by Eva Herzer

(Eva Herzer, a mediator and attorney in Berkeley, California, is president of the International Committee of Lawyers for Tibet)

In the summer of 1990, Iraq invaded Kuwait. This, however, did not result in Kuwait's loss of sovereignty due to a United States lead worldwide coalition which promptly mobilized to expel the invading forces. In 1980, the Soviet Union invaded Afghanistan, faced years of international outcry and fighting with U.S. backed guerrillas, and finally under great international pressure pulled out in 1985. In 1949, China invaded Tibet, and by 1996 Tibet remains an occupied country. An estimated 1.2 million Tibetans have perished as a result of more than 40 years of occupation and the cultural genocide in Tibet continues unabated, as the world's governments stand by, virtually without action.

Is this difference in the world's response to the occupation of Tibet justified based on differences in the legal status of Tibet, Kuwait and Afghanistan before invasion. An examination of pertinent international law reveals that the answer is negative. Tibet, like these other nations, was a sovereign state, prior to its invasion and annexation. As such it is entitled to govern itself. It's legal claim of sovereignty is based on both territorial integrity and the right to self-determination. This article will examine each in turn.

I. TERRITORIAL INTEGRITY

1. Historical Perspective

While China claims that Tibet has always been a part of China, Tibet has in fact a history of at least 1300 years of independence from China. In A.D. 821 China and Tibet ended almost 200 years of fighting with a treaty engraved on three stone pillars, one of which surprisingly still stands in front of the Jokhan cathedral in Lhasa. The treaty reads in part:

" Both Tibet and China shall keep the country and frontiers of which they are now possessed. The whole region to the East of that being the country of Great China and the whole region to the West being assuredly the country of Great Tibet, from either side there shall be no warfare, no hostile invasions, and no seizure of territory.....And in order that this agreement establishing a great era when Tibetans shall be happy in Tibet and Chinese shall be happy in China shall never be changed, the Three Jewels, the body of Saints, the sun and the moon, planets and stars have been invoked as witnesses."

In the 13th and 14th centuries both China and Tibet came under the influence of the Mongol empire. China claims today that Tibet and China during that time became one country by virtue of the Mongols domination of both nations. In evaluating this claim it must first be remembered that virtually all of Asia was dominated by the Mongols under Kublai Khan and his successors, who ruled the largest empire in human history. Secondly the respective relationships between the Mongols and the Tibetans and between the Mongols and the Chinese must be examined. These two relationships were not only radically different in nature but they also started and ended at different times. Tibet came under Mongol influence before Kublai Khan's conquest of China and regained complete independence from the Mongols several decades before China regained its independence. China was militarily conquered by the Mongols, while the Tibetans and the Mongols established the historically unique "priest-patron" relationship, also know as "cho-yon". The Tibetans and Mongols have always shared a close racial and cultural affinity. The Mongol aristocracy had converted to Buddhism and sought spiritual guidance and moral legitimacy for the rule of their vast empire from the Tibetan theocracy. As Tibet's patrons they pledged to protect it against foreign invasions. In turn Tibetans promised loyalty to the Mongol empire. The Mongol Tibetan relationship was thus based on mutual respect and dual responsibility. In stark contrast, the Mongol Chinese relationship was based on military conquest and domination. The Mongols ruled China, while the Tibetans ruled Tibet. Mongol influence in Tibet waned and eventually ceased with the decline of the Mongol empire in the mid- 14th century.

In 1639, the Dalai Lama established another cho-yon relationship, this time with the Manchu Emperor who, in 1644 conquered China and established the Qing Dynasty. In 1720, the Manchus, fulfilling their role as protectors of Tibet, at the request of the Tibetans, entered Lhasa and helped the Tibetan government solidify its position following an occupation by the Dzungar Mongols. While the cho-yon relationship may have been formalized in writing in 1720 by treaty, no evidence of the treaty remains. By the middle of the 19th century, Manchu influence in Tibet had waned considerably as the Manchu empire began to disintegrate. In 1842 and 1856 the Manchus were incapable of responding to Tibetan calls for assistance against repeated Nepalese Gorkha invasions. The Tibetans drove back the Gorkhas with no assistance and concluded bi-lateral peace treaties. In 1911 the Tibet Mongol relationship came to its final end with the fall of the Manchu dynasty.

Tibet formally declared its independence in 1912 and continued to conduct itself as a fully sovereign nation until its invasion by China in 1949. Tibet governed itself without foreign influence, conducted its own foreign affairs, had its own army and operated its own postal system. Tibet enjoyed de facto recognition by its neighbors as well as by Britain, with whom Tibet entered into a series of treaties regarding travel and trade.

2. Effect of the Chinese Invasion

Tibet was an independent state at the time of the Chinese invasion and, under international law, states are presumed to remain in existence until that assumption can be rebutted. China is unable to show that it has legally acquired title to Tibet since the forceful annexation. In 1951, a Tibetan delegation to Beijing signed the so-called Seventeen-Point Agreement through which Tibet was to control its internal affairs but cede control over external affairs to China. The delegation was forced to sign the agreement under threats of violence and was denied an opportunity to consult Lhasa beforehand. The delegation informed the Chinese that they had no authority so sign such an agreement and did not have the official government seals needed to formalize the treaty. Upon learning of the treaty , Lhasa immediately telegraphed Beijing to declare that the treaty was unacceptable. It is also important to note that Chinese troops were occupying large parts of Tibet at the time this treaty was signed. Since this treaty was signed under duress it was null and void since, according to Article 52 of the Vienna Conventions of the Law of Treaties, any agreement signed under duress is void. Furthermore, China began to violate the terms of the agreement immediately following its signing.

