through the intervention of the Mongols with whom he maintained a renewed chö-yön relation. This defeat of the Dalai Lama's domestic rivals illustrates well the political consequences that the temporal dimension of the Priest-Patron relation could have. The Dalai Lama also established a chö-yön relation with the Manchu emperor in 1643. The following year the Manchus subjugated the Chinese, ending the Ming and initiating the Qing Dynasty (1644-1912). The Manchus were eager to cultivate a Priest-Patron relation with Tibet because they were fearful of Mongolian expansionism; the Dalai Lama, in fact, did exercise his authority to mitigate numerous conflicts. Tibet itself, however, was invaded by the Dzungar Mongols in 1717, to which the Manchus responded by sending armed forces to Lhasa to repell the invaders. The Manchus were on the one hand simply acting in their capacity as Patron, but on the other were intent on restructuring Tibetan government to secure better protection against the Mongols. Imperial Residents called ambans were stationed in Tibet to serve in a more or less advisory capacity, but with the elimination of any further threat from the Mongols in 1757, Manchu ties in Tibet diminished. [35]
War between Tibet and the Nepalese kingdom of Gorkha again led the Manchus to invoke their role as protector in 1791, but tiring of the repeated need for intervention on Tibet's behalf, the Manchu emperor sought to introduce new reforms in Tibetan government, particularly in the sphere of foreign relations. The ambans were now to oversee important matters of trade and defense; additionally, Tibet became a "forbidden land," with its borders closed to foreigners, including the Russians and British who were beginning to take an active interest in Tibet's strategic role in Central Asia. [36] The Manchu office responsible for Tibetan matters, the Li Fan Yuan, recorded that "'the Mnchus by and large imposed special imperialistic organs of control upon the indigenous Tibetan bureacracy leaving it largely intact and free in internal matters.'" [37] As a result, Tibet lost a significant portion of its autonomy in foreign affairs--but only temporarily. The steady (and ultimately fatal) decline of the Qing Dynasty in the nineteenth century rendered Manchu influence over Tibet superfluous. A second Gorkha invasion of Tibet in 1854 was altogether ignored by the Manchu emperor, and when two years later a Tibetan-Gorkha treaty was negotiated, the amban was powerless to prevent the Gorkha government from imposing certain concessions and a limited protectorate over Tibet (which was never implemented). [38]
In 1894, after more than 140 years of rule by Regents because of the repeated early deaths of the successive Dalai Lamas, the Thirteenth incarnation assumed control of the government. [39] The new temporal and spiritual ruler, Thubten Gyatso, viewed his relation with the Qing emperor "as nothing more than a personal one between the Dalai Lama, the Priest, and the Emperor, his Patron," and "consequently would not tolerate any intervention in Tibet by the ambans or other Imperial officials." [40] Lord George Curzon, Britain's Viceroy of India from 1899-1905, observed that the Dalai Lama "'is believed to exercise a greater personal authority than any of his predecessors, and to be de facto as well as de jure sovereign of the country.'" [41] Manchu influence in either internal or external Tibetan affairs was thus minimal at the turn of the century.
