香港人權監察組織創始人之一、資深大律師、人權法專家夏博義(PAUL HARRIS)應香港律師會官方刊物HONG KONG LAWYERS邀稿所著題爲Is
Tibet entitled to
is entitled to
This is the article by Senior Counsel Paul Harris originally commissioned by
Hong Kong Lawyer, the journal of the Law Society, the Editorial Board of
which approved, but then U-turned and decided not to publish. In the interests
of freedom of speech and debate that are cornerstones of HK's success, this
article is posted on the Website of Hong Konger Front instead by courtesy of
Is Tibet entitled to self-determination?
26th April 2008
By Paul Harris, SC
- The purpose of this article is to explore whether Tibet
can be said to have a right to self-determination under international law.
- The official position of the Chinese Government on this
issue is that Tibet is an inalienable part of the People's Republic of China
(just as France once claimed that Algeria was an inalienable part of
Metropolitan France). Those who question this are regularly attacked in the
official Chinese media in vitriolic terms as "splittists",
and anti-China. If they are themselves Chinese and live in China they are
liable to be imprisoned. Wei Jing Sheng and more recently Hua Jia are
well-known Mainland Chinese dissidents imprisoned for calling for a new
Chinese government attitude towards Tibet.
- Questioners about Tibet from outside China are also
habitually criticized by China for "interfering in China's internal affairs".
However to the Tibetans and most people in the world outside China who are
familiar with Tibet's situation, it is an international problem crying out for
- Most countries recognize China's sovereignty over Tibet.
The one notable exception is the United Kingdom which traditionally recognizes
"suzerainty" of China with autonomy for Tibet, a subtle evasion which happens
to be fairly close to the actual situation of Tibet in relation to China
during the last years of the Ching dynasty (1644-1911). The United States has
officially recognized China's sovereignty over Tibet since 1966. Many states
have glossed over or deliberately left undefined the question of whether their
recognition is de jure or de facto i.e. recognizing China as having a legal
title, or merely recognizing the fact that it is in reality ruling Tibet.
- Notwithstanding these ambiguities, overwhelming state
recognition for a given territorial status is itself usually powerful or even
conclusive evidence of that status in international law. The question
therefore arises as to why Tibet should be different? To answer this it is
necessary to consider the meaning of sovereignty and of self-determination in
international law and the facts of China's involvement with Tibet.
What is sovereignty?
- Under the traditional theory of state sovereignty which
underpinned international law for three hundred years, it was for the rulers
of states to determine by agreement between themselves which territories they
would rule over. This system, formalized by the Treaty of Westphalia in 1648,
did not give any role to subjects in choosing their ruler. If sovereignty was
not determined by conquest, it was decided by mutually agreed cession. No one
consulted the inhabitants of the island of Minorca before it was ceded by
Spain to Britain by the Treaty of Utrecht in 1713, or before it was ceded to
Britain a second time, after capture by the French, by the Treaty of Paris in
1763, or before it was ceded back to Spain by the Treaty of Amiens in 1802.
Minorca's experience was typical of many small European territories which
happened to be coveted by more than one European power. Similar cession with
complete disregard for the views of the inhabitants was also the fate of
overseas colonial territories. Bombay became British in 1662 because it was
ceded to England by Portugal as the dowry of Charles II's Portuguese bride,
Catherine of Braganza.
- Modern international law, although now applied at least
to some extent by every country in the world, is largely a European invention.
This applies particularly to the doctrine of state sovereignty, under which
China claims sovereignty over Tibet. It has been cogently argued  that by appropriating this European concept to claim sovereignty over Tibet,
China is distorting a traditional historic relationship between the Ching
dynasty emperors and the Dalai Lama of Tibet, which was that of a patron and a
religious leader, and not that of a sovereign and a subject. If this is right,
all China's claims to sovereignty based on the Ching-Dalai Lama relationship
(and its more recent claims based on the earlier relationship between the
Mongol (Yuan dynasty) emperors and Tibet) are misconceived. However I argue
below that, misconceived or not, these claims are in any case irrelevant to
whether Tibet now has a right to self determination.
