Monday, October 22, 2012

Tibet in International Law and Practice


PP Shukla
Joint Director, VIF

“Since Tibet is not the same as China, it should ultimately be the wishes of the people of Tibet that should prevail and not any legal or constitutional arguments. That, I think, is a valid point. Whether the people of Tibet are strong enough to assert their rights or not is another matter. Whether we are strong enough to see that is done is also another matter. But it is a right and proper thing to say and I see no difficulty in saying to the Chinese government that whether they have suzerainty or sovereignty over Tibet, surely, according to any principles, the principle they proclaim and the principles I uphold, the last voice in regard to Tibet should be the voice of the people of Tibet and nobody else.”

- Jawaharlal Nehru, 7 December, 1950 Lok Sabha

The plan of this study is to divide Tibetan history into three parts: one, prior to the 19th Century, the second from the 19th century to the beginning of the 20th century, and finally, the 20th century itself, including and bringing the study up to the current period of the 21st century.

The period before the 19th century is important, of course, but so much happened in the subsequent years that the relevance of the evidence from further back becomes debatable. Much of the evidence from the Chinese side is also sketchy over this period and consists of tokens of control which are not relevant to the current practice of diplomacy or international law. For instance, the claim that they appointed representatives [who were considered as Ambassadors by the Tibetans] or awarded titles, is unconvincing. Britain still awards titles to countries like Australia and even appoints the Governor- General. But no one would accept any claim of British sovereignty over Australia. Besides, China itself was ruled during this period by the Manchus, who were themselves non- [Han] Chinese, so it is questionable whether their territories may logically be considered Chinese. It would be akin to India claiming Afghanistan because the Mughals controlled that territory or Burma because the British did.

The 19th century however, saw some important events, and these are important indications of the nature of the relationship between Tibet and China. Two events stand out. The first was the relationship between Tibet and Nepal. Nepal invaded Tibet [its second invasion in the 19th Century] in 1854 and the Chinese central authorities did nothing to help Tibet, which was forced to conclude a Treaty in 1856 with Nepal which provided for a tribute – the sum of Rs 10,000 annually, a large sum those days – to be paid by Tibet. Although the Treaty paid obeisance to the Emperor of China, the fact is that Beijing neither helped in the war, not did it play any role in the Treaty signing. This is not the attribute of a sovereign. Nonetheless, the Beijing authorities use this Treaty, among others, to lay claim over both Tibet and even Nepal. The latter is dormant now, but the potential for trouble exists and needs to be recognised.

This particular aspect of Tibetan sovereignty was brought out by the Indian officials in their negotiations with China which took place in the late 1950’s and is reflected in the following extract from the Officials’ Report.

Excerpt from the Officials’ Report (1960):

…during the 300 years prior to 1950, Tibet, whatever her status, had enjoyed the right to sign treaties and have direct dealings with her neighbours on boundary questions, was clearly established by history. The Indian side had already drawn attention to the treaties of 1684 and 1842 signed by Tibet with Ladakh. In 1856, she signed a treaty with Nepal, and the People's Government of China themselves recognised the validity of this treaty, because they felt it necessary to abrogate it in their treaty, signed exactly a hundred years later, in 1956 with the Nepal Government. It was asserted by the Chinese side that the Chinese Amban in Tibet had assisted in the conclusion of the 1856 treaty. This, too, was an incorrect statement of facts; but even if true, it would only corroborate the Indian position that China recognised the treatymaking powers of Tibet. For it would mean that China assisted Tibet in directly negotiating a treaty which, among other things, granted extra-territorial rights to Nepal.

If the Chinese felt the need to abrogate the Treaty in 1956, it means that they acknowledged its validity till the time of abrogation.

For the second event, the clock needs to be turned back a little further. A few years earlier, starting in 1841, a war broke out between Tibet and the Dogra rulers of Kashmir. This resulted in Letters of Agreement being signed between the warring parties, under which the boundaries between Ladakh and Tibet were clarified and recognised and trade relations were regularised.
Ladakh also agreed to pay an annual tribute to Tibet. Again the central authorities played no role in the entire episode. The importance of this agreement between Ladakh and Tibet in further establishing Tibetan sovereignty is also brought out in the Officials’ Report, as quoted above.

