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"As long as human rights are violated, there can be no foundation for peace. How can peace grow where speaking the truth is itself a crime?"

Autonomy and Ethnic Conflict: The Case of Tibet

June 14, 2008

By Michael C. Davis, Chinese University of Hong Kong (mcdavis@cuhk.edu.hk)
Panel on "Local Resistance and External Influence,"
ISA Annual Meeting
March 26-29, 2008, San Francisco.

Abstract
Over the past couple years the PRC Government and the Tibetan
Government-in-Exile have engaged in five rounds of discussions over
their continuing conflict. The difficulties between these parties now
stretch back over fifty years since China's original occupation of
Tibet on the heals of its own civil war. It has also been nearly
fifty years since the Dalai Lama fled into exile in 1959. For much of
this time the parties' positions appeared intractable, as China
claimed full sovereignty over Tibet and the Tibetan exile government
essentially sought independence from China. Throughout this time
China has successfully occupied Tibet and maintained a substantial
military presence there. The combination of actual control and real
politic has gained China formal international recognition of its
sovereign claim. At the same time, a non-violent strategy and global
outreach has won the Tibetan exiles considerable international
solicitude, even earning the Dalai Lama a Nobel Prize in 1989.
Various UN resolutions from the 1960s and a string of human rights
reports suggest that China's current policy of autonomy under its
National Regional Autonomy Law has largely failed to realize
legitimate Tibetan aspirations. With the highly respected Dalai Lama
now 72 and considerable uncertainty about the future, there have been
urgent pleas for the parties to move toward resolution of this
seemingly intractable conflict. Both sides have now adopted autonomy
as their policy objective, though they tend to define its content
very differently. This paper considers the question under what
circumstances, including history and international solicitude,
autonomy may be said to acquire international recognition and how
this may contribute to resolution of seemingly intractable conflicts.
The author has visited India, China and Tibet and has interviewed
officials in Beijing, Dharamsala and Delhi. This included a
substantial interview with HH the Dalai Lama. The study assesses the
historical record and current practice to argue that an appropriately
grounded and internationally recognized autonomy may offer a path to
resolving such internal ethnic conflict.

A. Introduction

In the world today national policies to deal with minority ethnic
conflicts have long offered a challenge to ethnic minority
self-determination and autonomy. The case of Tibet is no exception.
Since China seized Tibet in 1950 Tibet has been left with two central
issues. Is the Chinese occupation illegitimate and a violation of the
sovereignty of an independent state? Whether their rule is legitimate
or not, do the Chinese incur obligations to provide genuine autonomy
to the Tibetan people? The international legal issues surrounding
Tibet are best understood through the lens of these questions and
current efforts to achieve a solution. After five decades of impasse
discussions between Beijing officials and representatives of the
Dalai Lama began anew in 2002. Though these discussions have not
proceeded to serious negotiations they have revealed the parties
bottom line: for the Tibetans "genuine autonomy" and for the Chinese
"sovereignty."[1] The Tibetans have advanced their proposal for
genuine autonomy under a formula they have labeled the "middle way"
approach and the Chinese have advanced their policy under their
national minority laws.[2] In asking for "genuine autonomy" the
Tibetan exile leaders clearly appreciate the role of autonomy as an
essential step for participation in cultural, social, economic and
political life, promoting both democracy and human rights in Tibet.
Though there has been literally no movement toward any solution to
the issues that divide them, there may be improved understanding.[3]
One cannot fully appreciate the concerns of both sides without
considering basic demographics. At a national level the total Tibetan
population of approximately 5.5 million compares to a Han Chinese
population of 1.3 billion.[4] About 130,000 Tibetans live in exile
mostly in India. Han in fact make up 92 percent of China's national
population and the remaining 55 recognized national minorities only 8
percent. It is noteworthy that the thirteen designated Tibetan
autonomous areas, nearly approximating what Tibetans consider greater
Tibet, encompass about one quarter of Chinese territory.

Demographic data within the Tibetan areas is disputed, as Tibetans in
exile worry that China intends to eventually swamp the region with
Han migrants. The Chinese census data projects the Han Chinese
population figure in these areas at about 1.5 million compared to 5.5
million Tibetans. The Chinese figures for only the Tibetan Autonomous
Region (TAR), occupying about half of the total Tibetan autonomous
areas -- with the remaining twelve being adjoining autonomous
prefectures and counties in Yunnan, Qinghai and Szechuan -- is
approximately 2.5 million Tibetans and 160,000 Han Chinese.

Scholars sometimes fault the Chinese census data for leaving out
significant numbers of temporary residents, including members of the
PLA and unregistered temporary Han traders and workers in Tibet.
Chinese policies to encourage Han Chinese to "go west" to migrate to
minority regions are seen as reflecting Chinese aims to dominate the
urban sector and assimilate minorities. Some conclude that the
Chinese have already swamped the Tibetans in the larger urban areas
of Lhasa and Xigaze, where Han are now thought to be in the
majority.[5] Tibetan concerns with being swamped can be appreciated
when one consider what has happened to two comparable ethnic
autonomous regions on China's western borders: in Xinjiang the Uyghur
population of 8.3 million represents only 45 percent as compared to
40 percent Han; while in Inner Mongolia the Mongols are at 17 percent
compared to 80 percent Han.

This paper will assess the application of China's national minority
policies in Tibet in four parts, considering: first, the actual
practice in Tibet under China's current national minority policies;
second, the historical pattern of Sino-Tibetan relations; third,
international legal practice regarding national ethnic autonomy; and
fourth, the best way to meet China's historical and international
obligations. The present analysis will assume the parties expressed
interest in autonomy, setting aside any discussion of independence.

