Tibet in international law and practice

“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 (Indi­an Par­lia­ment)

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A schol­ar­ly exam­i­na­tion of the his­tor­i­cal valid­i­ty of the Chi­nese claims on Tibet. The writer high­lights how the UN Gen­er­al Assem­bly res­o­lu­tion of Decem­ber 1961 accept­ed the Tibetan people’s right to self-deter­mi­na­tion. The writer draws atten­tion to the Treaty signed by Tibet and Mon­go­lia in 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.

The plan of 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: 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 treaty-mak­ing 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.”

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

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.

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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, this time in order 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 Younghus­band 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.