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Memorandum on Genuine Autonomy: Perspectives of International Law & Practice

posted Dec 9, 2011, 10:17 PM by The Tibetan Political Review   [ updated Dec 22, 2011, 6:48 AM ]
 
By Dr. Michael C. van Walt van Praag, 11/29/2011, at the Conference on Genuine Autonomy, European Parliament, Tibet Intergroup, Brussels, Belgium.



Mr. Chairman, Honourable Members of the European Parliament, Honourable Kalon Tripa and Honourable Speaker of the Assembly of Tibetan People’s Deputies, Ladies and Gentlemen, friends,
 
Max van der Stoel, the first OSCE High Commissioner on National Minorities, believed that well‐chosen and well‐designed autonomy arrangements could contribute to the stability and integration of states while accommodating diversity: “his is because” he said, “forms of autonomy allow the accommodation of diverse needs, interests and aspirations, and so can create interests and stakes for various groups within the same State, thereby inspiring common loyalty and investment.”1
 
The experience of those who have extensively worked with intrastate conflicts over the past decades, like Van der Stoel and myself, firmly establishes the central importance of autonomy and similar power‐sharing arrangements in preventing and resolving self‐determination conflicts.2 This realization needs to take root in China, both among the country’s Party leaders, policy makers and intellectuals. The recognition of the need as well as the advantages of permitting diversity in a multinational state like the PRC—not only in terms of folklore and superficial (though colourful) traditions but much more importantly in terms of self‐governance that reflects distinct cultural, spiritual and national identities and values—is essential if we are to make progress in the prevention and resolution of conflicts within states.  It is these conflicts that constitute the overwhelming majority of conflicts in the world today.3 The conflict over Tibet being one of them.
 
We often forget that the Tibetan plateau is and has been the stage of a protracted violent conflict including deadly violence for decades, since Tibet’s forceful occupation. This is because it is the Tibetan policy of non‐violence, inspired by the Dalai Lama’ vision, that gets most of the international attention. Despite that policy, however, the use of state violence has been persistent in the Tibetan conflict and the number of victims, virtually all Tibetan, continues to rise.

In China today the Communist political leaders’ fear of losing the central political power and control they inherited from the original Chinese Communist revolutionaries and their desperate hold onto this monopoly of power, suggests a loss of legitimacy in the eyes of an increasing number of people in China, and is a sure recipe for broader conflict. The increased repression in Tibet in the past few years and months, rising tensions in Xinjiang and Inner Mongolia as well as repressive measures throughout China to preempt any ‘jasmine’ or other democratic movement, support this analysis.

 

 

The intent of the Tibetan proposal

The Tibetan proposal for genuine autonomy contained in the ‘Memorandum on Genuine Autonomy for the Tibetan People’ and the related Note4 sets out the features of the autonomy Tibetans wish to exercise within the PRC and reiterates the Dalai Lama’s “firm commitment not to seek separation or independence”5 and to fully respect the territorial integrity of the PRC.6 It thus squarely addresses China’s concern to preserve the country’s sovereignty and unity and offers China and its leaders a unique opportunity to obtain the legitimacy they especially lack and crave in Tibet.

Indeed, the Memorandum is intended to be a transparent proposal without a hidden agenda7 and is an expression of the ‘middle way’ approach the Dalai Lama has pursued since the 1970’s. As the Dalai Lama stated in his address to the European Parliament in 2008, “the essence of my Middle Way Approach is to secure genuine autonomy for the Tibetan people within the scope of the Constitution of the PRC”.8  To paraphrase the Chinese scholar Baogang He, the proposal meets “both the desire for self‐government and the need for maintaining the unity of the state”9 and provides an avenue to bring more than sixty years of conflict to an end.

The nature of the proposed autonomy and its relation to international law and practice

The core need of Tibetans, as articulated by the Dalai Lama and the Central Tibetan Administration, is the preservation and development of the Tibetan culture with its spiritual and linguistic heritage and the values that these represent, as well as the protection of the fragile Tibetan environment.10 The means to realize this objective, is territorially based political autonomy enabling the Tibetan people living in the Tibetan areas within the PRC to make their own choices and decisions by governing themselves.11

The autonomy proposed by the Central Tibetan Administration is extensive. In a nutshell, it envisages considerable powers of independent decision‐making involving legislative and executive authority in fields ranging from Tibetan culture, religion, language and education to local environmental protection, economic development and internal public security. Tibetan authorities would be permitted to regulate the migration and settlement of non‐Tibetans into the confines of the autonomous region, they would be involved in decision‐making on extraction and utilization of Tibet’ natural resources and would be permitted to conduct border trade with neighbouring states. The Central Government would retain its competencies with respect to foreign policy, defence, fiscal and monetary policy and other powers commonly exercised by central or federal governments that have devolved a degree of power to one or more regions within the state.

