Monday, 14 February 2011

Why Dr. Lobsang Sangay’s Stance on Self-Determination as a Policy is a Pragmatic One?

[The first section of this article, apart from providing a brief justification of our right to self determination, explains the basis of this right in international law, and sheds light on other competing norms which restrict the scope of this right and recent trends which are expected to positively influence its observance. Given the length of this article, I advise readers who are already well-versed on these matters to skip the first section altogether and begin reading from the section titled “The Impediments & the Stumbling Blocks”. Many thanks!]

Tibet, Self-Determination & International Law

The right to self-determination is a well-established norm of international law. The common article 1 of the two human rights covenants states: “All people 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.” That is to say, the right to self determination provides a disaffected group which satisfies the definition of a “people”, the freedom to decide upon its political future by choosing from a continuum of possible options ranging from independence to a multitude of internal arrangements short of independence such as autonomy, free association and integration. It is, thus, customary to speak of two variants of this collective right i.e. external self-determination which when exercised leads to secession of the territory inhabited by the disaffected people from the metropolitan state, and internal self-determination which affords the said group greater say in regulating its political, economic, social and cultural life whilst remaining a part of the metropolitan state. Self-determination is, therefore, a procedural right which is ordinarily accomplished through a referendum.
The fact that we, the Tibetans have a legitimate right to self-determination as described above is indisputable and well-documented. The 1961 General Assembly resolution on Tibet explicitly attests to this fact. A number of prominent legal scholars have also argued to this effect. For instance, Dr. Michael van Walt van Praag, in his seminal work, “The Status of Tibet-History, Rights and Prospects in International Law”, has concluded that “[i]rrespective of the independent legal status of Tibet, the Tibetans as a people unquestionably have the right to self-determination, and their demand to exercise that right is both justified and reasonable”. Similarly, Paul Harris, drawing parallels between Kosovo and Tibet, in his opinion piece “Is Tibet Entitled to Self-Determination?”, has argued that “[i]f Kosovo has a right to self-determination, the right of Tibet is infinitely stronger. The catalogue of gross oppression, the second-class citizen status of Tibetans under Chinese rule, and the identity of Tibet as a country are much clearer than in Kosovo’s case”.
That said, the right to self-determination is not an absolute right, and like most other human rights, it is subject to a balancing act in the event of a clash with other foundational principles of international law; and nothing gets more foundational than the three pillars of the current international system i.e. sovereignty, territorial integrity and non-interference in domestic affairs of states. It is unfortunate but true that when the right to self-determination or any other human right for that matter conflicts with this troika of norms, the balance is almost invariably struck against the right in question. The normative superiority of these three precepts is acknowledged by the General Assembly resolution 1514 (XV) which, while providing for the right to self-determination, qualifies it with a contradictory declaration that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN”. Similar caveats are attached to almost all human rights instruments which call for this right. Self-determination is, thus, stipulated in a manner which essentially reduces it to a ceremonial right of little practical consequence. This goes to show how inordinately partial to states the current international system is.
Be that as it may, we have in recent decades witnessed the gradual ascendency of an international human rights-based culture which is increasingly challenging the dehumanized, state-centric international system that we have today. Genocidal crimes, ethnic cleansing and atrocities of unimaginable proportions committed by illiberal and kleptocratic regimes in Combodia, the Former Yugoslavia and Rwanda in the later part of the twentieth century have come as stark reminders of how sovereignty can be abused by unrepresentative governments to exterminate “undesirables” within their jurisdiction. This revelation and recent developments in international humanitarian law have called into question the very concept of state sovereignty. The NATO’s “humanitarian intervention” in Kosovo in 1999 and the latter’s unilateral declaration of independence from Serbia in 2008 have established an important precedent in this regard. A consensus is gradually taking shape at least among international human rights lawyers challenging the inviolability of the three foundational principles of international law. The claim is that sovereignty is no longer sacrosanct and that a disaffected group is justified to call for secession from the metropolitan state if (1) there have been massive and discriminatory human rights violations approaching genocide, or if (2) the said group has been systematically excluded from political and economic power or when a minimum level of minority rights or a reasonable demand for self-government has been consistently denied. But, this restrictive notion of sovereignty and territorial integrity remains, as of now, in its incubatory phase, and is yet to percolate into the larger discourse of international law. Having said that, there is nothing stopping us from making a claim for self-determination based on these two premises. In fact, we could make a very strong case at that.
Hence, I, for one, do not see justifying our right to self-determination as a major problem. The real challenge for us, in my opinion, lies in translating this right into a framework for resolving the Tibet issue. In this piece, I will be: (i) elaborating upon this practical aspect of the right to self-determination, (ii) exposing some of the pitfalls of adopting self-determination as a free-standing policy, and (iii) analyzing the Kalon Tripa frontrunner, Dr. Lobsang Sangay’s stance on this issue.