- The Westphalia concept of state sovereignty came into
conflict with nationalist aspirations for statehood in nineteenth century
Europe. Polish nationalists did not like Poland being partitioned between the
German and Russian Empires. Czechs did not like being part of the
Austro-Hungarian Empire. Britain supported the cause of Greek independence
against the Ottoman Empire, and the European powers generally supported the
cause of independence of the Serbs, Romanians and Bulgarians.
- At the Paris Peace Conference after World War I US
President Woodrow Wilson pushed for the peace settlement to be based on the
principle that "every territorial settlement in this war must be made in the
interest and for the benefit of the populations concerned, and not as a part
of any mere adjustment or compromise of claims amongst rival states". Despite
this, the principle was only selectively applied, where it coincided with the
interests of the major players at the conference. In other cases it was
flagrantly ignored, most notably in the transfer of the former German Chinese
treaty port of Tsingtao to Japan against the wishes of its inhabitants.
- By the time the United Nations was set up after World
War II, it was generally recognized that peoples had the right of
self-determination. Article 1.2 of the United Nations Charter states that the
purposes of the United Nations include the development of friendly relations
among nations based on respect for the principle of self-determination of
peoples. It can therefore be said that all states which have become members of
the United Nations by ratifying the United Nations Charter - including China -
have accepted the principle of respect for the self-determination of peoples.
- The United Nations Charter was followed by the Universal
Declaration of Human Rights. The rights in the Universal Declaration were
elaborated in two more detailed international covenants which, unlike the
Declaration itself, are treaties intended to have legal force. Article 1 of
the International Covenant on Civil and Political Rights (ICCPR) states that
"All peoples have the right to self determination. By virtue of that right
they may freely determine their political status". The ICCPR has been ratified
by 161  of 192 United Nations member countries. Five other countries, including China,
have signed but not ratified. A nation which is a signatory of a international
treaty, such as the ICCPR, is obliged under international law to "refrain from
acts which would defeat the purpose and object of the treaty" (Vienna
Convention on the Law of Treaties, Article 18, codifying earlier customary
- China is therefore bound, both by its adherence to
United Nations Charter and by its signature of the ICCPR to respect the
principle of self-determination of peoples.
What does the right of
peoples to self-determination actually mean?
- There was no consensus about what the right to
self-determination meant when it was included in the ICCPR. Western countries
were generally reluctant to include it, but felt obliged to do so in response
to the aspirations of recently independent countries to end European
colonialism in those places where it still existed. Communist and Soviet
influenced countries generally interpreted self-determination as meaning the
right to choose a socialist form of government.
- Since the ICCPR came into effect in 1976 there has been
widespread concern that if the right to self determination in Article 1 is
applied literally this could lead to the break-up of many existing states.
This applies particularly to Africa, whose national boundaries are mostly
colonial era constructs, but also to numerous other states with ethnic
minority populations who form a majority in particular regions.
- The consensus which has emerged is that the right to
self determination for the purposes of ICCPR Article 1 applies only to the
following: (1) entire populations living in independent states, (2) entire
populations of territories yet to receive independence, and (3) territories
under foreign military occupation .
- This is a restrictive definition which excludes numerous
groups who would in ordinary language be regarded as "peoples". It excludes
African tribes whose populations may be concentrated in one part of state, or
parts of more than one state. It therefore gives no encouragement to the
destructive tendency to fragmentation of African states which was seen in the Biafran War in Nigeria and which has recently been evident in Kenya. More
controversially it excludes some peoples with a long history of struggle for
independence, such as the Kurds (spread across parts of Turkey, Iran, Iraq and
- The issue of self-determination was considered in the
context of colonial territories in the United Nations General Assembly
Declaration on the Granting of Independence to Colonial Countries and Peoples
(General Assembly Resolution 1514(XV)) of 14 December 1960. Article 1 of this
Declaration states that "The subjection of peoples to alien subjugation,
domination and exploitation constitutes a denial of fundamental human rights,
is contrary to the Charter of the United Nations and is an impediment to the
promotion of world peace and co-operation." A further General Assembly
resolution, the Declaration on Principles of International Law, Friendly
Relations and Co-operation among states in accordance with the charter of the
United Nations, of 1970, again states that "alien subjugation, domination and
exploitation are a violation of the principle [of self-determination], as
well as a denial of fundamental human rights, and is contrary to the [United
- These two United Nations General Assembly Resolutions
have been extensively applied. The concept of alien domination has been
treated by the UN as applicable to the Russian invasion of Afghanistan; the
Vietnamese invasion of Cambodia; the occupation of Arab territories by Israel;
of Estonia, Latvia and Lithuania by the former Soviet Union; of Grenada by the
United States; of East Timor by Indonesia; and of Kuwait by Iraq .
