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II. TIBET IS RIGHTFULLY AN INDEPENDENT STATE
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The four requirements of statehood in international law are population, territory, government exercising effective control over that population and territory, and the capacity to enter into relations with other states. When the People's Liberation Army (PLA) entered Tibet in October of 1950, Tibet possessed all those attributes. The entry of the PLA into Tibet constituted an illegal act of aggression by the People's Republic of China (PRC) against Tibet.
1. A Distinctively Tibetan Population Inhabited Tibet
That the Tibetans constitute a distinct population is not disputed. Even the PRC recognizes Tibetans as a 'minority nationality.' Indeed, Mao Dzedong stated in 1952 that 'while several thousand Han [ethnic Chinese] people live in Sinkiang, there are hardly any in Tibet, where our army finds itself in a totally different minority nationality area.'' Thus, before the PLA entered Tibet in 1950, there was, by the PRC's own admission, a distinctively Tibetan population and no significant Chinese population in Tibet.
The PRC has never denied that there is a Tibetan territory. There are disputes over the precise boundaries of the Tibetan territory, but it is clear that the frontier of historic and ethnic Tibet extends beyond the boundaries of the Tibet Autonomous Region (TAR). Tibetan areas within the PRC but outside the TAR have been incorporated into the surrounding Chinese provinces of Qinghai, Gansu, Sichuan, and Yunnan. The Tibetan province of -Tsang forms the greater part of the TAR; the Tibetan province of Amdo forms a large part of Qinghai, although a small portion lies in Gansu; and the Tibetan province of Kham is divided among Gansu, Sichuan, Yunnan, and the TAR.
There are disagreements concerning the precise location of the Sino-Tibetan border. In fact, in the early part of this century a number of boundary wars took place between Tibet and China, interrupted by peace agreements or cease-fire agreements mediated by Great Britain. These disagreements over the Sino-Tibetan border, however, do not affect the question of Tibetan statehood. Across the world neighboring states have border disputes. In some cases large tracts of territory are claimed by different states. This does not affect the legal status of the disputing states themselves. Likewise, the statehood of neither Tibet nor China is brought into dispute by their border disagreement.
The other salient point about the Sino-Tibetan border is that the location of much of historic and ethnic Tibet is undisputed. With the exception of areas of India, Nepal, and other Himalayan countries, where ethnic Tibetans live, the Tibetan maps of Tibet are largely contiguous with 'ethnic' Tibet. All of the TAR lies within traditional ethnic Tibet; the TAR, Kanlho Tibetan Autonomous Prefecture (TAP), Ngapa TAP, Nanze TAP, Dechen TAP, and Mili Tibetan Autonomous District (TAD) constitute virtually all of -Tsang and Kham; and Qinghai and Gansu include most of Amdo. Indeed, the creation by the PRC of 'Tibetan Autonomous Areas' (Region, Prefectures, and District) is tantamount to a concession by the PRC that those areas are historically Tibetan.
When the PLA entered Tibet in 1950, Tibet was effectively governed by the Tibetans. In fact, the PRC admits that Tibetans effectively controlled their own territory and people when it claims that in 1950 the PRC liberated Tibetans from a feudal system dominated by aristocrats, upper-class lamas and local governors. The Dalai Lama (or, during his minority, the Regent) ruled with the assistance of the Kashag (Cabinet) and Tsongdu (National Assembly) in the distinctive Ganden Phodrang form of government. The Government maintained an extensive civil service, a small army, a system of taxation, a currency, and a postal and telegraph service. Relations among Tibetans and between Tibetans and their government were controlled not by China but through the Tibetan judicial system, which was based on that of Tibet's secular monarchy of 1349-1642. Studies and firsthand accounts by Tibetans, Chinese, Indians, Britons, and others show that the Tibetan Government effectively controlled the Tibetan territory.
Tibetans also exercised sovereign control over passage across its borders, establishing an Office of Foreign Affairs in 1943 and issuing passports. A number of countries recognized those passports as valid travel documents. In particular, in 1948 France, Great Britain, India, Italy, and, with reservations, the United States accepted Tibetan passports.
Tibet was able to enter into international relations, and it did enter into such relations repeatedly before 1950. Tibet and Ladakh entered into a treaty in 1842. Tibet and Nepal entered into a treaty in 1856, and Nepal, in its application for United Nations (UN) membership in 1949, cited that treaty as an example of its capacity to enter into international relations. Tibet entered into a treaty with Great Britain in 1904. After the collapse of the Qing Dynasty and the founding of the Nationalist Republic of China in 1911, Tibet entered into a treaty of alliance with Mongolia. Nepal and Bhutan maintained diplomatic representatives in Lhasa. Britain treated Tibet as a sovereign state by maintaining a permanent diplomatic mission in Lhasa from 1933 until 1947. Independent India then maintained a diplomatic mission there until the PRC invaded.
In 1913-1914, representatives of China, Great Britain, and Tibet participated in the tripartite Simla Conference, called to determine Tibet's future status and its relations with China and Britain. All parties entered the negotiations as equal parties, recognized as such by the others. The Tibetan representative was a properly credited plenipotentiary whose powers were accepted formally by Britain and China and had the right to decide all matters which may be beneficial to Tibet. No tripartite agreement emerged from the conference, although all three parties initialed a draft text, but Britain and Tibet did sign a bilateral agreement on borders and trade between India and Tibet.
