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Tibet: OutLook Opinions and Columns From the legal standpoint Tibet has not lost its Nationhood

From the legal standpoint Tibet has not lost its Nationhood

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Dharamshala — With a written history of more than 2000 years, Tibet had been remained an independent, sovereign State. However, The People's Republic of China (PRC) justifies its occupation by claiming that Tibet has been part of China for around 800 years. It's claim is not supported by facts. Tibet has cultivated and maintained a unique culture, written and spoken language, religion and political system for centuries, making it's historical territory the world’s 10th largest nation and Tibetans are a uniquely distinct race, different from all the surrounding peoples.

For a short period of time in the 13th and 18th centuries, Tibet came under a degree of outsider influence. Tibet broke political ties with the Yuan emperor in 1350, before China regained its independence from the Mongols. In the 13th century Tibet fell under Mongol influence, which was to last until the 18th century. In 1720, the Ch'ing dynasty replaced Mongol rule in Tibet. China thereafter claimed suzerainty, often merely nominal.

Tibet’s recorded history stretches as far back as 127 BC. As with all of the great nations of the world, the interactions with its neighbours was numerous; sometimes violent, often destined to prevail over their adversaries. Tibet often defeated the T'ang dynasty in the many battles fought between the 17th and 19th centuries. In 821 Tibet, under Ralpacan, and T'ang Dynasty under the Ruler Hwang Te entered into a Treaty as independent Nations. The T'ang Dynasty had made many pacts and signed peace treaties with Tibet before, of which none lasted too long, until the powerful Tibetans clearly threatened the existence of the T'ang Empire and consequently this bilingual treaty was drafted and signed.

The Treaty in part reads: "The two Nations, Tibet and China, shall keep the country and frontiers which they now possess. The whole region to the East of that being the country of Great China and the whole region to the West being assuredly the Country of Great Tibet, from either side there shall be no warfare, no hostile invasions, and no seizure of territory…………And in order that this Agreement establishing a great era where Tibetans shall be happy in Tibet, and Chinese shall be happy in China shall never be changed, the Three Jewels, the body of Saints, the sun and the moon, planets and stars have been invoked as witnesses." This Treaty was engraved on three stone pillars of which one is still standing in front of the Jokhang Temple in Lhasa, the Capital of Tibet.

The relationship that developed and continued to exist into the 20th Century between the Mongolia and Tibet was a reflection of the cultural, and especially religious affinity between the two Central Asian nations. The Mongol Empire was a world empire and, whatever the relationship between the two countries, the Mongols never integrated the administration of Tibet and China nor appended Tibet to China in any manner.

In 1912, the 13th Dalai Lama - the political and spiritual leader of the Government of Tibet and the Tibetan National Assembly- issued a proclamation reaffirming Tibet’s independence: "We are a small, religious, and independent nation." Tibet had its own national flag, currency, stamps, passports and army under the auspices of a political government system; signed major international treaties, and maintained diplomatic relations with neighbouring countries. Tibet has maintained a unique culture, written and spoken language, religion and political system for centuries.

Tibet has maintained throughout its history a distinctive national, cultural, and religious identity separate from that of China. Chinese archival documents and traditional dynastic histories, including those pertaining to periods of Manchu and Mongol rule, never refer to Tibet being made "an integral part" of China. Several countries, including Mongolia, Bhutan, Nepal, British India, and Czarist Russia recognized Tibet as an independent nation or dealt with Tibet independently of any Chinese Government. In 1949-50, China launched an armed invasion of Tibet in contravention of international law. At the time of Chinese occupation, Tibet possessed all the attributes of statehood under international law including a defined territory and population, an independent government, and the ability to conduct domestic affairs and independent international relations, as found in 1960 by International Commission of Jurists.

From a legal standpoint, Tibet has never lost its Nationhood on the crossroads of history. It is an independent state under illegal occupation. Neither China's military invasion nor the continuing occupation by the People's Liberation Army has transferred the sovereignty of Tibet to China. The Chinese government has never claimed sovereignty of Tibet by conquest. In fact, China recognizes that the use or threat of force (outside the exceptional circumstances provided for in the UN Charter), the imposition of an unequal treaty, or the continued illegal occupation of a country can never grant an invader legal title to territory. Instead, it's claims are based solely on the alleged subjection of Tibet to a few of China's strongest foreign rulers in the 13th and 18th centuries.

Despite these facts and figures, some countries and their corporations continue to support communist China economically. This shows their blatant lack of respect for these critical issues of political and religious freedom and human rights. Nations that claim to want peace must be courageous and act in the interests of basic freedoms and human rights rather than simply in the interest of economic gain or global resource exploitation.

