The Legal Status Of Tibet Essay

, Research Paper

The status of occupied Tibet under international law.

by Andrew McAlister

(Eva Herzer, a mediator and attorney in Berkeley, California, is president of the International Committee of Lawyers for Tibet)

Is this difference in the world’s response to the occupation of Tibet justified based on differences in the legal status of Tibet, Kuwait and Afghanistan before invasion. An examination of pertinent international law reveals that the answer is negative. Tibet, like these other nations, was a sovereign state, prior to its invasion and annexation. As such it is entitled to govern itself. It’s legal claim of sovereignty is based on both territorial integrity and the right to self-determination. This article will examine each in turn.

I. TERRITORIAL INTEGRITY

THE SINO-TIBETAN TREATY OF 821/823 A.D.

Translated from the inscription on the west face of the stone pillar at Lhasa

If the parties do not act in accordance with this agreement or if it is violated, whether it be Tibet or China that is first guilty of an offence against it, whatever stratagem or deceit is used in retaliation shall not be considered a breach of the agreement. Thus the rulers and ministers of both Tibet and China declared and swore the oath; and the text having been written in detail it was sealed with the seals of both great kings. It was inscribed with the signatures of those ministers who took part in the agreement and the text of the agreement was deposited in the archives of each party.

CONVENTION BETWEEN GREAT BRITAIN AND CHINA RESPECTING TIBET

Signed at Peking, 27 April 1906 Ratified at London, 23 July 1906

The Government of Great Britain engages not to annex Tibetan territory or to interfere in the administration of Tibet. The Government of China also undertakes not to permit any other foreign State to interfere with the territory or internal administration of Tibet.

AGREEMENT FOR THE RESTORATION OF PEACEFUL RELATIONS AND THE DELIMITATION OF A PROVISIONAL FRONTIER BETWEEN CHINA AND TIBET

19 AUGUST, 1918 : 6. The Chinese and Tibetan authorities on both sides of the border shall be responsible for and shall take afl possible steps to prevent raids by members of their forces or by others under their respective jurisdictions across the temporary boundary

1. Historical Perspective

While China claims that Tibet has always been a part of China, Tibet has in fact a history of at least 1300 years of independence from China. In A.D. 821 China and Tibet ended almost 200 years of fighting with a treaty engraved on three stone pillars, one of which surprisingly still stands in front of the Jokhan cathedral in Lhasa. 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 warfare, no hostile invasions, 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 witnesses.”

In 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 evaluating 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. Secondly the respective relationships between the Mongols and the Tibetans and between the Mongols and the 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 regained complete independence from the Mongols several decades before China regained its independence. China was militarily conquered by the Mongols, while the Tibetans and the Mongols established the historically unique “priest-patron” relationship, also know as “cho-yon”. The Tibetans and Mongols have always shared a close racial and cultural affinity. The Mongol aristocracy had converted to Buddhism and sought spiritual guidance and moral legitimacy for the rule of their vast empire from the Tibetan theocracy. As Tibet’s patrons they pledged to protect it against foreign invasions. In turn Tibetans promised loyalty to the Mongol empire. 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, while the Tibetans ruled Tibet. Mongol influence in Tibet waned and eventually ceased with the decline of the Mongol empire in the mid- 14th century.

In 1639, the Dalai Lama established another cho-yon relationship, this time with the Manchu Emperor who, in 1644 conquered China and established the Qing Dynasty. In 1720, the Manchus, fulfilling their role as protectors of Tibet, at the request of the Tibetans, entered Lhasa and hel

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