B. Tibetan National Minority Autonomy

Under Chinese Rule China's national minority autonomy policies are
promulgated in their current form in various articles on national
regional autonomy in the 1982 PRC Constitution6 and in the Law on
Regional National Autonomy (LRNA) passed in 1984, as revised in
2001.7 According to PRC Constitution Article 4, "Regional autonomy is
practiced in areas where people of minority nationalities live in
concentrated communities." Under Article 15 of the LRNA autonomous
areas carry out their role "under the unified leadership of the State
Council and shall be subordinate to it." The LRNA provides for
protection of minority concerns in the areas of language, education,
political representation, administrative appointments, local economic
and financial policies, and the use of local natural resources, but
there are real questions as to how effectively minorities can
exercise the powers the law gives them. In contrast to Article 31's
broad provision for the establishment of special administrative
regions "in light of the specific conditions," Article 4 and its
associated laws have served as the basis for substantial intrusions
of central control and the national political system into local
affairs. This has meant that national minority autonomy has been more
of a vehicle for asserting central control than a vehicle for genuine
autonomy. A close look at the instruments of control under the
national minority laws serves to illustrate such limitations.

The 1982 PRC Constitution expresses the intention to allow a degree
of local control under China's national minority policies. This
includes the power, subject to higher approval, to enact "regulations
on the exercise of autonomy (zizhi tiaoli) and other separate
regulations (danxing tiaoli) in light of the political, economic and
cultural characteristics."[8] The LRNA repeats this same language
allowing for the enactment of "regulations on the exercise of
autonomy and other separate regulations," and specifying the need for
approval from the next higher level of government.[9] Normal laws and
regulations unrelated to autonomy do not require such higher
approval, though they are bound to conform to national constitutional
and legislative requirements and will likely track national laws.[10]
Typically an autonomous area is expected to enact only one regulation
on the exercise of autonomy, which would have the status of a
sub-constitution or basic law for the area.[11] For autonomous
regions, the highest-level autonomous area, such approval must come
from the Central Government. None of the PRC's five autonomous
regions (which include Tibet, Xinjiang, Inner Mongolia, Guangxi, and
Ningxia) have received such approval for a basic regulation on the
exercise of autonomy.
The one attempt at enacting a basic regulation on the exercise of
autonomy in the TAR went through 15 drafts and was eventually
abandoned.[12] For lesser autonomous areas at the prefecture and
county level approval has come from provincial governments for basic
autonomy laws that largely track the LRNA. Autonomous areas have
enacted many more "separate regulations," the second category
specified in the authorizing provisions.[13]

Chinese Communist Party (CCP) control over legislative drafting
processes may impose even greater restraints on the local autonomous
drafting efforts than the abovenoted formal approval process. Such
party control assures that very little legislative discretion is
available at the local level. Chinese scholar Chunli Xia describes
the rather complex process of CCP oversight of the legislative
drafting process as including several stages, roughly as follows:
first, the Party Committee of the Local People's Congress (LPC) sets
up a legislative group made up of people from the LPC Party
Committee, the LPC Standing Committee and the local government;
second, a draft is circulated and submitted by the LPC Standing
Committee to the Party Committee of the autonomous area; third, after
approval by the Party Committee of the autonomous area it is then
submitted to a higher party committee for further review; fourth,
when the Party Committee of the autonomous area receives approval it
submits the draft to the LPC Standing Committee Party Committee to be
submitted to the LPC for passage.[14] Xia notes that this process has
been followed especially since the 2001 revisions of the LRNA.[15]

After such party approval process the newly passed legislation is
still subject to the above-noted higher-level official approval.
Given the top down nature of CCP control and the fact that Han
Chinese party officials from the center have always occupied top
local party positions there is little room for local legislative
initiative by autonomous communities. The upshot of these tight
approval processes both in the formal government structure and the
CCP drafting process is that minority areas enjoy very little
legislative autonomy.

Technical legal analysis may not tell the whole story.[16] To these
legal impediments the national minority policy adds structural and
conceptual impediments based on the basic conception of the Chinese
state. Two aspects pose a particular challenge to the realization of
national minority autonomy. First, the fact that national minority
policies require replication of the national political structures in
minority areas renders minority areas especially susceptible to
central administrative control. This includes replication of the
highly centralized system of the top-down CCP and people's congress
system in minority areas, as is evident in the above described
legislative processes. Minority areas are not allowed a distinct
structure of government suitable to local self-rule. The earlier
seventeen-point agreement respecting Tibet is the only case where a
distinctive form of minority autonomy was promised, though ultimately
not delivered. The closest possibility for achieving such flexible
design available today arises under Article 31 of the PRC
Constitution relating to special administrative regions.

Second, the system of national minority autonomy in China rest on
certain Marxist doctrines which deny the essential character of
China's policies in Tibet. These doctrines see the 1950s occupation
of Tibet as "liberation" and the institution of CCP rule in Tibet at
"democratic reform." According to Beijing's Marxist logic colonialism
is a product of capitalist exploitation. In this view, since China
had not reached the stage of full capitalist development it could not
have colonized Tibet. This theory, at its inception provided that the
exploited classes of Tibet be joined, under a Chinese internal
multinational system, in a "common program" of local autonomous
rule.[17] This policy tended to see any autonomy regime as merely a
temporary solution on the path to ultimate assimilation of minority
nationalities into the dominant multinational Han Chinese state.18
Statements to the contrary from an earlier period -- such as the
17-point agreement-- were essentially temporary in their vision.
Though the 17-point agreement promised "Central Authorities would not
alter the existing political system in Tibet" it clearly envisioned
that the liberated Tibetans would soon favor "reform" embracing the
CCP's vision of minority autonomy. Through the long years of China's
national regional autonomy policy all forms of traditional political
structure were progressively eliminated. The Cultural Revolution
(1966-1976) was a period of hard-line class struggle and massive
cultural destruction even by China's own admission. A brief period of
liberalization in the early 1980s, as China pursued post-Cultural
Revolution policy reform nationally, was followed by greater
repression and even martial law later that decade. Policies
restricting the use of Han cadres in Tibet in the early 1980s were
followed by greater central control of Tibet by the end of the
decade. In the most recent decade, a policy of cracking down on
political support for the exiled Dalai Lama has been combined with a
policy emphasis on economic development under which free Chinese
immigration has been favored.[19] Under such conditions massive
Chinese economic investments in Tibet have done little to assuage
Tibetan concerns and resentment. Even in periods of greater
moderation only those Tibetans willing to collaborate with Chinese
rule have been given some role in the Chinese structure of regional
control. The CCP still dominates and Han Chinese still dominate party
leadership in Tibet.

