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III. TIBET IS RIGHTFULLY AN INDEPENDENT STATE
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1. Territorial Integrity Is A Right Only Of Legitimate Governments 'Conducting Themselves In Compliance With The Principle Of Equal Rights And Self-Determination Of Peoples
The principle of self-determination does not necessarily conflict with the principle of territorial integrity. The tension between territorial integrity and self-determination that appears in the Declaration on Principles and in the 1993 Vienna Declaration is also resolved by those Declarations:
Every State has the duty to promote through joint and separate action respect for and observance of human rights and fundamental freedoms in accordance with the Charter.
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.
Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle [of equal rights and self-determination of peoples] of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.
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Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.
Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.
By its very terms, the Declaration affords the right to be secure in territorial integrity only to States which conduct themselves in accordance with 'the principle of equal rights and self-determination of peoples... and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.' 'Legitimacy' is therefore a necessary precondition of a State's claim of territorial integrity. This principle of governmental legitimacy reconciles the apparent conflict between territorial integrity and self-determination and expresses the recognition in international law that human rights place a limit on State authority.
A State's legitimacy derives from the satisfaction of its duties, and the accomplishment of its purposes. According to the Declaration on Principles, each State has the duty to: 'promote... realization of the principle of equal rights and self-determination of peoples'; 'promote... respect for and observance of human rights and fundamental freedoms'; and 'refrain from any forcible action which deprives peoples referred to above... of their right to self-determination and freedom and independence.' A State that fails to fulfill its duty to promote its people's 'human rights and fundamental freedoms' and its people's right to self-determination, loses its legitimacy and cannot claim a right of territorial integrity as against a claim of self-determination.
A State's legal duties follow from the purposes for which States exist. States exist for the purpose of fulfilling four fundamental tasks: 1)to protect the population of the state; 2)to promote the economic, social and cultural welfare of that population; 3)to represent the interests of that population externally, that is, internationally; and 4)to promote the spiritual welfare of the people. Where a state, or its government, does not fulfill these functions over a period of time, but instead represses or even kills the people it is supposed to protect, destroys their culture, economically exploits them, or represents other interests than those of the people, then that state or government lacks legitimacy in respect of the whole population of the state or of that section of the population which it oppresses:
A legitimate government is one which originates in and expresses a people's exercise of self-determination. Such a government facilitates the people's free determination of their political status and pursuit of their political, civil, economic, social, cultural and spiritual development. In short, a government's claim to territorial integrity is not a claim in opposition to a people's right of self-determination, but a claim to be the authentic manifestation of the people's continuing exercise of that right:
A government that is the authentic manifestation of people's exercise of the right of self-determination distinguishes that government's territorial integrity from mere control over a piece of ground. The government's territorial integrity in turn makes concrete the self-determination which the governed people exercise.
Self-determination includes the right of peoples 'freely to determine their political status,' which is: '[T]he freedom of the people of an entity, with respect to their own government, to participate in the choice of authority structures and institutions and to share in the values of society.'
Legitimacy in turn requires that a government represent 'the whole people belonging to the territory.' Under modern human rights law, therefore, a state derives its continuing legitimacy not just from its respect for the human rights of the governed but also from its representation of the governed through their expression of popular will. This is expressed in the UDHR, which guarantees 'the right to take part in the government of [one's] country, directly or through freely chosen representatives,' thus requiring every government to accord 'universal and equal suffrage' to the population which it governs. The UDHR further states:
A claim of self-determination, therefore, can prevail over a claim of territorial integrity asserted by a State that is not the legitimate representative of a people but is the subjugator or exploiter of a people. The resulting remedy may be secession. The right of self-determination includes the right of secession at least in the 'special, but very important case... of peoples, territories and entities subjugated in violation of international law.' Where a state has severely abused a people's human rights and secession appears to be the only remedy to save a people from genocide or other grave human rights violations, or where sovereignty over the territory is in dispute, secession is the appropriate remedy.
We show below that the PRC is not the legitimate government of the Tibetan people. The current government in Tibet did not originate in a free exercise of self-determination by the Tibetan people, but was imposed by the PRC by means of an illegal use of force. Moreover, the PRC has not respected the essential human rights and fundamental freedoms of the Tibetan people. To the contrary, the PRC has engaged in a systematic effort to destroy the Tibetans as a people.
The PRC's abuse of human rights in Tibet started with the 1950 invasion and continues to the present. The abuse spans a broad spectrum of humans rights which the Tibetans are entitled to enjoy, including: suppression of religion; population transfer; denial of reproductive rights; discrimination in employment, education and housing; destruction of the environment; enforced disappearances; denial of freedom of expression; torture; and summary execution. Increasingly, the PRC has acknowledged official policies that have had the purpose and/or effect of denying Tibetans human rights in many of these areas, for example: suppression of religion, population transfer, birth control restrictions, discrimination in education, and denial of freedom of expression. The persistent denial of human rights in Tibet, then, is more than a case of mere governmental indifference to one of its minority populations. The human rights abuses in Tibet evidence a governmental policy to deprive the Tibetans of any ability to express a political identity and to eviscerate as much as possible the social, cultural and economic ties that have bound Tibetans together historically as a people.
