Legal Autonomy of Tibet: A Tibetan Lawyer's Perspective

• Author: Lobsang Sangay
• Position: Research Associate at the East Asian Legal Studies Program, Harvard Law School.
• Pages: 335-355

Page 335

1. Introduction

The March 2008 uprising in Tibet was historic. Its geographic reach spanned 100 Tibetan counties, the majority of which lie outside Tibet Autonomous Region (TAR) in Qinghai and Sichuan Tibetan areas. Its participants came from all walks of life, and included monks and lay people, students and employed workers, nomads and farmers, young and old. The protests were spontaneous--and inevitable. The combination of simmering resentment over the failure of the Dalai Lama's six-year-long negotiations with Beijing (2002-2008), plus cultural assimilation, political repression, and economic marginalization, and the influx of Han Chinese settling in Tibet, had pushed Tibetans to the breaking point.

The 2008 March Uprising resembles the 1959 Uprising and similar protests in the late 1980s, all of which followed periods of attempted dialogue between Chinese and Tibetan leaders. There is a co-relationship between unsuccessful dialogues and growing frustration, and between unsuccessful dialogue and uprisings. When dialogue constantly fails, as in the case of the six dialogues between 2002 and 2008, the Uprising becomes not a question of if, but when. Protestors did not reject the Dalai Lama's call for Page 336dialogue and negotiations, but rather, Beijing's refusal to take those negotiations seriously. The fault is not with the Dalai Lama but the prevailing hardliner attitude of the Chinese government, which has not been willing to genuinely negotiate. Because of this unwillingness, Tibetans see the Dalai Lama as being taken for a ride.¹

Instead of acknowledging the shortcomings of the negotiations, Zhang Qingli, the Party Secretary of Tibet Autonomous Region, blames the Dalai Lama for the uprising and labels him "a wolf wrapped in monk's robes, a devil with a human face and a beast's heart." He uses language from the Cultural Revolution lexicon, stating, "We are in the midst of a fierce struggle involving blood and fire, a life-and-death struggle with the Dalai clique." 2

Even the Chinese Prime Minister Wen Jiabao, joins the fray and claims, "We have plenty of evidence proving that this incident was organized, premeditated, masterminded, and inflicted by the Dalai clique." However, "the Los Angeles Times described the evidence produced as "little more than a schedule of international meetings by foreign Tibet activists" that "would pass for normal political activity in most countries." The list cited "Tibetan Solidarity Committee"⁴ set up by Tibet's exile government in India in late March (about which Beijing had been carefully informed, and as all exiled Tibetans knew, to the discontent of many) to persuade exiled demonstrators to avoid violence and to stop calling for independence or even freedom."⁵ Evidence proving that the Dalai Lama instigated the uprising has yet to be shown.

The Chinese government responded to the protests in Tibet and other ethnic Tibetan areas with undeclared martial law with more than a thousand disappeared, arbitrary detention and more than two hundred dead.⁶ The Uprising might be an omen that Page 337 violent uprisings are in the offing if the issue of Tibet is not addressed quickly. The zero sum game of rhetorical vitriol should wage both sides to find a peaceful resolution on Tibet. Instead the Chinese government's draconian response echoed its historic reactions to unrest in Tibet. This response raises a crucial question: Does the Chinese government want to continue its hardliner policy in Tibet, or does it see that it is time to revise it with a moderate approach, in order to reach an agreement with the Dalai Lama?

With this question in mind, I would argue that under International Law, the Dalai Lama has a range of options to argue that Tibet was once an independent country, that it is under illegal occupation, and that therefore it is entitled to the right of self- determination. However, the Dalai Lama does not advocate a solution under international law. He seeks a solution within the framework of the Chinese Constitution, thereby choosing a moderate and rational path to reach "genuine autonomy for all Tibetans." I will address both of these frameworks, examining first that of International Law, and second, that of the Chinese Constitution:

2. Historical Background and International Law

One of the Chinese government's main contentions is its insistence that the Dalai Lama recognize that Tibet has always been "an integral part of China." Was Tibet an independent state or part of China? Historical context helps shed light on this question, and therefore, on the kind of status Tibet could possess. To analyze this historical status, it is important to first understand how international law defines "state" and to examine whether Tibet meets the criteria.