The Impediments & the Stumbling Blocks

The merits and the demerits of rangzen and umey-lam have been sufficiently rehearsed by passionate individuals and scholars on either side of the divide. In this section, I intend to reflect upon the viability of self-determination as a policy alternative to the Tibetan Government-in-Exile’s middle way approach.
Self-determination, if adopted as a policy, will entail an inevitable U-turn from our current strategy of engagement with the Chinese government. It will be different from umey-lam in that our pleas will not be directed to the PRC but to the international community in general and the United Nations in particular; they will not be based on the Chinese Constitution but on international law and human rights. This being the case, I can think of only two potential avenues that we can explore to try and get some concrete returns on this policy: (a) we could commit our resources to lobby the UN General Assembly to pass a resolution calling on China to restore the Tibetan people’s right to self determination, and/or (b) we could try and get the International Court of Justice (ICJ) to issue a decision either affirming our right to self-determination or declaring the PRC’s denial of this right illegal under international law. As I will demonstrate in succeeding paragraphs, both (a) and (b) are easier said than done, and even if we were to pull off a miracle and succeed in either of the two endeavors, it would not necessarily pave the way for a referendum in Tibet.

(a) A General Assembly Resolution

The General Assembly, as many of us know, is the quasi-legislative organ of the United Nations where important issues are deliberated and resolutions are passed. It is considered to be the epitome of the principle of sovereign equality and the most democratic of all the UN organs. Having said that, this veneer of equality hides the fact that the General Assembly is basically a congregation of 192 self-interested states operating on the notion of “you scratch my back and I will scratch yours”. Naturally, a lot of horse trading and covert bargaining goes on behind closed doors and a powerful state like the PRC is easily able to induce weaker third world states which are in majority in the General Assembly to side with it or at least refrain from going against it by bribing them with aid packages, lucrative investments or arms deals. This is one of the reasons why the General Assembly has managed to pass only three resolutions on Tibet since its inception. What is also striking is the fact that all of these resolutions have come before China’s entry into the UN; there have been no resolution on Tibet since 1965.
With this context in mind, let us now consider the logistics of getting the General Assembly to pass a resolution calling on China to grant us the right to self determination. Our first preoccupation, in this respect, would be to convince a group of states or at the very least one state to sponsor such a motion for deliberation in the General Assembly. Given China’s ever increasing global clout, we would be lucky to find even a single state willing to be at the receiving end of the Chinese wrath for our sake. Even if we were, somehow, able to negotiate this initial hurdle and persuade an altruistic state to raise the issue of the Tibetan people’s self-determination in the General Assembly, the next stage which involves securing a majority in the Assembly of 192 member states would surely kill the motion stone dead. Under the current circumstances, getting one state to defy China and raise the Tibet issue in international forums is hard enough, getting close to a hundred to do so appears next to impossible.

(b) An ICJ Decision

Alternatively, we could strive to bring our case before the International Court of Justice (ICJ) which is the principal judicial organ of the United Nations. The ICJ is authorized to pronounce upon the existing rules of international law via two separate channels : (1) through contentious cases involving disputes between two or more member states, and (2) through advisory opinions on the request of the General Assembly or other UN organs. The first option is off limits for us as only UN member states (and non-member sovereign states through a written application) can register their claims under contentious cases. This leaves us with the only option of securing an advisory opinion affirming our right to self-determination.
Advisory opinions, as mentioned above, can only be requested by UN organs such as the Security Council or the General Assembly. It is difficult to imagine a Security Council resolution directing the ICJ to pronounce upon our right to self-determination as long as China remains a veto-wielding permanent member. Therefore, our only hope would once again lie primarily with the General Assembly. Since advisory opinions are usually requested through General Assembly resolutions, we would be faced with the same challenges discussed in the preceding paragraphs i.e. we will first require a state or a group of states to introduce the motion for requesting an advisory opinion followed by a majority vote in favor of this motion. China, on the other hand, with as little as a simple word of caution to other states will be able to ensure than such a motion is stamped out in its infancy.