Chinese dominance and repression has produced a pattern of resistance
followed by more repression. Repression over the years has meant not
only armed invasion and crackdowns but also the sacking and razing of
Buddhist monasteries during the Cultural Revolution, the suppression
of religion, the imprisonment and coerced "reeducation" of
dissidents, as well as the forced relocation of rural dwellers to
urban areas. Political repression has especially targeted monks and
nuns, who are thought to most support the "splittist" camp led by the
Dalai Lama. Monks and nuns have been the targets of reeducation and
have been asked to renounce the Dalai Lama.[20] Tibetan resistance
has occasionally involved open popular dissent and rebellion, but
more often has been a matter of smaller-scale resistance by monks,
nuns, and others against Chinese rule and its methods. Tibetan
resistance has in turn spawned Chinese distrust. Instead of being a
valued national participant in the Chinese multi-national political
experiment Tibetans have found themselves a distrusted national
minority targeted for control.

A May 2004 Chinese "white paper" on Regional Ethnic Autonomy in Tibet
highlighted a number of favorable statistics on Tibetan participation
in autonomous governance, including very favorable data on Tibetan
participation in the local people's congresses and local government;
a 93 percent voter turnout rate for county level elections; Tibetan
and other ethnic minority deputies in excess of 80 percent at both
the regional and city levels; and Tibetans occupying all the top
positions of various autonomous governments and standing
committees--with Tibetan membership generally above 80 percent.[21]
The report notes that 12 of the 19 deputies from the TAR to the
National People's Congress are also Tibetan. According to the White
Paper, the Tibetan language is taught in the schools and widely used
along with Chinese language. The report also notes the wide promotion
of Tibetan religion and restoration of religious sites "there being
some 46,000 resident monks and nuns. The Chinese government's
official involvement in the processes of high lama reincarnation is
also noted "including that for the 11th Panchen Lama and the 17th
Karmapa. Not noted is the fact that the 11th Panchen Lama earlier
designated by the Dalai Lama has disappeared and that the Karmapa
nurtured by the Chinese government has fled into exile.

Outside reports, while acknowledging these favorable statistics, have
highlighted critical statistics that tend to show a lack of local
autonomy in areas where it most counts. The International Commission
of Jurist in a 1997 report noted that while "Tibetans are in
positions of nominal authority, they are often shadowed by more
powerful Chinese officials" and "every local organ is shadowed by a
CCP committee or 'leading group.'"[22]

The ICJ report describes other forms of repression in housing,
imprisonment, freedom of expression, women's rights and religious
practice. The relatively poor economic development of Tibet compared
to other regions of China also has significance for local autonomy.[23]

Deficiencies respecting the national minority policy have been most
comprehensively described in a report prepared jointly by Minority
Rights Group International and Human Rights in China.[24] The report
notes that the centralization of power in the top leadership of the
CCP impedes popular empowerment across the country, even for the Han
majority. The report highlights many of the above-noted concerns with
the law-making process including the lack of approval for basic
autonomy laws, central Chinese dominance of CCP leadership in
minority areas, and the lack of real power at the local level. The
report notes, "Minority leaders are therefore typically viewed as
'puppets' who, despite holding fairly high positions such as chief of
a government department, are usually 'assisted' by a Han deputy who,
along with the local Party leadership, controls actual policy
formulation." Of particular concern is a CCP rule that bars party
members from practicing Tibetan Buddhism, a rule certain to undermine
Tibetan participation.25 Added to these limitations are the usual
problems in China of severe restrictions on freedom of speech, press
and association for minority groups. Of 2,279 cases in the Political
Prisoner Database of the U.S. Congressional Executive Commission on
China, 2,085 are ethnic minority prisoners. The report notes that 449
of these are ethnic women, mostly Tibetan nuns.

C. History

Chinese officials often stress history in justifying their claim to
rule Tibet. They are fond of arguing, "Since Ancient times Tibet has
been an inseparable part of Chinese territory."[26] A closer look at
Sino-Tibetan history reveals a more nuanced story and hardly one that
would justify such claim. Discussions with Chinese officials and
Tibetan exiles, as well as the numerous policy statements and
historical accounts, reveal that there is little agreement among
Chinese and Tibetans over how to interpret their shared past. It is
clear that Chinese efforts at imperial conquest have met with Tibetan
resistance for nearly a thousand years. Given present-day skepticism
about imperial conquest as a justification for sovereign claims it is
doubtful that this historical record proves anything compelling to
support current claims for Chinese sovereignty. This historical
record may, however, identify features of the historical Sino-Tibetan
relationship that may be of use in assessing current autonomy
obligations and shaping a future autonomy relationship.

