The Legal Status of Tibet and China's International Responsibilities in Managing Tibet's Environment: Using Law and Politics to Protect Tibet's Environment.
by Margit Roos-Collins

(The following is based on a paper presented by Tibet Justice Center member Margit Roos-Collins at a conference on Tibet and the environment in Paris.)

I will summarize the current international legal framework as it affects Tibet's prospects for change and propose avenues of action for the international community. My focus is on two goals: first, to speed the day when Tibetans can freely exercise their right of self-determination in government and in resource management; and second, to reduce the environmental harm that will occur in the meantime.

Self-Determination and Tibet's Legal Status
Given the difference in cultural values between the Tibetans and the Chinese with regard to natural resource use, the most effective way to protect Tibet's environment would be to restore Tibetan control of Tibet. It is not the only way, and we will talk about ways to influence China's management policies, but I would like to begin here, with an analysis of Tibet's legal status in regard to the human right of self-determination in governance. This will be necessarily a brief review.

Self-determination has preeminent status in human rights law: it has been treated as the most basic of rights. The United Nations Charter, which China ratified, provides in Article 1 that the purpose of the U.N. is to "develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples."[2]

Furthermore, when the U.N. General Assembly produced the Declaration on Principles of International Law, listing the seven principles it considered most basic to relationships between nations, the list included "the principle of equal rights and self-determination of peoples."[3]

Are the Tibetans a people, such that they would have a right of self-determination separate from the right of the other citizens of China? This is not a trivial question, because there is no generally accepted legal definition of a people.[4] However, the U.N.'s primary experts on the subject are arguably the members of the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights. The Sub-Commission has acknowledged the Tibetans as a distinct people. Its resolution 1991/10, titled "Situation in Tibet," referred to the "distinct cultural, religious and national identity of the Tibetan people," in connection with calling upon the Chinese government to respect fully the Tibetans' fundamental rights.[5]

The Chinese government also seems to acknowledge Tibetans as a people distinct from the Han, China's majority ethnic group, in that it has designated Tibetans a "minority nationality" sometimes subject to different laws than the Han. For example, in past years, Tibetans were theoretically allowed to have more than one child, unlike the Han, because of their minority status.

So we have a people. And what, exactly, is this right of self-determination to which they are legally entitled? Self-determination was defined in the U.N. Declaration on Principles to include not only "establishment of a sovereign ... State" but also "the free association with an independent State or the emergence into any other political status."[6] In other words, Tibetans could exercise this right by choosing to remain affiliated with China in some fashion. What counts is that the decision be made freely.

The Tibetan people have not had that political freedom of choice since the Chinese military takeover in 1950.

So -- legally, we have a people, whose right to self-determination is being denied. Now what? Time to go to court? It's not so easy. There is currently no legal forum available in which to pursue enforcement of this right.

International law in its present form is consensual. Countries must voluntarily agree to submit to the jurisdiction of a court or other tribunal. The International Court of Justice (or ICJ), also called the World Court, has no authority over China (or the U.S. or France for that matter) because China has not chosen to give it authority (which nations do by filing an Article 36 (2) declaration of submittal).[7]

If China were sued before the ICJ and if for some reason it responded to the substance of the claims, then the ICJ would consider China to have de facto submitted itself to ICJ jurisdiction. But who could sue on behalf of Tibetans? It's not clear to me that another nation could do so. The ICJ was not designed to deal with self-determination claims. The system has a hard time dealing with any of the collective human rights

Even if the ICJ had jurisdiction and if it ruled that China must allow Tibetans a free election to determine their political future, China could ignore the ruling. Why? Because the enforcement power behind the Court's rulings is the Security Council which is authorized to develop enforcement measures if a ruling is ignored.[8] Not only has the Council tended to avoid using this power, but China, as a permanent member of the Council, would have a veto over any measure that might be proposed against it.

