RIGHT TO SELF DETERMINATION : SPECIAL REFERENCE TO TIBET


Self-determination is defined as free choice of one’s own acts without external compulsion; and especially as the freedom of the people of a given territory to determine their own political status. It can also be defined as the ability or power to make decisions for oneself, especially the power of a nation to decide how it will be governed. In other words, it is the right of the people of a nation to decide how they want to be governed without the influence of any other country. The latter is a complex concept with conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination. This often coincides with various nationalist movements.[1]

Self-determination embodies the right for all peoples to determine their own economic, social and cultural development. Self-determination has thus been defined by the International Court of Justice (in the West-Saharan case) as: “The need to pay regard to the freely expressed will of peoples.”
It is important to stress that for indigenous peoples the term self-determination does most often not imply secession from the state. The right of self-determination of peoples is a fundamental principle in international law. It is embodied in the Charter of the United Nations and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Common Article 1, paragraph 1 of these Covenants provides that:
“All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples’ Rights as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples. It has been endorsed by the International Court of Justice. Furthermore, the scope and content of the right of self- determination has been elaborated upon by the United Nations Human Rights Committee and Committee on the Elimination of Racial Discrimination as well as international jurists and human rights experts.[2]

HISTORY OF THE RIGHT TO SELF-DETERMINATION

Pre-20th Century

Just as colonization and colonialism have been practiced throughout human history, political self-determination has been cherished by people through history, the ancient Mesopotamian and later Greek city-states being early examples.

The revolt of the British colonists in North America has been defined as the first assertion of the right of national and democratic self-determination. Thomas Jefferson further promoted the notion that the will of the people was supreme, especially through authorship of the Declaration of Independence which inspired Europeans throughout the 19th century. The French Revolution also was motivated by and legitimatized ideas of self-determination.

During the early 1800s most of the nations of South America achieved independence from Spain. After the American Civil War the United States government opposed self-determination for the West Indian islands of Saint Thomas and Saint John in 1868, the Hawaiian Islands in 1868. By the conclusion of the Spanish-American War in 1899 the United States supported its annexation without the consent of the peoples the former Spanish colonies of Guam, Puerto Rico and the Philippines; it retained “quasi-suzerainty” over Cuba.[3]

 

World War I and II

Woodrow Wilson revived the American commitment to self-determination, at least for European states, during World War I. When the Bolsheviks came to power in Russia in November 1917, they called for Russia’s immediate withdrawal as a member of the Allies of World War I. They also supported the right of all nations, including colonies, to self-determination. In 1914 Lenin wrote: “It would be wrong to interpret the right to self-determination as meaning anything but the right to existence as a separate state.”

The end of the war led to the dissolution of the defeated Austro-Hungarian Empire and the creation by the Allies of Czechoslovakia and the union of the State of Slovenes, Croats and Serbs and the Kingdom of Serbia as new states. However, this imposition of states where some nationalities (especially Poles, Czechs, and Serbs and Romanians) were given power over nationalities that disliked and distrusted them eventually helped lead to World War II. The defeated Ottoman empire was dissolved into the Republic of Turkey and several smaller nations, plus the new Middle east Alliedprotectorates” of Syria, Palestine, Iraq and Yemen. The League of Nations was proposed as much as a means of consolidating these new states, as a path to peace.

During the 1920s and 1930s there were some successful movements for self-determination in the beginnings of the process of decolonization. In the Statute of Westminster the United Kingdom granted independence to Canada, New Zealand, Newfoundland, the Irish Free State, the Commonwealth of Australia, and the Union of South Africa after the British parliament declared itself as incapable of passing laws over them without their consent. Egypt, Afghanistan and Iraq also achieved independence from Britain and Lebanon from France. Other efforts were unsuccessful, like the Indian independence movement. And Italy, Japan and Germany all initiated new efforts to bring certain territories under their control, leading to World War II.[4]

The UN Charter

In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January 1942 twenty-six nations signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at the end of World War II placed the right of self-determination into the framework of international law and diplomacy. However, the charter and other resolutions did not insist on full independence as the best way of obtaining self-government, nor did they include an enforcement mechanism. Nevertheless, justified by the language of self-determination, between 1946 and 1960, the peoples of thirty-seven new nations freed themselves from colonial status in Asia, Africa, and the Middle East. The territoriality issue inevitably would lead to more conflicts and independence movements within many nations and challenges to the assumption that territorial integrity is as important as self-determination.

