Tibet was independent in fact and in law
The following has been excerpted from the newly released book, Tibet Brief 20/20, written by Michael van Walt van Praag & Miek Boltjes.
The status of Tibet from 1912 to 1951, the year the PRC incorporated Tibet, must be determined solely on the basis of modern international law, which by this time had replaced the traditional legal orders of Inner and East Asia. During these four decades, Tibet witnessed the establishment of the Republic of China (ROC) and its defeat and replacement by the PRC, the end of British imperial presence on the Indian sub-continent, and the emergence of independent India.
There is broad consensus that during this period Tibet was de facto an independent state, and many—the authors included—consider Tibet to have been an independent state both in fact and in law. This chapter would be very short and straightforward were it not for the fact that the leadership of the ROC made an aspirational claim to Tibet from the very beginning and boldly included Tibet in its provisional constitution as well as in the Qing emperor’s abdication edict, both of which the PRC today refers to when it claims Tibet was part of China the years preceding the PRC’s military takeover of Tibet.
Below we therefore not only apply modern international legal criteria to assess Tibet’s status during the 1912-1951 period, we also examine the nature of the ROC’s claim to Tibet and its unsuccessful efforts to secure Tibet’s acquiescence to joining the new Chinese republic.
Tibet’s international legal status in this period is of particular importance when assessing the PRC’s claim that it was exercising sovereign rights inherited from the ROC, when it sent its armies into Tibet in 1950-51, because international courts and tribunals assessing competing historical claims to sovereignty have considered the period immediately preceding a territorial dispute or conflict as critical and not ancient history.
THE STATUS OF TIBET UNDER CONTEMPORARY INTERNATIONAL LAW
In the previous chapter we described the different ways in which the Dalai Lama and his government asserted and communicated Tibet’s independence: ending the chöyön relationship with the Qing emperor and asserting the Dalai Lama’s supreme authority in a ceremony in the Potala Palace (1909), in correspondence with foreign powers, and by promulgation (1913). In this chapter we assess whether Tibet actually met the requirements of independent statehood under modern international law.
The criteria for independent statehood are set out in Article 1 of the Montevideo Convention on the Rights and Duties of States and are reflective of customary international law in the period in question. These are:
(1) a permanent population; (2) a defined territory;
(3) a government; and
(4) the capacity to enter into relations with other states
Tibet satisfied all the criteria for independent statehood set out in Article 1 of the Montevideo Convention.
It is uncontested that during this entire period, 1912 to 1951, Tibet had a ‘permanent population’ and a ‘defined territory’. The fact that the Sino-Tibetan boundary was contested and fought over does not obviate this. The Tibetan government in Lhasa exercised territorial sovereignty over Tsang, Ü, Ngari (jointly depicted as Ü-Tsang on many maps) and most of Kham. Amdo was ruled by a warlord, nominally as part of the Republic of China. Chinese and Tibetan armies fought over the Sino-Tibetan border in eastern Kham, and the border shifted back and forth between the Upper Yangtze/Di-chu river and city of Kangding/Dartsedo. The existence of a government exercising effective centralized administrative and legislative authority is also not contested. Tibet had its own Ganden Phodrang system of government, with the Dalai Lama as the head of state, a national assembly (Tsongdu), a cabinet of ministers (Kashag), a sizeable administrative apparatus and a functioning legal and judicial system. The Tibetan government maintained law and order, collected taxes and corvée service, in part through monastic establishments, and regulated trade. Tibet had its national army, its own currency, postal service and stamps.
The existence of a government exercising effective cen tralized administrative and legislative authority over the territory and population is a principal criterion of independent statehood. Borders may be in dispute, and states can be subject to outside influence and pressure, but a state’s independence in law is in question only where foreign control “is overbearing [the state’s] decision-making […] on a wide range of matters of high policy and doing so systematically and on a permanent basis.” Tibet was susceptible to British influence during this period, but it was not under its control. There is no evidence of ROC control on Tibetan decisionmaking, nor that of any other state.
As for the last criterion of the Montevideo Convention, the capacity to enter into relations with other states, this too Tibet satisfied. The government in Lhasa conducted bilateral relations independently with its neighbors Nepal, Bhutan and Sikkim, as well as with Britain, India and Mongolia. Nepal maintained a diplomatic mission in Lhasa, headed by its Vakil (meaning ambassador), and Bhutan maintained its representative, known as Druk Lotsawa, there. Britain also maintained a mission in the Tibetan capital, whose head dealt directly with the Tibetan government on a regular basis until 1947, when he was replaced by an official from the new Republic of India. The two officials the Republic of China was permitted to post in Lhasa from 1933, in order to maintain communications with the Tibetan government, were similarly treated by the latter as diplomatic representatives.
