Tibet in international law and practice

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 reper­cus­sions 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 over-rid­den 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. 

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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]

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 goto the UN to lay out his case [he took refuge in Chumbi Val­ley a few months after send­ing his appeal to the UNGA], when the Indi­an Gov­ern­ment decid­ed that it would not spon­sor any dis­cus­sion on Tibet in the UN. As a non-mem­ber, 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 and 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.

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

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 arti­cle, 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].

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

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 1960 (excerpt 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 with­in 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. 

About the Author
P P Shuk­la, IFS — The writer did his Mas­ters from Del­hi School of Eco­nom­ics and joined the Indi­an For­eign Ser­vice in 1974. Dur­ing a career span­ning 37 years, he served in Moscow, Brus­sels, Lon­don and Kath­man­du, among oth­er places. He served in Del­hi twice, includ­ing as the Diplo­mat­ic Advis­er to the Prime Min­is­ter from 1996 to 2000. He has recent­ly retired as Ambas­sador of India to Moscow. He is cur­rent­ly work­ing as Joint Direc­tor in the Vivekanan­da Inter­na­tion­al Foun­da­tion, New Delhi. 

Note by the Author:
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 

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