What about making a claim before the Human Rights Committee? It is the primary forum authorized to hear claims of human rights violations from both states[9] and individuals[10] and to pass judgment. However, its only jurisdiction is over claims filed under the International Covenant on Civil and Political Rights. The Covenant begins with the right to self-determination,[11] but China has not ratified the Covenant and thus is not bound by it.[12]

So now what? If China is not subject to any traditional legal process, could nations decide collectively to take some action upholding the principle of self-determination? Before doing so, the UN Declaration on Principles would require them to balance at least two other principles with that of self-determination, having to do with the need to stay out of other states' affairs.[13] But the law is secondary. As I mentioned earlier, the actions of the Security Council can be controlled by China's veto. The UN would never have voted to fight for Kuwait's right to self-determination if Iraq had had a veto. And the General Assembly has not been willing to criticize China. The last time the General Assembly spoke up as a body about the situation in Tibet, the People's Republic of China was not yet a member.[14] It was 1965 and China was represented by the government of Taiwan. So the UN as a whole seems unlikely to speak or act on this issue.

China's International Environmental Responsibilities Under Tort Law
If the law of human rights, both collective and individual, is so unenforceable against China, what about China's responsibilities under international tort law? Tort law is the civil law governing the duties of care that individuals or nations owe to each other, including the duty not to harm land belonging to another. One might at least hope to reach transboundary environmental issues this way. If it were true that clearcutting in Tibet were predictably and significantly increasing flooding in India or Bangladesh, then those countries should have a tort claim against China to try to end or limit the practice. However, we have heard from Sanjeev Prakash that the evidentiary link is at least subject to dispute by experts, which would undercut the argument that China has a duty to refrain. Transboundary tort law has also failed to develop adequately; most of the handful of cases were decided decades ago.[15] Some of the problems have been confusion over what or whose laws to apply, what level of proof is required, what remedies to enforce, and in this instance, there is again the problem of what tribunal might have jurisdiction over China.[16]

Using the United Nations to Publicize Tibet's Situation
International law thus has very little to offer Tibetans in terms of enforcing results. This is not to say that it is irrelevant. The extensive conferences and scholarly writing on environmental and human rights law are gradually developing a shared, cross-cultural vision of behavioral norms that form a minimum standard, a bottom line for respectable citizenship in the community of nations. And a focus on China's violation of those norms can provide a valuable rallying cry to the international community -- a way to organize people's thoughts and energies on Tibet's behalf. Even though the United Nations has little capacity to require China to meet human rights or environmental standards, its commissions and conferences provide one of the most important forums to document and publicize China's abuse of those standards.

The idea of a right to a healthy environment is a relative newcomer to the U.N. scene, but it is getting a lot of attention. While the experts work to give it shape, their debates offer numerous opportunities to draw attention to the ways that this right, whatever its ultimate form, is being trampled in Tibet. For example, the Special Rapporteur studying this issue for the UN Human Rights Subcommission solicited reports on the human rights impact of environmental problems in specific countries. It was in response to that that we submitted the report on Tibet last year.[17] Tibetans were able to attract considerable attention to China's destructive management through their well-publicized appearance on the sidelines at the UN Conference on Environment and Development in Rio.[18]

Many of the other rights, particularly procedural rights and those that run to peoples collectively rather than to individuals, are being examined and debated and offer similar opportunities to raise Tibet as an example. In particular, the right to development (which I hope will evolve into the right to sustainable development), the right to information, and the right to participation in government decision-making are three with obvious ramifications for Tibet's situation. If the word "colonized" is substituted for "indigenous", the emerging right of indigenous peoples to be protected from population transfers is also urgently relevant.

Further, both of the primary human rights covenants guarantee peoples the right to freely pursue their economic, social and cultural development. They also guarantee peoples the right to freely dispose of their natural wealth and resources and the right never to be deprived of their own means of subsistence.[19] China may not have ratified the covenants, but it clearly wants to be seen as complying with them, for in its 1991 submission to the Commission on Human Rights, the government listed "various autonomous rights involving politics, economy, culture and all other aspects of social development" guaranteed by the Chinese constitution to the Tibet Autonomous Region, including "the right to independently protect, exploit, and use local natural resources according to law."[20] Tibetans regarded the debate over Yamdrok Tso as the ultimate test case of this constitutional guarantee, since it squarely placed at issue their culture and their right to protect one of their most sacred lakes.[21] And it turned out that the constitution was worth very little. The Chinese and the world community should be reminded at every opportunity about the gulf between their language and the reality they offer the Tibetan people.