The PRC's supression of Tibetan Buddhism is an overt attack on both the political and cultural identity of the Tibetan people. The Tibetans are among the most religious people in the world: 'Buddhism has not been a mere system of belief to the Tibetans; it encompasses the entirety of our culture and civilization and constitutes the very essence of our lives.' In short, '[o]f all the bonds which defined Tibetans as a people and as a nation, religion was undoubtedly the strongest.' Thus, the suppression of Tibetan Buddhism threatens the core identity of the Tibetan people.
Freedom of religion is protected in international law by article 18 of the UDHR, article 18 of the ICCPR, and under the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. The right to freedom of opinion and expression, guaranteed under article 19 of the UDHR and under article 19 of the ICCPR, also protects aspects of the right to worship and teach religion freely. Finally, freedom of religion is also protected against the most extreme attacks under the Genocide Convention. The PRC's attack on Tibetan Buddhism violates all of these human rights.
In 1960, the International Commission of Jurists ('ICJ') determined 'that acts of genocide had been committed in an attempt to destroy the Tibetans as a religious group....' The ICJ found that: (a)the Chinese will not permit the practice of Buddhism in Tibet; (b)they have systematically set out to eradicate this religious belief in Tibet; (c)in pursuit of this design they have killed religious figures; and (d)they have forcibly transferred large numbers of Tibetan children to China in order to prevent them from having a religious upbringing.
Since the ICJ's 1960 finding of acts of genocide, the suppression of religion, through some of the same means, has continued to take place. From 1960 to 1976, almost all of Tibet's 6,000 monasteries were destroyed. Although the PRC blames the wholesale destruction of Tibet's monasteries on a mistake of the Cultural Revolution, 'more than half of [them] were dismantled and destroyed before China's Cultural Revolution began in 1966.'
Since 1976, the PRC has controlled the practice of Tibetan Buddhism through political and institutional means. The PRC states that it 'must teach Tibetan Buddhism... to reform all those religious tenets and practices which do not comply with the socialist society.'' As a result, the PRC has placed all religious institutions under the control of the Bureau of Religious Affairs. The Chinese Buddhist Association (CBA) and the Tibetan Buddhist Association (TBA) are advisory bodies to the RAB, whose primary objective is to reform Buddhism to match the principles of the (officially atheist) Communist Party.
The PRC prevents Tibetans from engaging in the large religious ceremonies that characterized their public life before 1950. Under the PRC's view, 'to undertake religious activities outside the religious site is abnormal, and must be forbidden.' Moreover, '[w]hether religious teachings or ceremonies are permitted within monasteries... depends largely on local County and District officials.'
The PRC has also attempted to control all internal monastic functions. and in recent years monasteries and nunneries have been closely monitored by the military and police, including inside informers. The PRC has installed 'Democratic Management Committees' in the monasteries, whose role is to implement the government's religious and political policies, and serve as the eyes and ears of the security police.
Most importantly, the PRC has interfered in the recognition of reincarnations. This conduct cuts to the very heart of Tibetan Buddhism. All of the major religious figures the Dalai and Panchen Lamas, the head lamas of other schools, and virtually every high-ranking lama in any sect (a total of about 4000 before the invasion ) are believed to be ongoing reincarnations of various enlightened beings. Although inconsistent in practice, the PRC has attempted either to prohibit the recognition of reincarnations at all, or to control the process and recognitions.
Most notably, in 1989 the PRC intervened in the search for the reincarnation of the Panchen Lama (the second highest religious figure in Tibetan Buddhism), who died in January 1989. The PRC stated that the search would take place only within the boundaries of the PRC and under government supervision. The PRC also decided what criteria would be used in recognizing the reincarnation and reserved to itself veto power over any recognition.
On 14 May 1995, the Dalai Lama, acting in accordance with Tibetan Buddhist procedures and tradition, officially recognized a six-year-old boy in Tibet, Gedhun Choekyi Nyima, as the Eleventh Panchen Lama. Two days later, the Chinese authorities launched a major campaign denouncing the Dalai Lama's right to make such a statement, insisting that only Beijing can publicly declare the final candidate. Gedhun Choekyi Nyima, the new Panchen Lama, along with his parents, disappeared almost immediately after his recognition was announced. On 12 November 1995, the PRC announced for the first time that it would not recognize Gedhun Choekyi Nyima as the Panchen Lama. Within a few weeks, the PRC staged a ceremony in the Jokhang Temple in Lhasa and selected its own incarnation of the Panchen Lama.
At the same time, the PRC openly declared that religious activity in Tibet was far too great and new efforts would be instituted to make religion subservient to 'patriotism.' Monks and nuns were forced to sign statements acknowledging the PRC's choice for the Panchen Lama and criticizing the Dalai Lama.
Pictures of the Dalai Lama have now been banned in all public places, and campaigns have even been conducted to remove it from private homes. Indeed, the effort appears underway now to remove the Dalai Lama's influence from religion, not just politics.