The Soviet Union’s successful post-war efforts to turn Eastern Germany and the countries of Eastern Europe into Soviet satellite states contrasted with decolonization. The additional success of communists in creating the People’s Republic of China led to the Cold War with western nations. These nations became willing to support authoritarian governments as long as they remained anti-communist and began to suspect all self-determinations movements of being communist-inspired or controlled. Thus the United States entered into a 10 year war in Vietnam, taking over from French colonialists, and supported Portugal in its attempts to hold on to Angola. The Soviet Union also violated principles of self-determination by suppressing the Hungarian revolution of 1956 and the Prague Spring Czechoslovak reforms of 1968. It invaded Afghanistan to support an increasingly unpopular communist government assailed by local tribal groups.

In December 1991, Gorbachev resigned as president and the Soviet Union dissolved relatively peacefully into fifteen sovereign republics, all of which rejected communism and most of which adopted democratic reforms and free-market economies.[5]

CURRENT ISSUES

Since the early 1990s, the legitimatization of the principle of national self-determination has led to an increase in the number of conflicts within states, as sub-groups seek greater self-determination and even full secession, and as their conflicts for leadership within groups and with other groups and with the dominant state become violent. The international reaction to these new movements has been uneven and often dictated more by politics than principle. The year 2000 United Nations Millennium Declaration failed to deal with these new demands, mentioning only “the right to self-determination of peoples which remain under colonial domination and foreign occupation.”[6]

UTI POSSEDETIS AND SELF-DETERMINATION

The concept of Self-Determination has been greatly influenced by the doctrine of uti possedetis which derives from Roman law and which was applied in the context of the decolonization of Latin America in the nineteenth century. According to the doctrine, when Spain was leaving its Latin American territories the boundaries left behind were to be respected and could not be changed under any circumstances. This rule has become recognized in customary law and was applied in the context of later decolonisations. In the case concerning the Frontier dispute: Burkina Faso v Republic of Mali[7] the ICJ stated the doctrine of uti possedetis

“….is a general principle, which is logically connected with the phenomenon of the obtaining of independence, whenever it occurs. It’s obvious purpose is to prevent the independence and stability of states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.”

In 1991 the Badinter Arbitration Committee which was charged by the EC with preparing guidelines on the recognition of new states emphasized the importance of uti possedetis by stating that:

“…it is well established that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence except where the states concerned agree otherwise.”[8]

The commonwealth of Independent States (CIS) which emerged after the break-up of the Soviet Union, upheld the principle of uti possedetis. The charter of the CIS signed at Minsk on 8th December 1991 provides that ‘the High Contracting Parties acknowledge and respect each other’s territorial integrity and the inviolability of existing borders within the Commonwealth.’ This was further confirmed by the Alma Ata Declaration of 21st December 1991.[9]

RIGHT TO SELF DETERMINATION IN CONTEXT OF TIBET

Tibet asserts a claim to self-determination. The right to self-determination is a right devolving upon peoples. That the Tibetans are a people within the purview of the right to self-determination is not in dispute. They possess every conceivable attribute of a people. The Tibetans are a cohesive group that has a common religion, common language, common territory, common culture, and common society. The Tibetans are a self-identifying group–a people. What is not communal is a history that has been distorted by external aggression.

