Germany
Report to German Parliament on Tibet (1987) [p.315]
OPINION REGARDING THE LEGAL STATUS OF TIBET BY THE GERMAN PARLIAMENT'S SCIENTIFIC RESEARCH SERVICE FOR INTERNATIONAL LAW
The following legal opinion was prepared by Dr. Hienstorfer of the Scientific Research Service for International Law, an arm of the German Parliament on August 12, 1987, at the request of German Parliamentarian Petra Kelly, a member of the Green Party. The question posed by Ms Kelly was whether or not China's incorporation of Tibet into the Chinese nation was and is effective under international law. The opinion was translated from German into English by Eva Herzer.
1. Unresolved Status Question
The German Chancellor's journey to Tibet brought the question of Tibet's incorporation into the Chinese nation to the foreground. Before the journey, Parliamentarian Petra Kelly received the following answer from the German Government, dated July 8, 1987, in response to her question as to whether or not the Chancellor would address the Chinese government regarding the unresolved international legal status of Tibet: "For the German government, as well as for the entire international community, it is clear that Tibet is a part of the Chinese nation under international law."
An examination of the statement shows that the German government has neither itself examined the annexation of Tibet nor that it can find support for its position in any international legal studies regarding the status of Tibet...
Since the invasion of Chinese troops in the year 1950, the problem of the international legal status of Tibet has not been touched. States accept the fact of China's exercise of sovereignty, and so not question China's claim; however, states almost without exception refrain from expressly recognizing Tibet as part of China. Tibet is only a part of the Chinese nation under international law if it was already a part of China before the invasion or if China thereafter effectively obtained territorial sovereignty over Tibet.
2. International Legal Status in the Year 1950
In order to determine the present international legal status, it is determinative whether Tibet was an independent state prior to China's occupation in the year 1950. In this context the prior history is not without significance.
Since the religious kings in the 7th and 8th centuries unified the then pagan Tibetan tribes into one state, the power relationships and dependencies between Tibet and China varied. At times Tibet was an independent date and at times it was subjected to a more or less loose Chinese Suzerainty. When the Dsungar people attacked Tibet in the year 1717, the Chinese emperor, upon request of the Tibetans, liberated the Dalai Lama in 1720 and entered into a treaty with him, in which Tibet submitted to the supremacy of the Manchu emperor. Tibet remained, however, so independent that the 13th Dalai Lama refused to recognize the British-Chinese trade treaty regarding Tibet until he was forces by armed British intervention in the year 1904 to award Britain certain trading rights. The relationship between Tibet and China, which until 1890 had been relatively good, was thus disturbed.
China continues to base its claim to suzerainty over Tibet on the Treaty of 1720. Tibet, on the other hand, considered the treaty terminated after the fall of the Manchu Dynasty in the year 1911. An evaluation of this dispute is not possible because the treaty is not available for examination.
For the determination of the situation in 1950, this evaluation is not necessary, since the Chinese revolution on 1911, and by the latest since the 20's, Tibet fulfilled all international law requirements for an independent state. The Jurist Commission spoke of a period of de facto complete independence from China.
In 1911, the Tibetans ejected the Chinese Army which was installed in 1910, and at the beginning of the year 1912, the 13th Dalai Lama declared his country's independence. According to the Jurist Commission, there were no legal impediments for the formal recognition of Tibet, even if it did not follow. The existence of a state does not depend on its formal recognition. According to current legal principles, formal recognition only has a declaratory effect. In any event, a factual recognition did occur. Great Britain, at that time a dominant power in the region, treated Tibet since 1912 as an independent state. In the year 1943, Tibet became more active in foreign politics, and created its own foreign affairs office. Tibetan passports were recognized as effective travel documents.
In order to clarify that china had no rights over Tibet, the Tibetan government, on the occasion of the defeat of the Kuomintang government, on the occasion of the defeat of the Kuomintang Government, required all Chinese representatives to leave the country in July 1949. With this action, Tibet terminated all limitations to its independence through contractual commitments, if such contractual commitments still existed at that time. Tibet was entitles to do so according to the riles of "clausula sic stantibus". The foundation for business ceases when a fundamental change in circumstances occurs which was not foreseen at the time a treaty was made. Such fundamental changes of circumstances occurred with the change of power by Chinese evolutionary governments in the years 1911 and 1949.
In view of China's claims and its growing force, it was a political mistake for Tibet to hesitate with the establishment of its diplomatic relationships and with its request for membership in the United Nations.
3. Ineffective Territorial Annexation
On October 7, 1950, the People's Republic of China, after previous negotiations with a Tibetan delegation, militarily invaded Tibet and incorporated it through violence into the Chinese nation.
