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Report of Austrian Delegation of Legal Experts to China and Tibet (1992) [p.325]
AUSTRIAN DELEGATION OF LEGAL EXPERTS TO CHINA/TIBET, JULY 1992
Conclusions and Recommendations by Felix Ermacora and Wolfgang Benedek Vienna/Graz, September 1992
I. Introduction
From 10 to 19 July 1992, an Austrian delegation of legal experts visited Peking and Lhasa, Tibet. The mission had been agreed upon at an official visit of the Chinese Foreign Minister to Austria in October 1991. An earlier date for the visit had been postponed at short notice.
The delegation consisted of Mr. Felix Ermacora, professor of public and international law at the University of Vienna and Mr. Wolfgang Benedek, associate professor of international law at the University of Graz, who were accompanied by two members of the Austrian Embassy in Peking. The mandate of the delegation was to study the legal and social system of China and to inquire in particular into the situation of human rights in Tibet. The programme of the visit established by the Chinese People's Institute of Foreign Affairs met most of the requests of the Austrian delegation. The Delegation was, however, not allowed to bring its own interpreter for Tibetan and Chinese or to visit a reeducation camp. The delegation had prepared itself, inter alia, through contacts with human rights NGOs and Tibetans in exile as well as by studying the large amount of materials provided by all sides. After several delegations had visited Tibet in 1991, the Austrian delegation was the first of its kind to visit Tibet in 1992.
II. Conclusions
The Austrian delegation of legal experts after having visited China and Tibet in July 1992 and having Studied the pertinent documents available arrives at the following conclusions:
1. Because of the reaction of the international public to the violent repression of people's uprisings in Lhasa in 1987, 1988 and 1989 China sometimes tries to appear engaged to lead and demonstrate a policy of reconciliation.
2. In doing so, the injustice inflicted upon Tibet and its people during the Cultural Revolution is recognized.
3. According to international law the Tibetan people have a right to self-determination; they meet all the conditions, which international law required for the exercise of the right to self-determination. Tibetans in exile do request in particular independence which is one form of the right to self-determination.
4. The P.R. of China, however, is not prepared to accept the independence of Tibet and with it the application of this form of self-determination to the Tibetan people. It refers, inter alia, to an agreement with a delegation of the XIV Dalai Lama in 1951 on the relations of China with Tibet, which had been interpreted as a sort of submission of Tibet to the sovereignty of China.
5. Although there are clear signs of Chinese efforts to compensate, in the course of its reconciliation policy, the excesses of the Cultural Revolution, the continuous personal, economic and political integration of Tibet into the P.R. cannot be overlooked.
6. Beginnings of a continuous displacement of the Tibetan People through changes in the demographic structure of Tibet are recognizable. However, a total assimilation of Tibetans appears unlikely because of the low inclination of Han-Chinese to voluntarily settle down in Tibet. Nonetheless, there is a growing dominance by the Han-Chinese of economic life in Tibet.
7. The Chinese exploitation of the natural resources of Tibet primarily for purposes of the P.R. is obvious. This also is not in conformity with the pertinent human rights norms, as laid down particular in the Human Rights Covenants.
8. Tibet does have self-governance in form of national autonomy in the framework of a state structure built on the basis of marxist-leninist principles.
9. The Autonomous Region of Tibet (TAR) does enjoy a sort of legislative and administrative autonomy. The autonomy relates in particular to education, culture, local security and economic and social development. The enjoyment of autonomy is, however, subject to democratic centralism and the communist organizational principle of the so-called double supposition. The purpose of this autonomy is not to further develop the special status as an important feature of the nationality. On the contrary, the separation of state and religion, which is laid down by the constitution, in particular in view of the incidents of the Cultural Revolution has to be regarded as a separation hostile to religion. Today that separation from its character is still encroaching upon religion.
10. The administration of justice, apart from some Tibetans in the composition of courts and offices of public prosecution does not fall within the autonomy, because it is fully integrated within the Chinese legal system.
11. Minority protection granted to the nationalities in Tibet does not pay any attention to the particular connection of the Tibetan nationality with Buddhist religion. The equal status of national minorities is exclusively based on the ethnic concept of minority protection. It does not know any combination of national and religious characteristics.
12. The Chinese concept of nationalities when applied to Tibet creates a conflict of values between traditionally practised religion and belief in pragmatism and progress.
13. Visits to monasteries show that the picture of the XIV Dalai Lama can be seen everywhere. This signifies the general reverence for the Dalai Lama in Tibet.
The reconstruction of monasteries destroyed during the Cultural Revolution, which is partly being done with governmental support, is slow. The case of the monastery of Ganden is a remarkable example of theis fact. There, the decimation of monks is particularly apparent. Some of the monks might have fled during the Cultural Revolution, others have been detained at largely unknown places or may have taken up other occupations. The admission of new monks, in particular of experienced educators, is impeded by governmental measures. The lack of qualified teachers is a main problem in the monasteries.
