Understanding Proper Context of Tibetan Self-Determination in International Law
By -Tashi Phuntsok
- Scope: Principle of self-determination is not just a procedural matter (eg. referendum) of determining will of people(s), it is a basic framework of human or group ideas from which will and aspirations of groups/peoples are identified, determined and sustained.
- Basic meaning: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” (Common Article 1 of ICCPR & ICESCR)
- Disciplinary Reach: Political Science and International Law (self-determination as law/right and politics)
- Different Contexts:
(1) Marxists-Leninist context of National Self-determination – based on equality of nationalities; national self-determination to all nationalities within Communist states including their right to secession; aims to eliminate nationalism (bourgeois creation) after achieving self-determination; and ultimately promotes communist internationalism. [Self-determination to achieve classless/stateless society]
(2) Liberal Democratic context (Imperial Project) – Wilsonian self-determination, based upon liberal democratic enlightenment values, for individuals and groups (nations) of European states in the aftermath of World War 1 and 2.
(3) Decolonization Context (1960/70s) – Self-determination of former European colonies in Asia and Africa to eliminate Colonialism/Imperialism.
(4) Beyond Decolonization Context (Post-Decolonization) – Self-determination loses coherence and legal certainty; self-determination largely nation-states’ prerogatives; Accepted view is that principle of territorial integrity overrides self-determination, thus external self-determination (independence/secession) no longer remains a legal right except under certain exceptional circumstances such as: (a) foreign military invasion of a state [eg. Kuwait], (b) Massive violation of jus cogens/human rights norms leading to humanitarian intervention (controversial and ambiguous in law) [eg. Kosovo], (c) When State Sovereignty itself is in question (eg. dissolution of states – USSR, SFRY), (d) International Minority Rights Context (internal self-determination – self-governance or autonomy), (e) Any agreement between the state and groups (eg. South Sudan).
(5) International Minority Rights Context – Internal Self-determination/self-government/autonomy rights to minorities of different background and characteristics. Current international law largely identifies two categories of minorities – national minorities (ethnic, linguistic, cultural, religious groups) and indigenous peoples.
(a) National Minorities – may seek group rights or autonomous rights of self-government within existing states, which may/may not be reciprocated by the concerned state. Likelihood of such positive reciprocation is greater in Western Liberal Democratic States (Quebec, Scots, and Basque) and less in Non-Western authoritarian/intolerant regimes (eg. China). Further, International Law, currently, regards national minorities as individual right holders who needs to be protected against discrimination (by providing equality through citizenship) and are to be integrated within the existing institutions of state machinery. So, it does not recognize them as separate/distinct group right (or collective right including self-determination) holders in international law. Therefore, national minorities’ right to internal self-determination (autonomy) is not recognized in international law. Such issues are left to the discretion of concerned states.
(b) Indigenous Peoples – Recognized in international law as collective rights holder including right to internal self-determination (i.e. self-government or autonomy). Further, their collective rights - to the lands, territories, natural resources, distinct cultural identity, traditional knowledge and systems - are all recognized by international law and norms. Though, initially the concept or identity of indigenous peoples emerged from the European notion of indigeneity in the western settler states (eg. US, Canada, Australia etc), modern human rights law, movements and mandates have enlarged the scope and possibility of indigenous peoples in Asia. Though, many Asian states reject the notion within their territories, emerging trend in international norm building processes (UN, ILO, World Bank) gives wider application of the rights of indigenous peoples for groups in Asian and African states. More importantly, groups (tribals, adivasis, cultural groups, jummas etc) from Asia self-identify themselves within the global human rights context and norms as indigenous peoples. Therefore, only minority group that is recognized in international law as collective group rights holder remains indigenous peoples.
(6) Tibetan Self-Determination: Which Context?
(a) 1913-1950 Tibet: Though not explicitly mentioned, Lhasa government based its independent status upon Wilsonian self-determination for national groups with distinct historical existence. In Tibet’s case - its long historical existence as autonomous political unit, shared historical memory and strong cultural homogeneity. Since Wilsonian self-determination (at the heights of European colonialism) applied only to European national groups, Tibetan independence was denied recognition by both international community and China. (Whether this period in Tibet’s history represented Wilsonian self-determination remains debatable)
(b) Early Communist Takeover (1950-55): The CCP technically provided self-determination for Tibetans, and Tibetans pursued Marxist-Leninist notion of self-determination of nations. But CCP abandoned this promise of self-determination (secession) in the mid-1950s with the change in the Communist Constitution.
(c) 1959-1988 Central Tibetan Administration (CTA): The exile Tibetan administration pursued United Nations in early 1960s and claimed self-determination under decolonization context. Since decolonization process applied only to European colonies (as a whole with colonial boundaries intact), Tibetan quests for recognition was abandoned by international law and community.
(d) 1988 Strasbourg Proposal (Split within Tibetan Movement seeking both Internal and External Self-Determination): After 1988 Proposal, Tibetan movement for Free Tibet noticed split between one side represented by CTA seeking Internal self-determination (autonomy), and other side (led by Tibetan Youth Congress) continuing with the demand for Tibet’s independence (external self-determination). The CTA’s internal self-determination demand rests on China’s internal autonomy regime provided to large minority nationalities including Tibetans. The TYC’s continuing demand for external self-determination continuously rests upon decolonization context.
(e) Exceptional Circumstances under Post-Decolonization Context: Achieving Tibetan self-determination under these circumstances remains highly unlikely. Some of these exceptional circumstances, as stated earlier, are: recognizing China’s takeover of Tibet as invasion or aggression in international law; foreign military intervention in Tibet based upon humanitarian reasons; dissolution of Chinese state; or any other agreement between Chinese state and Tibetans, which they haven’t reached in the last 50 years.
(f) Only Possible Solution in International Law? - International Minority Rights Regime. The TYC’s continuing demand for Tibetan self-determination under decolonization context remains highly irrelevant, if not anachronistic (obsolete), in international law. The CTA’s dual strategy to demand internal self-determination (self-governance or autonomy) within Chinese Constitution and on international stage at large has not given her desired results. Her strategy within minority rights regime (as national minorities and minority nationalities) failed so far because: (i) international law does not allow internal self-determination for national minorities at the moment; (ii) Chinese state is not willing to grant Tibetans (a minority nationality) true autonomy that is seen as beyond their national interest.
(g) Solution (Suggestion)? – Need to Change Context: (i) All Tibetans must adopt a single and united claim for self-determination under minority rights regime. Both CTA and TYC need to show united face in terms of their policy, aspiration, language of rights and demand for self-determination; (ii) Since present status quo is not achieving any affirmative results, I would suggest Tibetan movement to stress on the emerging rights of Indigenous Peoples in international law. As stated earlier, indigenous peoples have gained legal prominence and recognition of their collective right to internal self-determination within international law. The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has explicitly called for indigenous peoples’ right to self-determination and creation of distinct indigenous self-governing institutions within their respective states. Though China, at the moment, rejects existence of indigenous peoples within their territory, the definition and identification of such category in international law remain inclusive of Asian groups claiming themselves to be of such category. Therefore, Tibetans must, after carefully taking stock of indigenous peoples’ rights and benefits, assert themselves as such under the modern human rights context of indigenous peoples. By doing so, we are not negating our existence as national group with historical right to sovereignty (not in terms of modern-day state sovereignty), instead we are equating (upgrading) our yesterday’s struggle (in terms of policies) within today’s contemporary rights language and context of international minority rights, especially rights of indigenous peoples and their self-determination.
