Tibet Justice Center - Tibet Justice Center Reports - The Case Concerning Tibet

A. Tibet Was Fully Independent Prior To 1951 (immediately below)
B. The Tibetan People Are Entitled To Self-Determination (further below)

A. Tibet Was Fully Independent Prior To 1951

Tibet was an independent, sovereign nation when the armies of the People's Republic of China ('PRC') entered Tibet in 1950. Tibet at that time presented all the attributes of statehood. Even the PRC does not dispute that the Tibetans are a distinct people who in 1950 occupied a distinct territory. Tibet also had a fully functioning government headed by the Dalai Lama. That government, free from outside interference, administered the welfare of the Tibetan people through civil service, judicial and taxation systems, as well as through a postal and telegraph service, and a separate currency. The government controlled the borders and issued passports to its people, which were recognized internationally. It entered into treaties as a sovereign with other states, including Great Britain, Ladakh, Nepal and Mongolia. Tibet also negotiated as an equal sovereign with China and Great Britain at the Simla Conference of 1913-14.
The Seventeen Point Agreement of 1951, which the PRC claims resolved Tibet's status, is not a legally binding agreement. The Agreement was signed when armies of the PRC occupied large parts of Tibet, the Tibetan representatives did not have authority to sign the Agreement on behalf of Tibet, and it was signed under threat of further military action in Tibet. A treaty concluded under such circumstances is legally void and of no effect.
Once a state exists, it is legally presumed to continue as an independent state unless proved otherwise. The historical evidence not only fails to prove otherwise, but affirmatively demonstrates that Tibet has always been an independent state, despite periods during which it was influenced to varying degrees by foreign powers.
Tibet indisputably was an independent state before the 13th century. Tibet was the most powerful nation in Asia in the 8th century and entered a treaty with China in 822. For the next 300 years, there was no official contact between Tibet and China. In the 13th century, Tibet came under Mongol dominance several decades before the Mongols conquered China militarily and established the Yuan Dynasty. Tibet was not part of China before the Mongol conquest and during the Yuan Dynasty was administered separately by the Mongols through local Tibetan rulers, in contrast to China, which the Mongols ruled directly. The present government of China, therefore, cannot claim sovereignty over Tibet as a result of their separate dominance by a third power. Nor did Tibet lose its sovereignty during this period. The relationship between Tibet and the Mongols was a unique priest-patron relationship known as cho-yon. Tibet received protection from the Buddhist Mongol emperors in return for spiritual guidance from the ruling lamas of Tibet. The relationship involves a reciprocal legitimation of authority.
During Tibet's 'Second Kingdom,' from 1349 to 1642, Tibet was a secular kingdom free of both Mongol and Chinese control. Emperors of the Chinese Ming Dynasty nominally granted titles to certain Tibetan officials but exercised no effective control over Tibetan affairs or over the successive changes in the Tibetan government. Nor did the Ming Emperors exercise any effective control over the Dalai Lamas, who later took control of Tibet.
During the Qing Dynasty, the Dalai Lamas and the Manchu Emperors reestablished the cho-yon relationship. During the 18th century, the Emperor's protection was invoked four times under this relationship. The Emperors' representatives in Lhasa, the Ambans, initially served only as liaisons to the Emperor. In 1793, the Emperor purported to grant the Ambans power to exercise control over Tibet's external affairs, but this was presented to the Eighth Dalai Lama as a suggestion, not an exercise of Imperial power. Moreover, within a few decades, the Ambans exerted virtually no influence in Tibet and the Qing Emperors stopped providing the protection that was their side of the cho-yon relationship, effectively ending it.
Tibet formally expelled the last garrisoned troops of the Qing Emperor in 1911, an unmistakable act of sovereignty, and repatriated them to China in 1912. The Kuomintang Government invited Tibet to join the Nationalist Republic, but Tibet declined. The Nationalist Government attempted unilaterally to assert control over Tibet until 1918 and then again beginning in 1931, but failed. In 1949, Tibet expelled the last remaining Chinese representatives.
Tibet was an independent country at the time of the Chinese invasion in 1950 with a government headed by the institution of the Dalai Lama. The State of Tibet continues, despite the illegal occupation, through the existence and activities of the Tibetan Government-in-Exile. The Dalai Lama remains the Head of State with executive functions organized under the cabinet, or Kashag. Under a draft constitution, legislative authority rests in an elected parliament, and an independent judiciary has been established. The Tibetan State therefore continues to exist, represented by its legitimate Government-in-Exile in Dharamsala.

B. The Tibetan People Are Entitled To Self-Determination

Even if Tibet had not been an independent nation in 1950, the Tibetan people would nonetheless be entitled to exercise their right of self-determination. International law recognizes the right of peoples to self-determination; that is, 'the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.' The Tibetans are unquestionably a 'people' to whom the right of self-determination attaches. They are entitled to choose independence from the PRC, autonomy with the PRC, or any other political status.
The Tibetans are entitled to exercise their right of self-determination as against the PRC's claim of territorial integrity because the PRC has not acted as the legitimate government of the Tibetan people. A government's legitimacy derives from a people's exercise of the right of self-determination and from its conduct in accordance with its obligation to protect and promote the fundamental human rights of all of its people, without discrimination. The PRC's government in Tibet was imposed on the Tibetans by force, not by an exercise of self-determination. Moreover, the PRC has persistently and systematically abused the human rights of Tibetans through repression of religion, population transfer, birth control policies, discrimination, destruction of the environment, involuntary disappearances, arbitrary arrest, torture and arbitrary executions. The PRC is therefore not the legitimate government of the Tibetan people and has no claim of territorial integrity to assert against the Tibetans' right of self-determination.
A balancing of the fundamental values of the international community also weighs heavily in favor of enforcing the Tibetans' right to self-determination. A non-militarized independent Tibet would enhance peace and security in the region by serving as a buffer zone between the two most populous nations in the world - India and China - who have only gone to war since the PRC stationed troops in Tibet along the Indian border. The Tibetans' exercise of self-determination will also promote the international values of respect for human rights and fundamental freedoms. The PRC has openly and officially abused Tibetan human rights in an apparent effort to marginalize the Tibetans as a people. Only the exercise of self-determination by the Tibetans will restore respect for the Tibetans' human rights and fundamental freedoms.

(On to part II. TIBET IS RIGHTFULLY AN INDEPENDENT STATE -->)

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