Each monastery ought to have a politcal committee of monks ("democratic committee"), which is responsible for the relationship between the monastery and the authorities. The real authority is the party. These committees do not represent the monasticism in Tibet as such, but only the respective monastery. Monasteries are strictly controlled. For example, during the four months before the delegation's visit to the monastery of Drepung, a so-called "work-committee" was visiting there to screen the monks and to sow ideological education. The existence of ceilings for the admission of monks to monasteries is generally known although not admitted by the authorities. At present these limitations seem to be handled at least partly with care.
14. The exercise of religion in the monasteries and on the pilgrim routes seems to be relatively unhindered. However, certain prayers are not allowed and secret police does observe the practice of religion. Private exercise of religion in the family seems to be guaranteed. However, religious communities are generally not allowed to undertake any public functions.
15. The situation of human rights in Tibet has to be understood within the frame work of the conditions described. Any political expression of opinion is possible only in the framework and on the basis of the ruling constellation of power. Other political opinions are severely suppressed. Besides that, in particular to politically non-interested visitors, the situation appears relatively normal. In contacts with foreigners, the Tibetan population obviously is afraid to touch on political issues. The government, however, underlines economic rights and emphasizes its efforts to improve living conditions of Tibetans.
16. It should be underlined that the general situation of human rights in Tibet is not essentially different from the situation in China in general, but because of the independence movement which is considered as enemy of the state Number One more harshness is employed. Unlike in China, however, there is no democracy movement in Tibet. The present policy of economic opening up is therefore in contradiction to the rigorous attitude against political dissidents. This applied to all China, in particular however to Tibet. A policy of reconciliation with the political adversary does not seem to exist.
17. Malpractices against detainees or prisoners, torture to extract confessions or long-lasting detentions in isolation were said to be prohibited. Any taking of a position in favour of Tibetan independence is rigorously suppressed and punished. Even non-violent demonstration like the showing of a Tibetan flag, is considered a counter-revolutionary offence. Such persons, who at present are mainly monks or nuns from near-by monasteries, are dealt with as separatists and are generally sent for 2-3 years to re-education camps or are sentenced to prison, after which they are not allowed to return to their monasteries.
18. The delegation visited the prison "Drapchi" in Lhasa, which has been put under the responsibility of the Ministry of Justice only in February 1992. Before, it had been under the responsibility of the Ministry of Public Security. Other places of detention, which may also be used as prisons, seem to remain under the responsibility of the Office for Public Security.
19. With regard to the right to education, Tibetans, in spite of some efforts by the authorities which have to be recognized, are de facto still disadvantaged, because instructions in Tibetan language results in lesser opportunities of higher education and special courses to support Tibetan children do not exist. It has also to be noted that there are nearly no opportunities for Tibetan students to study abroad.
20. The Tibetan authorities are not prepared to put any restriction on the migration of Han-Chinese into Tibet, although Art. 43 of the Law on Regional National Autonomy of 1984 explicitly provides that the movement of the population can be controlled. In addition, there is a danger of supersession of Tibetan Culture by the growing presence of Chinese Television. Though also the use of emission in Tibetan language is increasing, the new satellite transmissions station existing only since 1991 makes it possible to receive the entire Chinese TV programme and to telecast it to all Tibet.
III. Recommendations
1. Austria should work towards the ratification of the Human Rights Covenants of the United Nations by the P.R. of China and also for the Optional Protocol to the Covenant of Civil and Political Rights.
2. Any deliberate demographic change in Tibet should be prevented.
3. Tibetans should also be protected as a "religious" minority.
4. A vigorous attempt at equalization of economic progress and environmental protection with due regard to religious concerns and interests should be aimed at.
5. There should be serious efforts in the reconstruction of monasteries destroyed during the Cultural Revolution. The assistance of UNESCO should be sought for this purpose.
6. The unconditional repatriation of Tibetans in exile on the basis of liberty and dignity should be made possible.
7. The Chinese authorities should allow an independent examination of all Tibetan places of detention; the International Committee of the Red Cross should be granted open access to all such places of detention.
8. The "Standard Minimum Rules for the Treatment of Prisoners" adopted by ECSOC should be incorporated into the Chinese criminal reform law.
9. In implementing its scholarship programme for students from developing countries, the Austrian federal government should reserve a minimum number of scholarships for Tibetan students and see to it that they are used as part of the total programme.
10. The opening up of Tibet and the new will towards cooperation by the government of the Tibet Autonomous Region should be used for projects of economic as well as of developmental cooperation in the intention of positive measures. These projects and activities should benefit in particular the Tibetan population. In all projects, in particular in the area of energy supply (hydroelectric power) and tourism, considerations of environmental and cultural protection should be taken into account.
11. In order to facilitate future visits of domestic and foreign delegation to China and Tibet, this report should be published.
12. A problem of understanding of the Chinese legal system lies in the existence of institutions, in particular in the administration, with far-reaching competences, which do not have any analogy in institutions known in the West. Also, under the same name, there might be very different institutions, which function under very different circumstances. On the other side, the Chinese counterparts often lack understanding for the determining factors and framework conditions of the Western concept of the rule of law. For all these reasons, the continuation of the dialogue is of great importance.