All claims to self-determination are intensely oppositional, and in Tibet’s case, the claim is against the People’s Republic of China. The right of self-determination, however, admits of manifold remedies. Fundamentally, self-determination is autonomy for a people, but this can be manifested in any number of ways. At one end of the spectrum, self-determination means a certain measure of autonomy (whether cultural, political, economic, or otherwise) within a dominant state; at the other end of the spectrum, self-determination means autonomy without a dominant state–namely, complete sovereignty or independence. This continuum hence involves a critical disjunction. States–for reasons of self-preservation–are not ideologically predisposed to permit internal entities to secede. It is therefore not surprising that China opposes Tibet’s claim to self-determination, which is a claim to independence, or secession.[10]

Tibet’s claim proceeds on several grounds. In the first instance, Tibet argues that it enjoyed at least de facto independence from 1912, when it freed itself from Manchu domination, until 1950, when it was overrun by the PLA. This is underscored by its treaty with Mongolia and its recognition by Britain in the Simla Convention. Moreover, during this period Tibet conducted its internal and external affairs completely independently, with Chinese presence within the country ranging from non-existent to minimal. Secondly, Tibet claims that the Chinese invasion in 1950 was an unjustifiable act of unmitigated aggression contrary to the norms of customary and conventional international law. Thirdly, Tibet claims that the Seventeen-Point Agreement was void ab initio as it was signed under duress and without authorization from the Tibetan government.

Tibet’s first point is absolutely essential in establishing a territorial claim against the PRC. If its prior territorial claim is valid, and if China’s subsequent usurpation is illegal under international law, then Tibet is entitled to reassert its sovereignty over its territory as an independent state. China’s counterclaim is that it peacefully liberated Tibet, thereby forging a reunification of historically bound entities. It claims further that Tibet is a coequal nationality functioning fully autonomously within the PRC. China’s claim, however, is belied not only by evidence already adduced, but by its own admission. To recapitulate the “Report on the Draft of the Revised Constitution of the PRC,” delivered to the Fifth National People’s Congress on November 26, 1982; it has been argued that the Tibetans as a people have a right to self-determination. Moreover, because the Tibetans have a valid territorial claim, their right to self-determination should entail a right to independence encompassing a reassertion of sovereignty over territory misappropriated by the PRC. To ensure that independence is indeed the will of the people and to provide a mechanism for the enactment of their right to self-determination, an internationally supervised plebiscite should be held as called for by the Dalai Lama. The likelihood of such a plebiscite taking place in the near future, however, is miniscule. The greater reality is that an equitable remedy will not be forthcoming until it is deemed politically expedient.[11]

The Tibetans’ demand for “Genuine Self-Rule” does not conflict with the PRC’s claim of territorial integrity. The right of Self-Determination may not conflict with the right of territorial integrity at all if the demand for self-determination falls short of secession. For example, decentralizing power from a central government to regional or local governments (“federalism”) can be a form of self-determination. Federalism has long been a model for power-sharing among groups outside the context of a “people” as such seeking self-determination (e.g. Canada, the United States). It is also an available option short of secession to claims of self-determination, as in the case of Quebec’s dispute with Canada, and the relationship between the United Kingdom and Northern Ireland, Scotland and Wales. The Dalai Lama’s willingness to negotiate for “genuine self-rule” short of complete independence would resolve the Tibetans’ claim for self-determination without impairing the PRC’s territorial integrity. It would also enhance international peace and security because, while the PRC would still control Tibet’s defense, a self-governing Tibet would provide an economically and socially more stable region at the juncture of China, India and Pakistan than currently exists.[12]

It has already been observed that Tibet has been subject to the vicissitudes of international Realpolitik. Tibet’s small population, pacifistic demeanor, and isolated geography are all factors contributing to its relative obscurity in the international community. Throughout much of its history, and certainly in the modern era, Tibet has served as a political buffer zone for larger and more powerful states. The Manchus, the United States, Britain, India, Russia, and Nepal–not to mention the Chinese–have all tailored their relations with Tibet to meet strategic interests. This, it might be said, is only what is to be expected. On one level, this is indeed so. But on another level, that of concern for universal human rights and self-determination, power politics is inadequate–morally inadequate. To help overcome this deficiency, it is proposed that whenever it is determined that genocide has been perpetrated against a people; there should be a concomitant right to secession exercisable at its option. The reasoning is simple: no aggressor committing genocide against a people can be entrusted with that people’s welfare into the future. Such an aggressor ceases to possess any credibility in dealing with an oppressed people. If a people oppressed by genocide were not guaranteed the right to secede, this would be tantamount to rewarding the oppressor to the very extent it had succeeded in committing genocide–a morally perverse and illogical result. Genocide, the worst of transgressions in international law, must be accorded a remedy, and that remedy should be the fullest expression of self-determination–complete autonomy as manifested in independence. Invoking such a right in the case of the Tibetans, who have been documented as being the victims of genocide and other human rights violations, would make their claim to independence absolutely compelling, legally as well as morally.[13]