It is strongly arguable that the rule that alien subjugation, domination and
exploitation breach a people's right to self-determination now forms part of
international customary law i.e. international law established not by treaties
but by the customs of nations.
history of China's relations with Tibet
- China's present control over Tibet dates from 1950 when
the People's Liberation Army invaded Tibet and defeated the Tibetan Army at Chamdo. China claims that Tibet was already part of China when it invaded.
- This claim is based on a claim to sovereignty over Tibet
by the Ching Imperial dynasty dating from the eighteenth century. More
recently China has claimed that its rule over Tibet can be traced to the rule
of Tibet by the Mongols - known in China as the Yuan dynasty.
- There are at least three major historical difficulties
with China's claim. Firstly, as indicated above, it is doubtful whether the
relationship between the Ching and the Yuan on the one hand, and Tibet on the
other, was really one of sovereign and subject. The Kangxi Emperor occupied
Tibet in 1720. After his death in 1722 this occupation continued under his
successor the Yongzheng Emperor until 1728, and there were further Chinese
invasions in 1750 and 1792. However after the end of the occupation in 1728,
and after each of the later invasions, the Chinese armies withdrew and Tibet
had virtually complete independence in practice .
- Secondly, it was never suggested under either dynasty
that the relationship made Tibet a part of metropolitan China. If it was a
political relationship at all, it was one of dependency which translated into
modern language was a colonial relationship. It is therefore a basis for
concluding that Tibet is a colony and so entitled to self-determination.
- Thirdly, and most importantly, there was no relationship
- either similar to that between Tibet and the Ching dynasty, or similar to
the modern concept of sovereignty - between Tibet and the Chinese Republic
which succeeded the Ching dynasty in 1911. In 1912 the Thirteenth Dalai Lama
made a formal declaration of Tibetan independence. Although the Chinese
Republic responded by laying claim to Tibet, it never exercised any control
over it, save for certain far eastern regions, where there had always been an
ill-defined borderland, which it invaded and occupied. Tibet was entirely
independent of foreign control between 1911 and 1950.
- Even if China's historical claim was much stronger than
it is, this would not provide a justification for invasion of an independent
country. Most countries were at one time under alien rule. In 1911 Ireland
was under British rule as it had been for centuries, Finland was ruled by
Russia, and Korea was ruled by Japan. The setting up of the United Nations was
expressly intended to prevent the kind of aggressive wars, based on spurious
or doubtful claims to historical rule or cultural identity, which had been the
practice of both Nazi Germany and Imperial Japan.
- China has frequently attempted to justify the invasion
by the claim that Tibetan society was feudal and backward, and that China
therefore brought liberation to the Tibetan peasantry from feudal domination.
- Scholars agree that the pre-1950 Tibetan regime was
feudal and backward .
One aspect of its backwardness was its failure to appoint ambassadors to other
countries or to apply to join the United Nations until invasion by China was
imminent. However this failure was not due to lack of independence but due to
the absence, in Tibet's intensely traditional and isolated government, of a
clear sense of the need for a modern state to maintain relations with other
- At the risk of stating the obvious, the fact that a
country is backward cannot justify invading it. Backwardness was often
advanced as a justification for nineteenth century colonialism, what Kipling
called "The White Man's burden" when he encouraged the United States to colonise the supposedly backward Philippines. The fact that China relies on
the "backwardness" argument  to support its occupation of Tibet is a further indication of a classic
China/Tibet relations since 1950
- China invaded Tibet on 7 October 1950. On 7 November
1950 the Tibetan Government appealed for help to the United Nations but no
assistance was forthcoming. Tibetan forces were easily overwhelmed by the much
stronger Chinese forces, with the bulk of the Tibetan Army being surrounded
and surrendering at Chamdo.