There is no legal justification for China's interference with Tibet's territorial integrety. Forceful annexations are in violation of international law. Article 2(4) of the United Nations Charter expressly prohibits annexation by force. Therefore China's invasion and continuing occupation of Tibet did not confer any rights to China, rather, China is guilty of an illegal military invasion colonization of Tibet in violation of international law.

II. The RIGHT TO SELF-DETERMINATION

1. Tibetans as a "People"

In addition to Tibet's historical territorial right to sovereignty, the Tibetan people have a right to self-determination. The right of self-determination is set forth in Article 1(2) of the United Nations Charter, which declares that the purpose of the United Nations is "to develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples." Further, 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.

The right to self-determination is also set forth in the Universal Declaration of Human Rights, which is widely recognize as customary international law. While the existence of the right to self-determination is not in question, what "people" have the right to it remains an issue. Lacking a specific legal definition, scholars have developed a generally agreed upon definition of the "people" who are entitled to exercise the right to self-determination. That definition includes objective components such as a common race, language, religion, territory, and history as well as the subjective component of a common awareness as a people. Tibetans clearly meet both the objective and the subjective components of this definition for what constitutes a people. Tibetans are a distinct ethnic group with their own language, religion, culture and history completely distinct from that of the Chinese people. In fact, there is much evidence that even the Chinese have looked at the Tibetans as a separate race for over 2,000 years. Tibetans' continued resistance to Chinese rule inside Tibet and the active role of the Tibetan government in exile are evidence of the Tibetans strong awareness as a people. Furthermore, Tibet is both geographically and economically viable and self-determination for Tibetans would further not only human rights and dignity, but also increase peace and stability in the region. Acting as a buffer zone between India and China, Tibet would help cool one of the most militarized and hotly contested borders in the world.

2. Government Legitimacy

Additionally, as has been stated by the International Committee of Jurists, the deprivation of human rights by a government is evidence of a lack of governmental legitimacy and triggers the right of self- determination for the oppressed people. As set forth in the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations (General Assembly Resolution 2625), territorial integrity is a right only of legitimate governments which "conduct themselves in compliance with the principles of equal rights and self-determination of peoples." This requires that the government's authority not only be based on the will of the governed, but that the government also guarantees political, civil, economic, social and cultural rights equally to the governed population. China, however, systematically violates the rights of the Tibetan people. China's practices in Tibet include arbitrary arrests and detention, torture, reproductive rights violations, religious repression and extra-judicial executions, all apparently intended to break the Tibetan spirit. Furthermore, China continues to transfers millions of its own people into Tibet in violation of Article 49 of the Fourth Geneva Convention and engages in environmental destruction in Tibet.

CONCLUSION

Even though the United Nation's General Assembly in 1961 and 1965 passed resolutions recognizing the Tibetans' right to self-determination, the United Nations has taken no steps to restore Tibet's sovereignty. Occasionally, United Nations independent expert bodies draw attention to China's international law violations. However, the political bodies within the United Nations system who are responsible for policy and action, more often than not, refuse to intervene. This year's session of the Human Rights Commission, which under pressure from China, refused to even discuss a resolution on human rights abuses in China, is an example of the United Nations' unwillingness to uphold international law.

Today, the political will of nation states to uphold international law has fallen victim to self-serving economic interests. Nations are competing with each other for the opportunity to gain a share of China's 1.2 billion people consumer market. Critisizing China on human rights violations in general or the issue of Tibet specifically, invariably leads to stong protests by China and a freeze in economic relations. Thus, the German foreign minister's scheduled visit to China was cancelled earlier this summer when the German parliament passed a resolution urging China to cease human rights violations in Tibet and to enter into negotiations with the Tibetan Government in Exile. Within days of this action the press reported a warming of relations between China and the United States. So far nations have not been willing to unify behind the rule of law, rather when one nation calls on China to comply with international law, others rush to the opportunity to secure new business deals.

This leads us to ask, what are the prerequisites for a civilized world community? What is the difference between the ethics of an individual and a community? Is it not that individuals look out for their own good, while a community seeks to protect the welfare of all of its members? The same we believe is true for nation states and the community of nations. It is important to remember that 185 nation states have agreed, as members of the United Nations, to be bound by international laws, standards and norms, yet they appear too often unwilling to call each other on their violations of international law. They are even less ready to institute effective enforcement mechanisms.

The blame for the continued colonization of Tibet therefore does not only rest with China, but also with all United Nations member states. It is time for our governments to not only look regretfully, or with a pointed finger, to the past, such as the annihilation of the Native American populations or the German Holocaust, but to stop todays human rights violations through decisive and coordinated international actions. We believe it is our individual moral responsibility to persuade our governments to monitor human rights violations internationally, to openly censor violators and to promote an effective system for enforcement of international law.

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