Tibet's status following the expulsion of Manchu troops is not subject to serious dispute. Whatever ties existed between the Dalai Lama and the Manchu emperors of the Qing Dynasty were extinguished with the fall of that empire and dynasty. From 1911 to 1950, Tibet successfully avoided undue foreign influence and behaved, in every respect, as a fully independent state. Tibet maintained diplomatic relations with Mongolia, Nepal, Sikkim, British India, China, Russia and Japan, and later with independent India but relations with China were strained. The Chinese waged a border war with Tibet while formally urging Tibet to "join" the Chinese Republic, claiming all along to the world that Tibet already was one of China's "five races."

In an effort to reduce Sino-Tibetan tensions, the British convened a tripartite conference in Simla in 1913 where representatives of the three states met on equal terms. Despite the British delegation reminding his Chinese counterpart that Tibet had entered the conference as an "independent nation recognizing no allegiance to China," the conference was unsuccessful and did not resolve the difference between Tibet and China.

It was, nevertheless, significant in that Anglo-Tibetan friendship was reaffirmed with the conclusion of bilateral trade and border agreements. In a Joint Declaration, Great Britain and Tibet bound themselves not to recognize Chinese sovereignty or other special rights in Tibet unless China signed the draft Simla Convention that would have guaranteed Tibet's greater borders, its territorial integrity and full autonomy. China never signed the Convention, however, leaving the terms of the Joint Declaration in full force.

Tibet conducted its international relations primarily by dealing with the British, Chinese, Nepalese, and Bhutanese diplomatic missions in Lhasa, but also through government delegations travelling abroad. When India became independent, the British mission in Lhasa was replaced by an Indian one. During World War II Tibet remained neutral, despite combined pressure from the United States, Great Britain, and China to allow passage of raw materials through Tibet.

Tibet never maintained extensive international relations, but those countries with which it did maintain relations treated Tibet as they would with any other sovereign state. Its international status was in fact no different from, say, that of Nepal. Thus, when Nepal applied for United Nations' membership in 1949, it cited its treaty and diplomatic relations with Tibet to demonstrate its full international personality. While China claims that Tibet has always been a part of China, Tibet has a history of at least 1300 years of independence from China. In 821 China and Tibet ended almost 200 years of fighting with a treaty engraved on three stone pillars, one of which still stands in front of the Jokhang cathedral in Lhasa, the capital of Tibet.

The treaty reads in part: Both Tibet and China shall keep the country and frontiers of which they are now possessed. The whole region to the East of that being the country of Great China and the whole region to the West being assuredly the country of Great Tibet, from either side there shall be no hostile invasion, and no seizure of territory… and in order that this agreement establishing a great era when Tibetans shall be happy in Tibet and Chinese shall be happy in China shall never be changed, the Three Jewels, the body of Saints, the sun and the moon, planets and stars have been invoked as witness.

The three stone pillars were erected, one outside the Chinese Emperor’s palace, one on the border between the two countries, and one in Lhasa. During the 13th and 14th centuries both China and Tibet came under the influence of the Mongol empire. China claims today that Tibet and China during that time became one country, by virtue of the Mongols domination of both nations. In validating this claim, it must first be remembered that virtually all of Asia was dominated by the Mongols under Kublai Khan and his successors, who ruled the largest empire in human history. Second, the respective relationships between the Mongols and the Tibetans and between the Mongols and Chinese must be examined. These two relationships were not only radically different in nature, but they also started and ended at different times. Tibet came under Mongol influence before Kublai Khan’s conquest of China and regaining complete independence from the Mongols several decades before China regained its independence.

When Mongol Empire Genghis Khan expanded toward Europe and China in the 13th century, the leaders of the Sakya school of Tibetan Buddhism concluded an agreement with the Mongols in order to avoid the otherwise inevitable conquest of Tibet. Mongols conquered China while Tibetans and Mongols established the unique 'priest patron' relationship, also know as Cho-yon. The relationship became so vital that  Kublai Khan invited the Sakya Lama to become the Imperial Preceptor and supreme pontiff of his empire after he conquered China and established the Yuan Dynasty, and was ruled thereafter directly by Mongol rulers. As Tibet’s patrons they pledged to protect it against foreign invasion. In return Tibetans promised loyalty to the Mongol empire.

The relationship still exists today between the two is a reflection of the close cultural affinity between the two peoples. To claim that Tibet became a part of China because both countries were subjected to varying degrees of Mongol or Yuan Dynasty control, as the PRC does, is indeed totally absurd. The Mongol Empire was a world empire; no evidence exists to indicate that the Mongols integrated the administration of China and Tibet or appended Tibet to China in any manner. It is like unprofessional claiming that Spain should belong to France because both came under Roman domination, or that Burma became a part of India when the British Empire extended its authority over both territories.