- After the surrender the Chinese Government embarked on
what would now be called a "charm offensive" in Tibet. Tibetans were given
money by People's Liberation Army representatives, and encouraged to accept
Chinese occupation on the understanding that their traditional way of life
would be unchanged and that Tibet would enjoy a high degree of autonomy.
- In 1951 China and representatives of the Dalai Lama
signed the "17 point agreement for the Peaceful Liberation of Tibet". The
drafting phraseology of this document shows that some-one was looking at it
when drafting Hong Kong's Basic Law. It provides that "the Tibetan people have
the right of exercising national regional autonomy under the unified
leadership of the Central People's Government' (Article 3); that "the Central
People's Government will not alter the existing political system in Tibet" (Article 4), and
"will not alter the established status, functions and
powers of the Dalai Lama" (Article 4).
- These autonomy provisions were never observed. The
Chinese Communist Party ruled Tibet, as it rules China, by way of a
centralized party organization based on classic communist doctrine, whereby
each organ of government is shadowed by an organ of the party. These party
organs are accountable to the Chinese Communist Party and do not function in
accordance with concepts of autonomy. In Tibet the new Chinese authorities
insisted on taking all important decisions and interfered on an increasing
scale with the daily life of Tibetans. In response to the harshness of Chinese
rule, the Tibetans rose in revolt in 1958. The revolt was easily crushed by
China, and in 1959 the Fourteenth Dalai Lama and some 80,000 other Tibetans
fled into exile in India.
- The severity of Chinese repression in Tibet since that
date is well-documented .
There is severe repression of Tibetan Buddhism, which in 1997 was labeled as a
"foreign culture" Virtually all classes in secondary and higher education in
Tibet are taught in Chinese not Tibetan, resulting in a high drop-out rate
among Tibetans. Urban development has generally benefited Chinese immigrants,
large numbers of whom have moved to Tibet and who are now about 12% of the
population in the Tibet Administrative Region. Tibetans are routinely detained
for long periods without charge or sentenced to long prison sentences for
peacefully advocating independence or maintaining links with the Dalai Lama.
Torture and ill-treatment in detention is widespread. Freedom of expression is
severely restricted. Peaceful political demonstrations are invariably broken
up and their participants arrested. Tibetan culture is treated as inferior to
Chinese culture, and most key posts in the government and the economy are held
by Chinese. Those few Tibetans who are able to enter Chinese government
service do so at the cost of alienation from their own people and culture.
Tibet's environment and natural resources are ruthlessly exploited in the
interests of China. Overall the situation bears marked similarities in all
these respects to the situation of Algeria under the French or of Uzbekistan
and Kirgizstan under Soviet Russian rule.
- No-one disputes that the Tibetans are a distinct people
with their own language and culture, who form a large majority of the
population of Tibet. They do not control their own destiny. Tibet is
controlled by the Chinese Government by means of military occupation for the
benefit of the Chinese state. Tibet is a country under foreign military
occupation, and its people are subject to alien subjugation, domination and
exploitation within the meaning of the UN Resolutions on Colonial Peoples and
on Friendly Relations.
- The severity of the repression the Tibetans have
undergone at China's hands, combined with the threadbare nature of China's
territorial claim to Tibet, mean that if the universal right of peoples to
self-determination has any meaning it must extend to Tibet.
- Tibet's status has been given renewed topicality by the
recent independence of Kosovo. Kosovo was an autonomous region of Serbia
dating from when Serbia was a state within Federal Yugoslavia. About 90% of
its population are ethnically Albanian, and so distinct from the Serbs who
form the remaining 10% and the large majority of the population of Serbia as a
whole. Kosovo had enjoyed some real autonomy in Yugoslavia but in the 1990s
this was progressively reduced. In 1996 guerilla warfare broke out as
Albanians rose in revolt against Serbian rule. In 1999 as a result of a NATO
air campaign against Serbia, the Serbian Army withdrew from Kosovo and a
United Nations administration was set up. Following a recommendation from the
United Nations Special Representative, Martti Ahtisaari, a plan was devised
for Kosovo's independence, which was bitterly opposed by Serbia. Kosovo
nevertheless declared independence on 17 February 2008. This has so far been
recognized by 38 countries, including all of the Group of Seven industrialized
countries. It has not been recognized by countries such as Russia, China and
Spain which face their own separatist issues (although it has been recognized
- The recognition of Kosovo would seem to extend the right
of self-determination beyond the traditional colonial or foreign occupation
situation. Kosovo was never a colony, and the Serbian Army had withdrawn long
before the independence issue was determined. The only coherent legal basis
for recognizing the exercise of self-determination by the Kosovo people in the
form of an independent state is that, prior to that independence, while under
Serbian rule, the Kosovar Albanians were subject to "alien subjugation,
domination and exploitation".