On 5 August 1996, the PRC announced another 're-education' campaign to purge the monasteries of monks and nuns with nationalist sentiments. Monks have been asked to sign pledges of political allegiance or face expulsion from their monasteries. Monks who have objected have either been expelled from their monasteries, or arrested.
The Party Secretary of Tibet reaffirmed in 1997 that the re-education campaign is a 'basic policy,' effectively criminalizing any criticism of the campaign. Authorities in Tibet have put an extraordinary amount of effort into the campaign, as evidenced by a recent report that in March 1998, Chinese troops and more than 40 government officials from Lhasa were sent to the remote Rongpo Rabten monastery to quell resistance to the re-education campaign.
The efforts to repress Buddhism, moreover, have been extended outside the monasteries. In a speech in 1997, the Party Secretary of Tibet linked the view that Buddhism is an important part of Tibetan culture with 'separatist' activities, virtually criminalizing the serious study and teaching of Buddhism as part of Tibetan literature and culture.
The recently intensified campaign against Tibetan Buddhism, centered on the re-education campaign in the monasteries and convents but now beginning to extend outward, is a gross violation of the Tibetans' human rights. It is also a direct and open challenge to the identity of Tibetans as a people.
Population transfer has been defined as 'the movement of people as a consequence of political and/or economic processes in which the State Government or State-authorized agencies participate.' The large scale transfer of Chinese into Tibet since the Chinese military invasion in 1950 has itself resulted in widespread human rights violations against the Tibetan people. Viewed in the context of other human rights abuses, it is a complimentary part of government policies designed to supplant the Tibetan identity with that of another people.
The large-scale transfer of Chinese into Tibet violates humanitarian and human rights laws, including treaties which PRC has ratified. Article 49 of the Fourth Geneva Convention prohibits an occupying power to '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 the PRC's claims to sovereignty over Tibet.
The Chinese population within Tibet (both the Chinese-designated Tibet Autonomous Region (TAR) and the Tibetan autonomous prefectures incorporated into Qinghai, Gansu, Sichuan and Yunnan provinces) has increased manyfold since the Chinese invasion. At the time of the invasion, according to both Tibetan and PRC statistics, there were virtually no Chinese in the TAR and only a few hundred thousand in the bordering provinces. By 1982, the official census showed 1,541,000 Chinese in Tibet, including 92,000 in the TAR.
Independent observations indicate that the numbers of Chinese in Tibet is continuing to grow. A recent fact-finding mission to Tibet estimated the total Chinese population in the TAR at 250,000 to 300,000. Those same observers estimated the total Chinese population in the remaining areas of Tibet at 5 to 5.5 million. Other estimates put the figures higher, at up to 7.5 million Chinese.
In the TAR, Tibetans may still be a majority overall; however, in Lhasa and other major cities, Chinese are a definite majority. Within Tibet as a whole, Tibetans are a minority overall and a clear minority in all major cities and towns.
In 1994, the Chinese government publicly acknowledged that it encourages and supports migration into Tibet. Recent statements by government leaders and in official PRC 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.
There are also 200,000 or more soldiers in Tibet. The government encourages families of soldiers to relocate to Tibet and offers incentives to retired soldiers to settle in Tibet permanently. Soldiers have also helped build roads, airfields, farms and factories that have drawn more civilian migration into Tibet. Finally, the large prison population in the autonomous prefectures in what is now Qinghai also attracts families of prisoners and prisoners who are released are often forced to remain and settle in Qinghai.
The impact on Tibetans of the massive transfer of Chinese settlers and soldiers has been devastating. Tibetan farm- and grasslands have been confiscated and incorporated into collectivized and communal farms. The rapid increase in settlers and soldiers led to the first famines in Tibet's history, with the deaths of over 340,000 Tibetans. Ill-conceived efforts to boost productivity of lands suitable only for nomadic grazing or limited farming has resulted in widespread desertification.
Economic development projects have been carried on with primarily Chinese workers, even in unskilled positions. Tibetans are not being allowed to participate in the economic development that is supposed to be benefiting them. Tibetans are also being displaced from farmlands confiscated for construction sites.
Housing, schools and hospitals are being built for the inflowing Chinese population, not for Tibetans. Elsewhere, the concentration of new housing and services in the major towns and cities where they support the majority Chinese population has left these services unavailable to most Tibetans who live in rural areas.
Discriminatory policies and practices that accompany the population transfer extend to language and education. Primary schools now teach in both Chinese and Tibetan, abandoning any emphasis on Tibetan language. Entrance exams and all schooling beyond primary school are conducted in Chinese. Most business and government is carried on in Chinese. The Chinese influx has also resulted in Chinese cadres dominating government posts. This allows Chinese to favor Chinese in housing, job and services decisions.
Perhaps the most insidious practice to accompany the Chinese migration into Tibet is the restriction on child-bearing. Chinese family planning policies have gradually been extended to all Tibetans, even though the only population pressure within Tibet has been created by the migrating Chinese.
The massive population transfer into Tibet with accompanying dislocation, discrimination, overburden on the fragile environment and restrictive child-bearing practices are resulting in human rights abuses against the Tibetan people. Through intentional policies and perhaps indifferent acts, the now dominant Han population is placing enormous stress on the social, cultural and economic life of Tibetans.