The Mongol-Tibetan relationship was thus based on mutual respect and dual responsibility. In stark contrast, the Mongol-Chinese relationship was based on military conquest and domination. The Mongols ruled China and the world, while the Tibetans ruled Tibet. The Mongol empire ended in the mid-14th century. In 1639, the Dalai Lama established another cho-yon relationship, this time with the Manchu Emperor, who in 1644 invaded China and established the Qing Dynasty.

By the middle of the 19th century, the Munchu influence in Tibet had waned considerably as the Manchu empire began to disintegrate. In 1842 and 1856 the Manchus were incapable of responding to Tibetan calls for assistance against repeated Nepalese Gorkha invasion. The Tibetans drove back the Gorkhas with no assistance and concluded bilateral treaties. In 1911 the cho-yon relationship came to its final end with the fall of the Manchu Dynasty. Tibet formally declared its Independence in 1912 and continued to conduct itself as a fully sovereign nation until its invasion by Communist China in 1949.

As pointed out above, the PRC has not claimed to have acquired sovereignty over Tibet by conquest. Indeed, China recognizes that the use or threat of force (outside the exceptional circumstances provided for in the UN charter), the imposition of an unequal treaty or the continued illegal occupation of a country can never grant an invader legal title to territory. Its claims are based solely on the brief conquests of China’s strongest rulers in the thirteenth and eighteenth centuries. This being established, how can China – one of the most ardent opponents of imperialism and colonialism – excuse its continued presence in Tibet, against the wishes of Tibetan people, by citing as justification Mongols and Manchu imperialism?

More than 30 new countries have been created, after the collapse of the Soviet Union in 1990. Thus, contemporary international law holds that recognition of a Nation’s Sovereignty can occur either by Explicit, or Implicit acts, including such as negotiations, treaties, and diplomatic relations. In fact, Tibet has long been an independent country, dating back for centuries, explicitly recognized by many countries and enjoyed diplomatic relations with most countries prior to the invasion by the PRC. El Salvador formally requested that China's aggression against Tibet be placed on the agenda of the U.N. General Assembly. During the four U.N. General Assembly debates on Tibet in 1959, 1960, 1961, and 1965, many countries including the Philippines, Ireland, Thailand, United States, Nicaragua explicitly stated that Tibet was an independent country, illegally occupied by China. "Aggression" and "Invasion" were widely used terms to describe the Chinese occupation of Tibet during these debates.

The Thai Ambassador to the UN stated, "The majority of states refute the contention that Tibet is part of China.” The U.N. passed three resolutions in 1959, 1961, and 1965 regarding Tibet, stating that Tibetans are deprived of their inalienable rights to self-determination through the illegal occupation by China. Mongolia explicitly recognized Tibet's sovereignty by signing the 1913 Treaty with Tibet called the ‘Treaty of Friendship and Alliance’, signed by both Nations. The Nepalese government in its 1949 application to the UN for membership listed Tibet as an independent country with which Nepal maintained full diplomatic relations. The Nepalese diplomatic mission in Lhasa maintained full embassy status, staffed with an Ambassador right up until 1962.

As Mr Frank Aiken, Ireland’s UN Ambassador, who remarked during the 1959 UN General Assembly debates on the question of Tibet, “Looking around this assembly, … how many benches would be empty in this hall if it had always been agreed that when a small nation or a small people fall in the grip of a major power no one could ever raise their voice here; that once there was a subject nation, then must always remain a subject nation. Tibet has fallen into the hands of the Chinese People’s Republic for the last few years. For thousands of years, … Tibet was as free and as fully in control of its own affairs as any nation in this Assembly, and a thousand times more free to look after its own affairs than many of the nations here.”

May other countries made statements in the course of the UN debates that reflected similar recognition of Tibet's independent status. Thus, for example, the delegate from the Philippines declared: " ... It is clear that on the eve of the invasion in 1950, Tibet was not under the rule of any foreign country. " The delegate from Thailand reminded the assembly that the majority of states " refute the convention that Tibet is part of China. "

The United States of America joined most other UN members in condemning the Chinese "aggression" and "invasion" of Tibet.

In 1959, 1960 and again in 1961, the UN General Assembly finally passed resolutions (1353-XIV, 1723-XVI and 2079-XX) condemning Chinese human rights abuses in Tibet and calling on China to respect and implement the human rights and fundamental freedoms of the Tibetan people, including their right to self-determination.