Another aspect worth mentioning is the attempt at about this time by Beijing to regulate the selection of the Dalai Lama. This happened in 1793, and the central part of the regulations introduced by Beijing read as follows: “When the reincarnate boy has been found, his name will be written on a lot, which shall be put into a golden urn bestowed by the central government. The high commissioners will bring together appropriate high-ranking Living Buddhas to determine the authenticity of the reincarnate boy by drawing lots from the golden urn.” However, the Tibetan authorities ignored this and in 1804, the Ninth Dalai Lama was selected in the usual way by the Regent.

The final piece of evidence dates to the last three decades of the 19th Century, and involves British attempts to establish direct relations with Tibet. A bit of background would be helpful here. The strategic setting was the rapid expansion of two major Empires – the British and the Russian – towards the heart of Asia. The British Empire expanded west and north from Calcutta, the Russian south and east from St Petersburg. They met, or drew close, along the Central Asian redoubts. Tibet at this time was playing host to the famous historical figure Agvan Dorjiev, a Buryat monk who arrived in Lhasa in 1880, and soon became a debating partner of the Dalai Lama. The contemporary British media were replete with articles about the Russian advance into Tibet through the agency of Dorjiev. For long afterwards, it was doubted whether the Russians and Dorjiev were indeed playing any political role, but recent disclosures make it clear that there were indeed strategic and military matters under consideration between Russia and Tibet, through the mediation of Dorjiev. However, the British had their own plans and fears, and turned to the Chinese Empire in order to use its supposed suzerain status to work their strategy in Tibet.

The British had been trying to open relations with Tibet at this time, mainly to counter the Russian moves described briefly above, and were doing this by attempting to involve the Chinese on their side. With this aim they signed an agreement in 1876 [the Chefoo Agreement the main objective of which was to let the British missionaries enter China, only one paragraph was about Tibet], but the Tibetans refused to accept the validity of this agreement as far as they were concerned and refused to be bound by its terms. A decade and a half later, they tried again through a second agreement with China, the Convention of March 1890. The objective this time was to regulate the boundaries between Sikkim and Tibet, as well as [through the Annex] to regulate trade between British India and Tibet. However, this agreement, like the previous effort by the British to work through the Chinese, did not succeed either, and for the same reason. The Tibetans refused to acknowledge the validity of any treaty or arrangement that did not directly involve them. Meanwhile, they were steadily moving to accept Russian protection, under the guidance of Dorjiev. The Russians were already emerging as perhaps the major strategic adversary to the British in Asia.

Accordingly, after having waited for the Beijing connection to deliver, the British were forced to conclude that this was not going to work, and they had to move independently and directly on Tibet. This was the genesis of the Young husband expedition in 1903- 04. The spur was the failure of Beijing to deliver on its part of the agreements signed in the late 19th Century, and the real reason was the success of the Russians in dealing directly with Tibet. The Russians did not entirely ignore Beijing, and did sign a separate agreement with China, but it was clear that they were focusing on working directly with Tibet, which was responding positively.

This was the situation the British faced at the dawn of the 20th Century, and decided that they had to take direct action, since China was unable to deliver on the commitments undertaken over the past twenty years. The result was the Younghusband expedition. Lord Curzon was the Viceroy and he declared that“the so-called suzerainty of China over Tibet [is] a constitutional fiction, a political affectation which has been maintained because of its convenience to both parties”. At the end of the expedition, the two sides signed the Anglo-Tibetan Convention on 7 September 1904. Thus, the Tibetans were once more left to fend for themselves in the face of a military attack, without any aid from China. And once again, Tibet entered into a treaty with a foreign power without any role for Beijing. The provisions of the Convention of 1904 also make revealing reading; the preamble admitted that “doubts and difficulties about the meaning and validity” [emphasis added] had arisen over the 1890 agreement with China [a polite way of recording the fact that Tibet was refusing to recognize and therefore to implement that agreement]; the rest of the Treaty essentially ratified the substance of the earlier agreements between Britain and China on the border between Sikkim and Tibet, and allowed for trade rights for British India. Finally, another important outcome was to check Russian influence in Tibet and Tibet was required not to cede or lease any part of its territory to any foreign power, and to remove all foreign representatives, and to extend no economic concessions to any foreign power. Russian influence was thus also blocked, though Dorjiev remained active in Tibet for some time longer.