Tibet has never had a population problem and it does not have one today. Tibet stretches over 2.5 million square kilometers, roughly equivalent in size to the European Union. Fewer than 6 million Tibetans live in Tibet. Even with the transfer of 7.5 million Chinese into Tibet, Tibet is by any definition a sparsely populated country.
According to Chinese law, the 'one family, one child' policy covers only 'nationalities' in the PRC with over ten million members. Tibetans, with a population of less than six million, should be exempt from this policy. Nonetheless, stringent locally imposed restrictions are apparently permissible, as are centrally imposed restrictions that differ from the 'one family, one child' policy. Local authorities are 'authorized to decide their own specific population policies, according to local conditions.'
Beginning in the mid 1980's, local Chinese authorities began implementing family planning policies on Tibetans. These regulations provided for 'rewards and punishment,' including fines and other economic sanctions. In 1992, for the first time, the PRC admitted to the international community that a two-child policy has been in force in towns in the TAR since 1984.
Outside of the TAR in Eastern Tibet, in the areas traditionally called Amdo and Kham, compulsory birth control has been implemented in some areas since 1982. According to a recent report, since 1991 all Tibetans in Gonghe County, Qinghai Province, have been restricted to one child. The worst occurrences of forced and coerced abortions and sterilizations have been reported from this region, including 'blitz' campaigns in villages to carry out abortions and sterilizations on virtually every woman of child bearing age. In fact, regulations in Gonghe County require forced sterilizations for every woman who has had an out-of-plan child.
Force and coercion are widely used by local authorities to enforce population quotas set down by higher authorities. Numerous reports document Tibetan women being subjected to abortions without their knowledge. Abortions are often followed by sterilization operations, performed without the informed consent of the Tibetan woman.
Even where 'consent' is given to abortions or sterilizations, it is often under duress. Women face the threat of their husbands being beaten and arrested and having all of their possessions confiscated. Reports of coercion being used to compel women to undergo abortions and sterilizations are pervasive. In punishment for having a child 'out of plan,' families must pay large fines, reportedly at times exceeding a family's total yearly income. 'Out of plan' children are punished for being born; the child's name will not be registered. Consequently, the family will not receive a ration card for the additional family member. Also, the unregistered child will not be eligible for day care, for school, for medical treatment, and, later in life, possibly for any government job.
The PRC's family planning policies as applied to Tibetans violate internationally recognized human rights. First, the practice of coercive and forced family planning violates Tibetan women's reproductive rights. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women ('CEDAW') provides for the right of couples to 'decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.' Forced and coercive family planning practices also implicate the rights to liberty and security, to freedom from torture, to marry and found a family, to private and family life, to health care, to non-discrimination on the basis of sex, religion and national or ethnic origin, and to freedom of thought, conscience and religion, all guaranteed in the UDHR.
The PRC's practices may also violate the Genocide Convention, which provides in part that the imposition of measures intended to prevent births of a national, ethnic, racial or religious group is genocide if these measures are imposed with the intent to destroy such a group in whole or in part. The PRC's conduct in Tibet points to a systematic pattern of reducing the Tibetan population, suppressing the Tibetan culture, and relegating Tibetans to a minority in their own country through the combination of controlled population growth and the transfer of millions of Chinese settlers into Tibet. The factual pattern provides, at minimum, a prima facie case of an act of genocide against the Tibetan people.
The International Convention on the Elimination of All Forms of Racial Discrimination ('CERD') prohibits discrimination based on race or national or ethnic origin. Article 27 also specifically prohibits a State from denying ethnic, religious or linguistic minorities the right to enjoy their own culture, religion and language. In August 1996, the United Nations Committee on the Elimination of Racial Discrimination strongly criticized the PRC for denying Tibetans the rights to practice and enjoy their culture and to receive equal treatment in education and employment. Nonetheless, the PRC continues to discriminate against Tibetans in employment, education, housing, language and reproductive rights. Moreover, as government policies cause more ethnic Chinese to migrate into Tibet, discrimination against Tibetans is worsening.
Article 5(e)(i) of CERD prohibits discrimination in employment. Economic development policies in Tibet, however, are causing a huge influx of Chinese entrepreneurs and workers into Tibet. This has increased inflation and caused unemployment for Tibetans, who find that they cannot compete with ethnic Chinese for jobs controlled by ethnic Chinese.
Tibetans are also being pressed into service to help build the infrastructure (irrigation, mining, bridges and roads) to support the rapid economic development of Tibet. The Tibetans, however, are often not being paid for their work but are being pressed into service as a 'contribution to the community.' Chinese workers, on the other hand, are being paid regular wages. In addition, virtually all of the skilled jobs are held by Chinese, while Tibetans perform most of the manual labor.
The PRC discriminates against Tibetans in education in a variety of ways. Chinese students often receive better facilities and teachers. The government has built new schools mainly in the cities and county headquarters towns. These schools, with comparatively better facilities, serve the predominately Chinese urban population. Fees imposed on children to attend school substantially restrict the number of Tibetans who can attend, particularly in rural areas. Tibetan children find it difficult to advance to secondary and higher level schools because of Chinese language requirements and comparatively poorer education. The numbers of Tibetan children in middle school and higher grows disproportionately smaller compared to ethnic Chinese children as a result of the discriminatory treatment.