The Montevideo Convention on the Rights and Duties of States, particularly Article 1, articulates that a state's international legal personality requires (a) a permanent population, (b) a defined territory, (c) government, and (d) capacity to enter into relations with other states."⁷

Some international legal scholars insist additional criteria include that "A State is, and becomes, an international Person through recognition only and exclusively."⁸ This stipulation means that to enjoy the status of state, the entity has to be recognized by others. On the other hand, the Restatement (Third) of Foreign Relations Law opines that formal recognition by and to any state is not the main requirement, and that as long as Page 338 any entity fulfills the conventional Montevideo criteria of having the capacity to enter into relations, but without recognition, it is "required to be recognized as a state."⁹

Whether the main criteria is the capacity to enter into relations with other states, or to receive recognition from other states, Tibet fulfills both. In the 8th Century, Tibet entered into relations with and received recognized from none other than China. This is recognized by a treaty in 821/22 signed between the governments of Tibet and China, which still exists in the form of a stone pillar in Lhasa and reads as follows:

Both Tibet and China shall guard the land and frontiers of which they have hitherto held possession. All to the east of the frontier is the country of Great China. All to the west is certainly the country of Great Tibet.

Henceforth, there shall be no fighting as between enemies, and neither side will carry war into the other's country... This Agreement, that the Tibetans shall be happy in Tibet and the Chinese happy in China and the great kingdoms united, shall never be changed.¹⁰

The above stated treaty clearly established that Tibet was an independent nation recognized by the Chinese government. This historical fact is endorsed by prominent Chinese historian Ge Jianxiong of Fudan University, who stated in his article "How Big was the 8th-century "China"?:

If "China" means the land of the Tang Dynasty, the Qinghai-Tibetan Plateau, which was ruled by Tubo/Tufan, does not count. Tubo/Tufan was a sovereign independent of the Tang Dynasty. At least it was not administered by the Tang Dynasty. Otherwise, there would have been no need for Tang Taizong to marry Princess Wencheng to the Tibetan king; there would have been no need to erect the Tang-Tubo/Tufan alliance table. It would be a defiance of history if we claim that since the Tang Dynasty Tibet has always been a part of China.¹¹

There is no dispute over the fact that Tibet was an independent nation in the 8th century, fulfilling the criteria of the Montevideo Convention on the Rights and Duties of Page 339 States, recognized by China and verified by a highly respected Mainland Chinese historian.

Even though conventional wisdom says that "recognition, as a public act of state, is an optional and political act and there is no legal duty in this regard,"¹² it can be demonstrated that Tibet entered into sufficient relations with its neighbors and concluded various treaties and agreements. This evidence further buttresses Tibet's status as an independent nation, Examples of these relations are as follows:

Convention between Great Britain, China, and Tibet, (July 3, 1914), Treaty of Friendship and Alliance Between the Government of Mongolia and Tibet, (Dec. 29, 1912), Convention Between Great Britain and Thibet, (September 7, 1904) and Treaty Between Nepal and Tibet, (March 1956), and Peace Treaty Between Ladakh and Tibet at Tingmosgang (1684).¹³

The above treaties validate an entity as an independent nation. Comparatively when the United Nations was founded in 1945, there were only fifty-five nation-states as members and presently, there are 193 members, of which, many did not fulfill the four criteria of the Montevideo Convention on the Rights and Duties of States, or at least didn't have as many treaty agreements with other nations. If the status of Tibet as a nation is in doubt, then revisiting and comparing the status of many of the United Nations members will lead to the conclusion that Tibet fares much better in meeting the criteria as a state. Most recently, this is demonstrated by the creation of states and UN members after the collapse of the Soviet Union.

Looking forward to later centuries, there are claims and counter claims about if and when Tibet became a protectorate/part of China. About this dispute, historian Eliot Sperling encapsulates conventional wisdom as follows:¹⁴

But although Tibet did submit to the Mongol and Manchu Empires, neither attached Tibet to China (emphasis added). The same documentary record that shows Tibetan subjugation to the Mongols and Manchus also shows that China's intervening Ming Dynasty (which ruled from 1368 to 1644) had no control over Tibet (emphasis added). This is problematic...