In a 1943 note to the U.S. State Department, the British embassy in Washington explicitly stated that, "Tibet is a separate country in full enjoyment of local autonomy, entitled to exchange diplomatic representatives with other powers." In December 1950 the U.S. State Department declared the following in a public statement: “The United States, which was one of the early supporters of the principle of self- determination of peoples, believes that the Tibetan people have the same inherent right as any other to have the determining voice in its political destiny. The United States Government recognizes the de facto autonomy that Tibet has exercised since the fall of the Manchu Dynasty, and particularly since the Simla Conference."

On October 28th, 1991, US Congress under a Foreign Authorization Act passed the resolution wherein they recognized “Tibet, including those areas incorporated into the Chinese provinces of Sichuan, Yunnan, Gansu and Qinghai, "AN OCCUPIED COUNTRY" under the established principal of international law”. The resolution further stated that Tibet’s true representative is the Dalai Lama and the Tibetan Government in exile as recognized by the Tibetan people.

The resolution stated that it is the policy of the United States to oppose aggression and other illegal uses of force by one country against the sovereignty of another as a manner of acquiring territory, and to condemn violation of international law, including the illegal occupation of one country by another. In the 1950s and 1960s the United States repeatedly condemned what it characterized at China's aggression against Tibet and actively supported the United Nations in both condemning China and calling for Tibet's right to self-determination in General Assembly Resolutions 1353 (1059), 1723 (1961 and 2079 (1965), stating "the United States believes that our objectives must include the restoration of human rights of the Tibetan people and their natural right of self-determination."

The year 1949 was a key turning point in the history of Tibet, when the People's Liberation Army of the PRC first crossed into Tibet. After defeating the small Tibetan army and occupying half the country, the Chinese government imposed the so-called "17-Point Agreement for the Peaceful Liberation of Tibet" on the Tibetan government in May 1951. The presence of over 40,000 troops in Tibet, the threat of an immediate occupation of Lhasa, and the prospect of the total obliteration of the Tibetan state meant the agreement was signed under duress, therefore lacking validity under international law.  

As far back as 1960 the International Commission of Jurist' (ICJ) Legal Inquiry Committee noted: “Chinese allegations that the Tibetans enjoyed no human rights before the entry of the Chinese were found to be based on distorted and exaggerated accounts of life in Tibet.” China itself, in a draft constitution drawn up in 1931, stated the following: "National minorities may either join the Union of Chinese Soviets or secede from it." This implicitly included Tibet as a nation.

In Tibet today, religious persecution, violations of human rights, environmental destruction, and economic inequalities and the wholesale destruction of religious and historic buildings continue on a constant and regular basis. Tibetans inside Tibet continue to resist the destruction of their national identity despite the loss of 1.2 million brothers and sisters. Our new generations must be determined to regain the country's freedom passed down by our older generation, responsibility flows down.The creation of Tibetan democracy within exile is a significant achievement for the progress of human society and an important symbol of modern civilization. However, since social division cannot be influenced international affairs democracy and moral ethics must go hand in hand, one of these two alone equally handicapped.

A Tibetan uprising in Lhasa against the Chinese is brutally put down on March 10, 1959, thousands of Tibetans are killed. His Holiness the 14th Dalai Lama flees into exile in India. The levels of deprivation of human rights in Tibet are hardly paralleled anywhere in the world. Thousands of Tibetans jailed. The cultural revolution comes to Lhasa in August 1966, temples and monasteries that were still standing are looted and razed to the ground. Thousands of Tibetans, lay and ordained, persecuted and sent to labour camps. Several mass protests in Tibet in the late 1980s and early 1990s were violently suppressed by the Chinese Communist government and martial law was imposed in 1989.  Hundreds of victims in violent aftermath of demonstration in Lhasa on October 1, 1987; nearly hundred killed. Another demonstration in Lhasa put down with even greater brutality on March 5, 1988. Chinese Armed Police fire on the crowd. More than ten killed, over 100 injured and hundreds arrested. Chinese Police fire on demonstrators in Lhasa, on December 10, 1988, twelve fatalities and many injured.

China is governed by a violently repressive regime. There is a fear of letting in international observers, world leaders must stand behind their responsibilities and must let in the light and let people understand it. The regime does not allow information out of it except its propaganda and, therefore, the people of the world is not as aware of destruction of a people and a country.

Freeing Tibet peacefully and definitively could set an example for the rest of the world. It could become a symbol of change and a model for fighting against abuses of human rights, women’s rights, and political, religious and cultural freedoms across the globe. It could be an example of democracy loving people overcoming authoritarian rule and injustice. The international community seems to be silent on this, even witnessing the destruction of a people and a country. However, history is what happened in the past, it cannot be rewritten, but the future is in the hands of us all.

Last Updated ( Thursday, 27 July 2017 01:33 )  


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