The Manchus, however, were not the only ones concerned with Tibet. Britain, which had colonized India, saw Tibet as both a source of trade revenue and as a buffer between their empire and Russian designs on Central Asia. Tibet rebuffed their advances, often exploiting their by now ineffectual chö-yön relation with the Manchus as not permitting direct contacts with the British. Nevertheless, the British were persistent and entered Tibet militarily in 1904. Tibet's defeat at the hands of the British lead to their signing the "Lhasa Convention." This agreement acknowledged no Manchu claim whatsoever over Tibet and made Tibet answerable to Britain in any foreign dealings. The Manchus were predictably dissatisfied with this development and pressured the British to relent in their assertion of control over Tibet. Consequently, an adhesion agreement signed in 1906 with the British gave back to the Manchus the power to handle Tibetan foreign affairs. [42] Moreover, to assuage the Russians, Britain concluded a treaty with them in 1907 "' to respect the territorial integrity of Thibet and to abstain from all interference in [its] internal administration,'" and "'not to enter into negotiations with Thibet except through the intermediary of the Chinese government.'" [43]
The absence of the Dalai Lama, who fled into exile at the onslaught of the British troops, contributed to Manchu intervention in Tibetan domestic matters as well, with Imperial armies moving into eastern Tibet. By the time of his return to Lhasa in 1909, Manchu forces were marching on the capitol. The Dalai Lama beseeched the Emperor to halt the invasion, but was summarily deposed by an Imperial edict in 1910. The deposition was disregarded by the Tibetans as ultra vires, yet the Dalai Lama was forced to flee again, this time to India. This invasion was the first by the Manchus, previous interventions in the eighteenth century all being a part of the chö-yön relation. But with the present aggression against the Tibetans themselves, the Priest-Patron relation was definitively at an end. [44]
Britain, Nepal, Bhutan, and Sikkim all protested the Manchu invasion, but were ignored. [45] The Manchus were soon to be toppled, however, as the Chinese rose up in October 1911 in a nationalist rebellion to overthrow the Qing Dynasty. Two months later it was decided a republican government would be formed, and on February 12, 1912 the last emperor--still a child--abdicated. The Dalai Lama forthwith organized a War Department from exile in India and the Tibetans were quickly able to defeat the Chinese forces within Tibet. When the Dalai Lama returned to Lhasa in January 1913, there were no Chinese troops or officials in the country except for remnants in eastern Tibet. [46] Finally free of Manchu-cum-Chinese domination, he issued a proclamation from Potala Palace reasserting Tibet's complete independence: "[T]he Chinese intention of colonizing Tibet under the patron-priest relationship has faded like a rainbow from the sky." [47]
Tibet's independence was immediately recognized by Mongolia, which had also just declared its independence from Manchu rule, in a Treaty of Friendship and Alliance signed January 11, 1913. Despite Tibet's newly won freedom, the seeds for future discord had already been planted. [48] The abdicating Manchu emperor had charged the provisional republican government under President Yuan Shi-kai to form "one Great Republic of China by the union as heretofore of the five peoples, namely, Manchus, Chinese, Mongols, Mohammedans, and Tibetans, together with their territory in its integrity." [49] Indeed, alien dominion by the Manchus for nearly three centuries did nothing to temper the Chinese attitude toward Tibet.
Yuan Shi-kai wasted no time in making overtures to the Tibetans, but such attempts as "restoring" the Dalai Lama's title were rejected in no uncertain terms. The president, however, was fully intent on incorporating Tibet into the Chinese fold and began consolidating forces in Eastern Tibet. To reach some kind of settlement and halt renewed aggression, Britain, China, and Tibet met in India in October 1913 for the Simla Conference. [50] China and Tibet presented diametrically opposed positions, the Chinese claiming that Tibet was "an integral part of the territory of the Republic of China." [51] Britain proposed a conciliatory scheme that would have divided Tibet into two regions, namely, Outer and Inner Tibet. Inner (or Eastern) Tibet was to be effectively under Chinese control, while Outer Tibet was to retain its autonomy although under Chinese suzerainty. Both China and Tibet opposed this division but eventually accepted it. But one day after the convention was initialled, the Chinese revoked their plenipotentiary's acceptance. The Tibetans and British then concluded their own bilateral agreement, leaving the Sino-Tibetan border as it stood before the conference, but formally recognized by the British. [52]