Let me digress for a moment to give you some examples from the more traditional human rights subject matters of how the UN process can gradually accomplish international awareness of Tibet's situation. Special Rapporteurs to the UN Commission on Human Rights and the Sub-Commission file reports on religious intolerance, torture, and summary and arbitrary executions worldwide, that since 1987 have been producing an annual record of China's behavior in Tibet. The Tibet Bureau and the non-governmental organizations [NGO's] serve as the eyes and ears of these Rapporteurs, alerting them to human rights violations. That record is filed in UN repository libraries all over the world. The UN Committee against Torture, created by the convention that China ratified, monitors observance of the convention and this year has publicly pressed China to improve its record on torture, calling particular attention to Tibet.[22]

More often than not, ground is gained at the U.N. in millimeters at a time, and people who do sustained work there must nourish themselves on the small victories hidden even in defeats. This spring, the Commission on Human Rights failed to pass a motion censuring China for its human rights violations,[23] but the margin of defeat was significantly narrower than the year before.[24] This summer, China lobbied hard enough to soundly defeat a Sub-Commission motion expressing concern about the human rights situation in Tibet, but its victory came at the expense of negative publicity about the extreme and inappropriate threats it used against the Sub-Commission's independent experts.[25] The Commission on Sustainable Development, created this year pursuant to the recommendation of the U.N. Conference on Environment and Development,[26] should eventually serve the same role for monitoring and publicizing environmental conditions[27] in Tibet that the Commission on Human Rights and its Sub-Commission serve regarding human rights issues.

The U.S. Government's Response to Public Pressure Regarding Tibet
Publicizing China's treatment of Tibet can help mobilize public opinion in France, the United States, and elsewhere so that governments feel obliged to address the issue domestically. In the U.S., Congress responded last year by passing an act describing Tibet as an occupied country.[28] While this has no legal effect since the President controls our foreign policy, it nonetheless helps to create a climate in which it becomes conceivable that the Administration might eventually recognize Tibet.

This year, bills in both the House and Senate criticized China's policy of population transfer to Tibet,[29] calling the policy a violation of the fourth Geneva Convention,[30] to which China is a party.[31] The Convention does clearly proscribe population transfers as being a "grave breach" of the agreement.[32] Population transfer is treated by the Convention as a human rights violation, but it is also causing severe environmental harm in Tibet. The government's deliberate increase in Tibet's Chinese population is the biggest single cause of grassland and agricultural land damage because in order to feed so many mouths, marginal lands have been pressed into service and good ones overworked. This causes erosion, compaction, and a permanent reduction of carrying capacity or fertility. Unfortunately, the Geneva Convention proscription on population transfers applies only to occupied territories. Thus, only a country that recognizes Tibet and regards it as an occupied nation could use the Convention to censure China. No country currently does.[33]

The bills in Congress were the latest, strongest language in what has become an annual attempt since Tiananmen Square to condition China's access to our lowest import duty rates on improvements in its human rights record. Currently, Chinese goods are subject to the same low duty rate as America's other regular trading partners. This is termed Most Favored Nation or MFN status. China's eligibility for MFN status must be renewed by Presidential Executive Order each year.[34] This year, the President once again renewed China's MFN status but he also, for the first time, conditioned the 1994 renewal on China's efforts to meet seven requirements.[35] The one relating to Tibet required that China make "significant progress" on "protecting Tibet's distinctive religious and cultural heritage."