3.1 Annexation
The incorporation of Tibet into the Chinese nation in the year 1951 evidences all international legal criteria for the fact of annexation. While the relationship of the two countries was regulated though the treaty of may 25, 1951, in which Tibet obtained a certain autonomy and China obtained supremacy over foreign affairs and the military, this treaty was but a veil for the one-sided annexation of Tibet. It was based on the military defeat of Tibet and was made against the Tibetan's will. According to Article 52 of the Vienna Convention on the Law of Treaties, a treaty made under force, confirming an occupation, is null and void. Additionally, many of the guarantees to Tibet from China were violated. With the "return to the great Motherland", as it is said in the treaty, Tibet lost its independence.
The proclamation of Tibet's independence through the government of the Dalai Lama on March 11, 1959 and the public cancellation of the treaty with China by the Dalai Lama on the 20th of June, 1959 show that the submission was caused through pressure of military invasion.
The annexation of Tibet was concluded through China's quashing of the uprising against Chinese domination and the flight of the 14th Dalai Lama in March of 1959, as well as through the dissolution of the Tibetan government and the administrative incorporation of Tibet into the Chinese system and the loss of the remainder of Tibet's autonomy. The renunciation of a formal deseating of the Dalai Lama does not contradict this result.
Under current international law, annexation does no longer result in effective territorial rights. The freedom to annexation under old international law was the result of the principle of the right to free warfare. With the development of modern international law, the right to free warfare was replaced with the prohibition of violence (Article 2, Paragraph 4, U.N. Charter). Thus followed a change from freedom to annexation to prohibition against annexation. Already before the effective date of the U.N. charter, it was commonly recognized that all annexations which took place during a war, also in completely occupied states, were ineffective under international law. The prohibition against violence only confirmed this legal status. It this follows that due to the annexation prohibition, China practices a de facto territorial domination over Tibet without effective territorial rights.
3.2 Recognition Under International Law
International recognition is seen by some authors as an instrument for the elimination of the contradiction between the reality of a successful domination of the annexed territory and the international legal situation which resulted from the ineffective method a acquisition. Recognition is a declaration of will be a state organ in which a disputed fact or an unclear legal situation is seen in a certain way as existing and is thus legitimatized. Recognition under international law stands in a relationship of tension between the principle of effective annexation and the principle of legitimation. Its legal meaning is disputed. Since the practice of recognition is politically influenced, general rules can hardly be established. For other reasons as well, China cannot support its territorial rights on recognition under international law. The Stimson Doctrine of non-recognition of territorial changes though force applies to Tibet. The doctrine seeks to prevent, in accordance with the prohibition against violence that under international law, ineffective territorial changes obtain legal effectiveness though the consolidating effect of recognition on the part of third states. In light of the many contractual and other confirmation of the Stimson Doctrine, one can conclude today that the principle of customary international law which prohibits recognition of violent territorial changes is at least in the process of being established.
Regarding the territorial appropriation of Tibet, not even the external conditions for legitimation exist. The members of the international community, especially the Federal Republic of Germany, assume that Tibet is a part of China; however, only few have expressly so determined. This occurred through China on April 29, 1954 and through Nepal on September 20, 1956. As long as the incorporation of Tibet is simply not put into question, no effective recognition under international law of this de facto status is given. In this regard, it must be considered that the prohibition against annexation and the Stimson Doctrine, which is supported by the United Nations and which prohibits the recognition of violent territorial changes, stand against the express recognition of China's territorial rights.
Recognition is also possible though tacit conclusive actions. Such actions could possibly be found in connection with the German Chancellor's journey to Tibet. However, to date, too little few pointers in that direction exist.
3.3 Adverse Possession
Under International law, territory can be acquired through adverse possession: "The continuous and peaceful display of territorial sovereignty is a good as a title." Prerequisite is the practice of effective domination which is documented to the outside world and which takes place undisturbedly, uninterruptedly, and undisputedly. The period for effective adverse possession depends on the circumstances of the concrete case.
We leave alone whether title through adverse possession can create rights to an entire state. This method of acquisition cannot be applied to the case of Tibet if for no other reason than the fact that acquisition through adverse possession is not possible of territories which were occupied in violation of the fundamental principles of the U.N. Charter, and especially through the use of violence in contradiction with international law. This would contradict the fundamental principle as it is expressed in the prohibition of annexation, in the Stimson Doctrine which is based thereon, and in Article 52 of the Vienna Treaty Convention regarding the voidness of renunciation under force. Such grave violations of international law cannot simply be healed through the process of time. Therefore, annexations of conquered territories as such can never result in acquisition of title to territory. The effectiveness of actual domination of a territory cannot result in a acquisition of territory within the framework of international law.
4. Conclusion
While the international community seems to assume that Tibet is a part of the Chinese nation, the status of Tibet has never been clarified.
At the time of Tibet's violent incorporation into the Chinese nation it was an independent state.
China has not effectively acquired territorial Title, as this would be in contravention with the basic principle of the annexation prohibition which is based on the prohibition against violence. The effectiveness of actual domination of a territory does not result in an acquisition of territory within the framework of international law.