No Bypassing the 500-Pound Gorilla in the Room

Let us set aside these insurmountable odds for a moment and assume for the sake of argument that we were able to overcome these towering impediments and procure both a General Assembly resolution and an ICJ advisory opinion upholding our right to self-determination. That prompts the question: Would China then be legally obligated to hold a referendum in Tibet? The answer is a straightforward NO for two reasons. Firstly, General Assembly resolutions (with the exception of resolutions on the UN’s organizational and budgetary matters) have no binding force. They are mere recommendations which a state like China can overlook at will. The fact that we are still languishing in exile 50 years after the General Assembly in its resolution 1723 (XVI) called “for the cessation of [Chinese] practices which deprive the Tibetan people of their fundamental human rights and freedoms, including their right to self-determination” speaks volumes about the limited practical scope of such resolutions. Secondly, an advisory opinion, unlike a contentious case decision, is a mere statement of law as it stands; neither does it prescribe remedies nor does it command mandatory compliance by concerned state(s). Therefore, it is likely to have little influence when it comes to coercing China into rethinking its policies in Tibet.

However, it goes without saying that a General Assembly resolution or a favorable ICJ decision would further consolidate our already strong claim to self-determination. I am, therefore, all in favor of pursuing these legal avenues, notwithstanding the difficulties involved. But these legal endorsements (provided that we are able to acquire them) will not resolve the Tibet issue on their own. For that to happen, both legal and other facilitative geopolitical factors have to be cumulatively at play.
As a policy, self-determination is too one dimensional for my liking for it invests all its hopes on international law and in the process conveniently forgets about the 500-pound gorilla (or should I say giant panda) in the room. The reality is that our right to self-determination can only be secured through a referendum and whether or not such a referendum is conducted in Tibet will ultimately be contingent upon China’s explicit consent or at the very least acquiescence. The bottom line is that it is China not the UN who will call the shots when it comes to the question of referendum. India, for instance, has completely ignored the UN Security Council’s resolution on Kashmir and backtracked on its own promise of a plebiscite in the disputed region (made at the time of this erstwhile princely state’s accession to the Indian Union back in 1947-48). So, until and unless there are significant changes in the international landscape and/or China’s domestic politics, Beijing, like New Delhi, will not be fazed by a couple of General Assembly resolutions and/or ICJ decisions. There is, therefore, no bypassing China whether we adopt self-determination as our policy, stick with umey-lam or revert to rangzen.

The Need to Talk Strategies Instead of Policies

One thing that we all need to come to terms with is the fact that there are no straightforward solutions and quick fixes to our problems. We are an archetypical underdog up against the most unenviable of adversaries. So, the odds are likely to remain heavily stacked against us notwithstanding the choice of our policy. Put simply, a mere change of course from umey-lam to self-determination will not swing the balance in our favor unless that change mirrors developments in the international system.
Given this fact, we can either choose to stick to our dogmatic selves and carry on expending our valuable intellect and resources on producing drab versions of hackneyed arguments like “rangzen is unrealistic!” and “the middle way is a sell-out!” or we can, while agreeing to disagree about our individual policy preferences, opt to devote our ingenuity to uncovering avenues to further our cause both as individuals and organizations. The Madrid-based Committee to Support Tibet (CAT) gave an exemplary demonstration of such an ingenuity when in 2005 it invoked the Spanish National Court’s universal jurisdiction provision to bring a legal suit against former Chinese President Jiang Zemin, former Prime Minister Li-Ping and five others for acts of genocide committed in Tibet. Though the trial did not progress beyond initial stages owing to legal technicalities and diplomatic pressure from China, it did keep Tibet in the limelight for weeks and, in the process, also managed to set a few alarm bells ringing in Beijing. It was a small victory for us but a victory nonetheless.
Since we do not have powerful political patrons who would fight our battles or bargaining chips which we could flaunt to entice our adversary, we, as a nation, have to constantly be in “hunter-gatherer mode” and scavenge for opportunities to take the fight to the psuedo-communist regime in China. Doing so, would require thinking beyond convention and outside the box. We will not be doing any favors by venturing ever deeper into the quagmire of impossible policy choices. We can, by all means, set aside the interminable rangzen-umey-lam-self-determination-satyagraha debate for after-dinner deliberations, but our primary concern in the next 5 years, I think, should be devising strategies amenable to all four policy options. In this respect, I, personally, find Dr. Sangay’s emphasis on unity and innovation, and his open-minded approach vis-a-vis the policy issue both refreshing and timely.