CHINESE DISSIDENTS CHALLENGE BEIJING TO GRANT TIBETANS THE RIGHT TO SELF-DETERMINATION

On 30 September 1996 two Chinese dissidents dared the government to grant Tibetans the right of self-determination and to talk to Tibet’s exiled leader, the Dalai Lama. The appeal from Liu Xiaobo and Wang Xizhe was likely to anger China’s Communist leadership, which keeps a tight grip over the Himalayan region it claims has been part of China for 700 years.

Liu and Wang, both of whom have spent time in jail for their political activism, made their appeals in a sometimes caustically worded petition faxed to The Associated Press by a Hong Kong-based human rights group. In telephone interviews, Wang and Liu confirmed the petition’s authenticity. “The Chinese government has made mistakes in Tibet, especially since the Cultural Revolution,” Wang said, referring to the 1966-76 radical political movement when Chinese youths destroyed thousands of Tibetan temples.

In the petition addressed to the Communist Party’s Central Committee, Liu and Wang accused the Communists of going back on pledges made before they came to power in 1949 that China’s ethnic minorities should have the right to self-determination and even “the right to set up an independent country.”

This way of doing things and style of work has continued to the present day. It is wrong and is a major reason why the Communist Party has ultimately lost popular support,” said the petition released by the Information Center of Human Rights and Democratic Movement in China.  China routinely suppresses Tibetan calls for independence and greater freedoms. It also accuses the Dalai Lama, who fled Tibet after a failed uprising against Chinese rule in 1959, of destabilizing the region by appealing for greater autonomy. While they did not want to see China divided, Wang and Liu said the Han Chinese majority should not “deny the right to self-determination of each ethnic minority.”

Wang is one of China’s earliest democracy campaigners, having been in and out of jail since putting up a poster in southern Canton city in 1974 and Liu, a former history lecturer at Beijing’s Teachers College, helped lead a hunger strike during Tiananmen Square demonstrations in 1989. He served two years in jail and has been detained several times since then.[14]

 

REASONS TO SUPPORT TIBETAN SELF-DETERMINATION

REASON 1: Tibet has been illegally and forcibly occupied by China since 1950

Prior to 1950, Tibet was an independent sovereign state with a fully functioning government headed by the Dalai Lama. China’s invasion of Tibet by 40,000 troops in 1950 was an act of unprovoked aggression. Annexation by force is in violation of Article 2(4) of the United Nations Charter and there was no internationally accepted legal basis for China’s claim of sovereignty.

As recently as 1914, a treaty was signed by Britain, China and Tibet that formally recognized Tibet as a fully independent country and demarcated Tibet’s borders. The 17-Point Agreement of 1951, which the People’s Republic of China (PRC) claims resolved Tibet’s status, was signed under the threat of violence and is not considered legally valid.

The State of Tibet continues, despite the illegal occupation, through the existence and activities of the Tibetan Government-in-Exile. The Dalai Lama remains the Head of State with executive functions organized under the cabinet, or Kashag.

 

REASON 2: The human cost to the Tibetan people is of tragic proportions

The International Commission of Jurists concluded in its 1959 and 1960 reports that there was a prima facie case of genocide committed by the Chinese upon the Tibetan nation. Reprisals for the 1959 National Uprising against the Chinese occupation alone involved the “elimination” of 87,000 Tibetans. Tibetan exiles claim that 430,000 died during the uprising and the subsequent 15 years of guerrilla warfare.

