The legal status of Tibet |
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Michael C. van Walt is an international legal scholar and a board member of the International Campaign for Tibet (based in Washington D.C.). This article, a discussion of Tibet's legal status and the basis of Chinese claims to ownership, first appeared in Cultural Survival Quarterly (Vol. 12, 1988), and is reproduced below by kind permission.
Introduction
Recent events in Tibet have intensified the dispute over its legal status. The People's Republic of China (PRC) claims that Tibet is an integral part of China. The Tibetan Government-in-Exile maintains that Tibet is an independent state under unlawful occupation.
The question is highly relevant for at least two reasons. First, if Tibet is under unlawful Chinese occupation, Beijing's large-scale transfer of Chinese settlers into Tibet is a serious violation of the fourth Geneva Convention of 1949, which prohibits the transfer of civilian population into occupied territory. Second, if Tibet is under unlawful Chinese occupation, China's illegal presence in the country is a legitimate object of international concern. If, on the other hand, Tibet is an integral part of China, then these questions fall, as China claims, within its own domestic jurisdiction. The issue of human rights, including the right of self-determination and the right of the Tibetan people to maintain their own identity and autonomy are, of course, legitimate objects of international concern regardless of Tibet's legal status.
The PRC makes no claim to sovereign rights over Tibet as a result of its military subjugation and occupation of Tibet following the country's invasion in 1949-1950. Thus, China does not allege that it has acquired sovereignty by means of conquest, annexation or prescription in this period. Instead, it bases its claim to Tibet solely on its theory that Tibet has been an integral part of China for many centuries.
The question of Tibet's status is essentially a legal question, albeit one of immediate political relevance. The international status of a country must be determined by objective legal criteria rather than subjective political ones. Thus, whether a particular entity is a state in international law depends on whether it possesses the necessary criteria for statehood (inter alia territory, population, independent government, ability to conduct international relations), not whether governments of other states recognise its independent status. Recognition can provide evidence that foreign governments are willing to treat an entity as an independent state, but cannot create or extinguish a state.
In many cases, such as the present one, it is necessary to examine a country's history in order to determine its status. Such a historical study should logically be based primarily on the country's own historical sources, rather than on interpretations contained in official sources of a foreign state, especially one claiming rights over the country in question. This may seem self-evident to most. When studying the history of France we examine French rather than German or Russian source materials. I am making the point, however, precisely because China's claim to sovereignty over Tibet is based almost exclusively on self-serving Chinese official histories. Chinese sources portrayed most countries with whom the emperor of China had relations, not only Tibet, as vassals of the emperor. When studying Tibet's history, Tibetan sources should be given primary importance; foreign sources, including Chinese ones, should only be given secondary weight.
Cultural photos by Vincent Van Den Berg
Tibet's history
Tibet has a history dating back over 2,000 years. A good starting point in analysing the country's status is the period referred to as Tibet's "imperial age", when the entire country was first united under one ruler. There is no serious dispute over the existence of Tibet as an independent state during this period. Even China's own historical records and treaties Tibet and China concluded during that period refer to Tibet as a strong state with whom China was forced to deal on a footing of equality.
At what point in history, then, did Tibet cease to exist as a state to become an integral part of China? Tibet's history is not unlike that of other states. At times, Tibet extended its influence over neighbouring countries and peoples, and in other periods, came itself under the influence of powerful foreign rulers - the Mongol Khans, the Gorkas of Nepal, the Manchu emperors and the British rulers of India.
It should be noted, before examining the relevant history, that international law is a system of law created by states primarily for their own protection. As a result, international law protects the independence of states from attempts to destroy it and, therefore, the presumption is in favour of the continuation of statehood. This means that, whereas an independent state that has existed for centuries, such as Tibet, does not need to prove its continued independence when challenged, a foreign state claiming sovereign rights over it needs to prove those rights by showing at what precise moment and by what legal means they were acquired.
China's present claim to Tibet is based entirely on the influence the Mongol and Manchu emperors exercised over Tibet in the 13th and 18th centuries, respectively.
As Genghis Khan's Mongol Empire expanded toward Europe in the west and China in the east in the 13th century, the Tibetan leaders of the Sakya school of Tibetan Buddhism concluded an agreement with the Mongol rulers in order to avoid the otherwise inevitable conquest of Tibet. They promised political allegiance and religious blessings and teachings in exchange for patronage and protection. The religious relationship became so important that when Kublai Khan conquered China and established the Yuan Dynasty, he invited the Sakya Lama to become the Imperial Preceptor and supreme pontiff of his empire. The relationship that developed and still exists today between the Mongols and Tibetans is a reflection of the close racial, cultural and especially religious affinity between the two Central Asian peoples. To claim that Tibet became a part of China because both countries were independently subjected to varying degrees of Mongol control, as the PRC does, is absurd. The Mongol Empire was a world empire; no evidence exists to indicate that the Mongols integrated the administration of China and Tibet or appended Tibet to China in any manner. It is like claiming that France should belong to England because both came under Roman domination, or that Burma became a part of India when the British Empire extended its authority over both territories.
This relatively brief period of foreign domination over Tibet occurred 700 years ago. Tibet broke away from the Yuan emperor before China regained its independence from the Mongols with the establishment of the native Ming Dynasty. Not until the 18th century did Tibet once again come under a degree of foreign influence.