The PRC argues that this so-called 'McMahon Line' delineating the border between Tibet and India was the result of an unlawful deal between the British and Tibetan delegates at the Simla Conference. This argument misses the point. The results of the Simla Conference are not principally what demonstrates Tibet's capacity to enter into international relations. Rather, it is the participation of Tibet as an equal party which demonstrates that capacity. Because Tibet participated as an equal with China and Great Britain, Tibet and Great Britain could only have entered a treaty if Tibet were an autonomous state, albeit one with links to China. A binding treaty could have resulted from the Simla Conference, had the negotiations gone well, because the parties had the capacity to form such a treaty.
As it happened, Britain and Tibet did conclude bilateral agreements regarding trade and the Indo-Tibetan border at the Simla Conference, and India later recognized the validity of those treaties. When India gained its independence in 1947, the Tibetan government did initially ask for a return of some territory conceded to British India at Simla. The Government of India responded, in an official communication to the Tibetan Foreign Office in Lhasa, as follows:
During World War II, Tibet remained neutral, and it insisted on that neutrality as against China, Great Britain, and the United States. As against China, Tibet refused to permit the construction of a road through Tibet to carry military supplies from British India to China. China proposed the road in 1941, and Britain responded by asserting that its construction would require Tibetan permission: 'His Majesty's Government and the Government of India... could not be parties to any scheme for the construction of a road that would pass through territory under the jurisdiction of the Tibetan Government without the full and willing assent of the Tibetan authorities.' Tibet rejected the proposal, and when China announced its intent to proceed, Tibet made clear that whether a road would be constructed in Tibet was a matter to be decided by the Tibetan Government:
The Tibetan Assembly then resolved not to permit the road construction and communicated that decision to the government of China.
The Government of Great Britain, although unwilling to embark with the Chinese on a road-construction project over the express objection of the Government of Tibet, nonetheless favored the passage of war materiel through Tibet. Thus, the War Cabinet in London agreed with the recommendation of the British Ambassador and the General Officer Commanding in China that 'action should now be taken with the Tibetan government to induce them to agree to immediate exploration and development of all possible routes by land and air across Tibet and that the Chinese Government should be openly associated with [Great Britain] in these representations.' Simultaneously, London asserted that the 'Tibetans have every moral right to their independence for which they have fought successfully in the past and we are committed to support them in maintaining it.'
Ultimately, the Tibetan Government agreed to permit only the passage of nonmilitary supplies -- which would not violate Tibetan neutrality -- from India to China. The Government of China wanted to station Chinese technicians along the supply route, but the Tibetan Government refused to allow the Chinese Ministry of Communications to establish stations in Tibet or to allow its representatives to travel within Tibet. Thus, because of Tibet's neutrality, and despite the wishes of both Great Britain and China, the military supply route was never opened.
As against Great Britain, in addition to refusing the establishment of a military supply route from British India to China, Tibet also asserted its neutrality by refusing British requests for extradition from Tibet of two prisoners of war who had escaped from a British prison camp. As against the United States, Tibet asserted its neutrality by insisting that U.S. Air Force planes not fly through Tibetan airspace on their way between India and China.
Thus, Tibet had repeatedly engaged in international relations before 1950. Not only had Tibet entered into numerous treaties with its neighbors and others, it had also asserted the sovereign right of neutrality against three major powers in World War II. These were the acts of a functioning and independent state. Had Tibet been a part of China, Tibet would not have been entitled to assert its neutrality against China's interests.
The Tibetan people occupy, and have for centuries occupied, the Tibetan territory (roughly speaking, the Tibetan Plateau). When the PLA entered Tibet in 1950, there existed in Tibet a government which exercised effective control over the Tibetan territory, including both relations among Tibetans and relations between Tibetans and their government. The Tibetan government had the capacity to enter into relations with foreign states and had done so. It concluded treaties, and it maintained neutrality when its neighbors, including China, were at war. Tibet possessed all the attributes of independent statehood. Under international law, therefore, Tibet was an independent state as of 1950.
(On to II.B, The Seventeen-Point Agreement Of 1951 Is Absolutely Void Under International Law -->)
2. The PLA Entered Distinctively Tibetan Territory
3. The Government Of Tibet Was Exercising Effective Control Over The Tibetan Population In The Tibetan Territory
4. The Government Of Tibet Was Capable Of Entering Into International Relations And Had Entered Into Such Relations Repeatedly
The Government of India would be glad to have an assurance that it is the intention of the Tibetan Government to continue relations on the existing basis until new agreements are reached on matters that either party may wish to take up. This is the procedure adopted by all other countries with which India has inherited treaty relations with His Majesty's Government.
When the Chinese simply announced to the Tibetan government that 'it has been decided between the British and Chinese Governments to construct a motor road for the benefit of Tibetans' and asked permission to construct it through Tibetan territory, the Kashag replied: 'The British and Chinese Governments may have decided to construct the road for their own convenience, but it is of no concern to the Tibetan Government, [which] cannot allow the Chinese to construct a road in Tibetan territory.'
5. Conclusions Regarding The Status Of Tibet In 1950
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