A total of some 1.2 million Tibetans are estimated to have been killed as a result of Chinese actions since 1950 including up to 260,000 people who have died in prisons and labor camps between 1950 and 1984. Over 110,000 Tibetans have left Tibet to seek sanctuary in other countries.[15]

Since 1987, some 3,000 people are believed to have been detained for political offences in Tibet, many of them for writing letters, distributing leaflets or talking to foreigners. Any expression of opinion contrary to Chinese Communist Party ideology can result in arrest. As of January 2004, 145 known Tibetans remain in Chinese prisons or detention centers because of their political views. Of these, nine are women. Two thirds of the prisoners are nuns, monks, and former monks or reincarnate lamas. Those detained are often denied legal representation. Prison sentences are regularly decided before the trial. Fewer than 2% of cases are won by the defense. A political prisoner in Tibet can now expect an average sentence of 6.5 years. Possessing an image of the Tibetan national flag can lead to beatings and a seven-year jail term.

Detailed accounts show that the Chinese conducted a systematic campaign of torture against Tibetan dissidents in prison from March 1989 to May 1990. Despite China having ratified a number of UN conventions, including those relating to torture, women, children and racial discrimination, Chinese authorities in Tibet still repeatedly violate these conventions. Beatings and torture are regularly used against virtually all political detainees and prisoners today.

 

REASON 3: The repression of the Tibetan people in their own land continues to this day and compounds the illegitimacy of the Chinese rule

The PRC’s government in Tibet was imposed on the Tibetans by force, not by an exercise of self-determination. China has persistently and systematically abused the rights of Tibetans through religious repression, population transfer, birth control policies, discrimination, destruction of the environment, involuntary disappearances, arbitrary arrest, torture and arbitrary extra-judicial executions.

 

REASON 4: China denies the Tibetan people’s right to democratically elect their own political representatives

By the 17-Point Agreement of 1951, China undertook not to interfere with Tibet’s existing system of government and society, but never kept these promises in eastern Tibet and in 1959 reneged on the treaty altogether. China has renamed two out of Tibet’s three provinces, Kham and Amdo, as parts of the Chinese provinces of Qinghai, Gansu, Sichuan and Yunnan, and renamed the remaining province of U’Tsang as the Tibet Autonomous Region (TAR). There is no evidence to support China’s claim that the TAR is autonomous: all local legislation is subject to the approval of the central government in Beijing; all local government is subject to the regional party, which in Tibet has never been run by a Tibetan. Tibetans must pledge their allegiance to the Chinese government.[16]

China, in violation of the norms set forth in the Universal Declaration of Human Rights (UDHR) established by the United Nations, deprives the Tibetan people of their right to democratically elect its political representatives. In particular the UDHR provides for the right: “… to take part in the government of one’s country directly or through freely chosen representatives” and “the will of the people shall be the basis of that authority of the government.”

 

REASON 5: The use of the Chinese language in Tibetan schools and as the effective official language of Tibet represses Tibetan culture and has marginalized many Tibetans

All secondary school classes for Tibetan children are taught in Chinese and Chinese culture is emphatically promoted. Tibetan students suffer from prohibitive and discriminatory fees and inadequate facilities in rural areas. Many Tibetan children are sent away to China for education, usually for a period of seven years. Although English is a requirement for most university courses, Tibetan students cannot learn English unless they forfeit study of their own language.

A distorted history program is used which omits all references to an independent Tibet. At school, no unrehearsed discussion of Tibetan cultural, religious and social issues is allowed. Party positions must actively be upheld. Early on, Chinese replaced Tibetan as the official language of Tibet.

The Chinese authorities have imposed policies that make the Tibetan language redundant or secondary in all sectors. The result is both the progressive disappearance of Tibetan culture as well as the marginalization of Tibetans in economic, educational, political and social spheres to the point where they are becoming second-class citizens in their own land.

 

REASON 6: Tibetans are aggressively prevented from freely pursuing their religious practices

In 1960, the International Commission of Jurists found that: “Acts of genocide had been committed in Tibet in an attempt to destroy the Tibetans as a religious group.” Religious practice was forcibly suppressed until 1979, and up to 6,000 monasteries and countless religious artifacts were destroyed during the Cultural Revolution. Today, the Chinese authorities closely monitor the activities of the remaining and rebuilt monasteries through a police presence.[17]

