Legal Arguments in Reference to the World Bank's Proposed China Western Poverty Reduction Project

Prepared by the International Committee of Lawyers for Tibet

June 1999

The proposed resettlement of 61,775 non-Tibetans into Tulan Mongolian and Tibetan Autonomous Prefecture in Qinghai Province violates international law prohibiting population transfer and guaranteeing the Tibetan people the right of self-determination. The World Bank should view the resettlement program in light of the fact that Tibet was independent prior to China's 1950 invasion and is now an illegally occupied country. Even if the Bank chooses to ignore the weight of legal opinion that Tibet was independent, however, this project will still violate the Tibetan people's right to self-determination. The Bank should also evaluate this resettlement program in the context of China's broader policy and practice of transferring ethnic Chinese into Tibet (both the Tibet Autonomous Region (TAR) and the areas outside the TAR within historical Tibet) and the human rights abuses that have resulted.

A. Population Transfer Into Occupied Tibet Violates The Fourth Geneva Convention

The great weight of independent legal opinion has concluded that Tibet was independent when China invaded in 1950 and is now an illegally occupied territory. Population transfer, when it involves resettlement into occupied territory, violates the Fourth Geneva Convention, which China has ratified. Under article 49 of the Fourth Geneva Convention, an occupying power may not "deport or transfer parts of its own civilian population into the territory it occupies." Article 49 applies to belligerent occupations and to prolonged occupations after military operations have ceased. Article 47 extends the Convention's protections regardless of the change of status of Tibet today. The Convention's protections also make irrelevant China's claims to sovereignty over Tibet.

China's occupation of Tibet and its transfer of millions of ethnic Chinese into Tibetan territory are illegal. World Bank support of the Qaidam Basin resettlement plan will therefore aid China's violation of the Fourth Geneva Convention.

B. Population Transfer Violates The Tibetans' Right Of Self-Determination

Even if Tibet were not illegally occupied, the resettlement project would violate Tibetans' human rights. The right of self-determination provides:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The Tibetans are a people with a distinct language, culture, religion and history and are thus possessed of a right to self-determination provided under international law. The United Nations' Special Rapporteur on Population Transfer has observed more specifically that a people with a right of self-determination have a right to control their economic, cultural and political destiny free of domination by implanted settlers.

The Qaidam Basin resettlement plan, which does not have the consent of the Tibetan people, denies the Tibetans in Tulan County their right to control their own cultural, economic and political destiny. The Bank has been provided with two letters indicating opposition to the project by Tibetans living in the area to be resettled. Moreover, in light of the Chinese government's repression of virtually any dissent to government projects, especially in Tibet, we doubt that "free and informed consent" can be meaningfully obtained. The transfer of non-Tibetans into Tulan County therefore violates the Tibetans' rights under international law.

The Bank does not even have to determine that the Tibetans are a "people" in order to conclude that the resettlement will violate international law. The Special Rapporteur has defined population transfer as "a practice or policy having the purpose or effect of moving persons into or out of an area, either within or across an international border, or within, into or out of an occupied territory, without the free and informed consent of the transferred population and any receiving population." The salient feature of population transfer is thus a government-sponsored movement of people without the "free and informed consent" of those living in the area to be resettled. This project is government-sponsored and no consent has been obtained.

C. Population Transfer Violates International Law Even When Carried Out For Economic Development

It does not matter that the project may purport to alleviate poverty among the settlers or to develop Tulan County. The Special Rapporteur's Final Report in particular notes that the implantation of settlers is unlawful even when carried on under the guise of economic development and even when "subtle and incremental." Absent consent, it is simply not legal to deny the Tibetans their right to decide on their own economic development or to burden the Tibetans with implanted settlers.

D. The Chinese Government Acknowledges A Policy Of Population Transfer Into Tibet

In 1994, the Chinese government publicly acknowledged that it encourages and supports migration into Tibet. Recent statements by government leaders and in official Chinese publications have acknowledged government policies and programs to encourage Chinese migration to Tibet. Most recently, the 1997 Plan for the Tibet Autonomous Region focuses on attracting "private entrepreneurs from outside Tibet" as a principal means to expand the economy. The oases and mineral reserves of Qaidam Basin in Qinghai Province are particularly attractive to Chinese policy-makers and settlers. In addition, the large prison population in the autonomous prefectures in Qinghai Province also attracts families of prisoners and prisoners who are released are often forced to remain and settle in Qinghai.