It is widely agreed that in the imperial age China generally aimed to
contain external threats by subordinating and eventually
incorporating its neighbors. Tibet was surely a target of such
efforts but was sufficiently remote and non-threatening that it was
never fully assimilated into the Chinese empire. What levels of
subordination there were from time to time usually involved loose
imperial association and indirect rule through the Tibetan ruling
religious elite.[27] Present-day Chinese accounts usually date
China's claimed incorporation of Tibet to the Mongol-ruled Yuan
Dynasty (1270-1368). The Tibetan abbot Sakya Pandita is reported to
have subordinated Tibet to the emerging Mongol Empire in 1247AD.
After some local Tibetan resistance, the Mongols later invaded and
establish administrative control in 1267. It was only in 1270 that
the Mongol King, Kubilai Khan, proclaimed the Yuan Dynasty in China
and even then China was administered separately from Tibet among the
Mongol's conquest.[28]

Warren Smith describes a rather carefully calibrated diplomatic
relationship from the Yuan Dynasty forward between China's emperors
and Tibetan lamas, often involving Chinese attempts at subordination
and Tibetan resistance.[29] Leading Tibetan lamas served in a
religious advisory role for the Mongol emperors -- a role
characterized by the Tibetans as a Cho-yon or patron-priest
relationship. This state of affairs persisted in the succeeding
Chinese Ming Dynasty (1368-1644), though the Ming court seemed to
value Tibetan lamas more for their intermediary role in dealing with
the still threatening Mongols than for their religious role. The
succeeding Manchu dominated Qing Dynasty (1636-1910) offered the
height of Chinese intervention in Tibet. The Qing considered Tibet a
special case and pursued the same chess game sometimes with
ceremonies and titles and sometimes in the 18th Century with actual conquest.

During the Qing Dynasty the visits of Tibetan religious leaders to
Beijing were carefully choreographed, where complex interplay and
protocol would offer the emperor's support for rule in Tibet by the
Gelugpa Buddhist sect under the Dalai Lama.[30]

As the Qing empire expanded in the 18th century it would intrude more
and more on Tibetan autonomy. By 1720, under the Emperor Kang Hsi,
the Qing occupied and ruled Tibet, though the Qing garrison was
withdrawn when he died in 1722 -- only to be restored later and off
and on in the decades to follow. During its occupation, the Qing set
up a permanent government under a Tibetan Kashag or council. The Qing
was represented in Lhasa by its Amban under a system of indirect
rule. Qing control would vary over time, reaching its height in the
late 18th century. By the late 19th century, the declining Qing was
less able to exercise control in Tibet, which it considered part of
its "exterior empire." The Eastern Tibetan provinces of Kham and Amdo
were more frequently under direct Qing control than central Tibet.[31]

 From 1911 until the PRC invasion in 1950 Tibet enjoyed de facto
independence. In negotiations with Tibet and British India,
Republican Chinese officials began to articulate in modern state
terms the character of their claims to Tibet. British reluctance to
recognize full Tibetan sovereignty appeared to be the only thing that
held Tibet back in securing its own de jure independence. Concerned
about its own imperial ambitions in Central Asia, Britain
characterized Chinese feudal imperial territorial claims as
suzerainty. They conceived suzerainty as a feudal relationship that
signaled something less than full Chinese sovereignty and was
accompanied by a high level of Tibetan autonomy under traditional
governance.[32] While claiming Tibetan subordination, Chinese leaders
generally acknowledge a special status and indirect rule. In
negotiations at Simla, India in 1913, the British advanced a notion,
similar to that China had agreed for Mongolia, of inner and outer
Tibet. This would distinguish a largely independent central Tibet
under Chinese suzerainty from a subordinate Eastern Tibet under
Chinese sovereignty. These various negotiations, first with Britain
and China at Simla and then directly with China in the 1930s would
see China acknowledging Tibet's high degree of autonomy under nominal
Chinese rule. All parties actually initialed the Simla Convention
reflecting this perspective, though the Chinese ultimately did not
ratify it, being dissatisfied with the agreed boundary between inner
and outer Tibet.[33]

During this time Tibet also began the first stages of political
modernization. Melvyn Goldstein notes that Tibetan serfs were not as
economically downtrodden as China often portrays -- an image China
sometimes uses to justify its intervention.[34]

Tibetan political institutions began to show more capacity for modern
forms of self-governance.

There had been a council or cabinet called the Kashag since the late
Qing Dynasty and Tibetans had in the 1860s introduced a national
assembly or Tshongdu, which included representatives of Lhasa's
monasteries and secular officials.[35] The promise of these nascent
constitutional developments has been born out in recent Tibetan
exile, where a form of liberal constitutional democracy has been
instituted that includes universal suffrage in the exile community, a
directly elected prime minister served by a cabinet or Kashag, a
Supreme Justice Commission, and an elected Assembly of Tibetan
People's Deputies.[36] Liberal democratic commitments, including the
Dalai Lama's commitment to withdraw from temporal rule, have been
embodied in proposals by the exile government for future autonomy in Tibet.[37]

After the communist revolution in China in early 1951 the Dalai Lama
faced an offer he could not refuse to join the PRC.38 With weak
international support to do otherwise that year he accepted a
seventeen-point agreement on "measures for the peaceful liberation of
Tibet."[39] The PRC claimed to be "liberating" Tibet, presumably from
foreign influences such as those of British India. Even the 17-point
agreement, presented by a much more confident China, still
acknowledges the special status of Tibet.

This is the only treaty-like agreement that the PRC has entered with
any of its purported national minorities. As in the past, the
agreement promised Tibetan autonomy and local self-rule under its
existing system of governance. A state of popular rebellion against
Chinese |reforms| and the Dalai Lama's perception that Chinese
commitments were not being kept inspired his flight in 1959.[40]

After the Dalai Lama's departure, on March 28, 1959 China dismissed
the local government of Tibet and designated the Preparatory
Committee for the Tibet Autonomous Region (PCTAR), which had been
established under the Dalai Lama's earlier formal chairmanship, as
the official governing body of Tibet.[41] In September 1965 the TAR
was proclaimed under the first People's Congress of the TAR. Since
the Dalai Lama's departure in 1959 China has exercised direct rule,
including Tibet in the same category as 54 other "national
minorities" in application of its constitution and national minority law.