[In the 1940’s the British repeatedly told the Tibetan Foreign Bureau that they signed the Convention and then left after a few weeks. They never acted as an invading power which remains in the invaded territories. They wanted to show the difference of attitude between China and HMG]

What this episode shows again is that China played no role in defending Tibet, and no role in treaty-making by Tibet. What is more, it also showed that treaties and agreements entered into by China on behalf of Tibet could not be implemented because Tibet would not acknowledge China’s right to make any commitments on its behalf. And it demonstrated that such commitments would remain unimplemented.

The 20th Century thus opened with Tibet becoming an active focus of the power play between the Great Powers, and with China having played no role that a sovereign or suzerain would be required to play, though for completeness, it may be mentioned that Manchu China did help Tibet in 1792 during the war with the Gorkhas.

But more was to come. Not for the last time, differences arose between the Viceroy in India and London over policy in Asia. In London, the view was that Britain had to work diplomatically with both China and Russia, the former block the Russians in Tibet, the latter to prepare for the looming challenge from Germany. Thus, the Lhasa Convention between Britain and Tibet was reaffirmed by China in the British-Chinese Convention of 1906. This “confirmed” the 1904 Convention and stated that the trade concessions granted under the 1904 agreement would not be available to any other state, other than China, thus addressing the fear of Russian influence in Tibet, by co-opting China for the purpose. Unfortunately for Tibet, the British further confirmed the dilution of the 1904 Convention by signing the Anglo-Russian Convention in 1907 which covered Afghanistan, Iran and Tibet. According to this, Tibet was once again, inter alia, deemed to be under the suzerainty of China. All this was the result of London overruling Calcutta in the larger interests of co-opting Russia over the growing differences with Imperial Germany, in the face of which London wished to settle as many issues with the other major powers as it could. Tibet needed to be sacrificed for this purpose. [An interesting sidelight on the diplomacy of those days is that when the Kaiser Wilhelm examined the text of the Anglo- Russian Convention, he minuted on the text that this was clearly aimed against Germany.]

This was the tangled situation in the early 1900’s, when the Chinese Empire collapsed in 1911, and was replaced by a republican government. One of the early developments following this was the Tibet-Mongolia Treaty of 1913, under which each recognised the other as an independent country. Although there have been some efforts to deny the existence of any such agreement, the Government of Mongolia made this Treaty public in 1982, at a time when relations between the Soviet bloc and China were extremely hostile.

The Thirteenth Dalai Lama had also formally declared Tibet an independent country in 1912 and all Chinese officials, including all armed personnel, had been expelled. Representatives of Nepal had witnessed the agreement and its implementation. The Chinese were again expelled from Tibet in July 1949.

This was the setting for the Simla conference in 1914. The conference began early in the year, and representatives from Britain, Tibet and China were all present. They examined and accepted each others’ credentials, thus indicating that all three were participating as equals. The major result for India was the boundary between British India and Tibet – the McMahon Line. It also divided Tibet into an Inner and Outer Tibet [with the latter being autonomous, the former not], an issue that still rankles among Tibetans, for it left many Tibetans under direct Chinese administration [interestingly it is these populations who today oppose the Chinese rule on the Tibetan plateau]. The Chinese withdrew their representative, Chen I-fan [Ivan Chen], in protest because they did not approve of the line dividing Outer Tibet from China.

This was the only reason, and had nothing to do with either Tibet signing an agreement with the British as a sovereign country, or with the delineation of the McMahon Line. This fact was highlighted in the Eden Memorandum addressed to TV Soong, the Foreign Minister of China many years later, in 1943. By then, the Second World War was coming to a successful end – the Germans had already surrendered at Stalingrad – and the civil war in China was causing concern as to the eventual outcome. This was why Eden communicated to the Nationalist Government that Britain had, since 1921, been regarding Tibet as an autonomous country under Chinese suzerainty, but with treaty-making powers. A brief quote from the Eden Memorandum will bring this out.

Excerpt from the Eden Memorandum 1943:

“Since the Chinese Revolution of 1911, when Chinese forces were withdrawn from Tibet, Tibet has enjoyed de facto independence. She has ever since regarded herself as in practice completely autonomous and has opposed Chinese attempts to reassert control. This was reiterated in the House of Commons in December 1949. Since 1911, repeated attempts have been made to bring about an accord between China and Tibet. It seemed likely that agreement could be found on the basis that Tibet should be autonomous under the nominal suzerainty of China, and this was the basis of the draft tripartite (Chinese-Tibetan- British) convention of 1914 which was initialed by the Chinese representative but was not ratified by the Chinese Government. The rock on which the convention and subsequent attempts to reach an understanding were wrecked was not the question of autonomy (which was expressly accepted by China) but was the question of the boundary between China and Tibet, since the Chinese Government claimed sovereignty over areas which the Tibetan Government claimed belonged to their autonomous jurisdiction.” [Emphasis added].