China was in no way mollified by Tibet's recalcitrance and launched another attack on Tibetan territory in 1918, only to be defeated. A truce was subsequently signed, and despite continued tensions, there was but one further instance of open fighting until 1949. When the Thirteenth Dalai Lama died in 1933, the Chinese submitted a 14-point proposal which reiterated their demand that Tibet be integrated as part of Chinese territory; this was rejected out of hand. In 1937 the Fourteenth Incarnation was identified and in 1940 he ascended to the throne. During World War II Tibet maintained a stance of neutrality and refused the Chinese permission to build a supply road through Tibet to connect China with India. In 1942 Tibet established a Foreign Office to carry on its relations with foreign states, including Britain, Nepal, Sikkim, and Bhutan. [53] After the war, Tibet sought to bolster its standing in the international community, sending congratulatory missions on the Allied victory to China and India and launching trade delegations to these countries as well as the United States and Britain. [54]
The main object of the victory mission to China was to deliver a letter to Chiang Kai-shek and the leaders of the Nationalist government outlining Tibet's position as an independent state: "We shall continue to maintain the independence of Tibet as a nation ruled by the successive Dalai Lamas through an authentic religious-political rule." [55] The only concession to the Chinese would be slight:
If, however, any foreign governments--with utter disregard for international standards of behavior--send invading forces across our borders, taking advantage of their superior military might in order to seize our territories, we shall in such an event ask the Chinese government for its support in the interest of the ancient patron-preceptor relationship between our two countries. We urge the Chinese government to provide such support should the occasion arise. [56]
Upon arriving in Nanking in April 1946, the Tibetan delegation was urged to attend the National Constitutional Assembly which was to be held in a few months. Believing they would be able to discuss the border dispute and other issues with the Chinese, the Tibetans attended as observers rather than as participants. [57] But during the course of the Assembly a resolution was passed stating that "'all the people of the countries whose delegates are present in this Assembly are subjects of the Chinese Kuomintang Government,'" [58] notwithstanding the fact that the Tibetan delegation was in no way authorized to make such a commitment nor wished to. The Chinese thereby surreptitiously coopted Tibet into their constitutional polity.
A further setback to the Tibetan cause came with the independence of India in August 1947. Tibet had until this time enjoyed coequal recognition with Britian via the Simla Convention, but was now uncertain about its relation with the new Indian government. Tibet maintained various territorial and trade claims against India as successor to the British and only reluctantly extended recognition to the Nehru government on June 11, 1948. [59] India's approach to Tibet is noted in a report prepared by the Office of the United Kingdom High Commissioner in India in November 1947:
To prejudice her relations with so important a power as China by aggressive support of unqualified Tibetan independence is therefore a policy with few attractions. It follows that, while the Government of India are glad to recognize and wish to see Tibetan autonomy maintained, they are not prepared to do more than encourage this in a friendly manner and are certainly not disposed to take any initiative which might bring India into conflict with China on this issue. [60]
India's stance on the Tibet question was not unique. Britain itself desired to stay out of any Sino-Tibetan dispute, and the United States echoed a similar sentiment when dealing with the Tibetan trade mission, receiving it unofficially through the Department of Commerce rather than the State Department to avoid upsetting China, which protested that:
Tibet is a part of the Territory of the Republic of China and, and under the Constitution of the Republic, has no authority to conduct diplomatic negotiations with foreign governments; and its relations with the outside world are subject to the direction and approval of the Central Government of China. [61]
The Nationalist government, however, was soon to lose control of the Chinese mainland. Chinese Communists led by Mao Ze-dong challenged Nationalist leadership after the Japanese fell in 1945 and China was immersed in civil war. This development caused the Tibetans great anxiety for they realized the Communists would be a more formidable opponent than the Nationalists in their ongoing struggle for independence. All Chinese officials were therefore expelled from Tibet in July 1949, shortly before the Communists prevailed over the Nationalists, establishing the People's Republic of China on October 1, 1949. [62] Communist policy for Tibet had been articulated as early as 1922 in the manifesto of the party's Second National Congress, where the intent was declared to acheive "'a genuine republic by the liberation of Mongolia, Tibet, and Sinkiang.'" [63] Tibet had already seen the ill effects of Communist aggression against Mongolia and feared its Buddhist state would be subjected to a fate at least as unfortunate.