D. International Practice

Beyond history the other source of claimed legitimacy for China's
policies in Tibet is international law. Both China's claim to
sovereignty over Tibet -- based on historical title -- and its
arguments for the legitimacy of its autonomy policies are couched in
the language of international law. Viewing the above historical
legacy under the lens of international law raises doubts about
China's history-based claim of sovereignty and about the legitimacy
of its current policies. Regardless of the illegitimacy of China's
original occupation of Tibet, however, China has forcefully
maintained effective control over several decades, to the point where
it has largely gained international recognition. This recognition has
flowed from assertive actual rule by one of the world's most powerful
states and is bolstered by the uncertain international status of both
autonomy and indigenous rights in international law. Human rights
violations and questionable Chinese autonomy policies have attracted
considerable criticism. China has been pressured to adopt a more
accommodating policy that guarantees genuine autonomy if it wants to
gain not only international recognition but also international
approval. At the same time, the exiled Tibetan government, while
seemingly having a just basis in international law to challenge
Chinese sovereignty has had to take a more accommodating approach if
it wants to reach a reasonable and internationally recognized
settlement. The party's move to autonomy as a solution to this
international conflict demands a creative approach, for which
international law and practice may be instructive. The above
historical narrative offers little support for China's claim of
historical title. It appears that imperial China long both defended
against and had designs on neighboring countries and kingdoms in
Central and North Asia. These neighboring polities likewise formed
their own alliances of resistance and conquest. The Tibetan narrative
of security was especially entangled in that of the Mongols. The only
substantial claim China laid to central Tibet before the eighteenth
century was that engendered in this Mongol relationship, a claim that
became Chinese in the Mongol ruled Yuan Dynasty. The patron-priest
relationship described by Tibetan history then largely prevailed
until the end of the Chinese dynastic period. China's most direct
intervention came in the eighteenth century with occasional military
invasions and some active indirect rule by military representatives.
Such invasions were more frequent and sustained in Eastern Tibet,
encompassing some Tibetan regions now outside the TAR in adjoining provinces.

Without more, the above-described imperial claims would not today
sustain a claim of sovereignty based on historical title. Not only
are imperial claims generally viewed with suspicion, but as traced
above these particular claims have a very weak empirical foundation.
Furthermore, historical title, as judged by the ICJ in the Western
Sahara case, is itself a rather weak basis for claiming territory
held by neighboring national groups.[42] Such claims usually cannot
be sustained except by brute force.

Tibetans now have to contend with five decades of Chinese occupation
and direct rule in Tibet as a fiat accompli. Further, as a matter of
real politic the Chinese regime clearly sees the retention of control
over Tibet as a matter of vital national interest. Under such
circumstances fiat accompli may effectively combine with real politic
to deny Tibetans any hope of independence. In such circumstances is
there a strong argument for a heightened security in international
law for internal autonomy?

In international practice the notion of self-determination, as
conceived in the UN Charter and developed in various UN declarations,
distinguishes between an external and internal right of
self-determination.[43] The external right includes the right of
secession, while the internal right is concerned with minority rights
of self-governance within a sovereign state. While common article (1)
of both the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) provide "all peoples" with a right of
self-determination to "freely determine their political status and
freely pursue their economic, social and cultural rights" they offer
little guidance on who such peoples are and how the right is to be
exercised.[44]

This ambiguity has presented great difficulties for the Tibetan cause
and that of other similarly situated indigenous peoples, often
leaving international law on the sidelines in efforts to seek a
solution to this and similar conflicts.[45] Given the other
guarantees in the human rights covenants it would seem that both
internal and external self-determination harbor an expectation of
democracy and human rights protection so that self-governance is
possible. For countries committed to living up to international human
rights expectations this may point the way forward. With sovereign
independence seemingly out of reach, autonomy and internal
self-determination appear to offer a potential point of agreement
between the protagonists and a focus for their ongoing discussions.

The Supreme Court of Canada in Reference re Secession of Quebec
concluded, "The international law right to self-determination only
generates, at best, a right to external self-determination in
situations of former colonies; where a people is oppressed, as for
example under foreign military occupation; or where a definable group
is denied meaningful access to government to pursue their political,
economic, social or cultural development."[46] The Tibetan leadership
in exile has in the past essentially argued that Tibet satisfied
these criteria. Their claims that they were "denied meaningful access
to government to pursue their political, economic, social or cultural
development" were largely backed up by three UN Generally Assembly
resolutions passed after the Dalai Lama 1959 departure in 1959, 1961
and 1965.[47] Tibetan arguments for self-determination were grounded
in the above noted character of the Sino-Tibetan relationship and
four decades of de facto Tibetan independence after the end of the
Qing Dynasty. While the three UN resolutions did not contest Chinese
sovereignty and demand withdrawal they did condemn China severely for
human rights violations and point the way to the current discussions
over autonomy.

While guarantees of autonomy have generally not been well secured by
international law,48 it may be argued that under at least two
circumstances autonomy in effect becomes internationalized:
1) when it is the consequence of treaty arrangements transferring or
surrendering sovereignty or
2) when it arises out of the denial of rights of self-determination,
especially those of indigenous people. The Tibet case implicates both
possibilities.

To the extent that the matter found itself before the Human Rights
Committee or the Human Rights Council or any other body charged with
human rights assessment, one might expect a degree of scrutiny
regarding the full enjoyment of autonomous rights of self-rule and
cultural preservation. Even if an autonomous community has little
hope of strictly enforcing such right, as is generally the case,
other countries and international organizations will be legitimately
solicitous of the community in question and a responsible central
government should be as well.