- The Kosovars and the Serbs were historic enemies. Who
was exploiting whom varied at different times in history. However a convincing
case can be made that in the later years of Slobodan Milosovic's rule in
Serbia, the Kosovars were being persecuted by the Serbian authorities, and
were indeed in that sense subject to subjugation, domination and exploitation
by people, who although long part of the same country, were culturally
different and could in that sense arguably be described as alien.
- If Kosovo has a right to self-determination, the right
of Tibet is infinitely stronger. The catalogue of gross oppression, the second
class citizen status of Tibetans under Chinese rule, and the identity of Tibet
as a country are all much clearer than in Kosovo's case.
Self-determination, autonomy and independence
- Self-determination need not mean independence. In many
situations, autonomy within a larger nation state offers the best of both
worlds, combining the benefits of being part of a large state in terms of
defence, foreign relations and economic opportunity, with preservation of
local laws, customs and culture from outside interference. Hong Kong is a good
- The Dalai Lama has repeatedly said that he favours
autonomy for Tibet within China, provided that it is meaningful autonomy. Such
is his authority with the Tibetan people that they would probably support
autonomy in any referendum in which he expressed support for it.
- However unless there is a change in Chinese government
thinking, real autonomy does not appear to be on offer. This is shown by the
continuing aggressive denunciation and misrepresentation of the Dalai Lama by
Chinese official spokespersons.
- Unless real autonomy is offered, self-determination in
Tibet is bound to mean independence. China may hold down the Tibetans by force
for a long time, but, as the example of Ukraine and Russia shows, even
hundreds of years of repression is unlikely to extinguish the longing for
self-determination among what are, incontrovertibly, a people.
Paul Harris is a senior counsel
in Hong Kong known for his expertise in constitutional and administrative law.
 For a typical statement see
Chinese Government opposes the collusion of Taiwan and Tibet splittists,
People's Daily On-line, 15 March 2001.
 Often attributed to the Dutch seventeenth century writer
Hugo Grotius, although many international law concepts are older.
 See e.g. Dibyesh Anand, Tibet,
China and the West, Empires of the Mind, Open Democracy, 2 April 2008.
 The most recent ratification is Samoa (February, 2008).
 See e.g. Antonio Cassese,
Self-determination of Peoples, p. 59
 See list in Cassese, op.cit, p. 94.
 There was a further invasion shortly before the end of the Ching
dynasty, in 1910, by way of delayed reaction to the brief British invasion of
Tibet in 1904. Unlike China's eighteenth century invasions, where in each case a
faction in Tibet had encouraged Chinese intervention, the 1910 invasion was a
full-frontal assault against united Tibetan opposition. After the 1910 Chinese
occupation of Lhasa the Thirteenth Dalai Lama fled to British India, and
fighting continued until the 1911 Revolution in China. In 1912 Chinese forces in
Tibet surrendered and were repatriated through India with British assistance,
and the Thirteenth Dalai Lama returned from exile.
 See the catalogue of obscurantism, rigid traditionalism and wholesale
rejection of modernity in Melvyn C. Goldstein
A modern history of Tibet, 1913-1951, University of California Press, 1989.
 For a very recent speech highlighting how China's rule has benefited
Tibet's development, see
Qiangba Puncog, chairman, Tibet Autonomous Region Council, Xinhua, 9 April
 See e.g. the 1997 International Commission of Jurists report
Tibet: Human Rights and the Rule of Law