The 1982 Constitution of the People’s Republic of China guarantees freedom of religious belief, but China restricts the numbers of monks and nuns entering Tibetan monasteries and forbids initiates under 18. In 1995, the Chinese authorities rejected the six-year-old boy recognized by the Dalai Lama as the 11th Panchen Lama, the reincarnation of Tibet’s second-ranking spiritual leader, and selected and installed their own Panchen Lama. The Chinese have admitted holding the boy and his family in “protective custody”. Despite international efforts, their location is still unknown and their condition remains uncertain. In 1996 the “Strike Hard” campaign was initiated, specifically targeting Tibetan Buddhism. Between 1996 and 1998, 492 monks and nuns were arrested and 9,977 expelled from their religious institution by the Chinese. Attempts have been made to discredit the spiritual authority of His Holiness the Dalai Lama. Possessing an image of the Dalai Lama is today illegal in Tibet and China recently declared Tibet to be non-Buddhist.

 

REASON 7: Chinese policies have encouraged Chinese settlers to the point where Tibetans have become a minority in many areas of Tibet

Beijing has admitted a policy of deliberately encouraging Chinese immigrants to settle on a long-term basis in Tibet. The aim of the Western China Development Program launched in 1999 is to create the infrastructure to facilitate the exploitation of the vast natural resources of Tibet and to encourage hundreds of thousands of unemployed Chinese workers to migrate to the inhabited areas of Tibet. This state-sanctioned population transfer is in violation of Article 49 of the 4th Geneva Convention. The initial influx of Chinese nationals destabilized the Tibetan economy. Forced agricultural modernizations led to extensive crop failures and Tibet’s first recorded famine (1960-1962), in which 340,000 Tibetans died. Tibetan farms and grazing lands have been confiscated and incorporated into collectivized and communal farms. Resettlement of Chinese migrants has placed Tibetans in the minority in many areas, including Lhasa, causing chronic unemployment among Tibetans. Official figures put the number of non-Tibetans in the TAR at 79,000. Independent research puts the figure at 250,000 to 300,000, and for the whole of Tibet at between 5 and 5.5 million Chinese versus 4.5 million Tibetans. In Kham and Amdo the Chinese outnumber Tibetans many times over.[18]

In addition to putting Tibetans at an economic disadvantage, the continuing migration of massive numbers of Chinese into Tibet progressively erodes the ability of the Tibetan people to hold on to their distinct cultural heritage and ethnic identity.

 

REASON 8: Major economic development decisions for Tibet are made in Beijing and benefit Chinese settlers and officials more than Tibetans

The Chinese central government has a stated goal of 10% economic growth per year for the Tibet region. According to the TAR Economic Planning Commission’s plan, the main thrust in the 1990s was “the exploitation of mineral resources”. Mining and other mineral extraction is the largest economic activity in both the TAR and Amdo provinces. China is also pushing to incorporate Tibet into its new market economy by boosting agricultural output. Traditional barley farming, suited to the climate, is diminishing as new crops favored by the Chinese are introduced.

Unfortunately, Tibetans are not, in general, benefiting from this increasing economic activity. More than 70 per cent of Tibetans in the TAR now live below the poverty line. New jobs and new wealth are largely channeled into Chinese hands. Chinese traders are favored by lower tax assessments. Chinese have the dominant positions in government administration and are paid bonuses for working in Tibet. The Western China Development Program encourages unemployed Chinese workers to migrate to the Tibetan plateau. A railway line being constructed to connect Lhasa and Central Tibet with China’s network of rail lines will speed both the influx of these Chinese migrants as well as the extraction of Tibet’s mineral reserves.

In 2003, the Los Angeles Times published a report from Tibet called “Tibetans fear strangulation by rail”. The report says, “Lhasa already has the look and feel of a Chinese city, with Chinese-style buildings and Chinese billboards proliferating across town. More than half the 200,000 residents here are believed to be Chinese. Even the main boulevard in front of the Dalai Lama’s holy Potala Palace is named Beijing Road. Most of the people flocking to the palace are Chinese tourists. Officials hope the new train will bring more of them to boost the local economy.”[19]

 

 

REASON 9: Tibet’s natural resources are being exploited and its environment seriously imperiled without regard to the wishes of the Tibetan people

China deprives the Tibetan people’s right under UN Resolution 1803 (XVII) 1962 to permanent sovereignty over their natural resources. Deforestation, uncontrolled mining, hydro-electric projects and nuclear waste dumping that seriously imperil the environment and do not support the interests of the Tibetan people is being carried out with impunity by Beijing and the Chinese authorities in Tibet. Between 1959 and 1985, the Chinese removed US$54 billion worth of timber from Tibet. An extensive road-building program is now opening up previously inaccessible areas of forest.