These evolving standards have now gained greater international
traction in the new UN Declaration on the Rights of Indigenous
Peoples, which provides a more comprehensive account of established
international standards.[49] This declaration, passed by the UN
General Assembly on September 13, 2007, gives new salience to the
notion of internal autonomy and suggests its substantive content.
While UN declarations are usually not considered legally binding
international law, certain characteristics of this declaration may
recommend it more than most such declarations. These include its
nearly unanimous passage 143 to 4 with eleven abstentions,[50] and
its status as a UN declaration that appears to interpret existing
international legal requirements embodied in the UN Charter and other
international human rights treaties.[51] The Chinese government voted
for the resolution adopting this declaration both in the UN Human
Rights Council and the General Assembly but maintained their
consistent position that there are no indigenous peoples in China and
that the declaration has no application to China.[52] In the drafting
meetings of the UN Human Rights Council the Chinese representative
invoked the above historical arguments uniformly as to all 55
presently designated national minorities, claiming that for 5,000
years China was always united with minorities living on their own
lands.[53] In the case of Tibet, as developed above, there is cause
for considerable doubts about such claims. Even China's own earlier
17-point agreement verifies Tibet's unique status.

While the UN Declaration does not define what is meant by indigenous
peoples, it does specify that such indigenous communities exist
throughout the world and are seemingly not confined to former victims
of European colonialism in the Americas.[54] A UN study has defined
indigenous peoples as follows:

"Indigenous communities, peoples and nations are those which, having
a historical continuity with pre-invasion and pre-colonial societies
that developed on their territories, consider themselves distinct
from other sectors of the societies now prevailing in those
territories or parts of them. They form at present nondominant
sectors of society and are determined to preserve, further develop
and transmit to future generations their ancestral territories, and
their ethnic identity, as the basis of their continued existence as
peoples, in accordance with their own cultural patterns, social
institutions and legal systems...."[55]

There can be little doubt that the Tibetan people satisfy these
criteria and that they were forcefully invaded in 1950. Given their
indigenous character with respect to all indicators in this
definition, some questionable historical argument that the Tibetan
people are not indigenous is not likely to satisfy China's critics
and should not satisfy any international or foreign bodies evaluating
China's human rights record. With the above limitations concerning
its legal status, the Declaration clearly serves as a guide for the
treatment of indigenous or similarly situated peoples in respect of
rights of internal self-determination.

That the current Chinese policies do not meet the standards of the
Declaration on the Rights of Indigenous Peoples is self-evident. The
preliminary articles of the Declaration emphasize such notions as
demilitarization of indigenous lands; the right of indigenous people
to freely determine their relationship with states; that treaties,
agreements and constructive arrangements with states are matters of
international concern; "the fundamental importance of the right of
self-determination of all peoples, by virtue of which they freely
determine their political status and freely pursue their economic,
social and cultural development;" that the right to exercise
self-determination in conformity with international law shall not be
denied; and that adherence to the rights of indigenous people in this
declaration will enhance harmonious and cooperative relations based
on principles of justice, democracy, respect for human rights,
nondiscrimination and good faith. The current policies discussed
above show little sign that Tibetans have freely exercised their
right of self-determination or that their circumstances has otherwise
conformed to these requirements. Even China's own proclamations
regarding the maintenance of a "harmonious society" appear to be
ignored in respect of the Tibetan people.

The various operative articles of the Declaration seek to implement
the above presumptive requirements, guaranteeing indigenous peoples
the following rights: the right of self-determination;[56] the right
to autonomy or self-government in matters relating to their internal
and local affairs;[57] the right to manifest, practice, develop and
teach their spiritual and religious traditions, customs and
ceremonies, including access in privacy to their religious and
cultural sites and control of their ceremonial objects;[58] the right
to participate in decision-making in matters which would affect their
rights, through representatives chosen by themselves in accordance
with their own procedures;[59] the right to be consulted and prior
consent through their own representative institutions before
implementing state legislative and administrative measures;[60] and
the right to recognition, observance and enforcement of Treaties,
Agreements and Other Constructive Arrangements. Added to the basic
ingredients of autonomy and self-determination are a whole cast of
contemporary and traditional rights already guaranteed in the various
human rights treaties and covenants.

Whether China concurs in the indigenous status of the Tibetan people
or takes up the spirit of this declaration as a standard for treating
a people similarly situated, it is clear that it can learn a great
deal from these requirements. A more consensual and harmonious regime
that respects China's traditional relationship with Tibet and secures
the basic rights of this declaration would allow China to establish
an agreeable and internationally acceptable relationship with an
autonomous Tibet.

It must be borne in mind that the international legal recognition of
autonomous rights of democratic self-governance in these
circumstances may be the first step toward giving greater security to
such rights under autonomy arrangements. For distinct groups who
might be entitled to such protection this may offer an avenue to
group security short of seeking full independence. For a country
which incorporates such national group within its sovereign boundary,
international legal security for such internal autonomy and its
democratic guarantees -- through a treaty or otherwise -- may allow
the country to regularize such arrangement short of full secession.
For a national group exercising internal self-determination external
effectiveness may translate into the degree of internal effectiveness
that may make the internal autonomy arrangement reliable. In the face
of the failures of the current policies, the more flexible approach
under PRC Constitution Article 31 holds out the possibility of
achieving this purpose under the framework of the PRC Constitution
and international practice.

Such internationally acceptable autonomy arrangement would also go a
long way to reduce the tendency to convert autonomy into the first
step toward independence,[61] a fear Beijing clearly entertains in
respect of the Tibet issue. There can be little doubt that the
international treaty and the international solicitude that have long
attached to the Hong Kong arrangement have rendered that arrangement
more reliable for all concerned.

Similar international solicitude, if acknowledged in the Tibet case,
may be an advantage that will allow China to regularize and achieve
full international support for a distinctive autonomy policy in
Tibet. Current expressions of recognition for China's claims to Tibet
are generally thought dependent on China's substantial power and
influence. An autonomy arrangement acceptable to the Dalai Lama and
the government in exile may encourage more genuine satisfaction with
Chinese rule in Tibet. A number of autonomy arrangements recognized
by members of the European Union, for example, have been much less
contentious than the Tibetan case, especially because of the
international recognition of such democratic rights under the
European Union.[62]

E. Achieving Autonomy for Tibet

In regard to Tibet, China appears to face a choice of pursuing its
existing national minority policy with the strict constraints that
such course entails or considering a more open-ended flexible
approach. In the latter regard the most convenient path may be for
China to reconsider its earlier rejection of the more flexible
approach under Article 31 of the PRC Constitution governing special
administrative regions. Article 31 flexibly provides that, "The state
may establish special administrative regions when necessary.