With newly independent Mongolia, Tibet concluded a Treaty of Friendship and Alliance in January 1913, in which the two states mutually recognized each other’s independence and each other’s monarch and government. This came as both states were asserting their independence to conform to the requirements of the modern world order of nation states, and after Mongolia concluded a bilateral treaty with Russia by which the latter recognized Mongolia’s international legal personality.
That same year, in an attempt to end the border war between Tibet and the Republic of China, tripartite negotiations were held in Delhi and Shimla, in India, between the two sides and Great Britain, with the latter as the chair and mediator. The three states met on equal footing, their delegations formally recognizing each other’s credentials as plenipotentiaries of their respective governments. The Sino-Tibetan boundary dispute was not resolved at the talks so that no tripartite agreement resulted from them. However, three bilateral agreements were concluded between Britain and Tibet, including one on trade and another regarding the Indo-Tibetan boundary.
The Shimla conference and the resulting AngloTibetan agreements were highly significant. First, because the formal mutual acceptance of the plenipotentiary powers by the three delegations constituted a recognition by Britain and the Republic of China of Tibet’s independent treaty making capacity and its unimpaired international legal personality. As the British delegate pointed out to the Chinese plenipotentiary, at the start of the negotiations “the status of Tibet was that of an independent nation recognizing no allegiance to China.” That status could have changed had the parties concluded an agreement to that effect. But this was not the case, leaving Tibet’s status unchanged. Secondly, the three Anglo-Tibetan agreements that were concluded at Shimla comprehensively regulated the relations between Tibet and
Britain, entirely superseding earlier agreements concerning Tibet concluded by Britain with the Qing. And finally, because the legal effect of Britain’s recognition of Tibet’s independence, combined with its enjoyment of the benefits it accrued from the agreements it concluded with Tibet, including the cession of territory to British India in what is today called Arunachal Pradesh, was to bar—estop or preclude—Britain from later challenging or questioning Tibet’s independence. This is the necessary consequence of the application of the international legal norm of estoppel.
The doctrine of estoppel also applies to India, because India similarly recognized Tibet’s treaty-making capacity and reaped—indeed continues to reap—the benefits of the Anglo-Tibetan agreements, in particular the cession of territory by Tibet to British India. Soon after India’s independence in 1947, the Government of India sent the following communication to the Foreign Office of Tibet in response to a Tibetan government note seeking a return of the territories ceded to Britain:
“The Government of India would be glad to have an assurance that it is the intention of the Tibetan Government to continue relations on the existing basis until new agreements are reached on matters either party may wish to take up. This is the procedure adopted by all other countries with which India has inherited treaty relations from His Majesty’s Government.”
Thirteen years later, the Indian government reminded the government of the PRC that Tibet had full treaty-making capacity in 1914 and that this had been recognized not only by Britain but also by the Chinese government.
Despite the reluctance of some states to expressly recognize Tibet’s independence in consideration of their privileged relations with the Republic of China, especially during the Second World
War, they mostly dealt with Tibet as they would with other sovereign states. Tibet’s capacity to make treaties, as we have seen, was accepted, and Tibet’s neutrality during the Second World War was heeded. The Republic of China as well as its allies, the United States and Britain, put pressure on Tibet to allow the passage of military supplies through the country to fight Japan, but Tibet refused, and its neutrality was respected.
Tibet’s international relations were mostly limited to engagements with neighboring states, in particular Britain, India and Nepal, as well as Mongolia, Japan, and to a lesser extent the United Sates. Tellingly, it was Nepal’s treaty and diplomatic relations with Tibet that the former proffered in 1949 as evidence of its own independent status, when applying for UN membership. Tibet’s engagement with the international community was very limited, however, as its clergy dominated government remained isolationist. It did not become a member of the League of Nations or the United Nations. It was not a signatory to multilateral treaties, and it had no diplomatic missions abroad. Shortly before India’s independence, Tibet did participate as an independent country in the Asian Relations Conference in Delhi, a major pan Asian international convention of decolonial solidarity, which paved the way for Asian cooperation and the nonaligned movement. Tibetan officials traveled on Tibetan passports not only to India but also to Britain, France and the US.
On the basis of the above evidence, we conclude that Tibet satisfied the criteria of independent statehood and should be considered to have been an independent state in fact and in law in this period.
Excerpted with permission from “Tibet Brief 20/20” (Outskirts Press, 2020), Copyright © 2020 Michael van Walt van Praag and Miek Boltjes. The annotations have been removed for ease of reading.
The government in Lhasa conducted bilateral relations independently with its neighbors Nepal, Bhutan and Sikkim, as well as with Britain, India and Mongolia. Nepal maintained a diplomatic mission in Lhasa, headed by its Vakil (meaning ambassador), and Bhutan maintained its representative, known as Druk Lotsawa, there. Britain also maintained a mission in the Tibetan capital.