China’s primary nuclear weapons research and design facility was constructed in the Haibei Tibetan Autonomous Prefecture, Qinghai province and designed all of China’s nuclear bombs until the mid-1970s. China has admitted dumping high-level nuclear waste on the Tibetan plateau and a 20 square km dump for radioactive pollutants is known to exist near Lake Kokonor.

 

REASON 10: The Tibetan people are legally entitled to self-determination under international law

Even if Tibet had not been an independent state in 1950, the Tibetan people are nonetheless legally entitled to exercise their right of self-determination. Article 1(2) of the United Nations Charter declares that its purpose is “to develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples.” Chapters IX XI, XII and XIII of the Charter embody the principles of self-determination and impose obligations on member states to respect peoples’ right to self-determination. This right is also set forth in the Universal Declaration of Human Rights, which is widely recognized as customary international law.[20]

The UN General Assembly has declared that “All peoples have the right to freely determine, without external interference, their political status and pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with provisions of the Charter”. The Tibetans are unquestionably a distinct “people” and, in 1961 and again in 1965, the UN General Assembly passed resolutions explicitly recognizing the Tibetan people’s right to self-determination.

Today the Tibetan people are one of the most endangered ethnic communities in the 21st century. The Tibetan people, with their distinct culture, religion, language and national identity, face the real and imminent threat of total assimilation and extinction. Tibetans, as a people, have the legal right to determine their political status and to pursue their own economic, social and cultural development. Only the restoration of a government and institutions freely chosen by the Tibetan people will end the abusive human rights practices and policies in Tibet. Through their rightful exercise of self-determination Tibetans have the chance to reclaim control of their own future.[21]

 

CASE FOR SELF-DETERMINATION

No-one disputes that the Tibetans are a distinct people with their own language and culture, who form a large majority of the population of Tibet. They do not control their own destiny. Tibet is controlled by the Chinese Government by means of military occupation for the benefit of the Chinese state. Tibet is a country under foreign military occupation, and its people are subject to alien subjugation, domination and exploitation” within the meaning of the UN Resolutions on Colonial Peoples and on Friendly Relations.

The severity of the repression the Tibetans have undergone at China’s hands, combined with the threadbare nature of China’s territorial claim to Tibet, mean that if the universal right of peoples to self-determination has any meaning it must extend to Tibet.

Tibet’s status has been given renewed topicality by the recent independence of Kosovo. Kosovo was an autonomous region of Serbia dating from when Serbia was a state within Federal Yugoslavia. About 90% of its population is ethnically Albanian, and so distinct from the Serbs who form the remaining 10% and the large majority of the population of Serbia as a whole. Kosovo had enjoyed some real autonomy in Yugoslavia but in the 1990s this was progressively reduced. Following a recommendation from the United Nations Special Representative, Martti Ahtisaari, a plan was devised for Kosovo’s independence, which was bitterly opposed by Serbia. Kosovo nevertheless declared independence on 17 February 2008. This has so far been recognized by 38 countries, including all of the Group of Seven industrialized countries.

The recognition of Kosovo would seem to extend the right of self-determination beyond the traditional colonial or foreign occupation situation. If Kosovo has a right to self-determination, the right of Tibet is infinitely stronger. The catalogue of gross oppression, the second class citizen status of Tibetans under Chinese rule, and the identity of Tibet as a country are all much clearer than in Kosovo’s case.[22]

 

SELF-DETERMINATION, AUTONOMY AND INDEPENDENCE

Self-determination need not mean independence. In many situations, autonomy within a larger nation state offers the best of both worlds, combining the benefits of being part of a large state in terms of defense, foreign relations and economic opportunity, with preservation of local laws, customs and culture from outside interference. Hong Kong is a good example.