The systems to be instituted in special administrative regions shall
be prescribed by law enacted by the National People's Congress in
light of the specific conditions." This flexible approach, now
employed in Hong Kong and Macau, contrast sharply with the above
pattern of central intrusion upon and domination of Tibetan affairs.
There is nothing on the face of the PRC Constitution that bars
application of this more flexible Article 31 approach to Tibet and
such approach would clearly offer a better constitutional fit than
current efforts to address the issue under national minority principles.[63]

In its 2004 white paper on Tibet China credited its refusal to apply
Article 31 in Tibet to a lack of "imperialist aggression" and
contestation over "effective sovereignty":

"The situation in Tibet is entirely different from that in Hong Kong
and Macao. The Hong Kong and Macao issue was a product of imperialist
aggression against China; it was an issue of China's resumption of
exercise of its sovereignty. Since Ancient times Tibet has been an
inseparable part of Chinese territory, where the Central Government
has always exercised effective sovereign jurisdiction over the
region. So the issue of resuming exercise of sovereignty does not
exist. With the peaceful liberation of Tibet in 1951, Tibet had
fundamentally extricated itself from the fetters of imperialism.
Later, through the Democratic Reform, the abolition of the feudal
serfdom under theocracy and the establishment of the Tibet Autonomous
Region, the socialist system has been steadily consolidated." So the
possibility of implementing another social system does not exist either.

"Any act aimed at undermining and changing the regional ethnic
autonomy in Tibet is in violation of the Constitution and law…."[64]

Because of this statement Tibetan negotiators have in recent years
put their case under PRC Constitution Article 4 and laws governing
national minorities. They have argued that the Chinese government has
not fulfilled its constitutional requirements toward national
minorities.65 But Chinese officials interviewed in connection with
this research appear to reject this move as well, arguing that the
contents of the "middle way" approach offered by Tibetan
representatives are "tantamount to not recognizing the Central
Government, not recognizing ethnic autonomy, and not recognizing the
socialist system."[66] The Chinese stress that the Dalai Lama must

1. recognize Tibet as part of China;
2. recognize that Taiwan is a Chinese province;
3. give up all activities toward independence; and
4. recognize the leadership of the CCP.[67]

Because of the above categorical rejection of the Article 31 approach
and the effective rejection of Tibetan efforts to put their case
under the national minority provisions in Article 4 the parties
effectively confront intractable circumstances with no way forward. A
more flexible approach on the Chinese side is required if the parties
are to find a constructive path beyond this impasse.

It seems obvious that the Article 31 route to resolving this long
festering problem is a realistic option for a government truly
committed to resolving this issue. The above claim that Article 31
only applies under circumstances that are a "product of imperialist
aggression against China" or involve "an issue of China's resumption
of the exercise of its sovereignty" is not supported by the text of
Article 31. Further, it is not evident that Taiwan, to which Article
31 clearly applies by design, would meet such requirement. China
generally takes the view that the ruling elites in Taiwan are Chinese
nationals.

Even if dispute as to sovereignty were required as a precondition for
application of Article 31 the same white paper in the next sentence
appears to raise precisely that issue in speaking of Tibet being
extricated from the 'fetters of imperialism." The further claim in
the above white paper excerpt that Tibet has already undergone
democratic reform is even less credible. Any alleged obstacles to a
more consensual approach appear to be questions of policy, not law.
It is significant that under Article 62(13) of the PRC Constitution
the National People's Congress has the power "to decide on the
establishment of special administrative regions and the systems to be
instituted there.: Rejecting the application of Article 31 out of
hand would surely raise doubts about the Central Government's
sincerity in resolving this issue in a mutually agreeable fashion.

If this categorical question could be solved then the discussions
might move forward to the more serious question concerning the form
of democratic institutions to be employed in an autonomous Tibet. It
is understood that Beijing's chief concern about genuine autonomy is
that true democracy may create a platform for hostile forces to
organize to promote independence in Tibet. There may be anxiety that
autonomy is the first step on the road to secession. Beijing's
anxieties over democratic development in Hong Kong have also raised
concern that Hong Kong not be a base of subversion.
Nevertheless, in spite of considerable freedom and the presence of
organized political parties in Hong Kong no such hostile forces have
emerged. Questions do arise as to appropriate national security
restrictions on subversive activities, for which there are no
shortage of international standards, such as those expressed in the
Johannesburg Principles.[68]

Another tact is to consider what kinds of democratic institutional
model may best diminish this risk. Chinese scholar, Li Xiong Wang,
has suggested that Beijing will be very anxious about this issue and
that such anxiety might be better allayed by some form of indirect
democracy which, while providing genuine choice at the local level,
employs a structure somewhat like the people's congress system,
having a pyramid structure where locally elected assemblies elect
representatives to the next higher county, prefecture and regional
assemblies.[69] Such a model could distinguish itself from the
current Chinese system by having multi-party competitive elections
with associational freedoms at the base of the system. He argues the
Chinese government will be reassured only if the Dalai Lama's plan
can be modified to make the separation of Tibet impossible.

He feels by shifting politics more down to the village level there
will be less grandstanding and more moderation. This is just one
example of more serious issues for the discussion that has so far
been deferred.

Many Chinese officials involved in the Tibet issue have,
nevertheless, refused to move the discussions substantially forward,
accusing the Dalai Lama and his supporters of "splittist"
activities.[70] A leading Tibetan communist retired official, Phuntso
Wangye, who reportedly helped lead Chinese advanced troops into his
homeland in the 1950s and served as a translator in negotiations with
the Dalai Lama in 1954, has expressed rare dissent from within. In
three letters to Chinese President Hu Jintao he argues that hawks
have thrived on their opposition to the return of the Dalai Lama:
"They make a living, are promoted and become rich by opposing splittism.