Chinese directors of the University of Tibet determined that the History of Tibet course would be taught in Chinese, even though many of the students and teachers are Tibetan and the course is part of the Tibetan Language Department. The University, founded ostensibly to maintain and develop Tibetan language and culture, requires students to pass an entrance examination in Chinese and English, not Tibetan.
Government meetings and judicial proceedings are now conducted primarily in Chinese. This is so despite official government regulations that were intended to promote the use of Tibetan in such fora.
These discriminatory policies and practices are preventing Tibetans from fully participating in the economic life of Tibet. The direct assault on the Tibetan language, moreover, threatens one of the key elements of the Tibetan identity.
The ICESCR and the ICCPR confer upon all peoples the right to 'freely purs ue their economic, social and cultural development' and to 'for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.' In its 1991 submission to the Commission on Human Rights, the PRC listed 'various autonomous rights involving politics, economy, culture and all other aspects of social development' guaranteed to the Tibet Autonomous Region, including 'the right to independently protect, exploit, and use local natural resources according to law.'
Despite these acknowledgments of the Tibetans' rights, the PRC continues to abuse the Tibetan environment in two broad categories: its removal of Tibet's natural resources for use elsewhere in China, and the enormous resource demands created by the Chinese settlers who have participated in the government's policy of population transfer to Tibet. This abuse violates a number of internationally recognized human rights.
The Chinese word for Tibet, Xizang, means 'Western Treasure House' or 'Western Storehouse.' The PRC has been exploiting Tibet's natural resources while at the same time directing a heavy flow of consumer goods and other subsidies into Tibet, which benefit primarily the Chinese settlers.
The 1997 Plan for Tibet in fact describes two of the five 'pillars' of Tibet's economy as forestry and mining. China has logged Tibet's forests at an ever-increasing pace. The Chinese government asserts ownership over the forested land and does not pay the Tibetans for the value of the timber extracted. Many lumber jobs go to Chinese settlers and some felling is done without compensation by prison labor. The great majority of the timber is sent out of Tibet.
The lumbering is proceeding at a rate far faster than the ecosystem can support and reforestation efforts have been inconsequential. No effort is made to log selectively. As a result, the PRC is also destroying the capacity of the land to support forests in violation of the right of the Tibetan people to self-determined, sustainable development.
Tibet also contains very rich mineral resources. Tibet has the world's largest deposits of uranium and borax, half the world's supply of lithium, the second largest copper deposits in Asia, and the largest supplies of iron and chromite in China. It also has more than 40% of China's present supply of bauxite, gold, and silver, and extensive reserves of oil, coal, tin and zinc.
In traditional Tibetan culture, religious and social injunctions limited mining to a very few locations; yet, the PRC is exploiting Tibet's mineral resources with no demonstrable concern for the Tibetans wishes in violation of their right to self-determined development. As with timber, the minerals extracted generally do not remain in or enrich Tibet; rather, the minerals are shipped out to China.
The impacts on the Tibetan landscape from absorbing Chinese settlers have been severe, culturally and environmentally. The terrain is fragile due to its very high altitude and its human carrying capacity is low, but traditional Tibetan culture had adapted to the fragile ecosystem. Chinese settlers, on the other hand, overtax the ecosystem and bring with them much greater demands for consumer goods, electrical energy, and different foodstuffs than are consumed by Tibetans.
Grass and rangeland is Tibet's most extensive land resource, comprising roughly 70% of its area. By contrast, only 2% of the land is suited to farming. Now, the fertility of their land and its long-term carrying capacity are diminishing due to the pressures and governmental policies connected with the population transfer of Chinese settlers into Tibet. Farmers are required to grow new varieties of wheat instead of barley and other grain strains adapted by long usage to the high, dry climate, and are required to use large amounts of fertilizer and pesticides, even though farmers complain that the chemicals are poisoning the land and crops. The heavy and inappropriate use of chemicals in China has been directly associated with a severe loss of soil fertility by Chinese scholars.
Herders are forced out of their former lower, winter pasturage by expanded agriculture and by expropriation of lands for mining and military uses. The government has issued directives to nomads regarding the numbers and types of animals to be raised and fencing and access to pastureland.
Despite claims by Tibetans and some Chinese scientists that the government's population transfer policies cannot justify the environmental degradation in Tibet, the Agricultural Minister, Liu Zhongyi, acknowledged that environmental damage has been severe but insisted that population transfer must continue. He 'asserted that bettering the lives of China's peasants outweighs concerns over environmental degradation in remote Qinghai province.'
A prime example of the disregard the PRC has shown for Tibetan culture is the choice of Yamdrok Tso to be the site of a major hydropower facility. The third largest lake in Tibet, Yamdrok Tso is regarded by Tibetans as one of their most sacred lakes. The hydroelectric plan for Yamdrok Tso was approved by China in 1985 over the Tibetans' strenuous opposition, including that of the Tenth Panchen Lama.