To make a long story short, the vastly superior People's Liberation Army (PLA) invaded Tibet without provocation on October 7, 1950, quickly vanquishing Tibetan defenses. Hopelessly overwhelmed and their subjugation now a fait accompli, the Tibetans issued two appeals to the United Nations--both were turned down. Chinese forces had also intervened in Korea just two days before the first appeal, and to forestall difficulties in mediating this conflict, India's U.N. representative recommended the resolution not be discussed. [64] Britain expressed the same view, and the U.S. went along, although in a communication to the British embassy the State Department voiced its stand on Tibet as follows:
The United States, which was one of the early supporters of the principle of self-determination, believes that the Tibetan people has the same inherent right as any other to have the determining voice in its political destiny. It is believed further that, should developments warrant, consideration could be given to recognition of Tibet as an independent State. The Department of State would not at this time desire to formulate a definitive legal position to be taken by the United States Government relative to Tibet. It would appear adequate for present purposes to state that the United States Government recognizes the de facto autonomy that Tibet has exercised since the fall of the Manchu Dynasty, and particularly since the Simla Conference. It is believed that, should the Tibetan case be introduced into the United Nations, there would be ample basis for international concern regarding Chinese Communist intentions toward Tibet, to justify under the United Nations Charter a hearing of Tibet's case in either the U.N. Security Council or the U.N. General Assembly. [65]
Despite the United States'cold war eagerness to contain communism, it did not act on what it apparently viewed as Tibet's right to self-determination. Tibet had thus lost its former autonomy--notwithstanding assurances by the PLA to the contrary. In February 1951, a delegation from Tibet was sent to Beijing for negotiations, though they explicitly lacked any plenipotentiary powers granted by the Dalai Lama. But as occurred previously in dealings with the Nationalists, the Tibetan representatives were manipulated to the political advantage of the Chinese. The result was a Seventeen-Point Agreement signed on May 23, 1951 under duress and without the authority of the Dalai Lama or the Tibetan government. [66] The agreement stated in the preamble that "[t]he Tibetan nationality is one of the nationalities with a long history within the boundaries of China," [67] and in its various provisions conceded to China virtual sovereignty over Tibet.
In the face of minimal support from abroad and with the PLA firmly entrenched throughout much of the country, Tibet was forced to acquiesce to the demands of the Chinese Communists. The occupation introduced socialist reforms in the political, cultural, religious, and economic realms of Tibetan society, and in the new constitution adopted in 1954, Tibet was integrated into the multinational, unitary state of the PRC. [68] Also in 1954, the Indian government concluded with China the "Agreement on Trade and Intercourse Between the Tibet Region of China and India," avowing "'mutual respect for each other's territorial integrity and sovereignty'" [69] and thereby essentially recognizing its control over Tibet. Tibetan resistance to the Communist overlordship was manifested in numerous rebellions that were violently repressed by the Chinese. Finally, on March 10, 1959, a major revolt began under the banner of Tibetan independence. In the fighting that ensued tens of thousands of Tibetans were imprisoned and 87,000 were killed (by Chinese accounts), and on March 28, 1959 Premier Zhou En-lai ordered the dissolution of the Tibetan government. Accompanied by many thousands of refugees and his ministers, the Dalai Lama fled to India where he established a government-in-exile at Dharmsala, categorically denouncing the Seventeen-Point Agreement and Communist rule in Tibet. [70]
In response to this turn of events in Tibet, the International Commission of Jurists in 1959 prepared a report entitled "The Question of Tibet and the Rule of Law," which bore the conclusion that there was prima facie evidence the PRC had engaged in genocide against the Tibetans. [71] Armed with these findings, the Dalai Lama made an appeal to the United Nations that resulted in the passage of Resolution 1353 (XIV) on October 21, 1959. This resolution, though it did not refer to China by name, was mindful of the autonomy that Tibet had "traditionally enjoyed" and called for "respect for the fundamental human rights of the Tibet people and for their distinctive cultural and religious life." [72] The Soviet Bloc, India, and China all opposed this resolution on the grounds it contravened the domestic jurisdiction clause of Article 2(7) of the U.N. Charter. [73]