If the Dalai Lama and the central government reconcile, these people
will be in a state of trepidation, feel nervous and could lose their
jobs. - Any notion of delaying the problem until after the 14th Dalai
Lama dies a natural death is not only naïve, it is also unwise and
especially tactically wrong (fearing the radicalization of young
Tibetans)."[71] He then argues that China's objectives of a
harmonious society would be advanced by welcoming the Dalia Lama and
thousands of Tibetans home. Might a policy that genuinely respects
Tibetan autonomy and treasures Tibet as a valued national member of
the Chinese multinational state offer a more appropriate path to
resolution of this issue than the hawkish approach tried so far?
Might the current Dalai Lama be a more reliable and efficacious
partner in resolving these issues? The full achievement of China's
international human rights obligations may  require a form of
internationally recognized autonomy.[72]


----------
Notes:

1 Interview with Liu Hongji (and Wang Xiaobin), Tibetology Research
Center, Beijing, August 25, 2006. In recent years His Holiness the
Dalai Lama has set forth his  position a number of times beginning in
the 1980s with speeches before the US Congress and at Strasburg
before the European Parliament. Address to Members of the United
States Congress: Five Point Peace Plan for Tibet, 21 September 1987;
Address to Members of the Euroopean Parliament by His Holiness the
Dalai Lama, 15 June 1988. These original positions have been amended
in response to Chinese requirements to make clear he is not seeking
independence nor imposing any conditions for discussions. See
Autonomy and the Tibetan Perspective, Tibetan Parliamentary & Policy
Research Centre, 2005 (available at www.tpprc.org); The Middle-Way
Approach, A Framework for Resolving the Issue of Tibet, Department of
Information and Public Relations, CTA Dharamsala, 2006.
2 Id. The Chinese position is described in their white paper on
Tibet. White Paper on "Regional Ethnic Autonomy in Tibet"
(hereinafter "White Paper"), Information Office of the State Council
of the PRC, May 2004, Beijing.
3 Interview with HH the Dalai Lama, Dharamsala, India, August 9, 2006.
4 Tabulations on Nationalities of 2000 Population Census of China
(Beijing: Nationalities Publishing House, 2003).
5 See June Teufel Dreyer, "Economic Development in Tibet Under the
People's Republic of China," in Barry Sautman and June Teufel Dreyer,
eds. Contemporary Tibet: Politics, Development and Society in a
Disputed Region (London: M.E. Sharpe, 2006), at 129-151, 139.
6 PRC Constitution (1982), Articles 4, 59, 65, 89 and 112-122.
7 Law of the People's Republic of China on Regional National Autonomy
(hereinafter LRNA), 1984, revised 2001.
8 PRC Constitution (1982), Article 116.
9 LRNA Article 19. Such provision is repeated in Article 66 of the
Legislative Law.
10 See Chunli Xia, Autonomous Legislative Power in Regional Ethnic
Autonomy of the People's Republic of China: The Law and the Reality,:
presented in Conference on "One Country, Two Systems, Three Legal
Orders -- Perspectives on Evolution," Macau, February 2007 (citing
Organic Law of the People's Republic of China, Article 7 and the
Legislative Law, Article 63).
11 Id. at 10.
12 Yash Ghai, China's Constitutional and Legal Framework for
Autonomy, Limitations and Possibilities for Negotiations, draft
paper, June 18, 2005, at 19. (Available from author)
13 Separate regulations (translated by Xia as :singular regulations:)
are regulations made by autonomous legislative bodies on specific
topics such as Language, marriage, family planning, etc.. Xia, supra
note 10, at 11.
14 Xia, supra note 10, at 19-20.
15 Id. at 21.
16 A number of legal and political assessments are available. See
Id.; Sautman, supra note 5; Colin P. Mackerras, "People's Republic of
China: Background Paper on the Situation of the Tibetan Population,"
A Written report commissioned by the United Nations High Commissioner
for Refugees, Protection Information Section, February 2005; Theodore
C. Sorensen, Project Chairman and David L. Phillips, Project
Director, Belfer Center for Science and International Affairs, John
F. Kennedy School of Government, Harvard University, Legal Standards
and Autonomy Options for Minorities in China: The Tibetan Case, 2004,
available at www.ksg.harvard.edu/bcsia.
17 Common Program of the Chinese Peoples Political Consultative
Committee (1949).
18 Warren W. Smith, China's Tibet: Autonomy or Assimilation (Boulder:
Rowman and Littlefield, forthcoming) at 233. When Chinese officials
from the Tibetology Research Center are confronted with the
discrepancy between the current version of autonomy and the looser
indirect imperial version they cite advanced technology and modern
communications. Interview with Liu Hongji, supra note 1.
19 Warren W. Smith, "China's Policy on Tibetan Autonomy," East-West
Center Washington Working Papers, No. 2, October 2004.
20 Interview with President, Gu Chu Sun Movement of Tibet
(Association of former Political Prisoners), Dharamsala, August 3,
2006; Interview of "Singing Nun" Renchen Choeky, Dharamsala, August
4, 2006 (After refusing to denounce the Dalai Lama in reeducation
meetings in their nunnery, sentenced to prison for demonstrating in
protest in Lhasa; and sentenced again while in prison when 18 nuns
produced a singing recording that was smuggled out)
21 White Paper, supra note 2.
22 Tibet: Human Rights and the Rule of Law (Geneva: International
Commission of Jurists, 1997), 14-21.
23 June Teufel Dreyer, "Economic Development in Tibet Under the
People's Republic of China," in Sautman and Dryer, Contemporary
Tibet, supra note 5, at 129-151.
24 Human Rights in China, China: Exclusion, Marginalization and
Rising Tension (Minority
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