Tibetans oppose the project because it desecrates the lake. It would benefit primarily residents of Lhasa, the majority of whom are Chinese, and the settlers in the neighboring agricultural valleys. It would also scar the lake, expose residents and wildlife to hazardous levels of dust, create drier weather patterns, and reduce the fish stock in the lake. Work on the project continues.
Tibet's fragile environment and resources are being exploited on a colonial model. Tibetans as a result face the long-term possibility of destruction of the land that has supported them as a people for thousands of years.
Housing provides safety, dignity and privacy. It is the center from which people develop social relationships and a sense of community. The form and layout of housing are designed to serve the unique cultural needs of each society. In Tibet, the home also serves as the place of daily religious practice. Destruction of individual Tibetan housing therefore threatens an important of the fabric of Tibetan society.
The PRC's housing policies and practices are in violation of its international obligations under CEDAW, under CERD and under the Convention on the Rights of the Child (Child Convention). Article 14(2)(h) of CEDAW and Article 27 of the Child Convention specifically require states to ensure the right for women and children to have adequate housing. In addition, Article 55 of the Fourth Geneva Convention prohibits destruction of real and personal property of the occupied people, except where absolutely necessary for military operations. China's destruction and looting of Tibet's monasteries and its continuing demolition of houses is contrary to its obligations under this Convention.
In the four decades of Tibet's occupation, the PRC has expropriated Tibetan homes, looted their property, and carried out large-scale demolitions of traditional urban and rural settlements. For instance, the PRC's implementation of the 1980 Lhasa Development Plan has resulted in the rapid and widespread destruction of Tibetan structures in Lhasa. Entire sections of Lhasa have been obliterated by bulldozers. The PRC has replaced most Tibetan structures in Lhasa and elsewhere with buildings which conform to modern Chinese architectural styles. The rapid pace of construction has helped double Lhasa's size since 1989 to meet the housing needs of immigrating Chinese settlers. As a result, the historic Tibetan capital has been reduced to the 'Tibetan quarter,' which comprises only 2% of Lhasa today.
Forced evictions and demolitions also take place in Tibet's rural areas where approximately 90 percent of the Tibetan population lives. In 1993, for example, a dam construction project resulted in the displacement of 6000 Tibetans in northeastern Tibet.
The PRC, before and during the Cultural Revolution, destroyed an estimated 6000 monasteries throughout Tibet, depriving Tibetans of their most valued cultural and spiritual heritage. Rebuilding of these monasteries has begun but reconstruction of monasteries requires Chinese permission. Some Tibetans have been incarcerated for rebuilding their monasteries, even after permission was granted.
Tibetans also suffer from housing discrimination. Throughout Tibet, Chinese settlers tend to be allocated more expansive housing, usually with running water, electricity and sanitary facilities, while Tibetan housing is more crowded, is often in a deteriorated state and is much less likely to be equipped with such amenities. Virtually all of the PRC's housing subsidies are spent in urban areas, even though 9 out of 10 Tibetans live in rural communities. With 83% of the China's state housing investments devoted to state-owned work units, few funds are available to construct 'Tibetan-style' housing or to renovate traditional Tibetan houses. Since most Tibetans do not work in Government work units, they are precluded from benefiting from these investments in newly-built housing.
Tibetans today live in overcrowded, inadequately insulated housing, lacking facilities. A marginalized minority in their own land, they are deprived of participation in housing decisions and face discrimination.
g. Tibetans are subject to enforced and involuntary disappearances
In addition, to the above-described efforts to undermine the fabric of Tibetan, economic, social and cultural identity, the PRC openly, officially and violently suppresses all political dissent in Tibet. The PRC's abusive treatment of dissidents and political detainees has been well documented.
The 'disappeared' are people who have been taken into custody by agents of the state, yet whose whereabouts and fate are concealed, and whose custody is denied. In Tibet, the disappearance of persons is a routine occurrence. In numerous cases, Tibetans have been arrested at (or taken from) home for political reasons without warrant and taken into police custody without the family of the detained person being informed of his or her whereabouts.
Disappearance encompasses a number of human rights standards regarding arbitrary arrest and detention, denial of due process and, often, ill-treatment and torture. Rule No. 37 of the United Nation's Standard Minimum Rules for the Treatment of Prisoners states:
Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.
Disappearance is not, however, just a combination of other human rights abuses. It is set apart by the characteristic of completely cutting a person off from the outside world and its protective mechanisms. Not only are the loved ones of the person subjected to the uncertainty of not knowing the whereabouts of the individual, or even whether the person is alive, but the individual also suffers isolation and helplessness. The State, by simply denying any knowledge of the person, can act with impunity.
The PRC's legal system has contributed to the conditions in which disappearances are able to occur in Tibet by allowing for prolonged detention and administrative detention without trial. Despite the conclusion by the United Nations Working Group on Disappearances that 'States are under an obligation to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance,' the PRC has remained largely unwilling to respond even in the few cases where disappearances have been exposed.