Now, this is easy to criticize. The language is distressingly vague, and the administration's accompanying Report[36] is as bad or worse. It requires that China seek to resume dialogue with the Dalai Lama or his representatives,[37] rather than requiring that dialogue be resumed. It treats governmentally-sponsored population transfer as an unconfirmed rumor[38] and limits its sphere of interest to involuntary transfers, ignoring the harm caused by China's extensive subsidies designed to lure settlers.[39] Given the weakness of the conditions, China seems sure to be able to count on MFN renewal a year from now, and some critics consider the weak conditions worse than nothing, since meeting them will help legitimize China's activity in Tibet.[40]

However, the Report contains two positive developments that in the long run may be more significant than any MFN conditions. First, it is important to know that while the US Congress now refers to Tibet as an illegally occupied country,[41] the Administration, which controls foreign policy, has treated Tibet as part of China.[42] This year's MFN document was the first time in decades that a major administration document on China and Tibet was silent regarding China's territorial claim.[43] Further, in describing the region that it would be studying for evidence of involuntary population transfer, the Administration referred to "areas traditionally settled by Tibetans."[44] It does not seem overly optimistic to interpret this as including Amdo and eastern Kham.[45] Past Administrations have complied with China's wish that only the TAR or U-Tsang be identified as "Tibet."[46] Finally, the report referred to "involuntary emigration,"[47] normally used to describe movement between countries, not within them.[48] So, while the text is disappointing, the diplomatic subtext is terrific.

The annual review of China's MFN status is an outgrowth of a more actively anti-communist era in U.S. politics. It would almost certainly not be translatable in its current form to successful legislation in any of the other countries represented here today. And frankly, I'm not sure it's such a great thing to put duties on countries' goods because of their human rights and population transfer records. If we were to be fair and consistent about that, we could do considerable damage to the fabric of international trade with some severe consequences to a lot of innocent people. I have spent time describing the MFN situation in hopes that the information may be useful when lobbying your own governments to take pro-Tibet positions.