The American archives show a similar disposition in the US Administration which also made recognition of Chinese suzerainty conditional on autonomy for Tibet. And this was the situation that independent India inherited in 1947. Leaving aside the early period, by 1949, it was clear to most observers that the Communists were heading for victory in the civil war. The British resident in Tibet warned the Government in Delhi of the dangers for India through Tibet in such a development. Prime Minister Nehru’s assessment of this caution was typical in its combination of ignorance and intellectual arrogance, as he discounted any possibility of any such security threat. Writing an internal Note on 9 July 1949, he observed:

Excerpt from Nehru’s noting 1949:

“Whatever may be the ultimate fate of Tibet in relation to China, I think there is practically no chance of any military danger to India arising from any possible change in Tibet. Geographically, this is very difficult and practically it would be a foolish adventure. If India is to be influenced or an attempt made to bring pressure on her, Tibet is not the route for it.

“I do not think there is any necessity at present for our Defence Ministry, or any part of it, to consider possible military on the India-Tibetan frontier. The event is remote and may not arise at all.”

This was the strategic appreciation that seemed to guide Nehru through the early traumatic years after the Chinese invaded and occupied Tibet in 1950. He seemed to be deeply committed to working with the Chinese in order to bring about a grand Asian revival, and Tibet for him was a hindrance in this grand scheme. But in the process, he made blunders on Tibet which that unfortunate country and India too, is still paying for. It is noteworthy that Nehru had overridden Nationalist Chinese objections during the 1947 Asian Relations Conference which he hosted in April, and allowed Tibet to take part as an independent country, and to travel on Tibetan passports, but he did not show anything like the same firmness in approaching the Communists.
What made this even more inexplicable is the fact that the Nationalists had been active supporters of the Indian freedom movement, whereas the Communists had had choice things to say about Nehru and Indian freedom.

In time-honoured and indeed, treaty-bound tradition, the Dalai Lama, now already the [current] Fourteenth, then a teenager, turned to India when the Chinese troops occupied to seek refuge and support in 1950-51. He was preparing to go the UN to lay out his case [he took refuge in Chumbi Valley a few months after sending his appeal to the UN GA], when the Indian Government decided that it would not sponsor any discussion on Tibet in the UN. As a nonmember, Tibet could not bring up the matter in the UN itself. The reasoning of the Indian Government was that there was nothing anyone could do in military terms to help Tibet; further, any discussion in the UN would only antagonise the Chinese, and make the situation worse for the Tibetans. Of course, this quite disregarded the fact that Tibet itself wanted the matter discussed at the UN. Further, it emphasised the irony that while India took the Jammu & Kashmir question to the UN, it would not support a reference on Tibet at the UN.

Finally, tiny El Salvador agreed to sponsor the discussion. But just as the matter was coming up for discussion at Lake Success at the end of November 1950, the Indian delegation informed the UN that they had received word that China was willing to settle the matter peacefully. Hence, said the Indian representative, the matter should be withdrawn from consideration. The British and the Americans accepted the primacy of the Indian role in matters Tibetan, and went along. The US archives show that the Americans did try several times to persuade Nehru to do more to help Tibet, including at the UN, but it was not to be – Nehru was more concerned about his role in the Korea conflict. It was not until 1956 that things began to change, as the ground situation continued to worsen and Tibetan resistance to Chinese occupation grew. For the purposes of this paper, however, it is important to emphasise that the matter did finally come up in the UN General Assembly in later years – in 1959, 1961, and 1965. The first of these was confined to the violation of the rights of the Tibetan people, but the second, in 1961, carried a call for the right of self determination of the Tibetan people. It was a short Resolution, but the operative part is worth quoting from:

