Legal Autonomy of Tibet: A Chinese Lawyer's Perspective

• Author: Yongmin Bian
• Position: Associate professor of law at the Law School, University of International Business and Economics in Beijin
• Pages: 357-367

Page 357

1. Introduction

The conflict happened on the high plateau of Tibet in the spring of 2008 has drawn much attention of the world on the Tibet issue. The politics-oriented media cover of some foreign countries sharply contradictory to that of China makes it very difficult for ordinary Chinese people to know the actual state of affairs and also creates quite unfriendly and detrimental atmosphere for the peaceful solution of this issue in short time. Open and impartial research and discussion on this issue is necessary and helpful to the final resolution. The Tibet "Government-in-exile" has openly stated its stance and opinions on the autonomy of Tibet, while the Chinese Central Government insists that it is not going to negotiate any'Tibet issue' with the 14th Dalai Lama and his followers except for Dalai Lama' personal future. Since the position of the Central Government on Tibet is very tough, it seems that any autonomy in Tibet beyond the current Chinese law on regional autonomy in ethnic areas is impossible. This paper is dedicated to probing the history and analyzing the current situation of the autonomy of Tibet, and exploring possibilities of changing the current autonomy. Part II introduces the China's administration over Tibet before 1950 when Tibet enjoyed great autonomy. Part III comments on the current system of regional autonomy in Tibet. Part IV discusses possible changes to the current autonomy in Tibet. Due to the big difference between the Central Government of China and the Tibet Government-in-exile, the author concludes that it needs a long way to go to the final solution of the Tibet issue. Page 358

2. Tibet is the Part of China

At the beginning of the 13th Century, Genghis Kan established Mongolian Empire. Later he and his successors defeated the Song Dynasty of China and Tibet, and then established the Yuan Dynasty. Since Tibet became part of China in Yuan Dynasty, China has been continually claiming sovereignty over Tibet. But in the past 800 years, the central government of China did not always exercise strong governance over the remote Tibet, especially since the end of Qing Dynasty, when Tibet suffered from the aggression of imperialist powers, which grabbed all kinds of special privileges by means of unequal treaties, subjected Tibet to colonial control and exploitation, and at the same time, groomed separatists among the upper ruling strata of Tibet, in an attempt to sever Tibet from China.¹ Tibet had several chances to separate from China and associate with other states or gain independence, but the Tibetan religious leaders and the Tibetan local government chose to stay with China. When faced with foreign intervention and potential control, Tibet preferred the protection from its China.²

The Tibetan people mainly lived in the Qinghai-Tibetan plateau. In history, including the time after Tibet became part of China, for several periods its territory extended to today's Qianghai and parts of Gansu and Yunnan provinces. So today many Tibetan people still lives in Qianghai, Gangsu and Yunnan provinces. In these provinces there are Tibetan autonomous prefectures especially set up for Tibetan compact communities. Today the Tibetan population is about 4.8 millions.³ In the past 800 years, Han Chinese assimilated many alien ethnic people including the founders of Qing Dynasty of China, Manchu ethnicity. However, the Tibetan people still keeps its explicit identity until today.

Before the peaceful liberation of Tibet in 1951, the Tibetan people were co-governed by the central government of China and Dalai Lama together. The Central government, "while handling important affairs concerning Tibet, maintained, by and large, the region's original local social setup and ruling body, widely appointed upper-strata ecclesiastic and secular members to manage local affairs, and gave the Tibetan local Page 359 government and officials extensive decision-making power."⁴ At that time, the Central government maintained troops in Tibet, while the Tibetan local government had its own armed forces. The Tibetan local government also negotiated treaties with neighbor states, but of course the treaties had to be approved by the central government. The current 14th Dalai Lama might miss the more extensive autonomous right that Tibet had enjoyed before 1950. It was very interesting that in history the central government and the Tibetans had different understandings about the relationship between the emperors of China and Dalai Lama.⁵ For the Chinese emperors, although Dalai Lama was a very strong spiritual and secular leader, he was subject to the protection of emperors. For Tibetans, the emperors were merely the secular supporters of Dalai Lama. This means for Tibetans the status of Dalai Lama was higher than that of the emperors because in Tibet only Lamas were governors and the secular people had the obligations to provide support to Lamas. Secular person, no matter how powerful or rich, was in subordinate position.⁶ The transmission lineage system of reincarnation of the great Lama after his death reflected this subtly different and contradicted understanding. In 1793 a gold urn was bestowed to Lhasa from the emperor of Qing Dynasty for confirming reincarnation of the great lama. Before the coming of the gold urn representing the authority of the central government, the transmission lineage system of reincarnation of a great lama followed the traditional way. The local government of Lhasa had to convince the Tibetans that the Living Buddha was searched and confirmed according to their traditional way, while it had to promise the central government that the Living Buddha was actually confirmed through drawing lots from the gold urn.⁷ The yield of the local government, according to the international law of 19th century, was one of the evidences recognizing China's sovereignty over Tibet. It is very interesting that after the gold urn was declared to be used for more than two hundreds years, the gold urn itself has become part of the'traditional' way.

Today although many states express their concern about the human rights of the Tibetan people, they recognize Tibet is part of China. Even the 14th Dalai Lama, who claims representing the Tibetans, is not seeking Tibet's independence from China. This being the case, it is not constructive to any peaceful solution of the Tibet issue if one argues that historically Tibet never became part of China till 1951 and challenges China's current sovereignty over Tibet. The Dalai Lama observed that "the long history of the past does not lend itself to a simple black and white interpretation. As such, it is Page 360 not easy to derive a solution form the past history." 8

3. The current regional ethnic autonomy in Tibet

The Establishment of the Tibet Autonomous Region When the People's Republic of China announced its foundation in 1949, Tibet was still under the control of Dalai Lama. On May 23, 1951, with the signature of the "Agreement of the Central People's Government and the Local Government of Tibet on Measures for the Peaceful Liberation of Tibet," the Tibetan people got the promise of the'right to exercise regional ethnic autonomy' as one of the conditions to accept peaceful liberation.⁹ The Central Government agreed that the local government of Tibet and its governance would be generally maintained. However, the local government of Tibet was dismissed in 1959 by the Central Government because some people in the upper governing strata wanted to preserve feudal serfdom and refused to carry out democratic reform demanded by the Tibetan people.¹⁰ Soon afterwards a democratic reform of the Tibetan social system was implemented. Lands were re-distributed and some rebelling serf owners were quelled. By the democratic reform, it was proclaimed that the Tibetan people has'acquired the citizens' rights and freedom...