Hope Springs Eternal

The fact that Dr. Sangay has not endorsed an immediate change of policy from umey-lam to self-determination, in my view, demonstrates his thorough understanding of intricacies of international law and his fairly good grasp of dynamics governing international relations. Dr. Sangay is cognizant of our strong legal claim to self-determination but he also, at the same time, appears to be conscious of numerous institutional and geopolitical impediments which render this legal avenue immaterial under the existing international circumstances. That said, he is not implying that self-determination will continue to be beyond our reach in the near future. I, for one, think it might, in fact, become a pivotal aspect of our broader strategy in times to come.
The right to self-determination might be impracticable today but, with the current international system on the cusp of profound changes, it will not remain unfeasible for us for long. Provided that we are not distracted by petty disagreements, we will be in a position to harness every opportunity and avenue created by the changing international landscape to our advantage. I can identify at least three impending developments on the global stage which might favorably influence our cause.
i) China’s rise as a global power, which many of us see as undermining our struggle, will itself bring about conditions which we could employ to our benefit. Any political scientist of realist persuasion will tell us that as China begins to flex its political muscles on the international stage, states like the US, India and Japan will become increasingly wary of its assertiveness and, they will, in all likelihood, work together in international institutions like the UN to counteract China’s influence. Under such a situation, we might, in fact, be able to find a few states willing to uphold our right to self-determination in the UN and other international forums. We are already witnessing some tell-tale signs of such defiance on the part of states like India and Japan, which as a Tibetan, I find quite encouraging.
ii) As China promotes its brand of capitalism and sends more and more of its state-owned enterprises and private companies off-shores in search of oil and natural resources to fuel its burgeoning economy, its interests will inevitably clash with those of other major and upcoming economies. This scramble for ever dwindling global resources may lead to altercations between China and the rest of the world, which could indirectly work in our favor. Who knows, we might, after all, discover one or two hitherto elusive political patrons willing to overtly support our right to self-determination.
iii) Reforms in the institutional structure of the United Nations, particularly in the Security Council are long overdue. States like India, Brazil, Argentina, Japan, Germany, Nigeria etc are all vying for a permanent seat in the Security Council. A major reshuffle in the membership of the Security Council if considered in conjunction with two potential changes discussed above, will present opportunities for us to align our interests with the interests of China’s competitor-states. Under such conducive international circumstances, a General Assembly resolution or an ICJ advisory opinion might well become a reality.
Here, I can not help but quote Sun Tzu, the ancient Chinese military strategist and philosopher, who in his famous treatise on military tactics (“The Art of War”) stated: “The opportunity to secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.” I find Sun Tzu’s words uncannily relevant to us, as a nation, especially at this critical juncture in our history.
Coming back to Dr. Sangay’s stance on self-determination, I think his flexibility on this issue will stand him in good stead and enable him to work efficiently and unhindered by ideological concerns if an opportunity to exact our right to self-determination knocks on our doors. Besides, Dr. Sangay’s unmatched legal credentials and knowledge of international human rights law accumulated over the past 20 years will give him an edge over other Kalon Tripa candidates and enable him to pool relevant legal resources and articulate our case for self-determination in the best manner conceivable. Personally, I can think of no other individual better equipped and better placed to advocate our right to self-determination.

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ten deden said...

samdup lak,its always a treat to read ur article..thanx

Dawa said...

When TNT was here at Sarah he emphasized the same point. Self-determination will be determined by the political and social environment of China and the world...similar to what LS said when he was here 2days ago. The only difference was, there was an emphasis by TNT to actually set up a think tank or a group that can actually specifically work on that if and when that opportunity rises and that we should be ready, not just expectant when the time actually hits. So both candidates do see self-determination as an option depending on opportunity but TNT was more clear on exactly what needs to be set up in preparation for such a situation when it does occur and not to be caught off guard. Similarly I have heard the intellectual branch of SFT echo this for some years now.

Tendar Tashi said...

Samdup la,

Another great piece. This is what the younger generation needs to see more and more. Objectivity and incisiveness. I wish and pray that you would write more and more in the coming future. I visit you blog often, but expect more to read..heheh In any case, very good work, my best wishes. We all take pride in youths like you. Thank you

Passang said...

Great work samdup la.. enjoyed reading it.