Tibet has been the subject of ongoing political, legal, and even armed confrontations between the Beijing and Lhasa governments. This controversy has existed at all levels and goes back for centuries. Thus, looking at Tibet’s legal historical status gives rise to quite irreconcilable positions. While some consider the relations between the various Beijing dynasties (the Mongolian Yuan, the Chinese Ming, or the Manchu Qing) and the theocratic Tibetan governments to have been predominantly religious in nature (the priest-patron relationship), others use these same ties to claim that Tibet has always been a dependent territory of China. This legal labyrinth is further complicated by the difficulty of converting into modern legal concepts links to other civilizations and events from other historical eras that are alien to Western internationalist legal thought. The dispute is complicated even more by the introduction into this central Asian territory of the competing ambitions of the former British and Russian Empires, which both pursued expansionist goals in the so-called Great Game. Nevertheless, this Sino-Tibetan rivalry should be examined with greater legal precision by evaluating the most important historical events of the last century. The so-called Declaration of Independence of 1913; the 1914 Shimla Convention; the 1950 crime of aggression and military occupation, or peaceful liberation, of Tibet by the People’s Liberation Army (depending on the version of the events); and the 17 Point Agreement of 1951 all hold the keys to a current evaluation of this territory’s legal status. Although several general legal publications exist on the subject, the truth is that to study the matter in greater depth, it is necessary to turn to sources that are not strictly legalistic, such as diplomatic archives and historical and political books and articles. These bibliographical sources can provide a significant contribution toward revealing the truth of the arguments used on both sides. In addition, for greater academic rigor, multidisciplinary bibliographical material should be completed with documents in Chinese or Tibetan. But this polarization of the dispute becomes seriously worrying when attempts are made to evaluate the last fifty years of Chinese administration in Tibet. And while, for some, the Chinese presence consists of repeated international crimes and systematic human rights violations (including the Tibetans’ right to self-determination recognized by the UN General Assembly), for Beijing, the increased prosperity and protection of the Tibetan ethnic minority is fundamentally unquestionable. According to the official Chinese position, the status of Tibet should not be subject to legal scrutiny as it is considered to be meddling in internal Chinese affairs.
To analyze Tibet’s status from its emergence as a sovereign state to its current position, certain historical events must be considered from a legal point of view. However, depending on the different sources consulted, their significance and interpretation will produce radically different legal results. According to Beijing’s official position, Tibet has been part of China for centuries, and Chinese publications try to legitimize Beijing’s historical sovereignty over Tibet by going back to ancient dynasties. On the other hand, Tibetan claims of sovereignty over the territory hinge on the early 7th century when different clans of noblemen under the leadership of King Namri Srongtsen were unified in a confederation. Even today the People’s Republic of China considers this point of view a separatist claim orchestrated by the Dalai clique and supported by an imperialist conspiracy to dismember China. The impossibility of reaching an agreement over important historical facts leads to radically opposing legal interpretations of Tibet’s status. Of particular relevance are the discrepancies between the official Chinese versions, for example those put forward in Wang and Gyaincain 2009, which defend at all costs China’s historical sovereignty over Tibet, and the positions defended by the Tibetans in exile with the support of Western jurists in The Legal Status of Tibet (Office of His Holiness the Dalai Lama 1989), which reach the opposite conclusion and maintain Tibet’s independent status as a state. This polarization extends to academic experts, and while the reference work van Walt van Praag 1987 is considered one of the best works on Tibet’s status, McCorquodale and Orosz 1994, the result of a conference of a group of important jurists meeting in London, and the International Commission of Jurists 1959 do not hesitate to identify Tibet’s independence as the critical date of 1949. Rubin 1968 reaches the opposite conclusion. Either way, academic works such as Sperling 2004 and Blondeau and Buffetrille 2008, which analyze the most controversial aspects of the Sino-Tibetan dispute, contemplate both perspectives.
Blondeau, Anne-Marie, and Katia Buffetrille, eds. Authenticating Tibet: Answers to China’s “One Hundred Questions.” Berkeley: University of California Press, 2008.
An excellent work that brings together academics such as Eliot Sperling, Tsering Shakya, Anne-Marie Blondeau, Robert Barnett, and Thierry Dodin to discuss the most controversial matters regarding Tibet, from its historical origins to more current issues such as the human rights situation, the right to autonomy, economic development, and issues such as the Lhasa riots.
International Commission of Jurists. The Question of Tibet and the Rule of Law. Geneva, Switzerland: International Commission of Jurists, 1959.
This report was drawn up by judges, lawyers, and law professors from fifty-three countries who met at an international congress in January 1959 in New Delhi. The group investigating the facts was led by Purshottam Trikamdas, former secretary to Mahatma Gandhi. The report concluded that, after 1912, Tibet was an independent state and that Chinese sovereign aspirations were out of order.
McCorquodale, Robert, and Nicholas Orosz, eds. Tibet: The Position in International Law: Report of the Conference of International Lawyers on Issues Relating to Self-Determination and Independence for Tibet. London: Serindia, 1994.
An indispensable compilation of legal analyses of various Tibetan matters such as status, human rights under the laws of the People’s Republic of China, including an extensive debate on the Tibetan people’s right to self-determination. Participants included important academics in international law, such as James Crawford, Emmanuel Bello, Richard Falk, and Hurst Hannum. The Chinese government declined an invitation to attend the conference.
Rubin, Alfred P. “The Position of Tibet in International Law.” China Quarterly 35 (1968): 110–154.
This article acknowledges the legal and political complexity of the problem and discusses in five chapters Sino-Tibetan relations from the Manchu Empire until the “reappearance of Chinese forces” in 1950, ending with an analysis of Tibet’s legal situation since 1951.
Sperling, Elliot. The Tibet-China Conflict: History and Polemics. Washington, DC: East-West Center, 2004.
This work uses original historical Chinese and Tibetan sources to put forward both perspectives and does not hesitate to assert that the religious relationship between Beijing and Lhasa implied political domination and that, in fact, on the Tibetan side there was “no claim of a 1949 invasion until the 1980s.”
Office of His Holiness the Dalai Lama. The Legal Status of Tibet: Three Studies by Leading Jurists. Dharamsala, India: Office of Information and International Relations, Central Tibetan Administration, 1989.
A compilation of legal reports published by the Tibetan government in exile, including a study by the West German Bundestag Reference and Research Service and a detailed report by jurists Wilmer, Cutler, and Pickering, who review Tibet’s historical status with reference to possible restrictions on state sovereignty and distinguish among protectorate, suzerainty, and sphere of influence.
van Walt van Praag, Michael C. The Status of Tibet: History, Rights, and Prospects in International Law. Boulder, CO: Westview, 1987.
This research has been considered by many a definitive record of Tibet’s legal status, and his conclusions have been supported by the Tibetan government in exile. This work was harshly criticized by official Chinese experts such as Wei Jing ed., Is Tibet an Independent State? On Van Praag’s “The Status of Tibet” (Beijing: New Star, 1991).
Wang, Jiawei, and Nyima Gyaincain. “The Historical Status of China’s Tibet.” Journal of the Washington Institute of China Studies 4.3 (2009): 18–66.
A historical review of Tibet’s legal status that supports China’s official view and openly criticizes the legal interpretations and conclusions in van Walt van Praag 1987. It also questions the analysis of important historical events made by the Tibetan politician and historian Shakabpa. Original work published in Chinese and Tibetan with the title, The Historical Status of China’s Tibet (Beijing: China Intercontinental, 1997).
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