E. The World Bank Should Not Support Programs That Will Result In Further Human Rights Abuses Against Tibetans

The Special Rapporteur recognizes that the implantation of settlers affects the basic human rights of inhabitants and settlers. China's military occupation and population transfer into Tibet provide dramatic evidence for this conclusion, as they have brought with them very serious violations of a number of human rights laws. These include:

The population transfer into Tibet that has already taken place, with its accompanying abuse of civil and political rights, restrictive child-bearing practices, threats to the physical health of Tibetans, discrimination, economic and physical dislocation, overburden on the fragile environment, and exploitation of resources, is not just infringing on the Tibetans' human rights, it is threatening the survival of the Tibetan people and culture. The World Bank should not contribute to any further violation of the Tibetan people's human rights.


1 Tibet Information Network, Special Report: Development and Population Transfer in Qinghai: The Qaidam Basin Project (April 27, 1999).

2 International Commission of Jurists, The Question of Tibet and the Rule of Law (Geneva 1959); International Commission of Jurists, Tibet: Human Rights and the Rule of Law (Geneva 1997)(hereinafter "ICJ 1997")(reaffirming findings of 1959 report); Tibet: The Position in International Law, Report of the Conference of International Lawyers on Issues Relating to Self-Determination and Independence for Tibet, at 147 (London 1993)(hereinafter "The London Statement"); International Committee of Lawyers for Tibet, The Case Concerning Tibet: Tibet's Sovereignty and the Tibetan Peoples' Right to Self-Determination (Berkeley 1998)(hereinafter "The Case Concerning Tibet").

3 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), ratified by China on 28 December 1956. 444 U.N.T.S. No. 973 (1957).

4 A.S. Al-Khasawneh and R. Hatano, The Human Rights Dimensions of Population Transfer, Including the Implantation of Settlers: Preliminary Report (U.N. Doc. No. E/CN.4/Sub.2/1993/17) (6 July 1993) at 37 (hereinafter Preliminary Report).

5 Article 47 provides: "Protected persons who are in occupied territory shall not be deprived, in any case or any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, or by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or the part of the occupied territory."

6 See Dr. Michael van Walt van Praag, Population Transfer and the Survival of the Tibetan Identity, at 25-29 (2d ed. 1988).

7 See common article 1 to the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. See also Charter of the United Nations, art. 1, 2; World Conference on Human Rights: The Vienna Declaration and Programme of Action, art. 2 (unanimously adopted June 1993); Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 2625 (XV) 1960, 1.

8 The London Statement, supra note 2, at 146.

9 A.S. Al-Khasawneh, Human Rights And Population Transfer, Final Report (U.N. Doc. No. E/CN.4/Sub.2/1997/23) (27 June 1997)(hereinafter "Final Report").

10 Id., at Annex II, Draft Declaration On Population Transfer And The Implantation Of Settlers, art. 3; see also Preliminary Report, supra note 4, at 6 (defining population transfer as "the movement of people as a consequence of political and/or economic processes in which the State Government or State-authorized agencies participate").

11 Final Report, supra note 9, at 9, 10(a).

12 International Campaign for Tibet, China Admits to Policy of Promoting Chinese Migration to Tibet, Tibetan Environment & Development News (October 1994). The Central Committee of the Communist Party's Third Work Forum on Tibet announced preferential treatment for workers migrating to Tibet to accompany 62 new economic development projects for Tibet. The government had previously denied any policy to relocate Chinese into Tibet, but other sources have acknowledged that such a policy has existed for decades. For example, Deng Xiaoping told President Jimmy Carter in 1987 that Chinese were being encouraged to move to Tibet in order "to develop its resources." Reuters, Beijing, June 30, 1987.

13 ICJ 1997, supra note 2, at 106-114. See also Tibet Support Group UK, New Majority: Chinese Population Transfer into Tibet (London 1995) at 52-55, 60-61, 99-100, noting the 1992 designation of Lhasa as a "special economic zone" and programs and policies adopted to accelerate economic development within Tibet. The development of Tibet (and other western regions) appears to be part of a more general effort to reduce the population strain on the eastern provinces, where 90% of China's population lives. Id. at 45-50. The PRC offers wages, pensions and other benefits to relocated workers that are far more generous than are available in eastern China (on average 87% higher). International Campaign for Tibet, Population Transfer and the Future of Tibet, at 8 (April 1993)(hereinafter "ICT 1993"). In addition, regulations adopted in 1992 provide financial incentives including lower taxes and land use rates to attract Chinese entrepreneurs to Tibet. These same regulations guarantee employment to family members of relocating Chinese. 1992 Provisional Regulations of the Peoples Government of the Tibet Autonomous Region on the Encouragement of Foreign Investment in Tibet, promulgated July 14, 1992. The regulations apply mainly to Chinese businesspersons and generally are not available to Tibetans unless in a partnership with a Chinese or foreign investor.