The Ming Dynasty, which ruled China from 1368 to 1644, had few ties to and no authority over Tibet. On the other hand, the Manchus, who conquered China and established the Qing Dynasty in the 17th century, embraced Tibetan Buddhism as the Mongols had and developed close ties with the Tibetans. The Dalai Lama, who had by then become the spiritual and temporal ruler of Tibet, agreed to become the spiritual guide of the Manchu emperor. He accepted patronage and protection in exchange. This "priest-patron" relationship, which the Dalai Lama also maintained with numerous Mongol Khans and Tibetan nobles, was the only formal tie that existed between the Tibetans and Manchus during the Qing Dynasty. It did not, in itself, affect Tibet's independence.
On the political level, some powerful Manchu emperors succeeded in exerting a degree of influence over Tibet. Thus, between 1720 and 1792 the Manchu emperors Kangxi, Yong Zhen and Qianlong sent imperial troops into Tibet four times to protect the Dalai Lama and the Tibetan people from foreign invasion or internal unrest. It was these expeditions that provided them with influence in Tibet. The emperor sent representatives to the Tibetan capital, Lhasa, some of whom successfully exercised their influence, in his name, over the Tibetan government, particularly with respect to the conduct of foreign relations. At the height of Manchu power, which lasted for a few decades, the situation was not unlike that which can exist between a superpower and a neighbouring satellite or protectorate. The subjection of a state to foreign influence and even intervention in foreign or domestic affairs, however significant this may be politically, does not in itself entail the legal extinction of that state. Consequently, although some Manchu emperors exerted considerable influence over Tibet, they did not thereby incorporate Tibet into their empire, much less China.
Manchu influence did not last for very long. It was entirely ineffective by the time the British briefly invaded Tibet in 1904, and ceased entirely with the overthrow of the Qing Dynasty in 1911, and its replacement in China by a native republican government. Whatever ties existed between the Dalai Lama and the Qing emperor were extinguished with the dissolution of the Manchu Empire.
Tibetan nomad girl. Photo: Falsalama
1911-1950
From 1911 to 1950, Tibet successfully avoided undue foreign influence and behaved, in every respect, as a fully independent state. The 13th Dalai Lama emphasised his country's independent status externally, in formal communications to foreign rulers, and internally, by issuing a proclamation reaffirming Tibet's independence and by strengthening the country's defenses. Tibet remained neutral during the Second World War, despite strong pressure from China and its allies, Britain and the USA. The Tibetan Government maintained independent international relations with all neighbouring countries, most of whom had diplomatic representatives in Lhasa.
The attitude of most foreign governments with whom Tibet maintained relations implied their recognition of Tibet's independent status. The British Government bound itself not to recognise Chinese suzerainty or any other rights over Tibet unless China signed the draft Simla Convention of 1914 with Britain and Tibet, which China never did. Nepal's recognition was confirmed by the Nepalese Government in 1949, in documents presented to the United Nations in support of that government's application for membership.
The turning point in Tibet's history came in 1949, when the People's Liberation Army of the PRC first crossed into Tibet. After defeating the small Tibetan army, the Chinese Government imposed the so-called "Seventeen-Point Agreement for the Peaceful Liberation of Tibet" on the Tibetan Government in May 1951. Because it was signed under duress, the agreement was void under international law. The presence of 40,000 troops in Tibet, the threat of an immediate occupation of Lhasa and the prospect of the total obliteration of the Tibetan state left Tibetans little choice.
It should be noted that numerous countries made statements in the course of UN General Assembly debates following the invasion of Tibet that reflected their recognition of Tibet's independent status. Thus, for example, the delegate from the Philippines declared: "It is not clear that on the eve of the invasion [in] 1950, Tibet was not under the rule of any foreign country." The delegate from Thailand reminded the assembly that the majority of states "refute the contention that Tibet is a part of China." The US joined most other UN members in condemning the Chinese "aggression" and "invasion" of Tibet.
In the course of Tibet's 2,000-year history, the country came under a degree of foreign influence only for short periods of time in the 13th and 18th centuries. Few independent countries today can claim as impressive a record. As the ambassador to Ireland at the UN remarked during the General Assembly debates on the question of Tibet, "[f]or thousands of years, or for a couple of thousand of years at any rate, [Tibet] was as free and as fully in control of its own affairs as any nation in this Assembly, and a thousand times more free to look after its own affairs than many of the nations here."
From a legal standpoint, Tibet has to this day not lost its statehood. It is an independent state under illegal occupation. Neither China's military invasion nor the continuing occupation has transferred the sovereignty of Tibet to China. As pointed out earlier, the Chinese Government has never claimed to have acquired sovereignty over Tibet by conquest. Indeed, China recognises that the use or threat of force (outside the exceptional circumstances provided for in the UN Charter), the imposition of an unequal treaty or the continued illegal occupation of a country can never grant an invader legal title to territory. Its claims are based solely on the alleged subjection of Tibet to a few of China's strongest foreign rulers in the 13th and 18th centuries. If other countries were to make such tenuous claims based on their imperial past, how seriously would they be taken? In considering the merits of China's arguments are we not accepting the right of powerful modern rulers to invade foreign countries in order to recreate lost empires of their ancestors?
PUBLISHED MARCH 1994
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