Excerpt from UNGA Resolution 1723 of 20 December 1961

“The General Assembly

…Considering that these events violate fundamental human rights and freedoms set out in the Charter of the United Nations and the Universal Declaration of Human Rights, including the principle of self-determination of peoples and nations, and have the deplorable effect of increasing international tension and embittering relations between peoples,
  1. Reaffirms its conviction that respect for the principles of the Charter of the United Nations and of the Universal Declaration of Human Rights is essential for the evolution of a peaceful world order based on the rule of law;
  2. Solemnly renews its call for the cessation of practices which deprive the Tibetan people of their fundamental human rights and freedoms, including the right to self-determination;” [Emphasis added].
India did not sponsor or support either of the Resolutions, and the explanation must be Nehru’s continuing commitment to seeking peace at any price with China. It did not work, and the war of 1962 brought such humiliation and hurt upon Nehru that it would not be wrong to say that it destroyed his standing in the country, and hastened his death in 1964. Notably, however, India did speak and support the next UN Resolution, in 1965, symptomatically, under a new Prime Minister. The 1965 Resolution did not specifically reiterate the call for self determination, but it reaffirmed the earlier Resolutions, and had the support of India, among other major powers. Thus, the UN is committed to giving the Tibetans the right of self determination, but this will obviously not happen as long as China remains willing to use its veto power in the UN Security Council. Nevertheless the legal position is clear and worth recording.

There is one other issue that needs to be addressed. This concerns the two legal agreements entered into by the People’s Republic of China with Tibet in 1951 and with India in 1954. As to the first, it was always under a cloud because the Tibetan delegation that signed it in Beijing was coerced into doing so, and moreover, the seals were forged in Beijing itself. This had to be done because the delegation was not empowered by the Dalai Lama to enter into any agreement on the status of Tibet [the Dalai Lama got the information through radio when he was in Chumbi Valley], but only to negotiate the withdrawal of the Chinese troops. Furthermore, even though the Dalai Lama was persuaded in the end to accept the 17-point Agreement as it has come to be known in history, it cannot be considered binding any more. It was denounced by the Dalai Lama in 1959 after he fled from Lhasa in Lhuntse Dzong, on his way to the Indian border. The International Commission of Jurists examined this denunciation and found in 1960, after the Dalai Lama had been forced into exile, that the denunciation was legally valid and tenable.

ICJ Report on Tibet and China (excerpt) (1960) [p.346]

“The view of the [Legal Inquiry] COMMITTEE was that Tibet was at the very least a de facto independent State when the Agreement of Peaceful Measures in Tibet was signed in 1951, and the repudiation of this agreement by the Tibetan Government in 1959 was found to be fully justified.”

As to the India-China agreement of 1954, it was valid for eight years to begin with, and lapsed in 1962. This happened in the month of April 1962, when relations between the two countries were extremely tense and war was to break out a few months later, in October. However, since the agreement has lapsed, there is no legal validity to this commitment. Legally, it means that Tibet and India revert to the previous Agreement i.e. the Simla Convention of 1914, which can be considered as a valid Treaty once the regulations of the 1954 Panchsheel Agreement have lapsed. What is noteworthy is that China used to insist on an inclusion in all the Joint documents with India that it should carry a reiteration of Tibet as a part of China.

However, since the last two years, this reference is missing. There is, of course, a question mark on all this in light of the Dalai Lama’s own stated position that he no longer seeks independence from China but only a wide degree of genuine autonomy. This, however, is only a proposal and does not alter the legal status of Tibet. That will happen only when and if a new agreement is reached along the lines suggested by the Dalai Lama among the countries concerned. The Dalai Lama’s quest for genuine autonomy is different from the traditional British definition of ‘autonomy’ in this context, because London wanted responsibility for Foreign Affairs to remain with Lhasa.

This is also the appropriate place to mention that the Dalai Lama is getting on in years, and the Chinese have made it clear that they are preparing for a struggle over the succession and his reincarnation. In a reprise of the 1793 effort, they have again laid down their perspective on the reincarnation – something strange for an avowed socialist and atheist state to do. Nonetheless, they have the Panchen Lama under their control, and it would be unwise to underestimate their determination to ensure their control over the choice of the next Dalai Lama. His Holiness is, of course, well-versed in the ways of the Chinese, and is clearly preparing for the succession. However, the unambiguous status of the current Dalai Lama is a unique asset for Tibet, and every effort needs to be made to settle matters with a reasonably short period of time.

In closing, it is worthwhile reflecting upon the Tibet-Mongolia Treaty of January 1913. Both countries recognised each other’s independence. The Mongolians turned to Russia for guidance and protection, the Tibetans to Britain and later India for the same. Mongolia is today an independent country – a condition extracted by the Soviet leaders from Nationalist China and then the People’s Republic, regardless of the fraternal ties between them. Tibet is a country and culture on the verge of extinction, a sorry reflection on the Indian leadership.

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