PRC policies and programs, moreover, encourage a large "floating population" to migrate to Tibet. New Majority, supra, at 45-50, 56-57 (discussing the emergence of a large "floating population" as a result of economic reforms and efforts by the Chinese leadership to direct this population to the north and west and away from the already overburdened eastern and southern provinces). The government has built housing, schools, hospitals and even shopkeepers' stalls to support the Chinese migration. Id. at 107-110 (government danweis (communal work units), including the PLA compound in Lhasa, allowed to replace walls with shops made available to private entrepreneurs). The vast majority of new private businesses in Lhasa are Chinese. China has relaxed regulations to make it simpler to open a private enterprise in Tibet and substantial numbers of Chinese are taking advantage. Id. at 57.

The government has been building and improving major roads connecting Chinese provinces with Lhasa and other Tibetan cities, and is now working on railroad connections. New Majority, supra, at 55-56. The government recently removed all checkpoints on roads leading from neighboring provinces to Tibet. Id. at 56-57; ICT 1993, supra, at 6. The government also resettles Chinese cadres and technical experts involuntarily (New Majority, supra, at 68, 119-20) and actively recruits others. Id. at 113-14, 119-20.

14 Tibet Information Network, TIN News Update, 18 July 1997.

15 Id. at 146-148; van Walt van Praag, supra note 6, at 10-11("Qinghai Gulag" estimated to have several million inmates, many of whom are forced to live in internal exile following release); ICT 1993, supra note 5, at 3, n. 3. 16 Tibet Information Network, Hostile Elements, A Study of Political Imprisonment in Tibet: 1987-1998 (London 1999); Physicians for Human Rights, Striking Hard: Torture in Tibet (1997); Tibet Information Network and Human Rights Watch/Asia, Cutting Off The Serpent's Head: Tightening Control in Tibet, 1994-1995 (London 1996); International Committee of Lawyers for Tibet, Women's Commission for Refugee Women and Children and Tibetan Centre for Human Rights and Democracy, Violence and Discrimination Against Tibetan Women: A Report submitted to the United Nations Committee on the Elimination of Discrimination Against Women, at 6-10 (December 1998)(reporting interviews of Tibetan refugee women who were tortured, witnessed torture, or relayed accounts of torture).

17 Violence and Discrimination Against Tibetan Women, supra note 16, at 10-17 (reporting interviews of Tibetan refugee women who described coerced and forced abortions and sterilizations and observing that a prima facie case of genocide can be made based on government actions to prevent births among Tibetans while simultaneously transferring millions of Chinese into Tibet); Eva Herzer & Sara B. Levin, China's Denial of Tibetan Women's Rights to Reproductive Freedom, 3 Michigan J. of Gender & Law 1 (1966). Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180 (18 December 1979), entered into force 3 September 1981, ratified by China on 4 November 1980; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (10 December 1984) entered into force 27 June 1987, ratified by China on 11 March 1988; Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 A (III) ( December 1948), entered into force 12 January 1951. The Genocide Convention defines "genocide" to include acts intended to prevent births among a population.

18 One report notes that the height of Tibetan children has been declining over the past twenty years, apparently due to nutritional deficiencies created by the Chinese occupation and population transfer. Nancy Harris, M.D., et al., Effects of Age, Community Location and Illness on Nutritional Status of High Altitude Tibetan Children, 0-7 Years, International Child Health: A Digest of Current Information (October 1996); See also Save the Children Fund & Lhasa Health Bureau, Nutrition, Health, Water and Sanitation Assessment in the Lhasa Valley (1990).

19 Tibet Information Network, News Review: Reports from Tibet, 1998, at 3-17 (London 1999); ICJ 1997, supra note 2, at 269-300. The "re-education" campaign in monasteries and nunneries has intensified in recent years.

20 ICJ 1997, supra note 2, at 204-220; Tibetan Centre for Human Rights and Democracy, The Next Generation: The State of Education in Tibet Today (1997). Tibetan language instruction is limited to primary schools, facilities for Tibetan children are generally poorer than for Chinese children, and illiteracy is still high among Tibetans.

21 ICJ 1997, supra note 2, at 162-189; The Case Concerning Tibet, supra note 2, at 78-83. The rapid increase in settlers and soldiers lead to the first famines in Tibet's history, with the death of over 340,000 Tibetans, because the land could not support the rapid increase. Ill-conceived efforts to boost productivity of lands suitable only for nomadic grazing or limited farming has resulted in widespread desertification.

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