The Dalai Lama has repeatedly said that he favors autonomy for Tibet within China, provided that it is meaningful autonomy. Such is his authority with the Tibetan people that they would probably support autonomy in any referendum in which he expressed support for it.

However unless there is a change in Chinese government thinking, real autonomy does not appear to be on offer. This is shown by the continuing aggressive denunciation and misrepresentation of the Dalai Lama by Chinese official spokespersons.

Unless real autonomy is offered, self-determination in Tibet is bound to mean independence. China may hold down the Tibetans by force for a long time, but, as the example of Ukraine and Russia shows, even hundreds of years of repression is unlikely to extinguish the longing for self-determination among what are, incontrovertibly, a people.[23]

CONCLUSION

Tibetans must have the right to self-determination, a point which has been supported by the United Nations and governments and parliaments. This is also in keeping with the publicly-expressed ideology and policy of both the Nationalist and Communist governments of China. Although Tibet’s historical and legal status as an independent nation cannot be disputed, it does not necessarily mean that the exercise of this right will lead to the separation of Tibet from China. If it serves mutual interest, two or more independent nations may join together out of their free will. This may indeed be the trend in the 21st century for economic and defense reasons.

Tibet’s uniqueness, if respected in practice as purportedly recognized by China, will be appreciated by the people of Tibet. The late Panchen Lama exhorted the Chinese leadership to follow a policy of winning the hearts and minds of the Tibetan people if Tibet was to remain a part of China. The Secretary of the Chinese Communist Party, Hu Yaobang, made a statement in 1984 which has some bearing on this point. Speaking to the Second Work Forum on Tibet, he asked that special respect be shown to Tibet.

This is also in-keeping with His Holiness the Dalai Lama’s statement in the Strasbourg Proposal, wherein he said that the final decision regarding the future of Tibet must be made by the people of Tibet. It is thus clear that the problem of Tibet must be resolved through the exercise of the right to self-determination by the people of Tibet. This is the only reasonable course, which enjoys widespread support from all quarters.

While implementing the right to self-determination the visions of His Holiness the Dalai Lama as well as the draft constitution proposed by the Chinese intellectuals must also be kept in mind. In determining their goals the Tibetans should not be obsessed with the policy of the present Chinese leadership to forgetting the opinions of the Chinese people as a whole and the economic and political developments taking place in the world today. When the right to self-determination of the Tibetan people is talked about, it means that this right accrues only to Tibetans and not the Chinese people residing in Tibet.[24]

REFERENCES

 

Books Used:

    Public International Law by Alina Kaczorowska 

    International Law by Malcom Shaw

 

Cases Referred:

    Burkina Faso v Republic of Mali (1986) ICJ Rep 554

    (1991) 92 LLR 168

 


[1] http://en.wikipedia.org/wiki/Self-determination

[2] http://www.iwgia.org/sw228.asp

[3] supra note 1

[4] Id.

[5] supra note 1

[6] Id.

[7] (1986) ICJ Rep 554

[8] (1991) 92 LLR 168

[9] Kaczorowska Alina, PUBLIC INTERNATIONAL LAW, Old Bailey Press, London, 1st ed., 2002, p.332-333

[10] Smith Daniel, SELF-DETERMINATION IN TIBET:THE POLITICS OF REMEDIES, http://www.canonymous.com/press/ecritique2/part3.html

[11] Id.

[12] http://www.tibetjustice.org/reports/sovereignty.pdf

[13] supra note7

[14] http://www.tibet.com/China/dissidents.html

[15] http://www.c100tibet.org/Self-Determination_Reasons.html

[16] Id.

[17] supra note 15

[18] Id.

[19] supra note 15

[20] Id.

[21] supra note 15

[22]Harris Paul, IS TIBET ENTITLED TO SELF-DETERMINATION, http://www.webb-site.com/articles/tibetharris.asp

[23] Id.

[24]Wandi Tashi Kungo, SELF-DETERMINATION AND THE TIBETAN ISSUE, http://tibet.dharmakara.net/TibBull-TibRef4.html


About ektarulz

Law Student of Hidayatullah National Law University, Raipur, Chattisgarh

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