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Options For Tibet's Future Political Status: Self-Governance Through An Autonomous Arrangement
By Tibet Justice Center (Eva Herzer). Published by: Tibetan Parliamentary & Policy Research Centre. New Delhi, India, 2002.
2. The Right To Self-Determination - The Legal Cornerstone of Tibet's Future
When the Tibetan people discuss what future they seek for Tibet, whether that is independence or some form of autonomy, it is important to first be clear about the legal basis for the Tibetans' right to make decisions on their country's political status. While most people will agree that the Tibetan struggle against China's occupation is a morally just cause, fewer people fully understand the legal basis for the Tibetan people's right to govern Tibet.
The legal case of Tibet rests on two distinct pillars. The first legal pillar is Tibet's historical claim based on past independence, known in legal terms as the right to territorial integrity, and the second legal pillar is the right to self-determination, the right of a people to chose how to govern themselves. Both of these rights, separately, give the Tibetan people the choice to determine their future political, economic, social and cultural status. The options as to a future political status include independence, an autonomous arrangement, or theoretically total integration into the Chinese state.
It is important to note, at the outset, that the right to self-determination is not an option for Tibet's political status, such as independence or autonomy, rather it is simply the legal right of Tibetans to chose independence or autonomy. Much confusion on this point was engendered by the Tibetan referendum in the 90's, which gave Tibetans the choice of independence, the middle path, satyagraha or self-determination. These options, from a legal perspective, were not logical because self-determination, as discussed below, is a legal right to make choices for such future statuses as independence or autonomy for Tibet. Self-determination is not a choice of political status, it is the underlying right to make choices.
The first separate pillar of Tibet's legal case is the right to territorial integrity. It is the right of a sovereign nation to retain control over its territory. In other words, this is what we sometimes refer to as Tibet's historical right or claim. Thus if Tibet can show that she was sovereign prior to China's invasion, then she is entitled to continued and future sovereignty, which means she has the right to decide on her future political, social, cultural and economic status. While Chinese and Tibetan history is intertwined in several significant ways, many scholars, including the International Commission of Jurists, have come to the conclusion that Tibet's historical claim to sovereignty is valid and that Tibet, if it so chooses, is entitled to have its sovereign status restored. Other scholars, many politicians and of course China, disagree with that conclusion. Most serious scholars of law and history will agree that Tibet was a sovereign nation when it was invaded by China in 1949. This alone is sufficient to conclude that China's military annexation was unlawful. Additionally, China's theory that Tibet became a part of China during the Mongol period in the 13th century can not be legally justified, since under this type of argument China could claim most of Asia, which was under Mongol rule as well, and India could claim most of its neighbors, who were governed under a common British rule. While Manchu influence in Tibet was substantial in the 18th century, it was not unlike that of many protectorate relationships between sovereign nations today and, in any event, that influence had faded away by the end of the 19th century. A detailed discussion of this history can be found in "The Case of Tibet", a study written by lawyers for Tibet and the Unrepresented Nation's and People's Organization, published by the TPPRC.
The problem with historical arguments is that history can be interpreted in many different ways. Nations and peoples sometimes become interdependent, and instead of a historical picture emerging in clear blacks and whites, it comes out in shades of gray, which are subject to interpretation. China rests her case against Tibet solely on her historical interpretation that Tibet has always been a part of China and therefore concludes that Tibet has no right to determine its future. Interestingly, and for good reasons, China has been mostly silent on Tibet's right to self-determination.
Tibet's second legal pillar is the right to self-determination. This right is separate from Tibet's territorial, or historical claim. In other words, even if China were correct and Tibet was not independent in the past but a legitimate part of China, Tibetans today have the right to self-determination. Pursuant to that right, Tibetans today have the legal right to decide their political future. The right to self-determination is a cornerstone of the UN Charter (Chapter 1, Article 1 (2)) and is a right which applies to peoples, not individuals. There is no genuine dispute that Tibetans are a people under international law. "A people" is defined as a group with a common historical tradition, a racial identity, a shared culture, linguistic unity, religious affinity, a territorial connection and a common economic life.
Given that Tibetans are a distinct people, there is no legal dispute that they have the right to self-determination. Even the United Nations General Assembly, in 1961 and 1965, explicitly recognized the Tibetan peoples' right to self-determination and called on China to respect this right. Tibetans thus stand on firm legal ground when they insist on the exercise of their right to self-determination. At the same time, because the Tibetan case is based on this internationally recognized right, China is legally incorrect when it claims that all matters concerning Tibet are Chinese domestic affairs. The advantage of using the right to self-determination as the basis for Tibet's case thus is many-fold. It avoids the slippery slope of historical interpretation. By removing the historical debate, it makes the deeply ingrained beliefs of many Chinese people that Tibet always was a part of China irrelevant and has the benefit of a face saving solution. Further, it internationalizes the Tibetan issue and legitimizes the requests of governments and people internationally that China comply with its international legal obligations vis-a-vis Tibet.
In some situations a conflict can arise when a people seek independence, based on the right to self-determination, and when the state involved tries to prevent a loss of territory by claiming that it is entitled to keep its territory intact, based on the right to territorial integrity. In some situations such a conflict may mean that the people are entitled to self-governance through an autonomous arrangement only, but are not legally entitled to full independence. However, when a state has not fulfilled its duties to a people to protect and promote their human rights, and when a state has prevented the people from democratically electing its political representatives, then the state can not use the right to territorial integrity to prevent the people from obtaining independence. In other words, when a people's human rights have been violated by the state, then the right to self-determination allows the people to freely chose their political status, without limitations, including independence or autonomy.
Therefore, from a legal point of view, Tibetans should be allowed, by virtue of their right to self-determination, to freely choose their future political status, including independence. This conclusion, in summary, is based on the following grounds:
1. Tibetans are a distinct people;
2. As a people, they have the right to self-determination; and
3. This right should trump China's conflicting claim to territorial
integrity because:
a. China, by repressing Tibet, has not conducted itself as the legitimate
government of the Tibet people; and
b. China has not allowed Tibetans to freely select their political
representatives.
Given that Tibetans are legally entitled to fully exercise their right to self-determination, the next question is what choices does this entail for the Tibetan people. There are three basic options:
1. Total integration into the Chinese state, on the one extreme, or
2. Independence, on the other extreme, or
3. Autonomy or self-governance within the Chinese state ("the Middle Way").
Total integration into the Chinese state is an option advocated by few, if any, Tibetans. As most Tibetans know, the major obstacles to independence are not legal but political. Many Tibetans and Tibetan NGOs, such as the Tibetan Youth Congress, strongly favor this option despite the so far insurmountable political obstacles. They believe that any solution short of independence will not do justice to Tibet. The third option for self-determination is an autonomous arrangement between the Tibetan people and China, or in His Holiness's words, an arrangement for genuine self-governance. His Holiness's position responds to the late Deng Xiaopeng's comments that everything is negotiable except for independence, and is based on His Holiness's assessment that time is running out for the Tibetan culture's survival in occupied Tibet. No doubt, His Holiness's decision to seek a resolution short of independence is strongly influenced by His evaluation of the relative political and economic strengths of China and Tibet and the international community's long-standing failure to stand up for Tibetan independence.
To evaluate the option of self-governance through an autonomous arrangement, which is the purpose of this publication, it is necessary to understand what autonomy means and how autonomous arrangements can be structured.
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