Eight year-old Gendun Choekyi Nyima, the Eleventh Panchen Lama, has been missing since May 4, 1995. The UN Committee on the Rights of the Child has requested that China allow a UN representative to visit the family and provide reassurances. So far there has been no public response to the request and the PRC has still not revealed his or his parent's whereabouts.
Chadrel Rinpoche, head of the PRC-appointed Search Committee for the reincarnation of the Panchen Lama, disappeared on 17 May 1995. The PRC refused for two years to acknowledge his whereabouts.' The PRC finally acknowledged in May 1997 that Chadrel Rinpoche had been arrested and was sentenced to six years in prison.
Dhamchoe Gyatso (27), Jigme Tendar (29), Dhamchoe Kalden (31) and Phuntsog (25) of 'Nga-rig Kye-tsel-Ling' school (English translation: Flourishing Garden of Five Knowledges) at Kumbum Monastery in Amdo have been accused of publishing a literary magazine which has now been labeled as 'counter-revolutionary' and banned. The monks disappeared after their arrest in March 1996 (along with 21 other monks who were later released) and their whereabouts remain unknown. Jangchub Gyaltsen (31), a tailor at Sera Monastery was arrested in April-May 1995; Lungtok (21), a monk of Rongbo Monastery in Amdo was arrested in July 1995; Lobsang Namgyal, a former monk of Nechung Monastery, was arrested in February 1995 and Ngawang Thonglam, a former monk of Ganden Monastery, was arrested in February 1995. All arrests were for political reasons and the whereabouts of these political prisoners remain unknown.
In October 1996, over 15 months after Ngawang Choephel was taken into detention, the PRC finally admitted that he was being held. Today he is serving an 18-year prison sentence.
Disappearance, therefore, remains a frightening and still unchecked threat to Tibetans. It violates international law and is intended to chill any effort by Tibetans to assert their political will.
Today, hundreds of Tibetans are in prison for peacefully exercising their rights to speak freely and to hold opinions, including speaking or demonstrating in support of the Tibetans' right to self-determination or in support of the Dalai Lama, printing or distributing leaflets or posters, or speaking to foreigners. Despite international condemnation, the PRC openly continues to deny Tibetans' the freedom to express and hold opinions.
Article 19 of the UDHR establishes freedom of opinion and expression as a fundamental human right. Article 20 establishes the right to freedom of peaceful assembly. Article 35 of China's Constitution also guarantees freedom of expression, publication, demonstration and assembly.
The PRC's denial of freedom of speech and opinion in Tibet has existed since 1949. Most recently, it has intensified since 1987 when Tibetans began publicly demonstrating against the Chinese occupation. In 1991, more than 100 Tibetans were known to be in prison for exercising their rights to freedom of expression and opinion. In the year following the Sub-Commission's resolution, arrests and torture of peaceful demonstrators increased rather than decreased. In 1993, for example there were almost 300 documented arrests of Tibetans for expressing or holding dissident opinions.
The PRC reported that they arrested twice as many Tibetans in 1994 as in 1993 for 'counterrevolutionary' activities. Monks and nuns accounted for 87% of those arrested. By the end of 1994, there were at least 628 Tibetans in prison because of their political beliefs, including 182 women and 45 children. This is a six-fold increase over the number of political prisoners reported in 1991. Among documented cases since 1989 are 71 Tibetan children under the age of 18 who were detained for peacefully expressing their opinions.
In October 1994, the UN Working Group on Arbitrary Detentions ruled that the PRC had violated the rights to freedom of expression and opinion of 39 Tibetans, mostly monks and nuns,. 'in contravention of Articles 19 and 20 of the Universal Declaration of Human Rights.... The right of the person concerned to freedom of opinion and expression has not been respected.' The Working Group made the same ruling as to 18 additional Tibetan prisoners in 1995.
In 1994, China formally outlawed even the display of photographs of the Dalai Lama. In November 1995, religious leaders in Tibet were ordered to prepare statements criticizing the Dalai Lama and Chadrel Rinpoche and that 'reeducation' campaign has intensified and continues.
Arbitrary arrest and detention of Tibetans culminated in 1996 with the sentencing of Ngawang Choephel, a 34 year-old Tibetan musicologist, to 18 years in prison. Ngawang Choephel was arrested while recording and videotaping traditional Tibetan music and dance.
The PRC also limits freedom of opinion and expression through non-judicial means, including 'neighborhood committees' and 'work units.' These local administrative structures are used to monitor opinions, to warn Tibetans not to demonstrate or to display pro-independence posters, or to impose sanctions outside the judicial system for pro-independence opinions and speech. Work units established in monasteries and nunneries in recent years have been used to monitor pro-independence activities, with the result that hundreds of monks and nuns have been expelled and others imprisoned because of their opinions.
Despite frequent and blunt international condemnation, the PRC has only stepped up its policy of quashing all political dissent by Tibetans.
i. PRC officials regularly torture Tibetan prisoners of conscience
Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT'), to which the PRC is a State Party, outlaws any kind of torture. Nonetheless, in 1990, the UN Committee Against Torture noted that it had received credible allegations of a persistent practice of torture in Tibet. The Committee also made special note of the PRC's failure to address allegations of torture in Tibet. In 1993 and again in 1996, the UN Committee Against Torture asked the PRC to set up a genuinely independent judiciary and to change its laws to ban all forms of torture. Despite this, the PRC's Criminal Law only specifically prohibits certain kinds of torture.