In 1960 the Legal Enquiry Committee formed by the International Jurists Commission to examine the status of Tibet still more thoroughly reported unanimously that "Tibet was at the very least a de facto independent State when the Agreement on Peaceful Measures in Tibet [Seventeen-Point Agreement] was signed in 1951, and the repudiation of this agreement by the Tibetan Government in 1959 was found to be fully justified." [74] In investigating the crime of genocide, the Committee observed that "whether or not enforcement machinery is available against the Chinese People's Republic is of secondary importance. What does matter is whether their representatives in Tibet have committed what almost every other nation in the world regards as the most abhorrent crime known to international law." [75] The Committee found that "acts of genocide had been committed in Tibet as an attempt to destroy the Tibetans as a religious group, and that such acts are acts of genocide independently of any conventional obligation." [76] In particular, the "evidence established four principal facts in relation to genocide:
(a) that the Chinese will not permit adherence to and practice of Buddhism in Tibet;
(b) that they have systematically set out to eradicate this religious belief in Tibet;
(c) that in pursuit of this design they have killed religious figures because their religious belief and practice was an encouragement and example to others;
(d) that they have forcibly transferred large numbers of Tibetan children to a Chinese materialist environment in order to prevent them from having a religious upbringing. [77]
As to human rights violations, the committee "examined evidence in relation to human rights within the framework of the Universal Declaration of Human Rights," and considering also that "economic and social rights are as much a part of human rights as are civil liberties," "found that the Chinese communist authorities in Tibet had violated human rights of both kinds," as reflected in Articles 3, 5, 9, 12, 13, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, and 27 of the Universal Declaration. [78] The Committee's findings on its three queries regarding: 1) Tibet's status as a state in international law; 2) human rights violations; and, 3) genocide, therefore, present a severe indictment of the PRC. While the Committee was entirely cognizant of the fact that there may not exist a remedy for Tibet, it realized the importance of establishing the validity of Tibet's claim against China.
In 1961 the U.N. passed a second resolution, recalling the first, but also explicitly recognizing that Tibet's right to self-determination was being violated. It also noted with "deep anxiety" the "large-scale exodus of Tibetan refugees to the neighboring countries" and expressed "the hope that all Member States will make all possible efforts, as appropriate, towards achieving the purposes" of the resolution. [79] This resolution was also opposed by India, which reveals its political ambivalence towards Tibet: allowing Tibet's government-in-exile to exist within its territory while at the same time siding with China in resisting "interference" in domestic jurisdiction. India, however, changed its vote in favor of Tibet when a third and final U.N. resolution was passed on Tibet's behalf in 1965, after its own territorial integrity had been broached by China. [80] The resolution reiterated concerns previously expressed, citing once again the violation of Tibet's right to self-determination and fundamental human rights, and appealed to "all States to use their best endeavors" to achieve "the evolution of a peaceful world order based on the rule of law." [81]
The Dalai Lama has not returned to Tibet since fleeing, and continues to head the Tibetan government-in-exile in Dharmsala. A draft constitution for Tibet--combining elements of Buddhism and democracy--was created in 1963 pending final approval by all Tibetans when the clash with China is eventually resolved. [82] To effect this goal of a peaceful world order and achieve self-determination for the Tibetan people, the Dalai Lama, as spiritual--if not temporal--leader of Tibet, has repeatedly called on the U.N. to conduct a plebiscite to establish an independent Tibetan state. [83] But for years an impasse has existed in the international community on the status of Tibet; attempts to achieve the sought after remedy of secession from China have been unavailing. It is asserted here that the origin of this impasse is political, but that the consequences are immoral.
In his forward to the report by the Legal Inquiry Committee on Tibet, the Secretary-General of the International Commission of Jurists, Jean-Flavien Lalive, stated:
Whether injustice can be alleviated through the force of moral condemnation can never be foretold. The only force at the Commission's disposal is the force of ideas; the only sanction which the findings of the Legal Inquiry Committee possess is that same force of ideas. This force may or may not ultimately prevail, but it is with the conviction that it must be tried that this Report is presented for the consideration of all who are concerned for the right to live in peace and liberty with their fellow men [and women]. [84]
This essay is presented in the same spirit, and in Part III, a proposal is made that would guarantee a legal remedy commensurate with the moral claim in a case of genocide.
I. The Concept of Self-Determination in International Law
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