Endnotes

  1. Environmental lawyer, Berkeley, California, U.S.; formerly Associate Attorney, Environmental Department, Heller, Ehrman, White & McAuliffe, 1989-1992; Attorney, Division of Pesticides and Toxic Substances, Office of General Counsel, United States Environmental Protection Agency,
  2. It is true that self-determination does not appear as a human right in the Universal Declaration of Human Rights, which was adopted as a resolution by the U.N. General Assembly on December 10, 1948 and is accepted as the basic statement of human rights applicable to all U.N. member countries. However, the Universal Declaration is focused on rights held by individuals, as the right in Article 21 (3) to cast a secret ballot in free elections, whereas self-determination is a right that is held by peoples. The Universal Declaration contains no compliance or enforcement measures.
  3. Dulaney, footnote 2 above, at 2 and 4-5, citing Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, 25 GAOR, Supp. 28, U.N.Doc A/8028, at 121 (1970).
  4. Dulaney, at 13.
  5. Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1991/10, Situation in Tibet, U.N. Doc. E/CN.4/1992/37 (1992).
  6. Dulaney, footnote 2 above, at 12, citing Declaration on Principles, footnote 5 above.
  7. See, Declarations Recognizing as Compulsory the Jurisdiction of the International Court of Justice under Article 36, Paragraph 2, of the Statute of the Court, Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1992 at 12, U.N. Doc. ST/LEG/SER.E/11 (1993).
  8. U.N. Charter art.94, para.2.
  9. International Covenant on Civil and Political Rights, Part I, art. 41, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717, entered into force Mar. 23, 1976 [hereinafter ICCPR].
  10. Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) Dec. 16, 1966, entered into force March 23, 1976.
  11. ICCPR, footnote 13 above, at Part I, art. 1, para. 1.
  12. Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1993, Human Rights Law Journal Vol. 14, No. 1-2, at 62 (February 26, 1993). The International Covenant on Economic, Social, and Cultural Rights also begins with the right to self-determination. International Covenant on Economic, Social and Cultural Rights, Part I, art. 1, para. 1, G.A. Res. 2200(A) (XXI), U.N. GAOR, 21st Sess. Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (Dec. 16, 1966), entered into force Jan. 3, 1976 [hereinafter ICESCR]. China has long argued that collective, economic rights are more important than the political rights of individuals (just as the U.S. has argued the converse), but has not ratified the Convention. Marie, at 62.
  13. See Dulaney, footnote 2 above, at 10, citing Declaration on Principles, footnote 5 above. The Declaration requires that self-determination "be construed in the context of the other principles" which include the obligation of states to "refrain ... from the threat or use of force against the territorial integrity or political independence of any State" and the "duty not to intervene in matters within the domestic jurisdiction of any State."
  14. G.A. Res. 2079 (XX) (1965).
  15. Michelle Schwartz, 1992 Report on the Relationship between Human Rights and the Environment at 87, n. 378 (Natural Heritage Institute, San Francisco: 1992).
  16. See Schwartz, at 85-89, for a discussion of the limitations of transboundary tort law. Margit Roos-Collins, The Relationship Between Environmental Management and Human Rights in Tibet (Tibet Justice Center, San Francisco: July 1992).
  17. The Tibetans' impact was heightened by the superb report prepared for the occasion. See, Department of Information and International Relations, Central Tibetan Administration of His Holiness the XIV Dalai Lama, Tibet: Environment and Development Issues 1992 (1992) [hereinafter TEDI]
  18. ICESCR, footnote 16 above, at Part I, art. 1, paras. 1 and 2; ICCPR, footnote 13 above, at Part I, art. 1, paras. 1 and 2.
  19. Reply of the Permanent Representative of China to the United Nations Office at Geneva, Situation in Tibet: Note by the Secretary General submitted pursuant to Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution 1991/10, U.N.
  20. Commission on Human Rights, U.N. Doc. E/CN.4/1992/37 at 15,16 (Jan. 5, 1992).
  21. International Campaign for Tibet, Chinese Officially Begin Construction of Controversial Power Plant, July 1, 1991; Construction of Power Station Restarted Amid Protests, Tibetan Bulletin, September-October 1991.
  22. U.N. CAT, 10th Sess., 146th mtg., 5th part, at 2-3, U.N. Doc. CAT/C/SR.146/Add.4 (1993).
  23. U.N. ESCOR, CHR, 49th Sess., Supp. No. 3, at 370-72, U.N. Doc. E/CN.4/1993/122 (1993).
  24. U.N. ESCOR, CHR, 48th Sess., Supp. No. 2, at 214, 285-87, U.N. Doc. E/CN.4/1992/84 (1992).
  25. "Tibet Resolution Rejected" and "UN Expert Accuses China of 'Threats,'" Tibet Information Network (August 22, 1993).
  26. E.S.C. Dec. 1993/207, Resolutions and Decisions Adopted by the Economic and Social Council at its Organizational Session for 1993, at 21, U.N. Doc. E/1993/INF/2 (1993).
  27. The Commission's functions are listed in paragraphs 3-5 of General Assembly Resolution 47/191, U.N. GAOR, 47th Sess., Supp. No. 49, at 142, U.N. Doc. A/47/49 (Vol. I) (1993).
  28. Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, Sec. 355(1).
  29. S. 806, 103d Cong., 1st Sess., Sec. 2(a)(5) (1993); H.R. 1890, 103d Cong., 1st Sess., Sec. 2(5) (1993).
  30. 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949.
  31. Marie, footnote 16 above, at 68.
  32. 4th Geneva Convention, footnote 34 above, Section III, Art. 49; and Protocol I, Section II, Art. 85, para. 4, entered into force Dec. 7, 1978).
  33. Lazar, Energy was used to fight the wrong battle, Tibetan Review 12, 14 (August 1993).
  34. See 19 U.S.C.A. section 2432.
  35. Executive Order 12850, 58 Fed. Reg. 31327-28; 21 Weekly Comp. Pres. Doc. 983 (May 31, 1993).
  36. Report to Congress on Most-Favored Nation Trade Status for China, 21 Weekly Comp. Pres. Doc. 984-988 (May 31, 1993).
  37. Report at 987.
  38. Report at 985-986
  39. Lostumbo, Tibet issue will be a part of the US-China dialogue, Tibetan Review 10, 11 (August 1993).
  40. Lazar, footnote 37 above, at 13.
  41. Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, Sec. 355(1).
  42. Lostumbo, footnote 43 above, at 12.
  43. Lostumbo, at 12.
  44. Report, footnote 39 above, at 985.
  45. Lostumbo, footnote 43 above, at 11.
  46. Lostumbo, at 11.
  47. Report, footnote 40 above, at 985.
  48. Population Transfer and the MFN Tibet Condition, Tibetan Environment & Development News, Issue 9 at 1 (ICT, Washington, D.C.: June 1


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