The use of torture is in fact common in all prisons and detention centers in Tibet. Methods of torture include: inflicting shocks with electric batons; beating with iron bars, rifle butts and nail-studded sticks; branding with red-hot shovels; pouring boiling water over prisoners; hanging prisoners upside down or by the thumbs from the ceiling; shackling; kicking with boots; setting ferocious dogs onto prisoners; exposure to extreme temperatures; deprivation of sleep, food and water; prolonged strenuous 'exercise'; long periods of solitary confinement; sexual violence; taunts and threats of torture and death.
Specific reports of torture in Tibet, mostly from former prisoners who have been released and have fled Tibet, continue unabated. In cases studied through 1995, there were 208 cases of serious physical maltreatment out of 1276 cases studied, or more than 16% of all prisoners. In 1996 alone, there were more than 20 cases of torture documented through eyewitness accounts, not including cases of torture resulting in death. In fact, the torture appears to be becoming more severe, with an increasing number of prisoners who are unable to stand up fully on their own after release.
In 1996, the U.N. Special Rapporteur for Torture and other Cruel, Inhuman or Degrading Treatment or Punishment made note of continuing reports of torture of Tibetan prisoners. Notably, the cases included 6 specific cases of torture of children and numerous reports of maltreatment of juveniles. The Special Rapporteur also noted that it had still not received replies to earlier cases brought to the PRC's attention in 1994, and had still not received a reply to his request to visit the PRC. In 1998, the Special Rapporteur reported eight additional cases of torture and again expressed his concern at the number of reports coming from Tibet.
An October 1997 report by Physicians for Human Rights reported that one in every seven Tibetan refugees had personally been tortured. Ninety-four percent of political detainees reported being tortured. Fifteen percent of torture survivors were under age 16 at the time they were tortured.
Torture is never lawful. Nonetheless, credible evidence of torture of Tibetans on a systematic scale continues to come out of Tibetan prisons. Torture on such a scale evidences an international policy and practice to destroy any political will of the Tibetan people.
Since 1987, more than 60 Tibetans are known to have been shot by security forces during peaceful demonstrations. The majority of these extrajudicial and arbitrary executions took place in March 1989 when police fired into crowds of Tibetans with guns and automatic weapons. Most cases of summary or arbitrary execution, however, involve torture and maltreatment of Tibetan prisoners of conscience who died as result. Some of these cases involve deaths while in custody, though most involve the deaths of prisoners shortly after their release from prison.
There are at least 16 documented cases of Tibetan prisoners of conscience who have died in prison, or shortly after release from prison, as a result of torture and mistreatment. These include six women and one nun, Sherab Ngawang, who was only 12 years old when arrested and only 15 when she died shortly after her release from detention.
The U.N. Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions reported on several of these cases in 1996, but had received no response from the PRC regarding the cases of the Tibetans. He also noted that, despite repeated requests since 1992 to visit China, he had received no response to his request.
Torture until death is the ultimate sanction for political dissent. At the same time, when it happens on a regular basis despite public condemnation, it represents one of the most fundamental flaws in a State's legitimacy. This is not indifference to the human rights a State is duty bound to protect, but contempt for those rights and for the people who hold them.
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Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples... bearing in mind that the subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle [of equal rights and self-determination of peoples], as well as a denial of fundamental human rights, and is contrary to the Charter.
If one... or all... are missing, a very serious question arises as to the legitimacy of that Government, and if it continues over a long period of time, then it can be shown that it is not just a particular regime, but it is actually the State that has over a period of time shown this lack of legitimacy, regardless of the change of leader[ship], then the whole question of the legitimacy of that State arises in relation to that particular population group. It does not mean the whole state has to cease existing, but its sovereignty claim over that particular group does have to be questioned. This is where democracy is concerned, as perhaps the most effective and the best expression we have of the consent of the governed, that indeed [it] is the legitimate government that represents, protects and promotes their interests.
[W]hat is the requirement of legitimacy of state authority? Is this legitimacy a one-time requirement in the lifetime of a state authority, or whether this requirement of legitimacy continues throughout the existence of the state authority? I think that it continues throughout the lifetime of the existence of the state authority.
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections... and shall be held by secret vote or by equivalent free voting procedures.
2. The PRC Does Not Respect The Human Rights And Fundamental Freedoms Of The Tibetan People
a. The PRC unlawfully suppresses religion in Tibet
b. State-sanctioned population transfer violates the Tibetans' fundamental rights
c. The PRC denies Tibetan women their right to reproductive freedom
d. Tibetans are subject to discrimination on the basis of their race
e. The PRC's exploitation of Tibet's natural resources and abuse of the environment violate the Tibetans' human rights
f. The PRC has violated the Tibetans' right to housing
h. Tibetans are subject to arbitrary arrest and detention
j. The PRC subjects Tibetans to extrajudicial, summary and arbitrary executions
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