The autonomy would apply to all the current contiguous ‘Tibetan autonomous areas’ in the PRC, and not just the region designated as TAR by Beijing. The principal features of the autonomy would be entrenched in the Constitution of the PRC such that these could not be easily and unilaterally altered. The institutions appropriate for such an exercise of autonomy would have to be created or appropriately modified. And finally, any disputes regarding the interpretation and implementation of the agreed upon autonomy would be handled by a joint committee or some other non‐partisan body to be created for that purpose.

It should be stressed here that the Dalai Lama’s ‘Middle way’ approach and, more specifically, the autonomy proposed in the Memorandum represent a major compromise from the Tibetan people’s desire and right to independence12, based on the right to self‐determination and Tibet’ historical status and illegal annexation.13  It would therefore be incorrect to assume that an acceptable solution to the Sino‐Tibetan conflict can usefully be sought somewhere in the middle ground between the inflexible Chinese government objective of full integration of Tibet into the PRC and the Tibetan proposal for genuine autonomy. Having made the above‐stated concession already, the Tibetan side at this point has little room left for further compromise, if any.

Although there are many examples of well functioning autonomies in the world that satisfy the needs and aspirations of the state and of those exercising autonomy, some governments still fear that autonomy may weaken the state and precipitate it down the slippery slope of disintegration. Similarly, peoples or minorities wishing to exercise self‐government often fear an autonomy agreement may lead them down the equally slippery slope to assimilation and a loss of identity. In reality autonomy is a general term which only derives concrete meaning by the specific arrangement arrived at in negotiations between the State and the people wishing to exercise autonomy.14  It therefore is not predisposed to go down any slippery slope and should be designed precisely so as to prevent or resolve tension and conflict, not exacerbate them.15

Although the autonomy envisaged by the Dalai Lama and the Central Tibetan Administration, is unique in that it responds to the specific needs of the Tibetan people and those of the Chinese State, it is of a kind that is prevalent throughout the world and that fully accords with international law and practice, including that of the UN.

The United Nations Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly in 2007 (with the vote of an overwhelming majority of member states, including China),16 which recognizes indigenous peoples’ right to self‐determination is the most recent expression of international consensus on the existence of an entitlement to autonomy17 and covers all the issues addressed in the Memorandum. The Tibetan proposal is also entirely consistent with the 1992 UN Declaration on the Rights of Minorities18 (which builds on Article 27 of the International Covenant on Civil and Political Rights19), with the Lund Recommendations on the Effective Participation in Public Life20 as well as with the kinds of constructive arrangements involving national minorities considered by the UN Independent Expert on Minority Issues and the OSCE High Commissioner on National Minorities.21

Autonomy also constitutes a way of implementing the principle and emerging right to democratic governance, since it provides a means of effective political participation to population groups within the State that would otherwise not be in a position to meaningfully participate.22 Indeed, autonomy is a manifestation of selfdetermination in terms of the internal, democratic organization of the state and has long been recognized as such by the United Nations.23 A case can be made that today, under international law, there exists an emerging entitlement to autonomy.24 This seems to be confirmed by the increasing support for autonomy among states and intergovernmental organizations at the international and regional level, as evidenced by their recent involvement in establishing or proposing autonomy regimes to end conflicts in places such as Bosnia and Herzegovina, Aceh (Indonesia), Bougainville (Papua New Guinea), Southern Sudan, Sri Lanka, Kosova (under the Rambouillet Agreement), Abkhazia (Georgia), Transnistria (Moldova), and Mindanao (Philippines).25

Established autonomies such as those of Süd Tyrol/Alto Adige (Italy), Catalonia (Spain), Faroe and Greenland (Denmark), Zanzibar (Tanzania), Cordillera (Philippines), Sarawak (Malaysia), Azores and Madeira (Portugal), Mizoram in India, Autonomous Region of the North Atlantic in Nicaragua, Åland (Finland), New Caledonia (France), Tatarstan (Russian Federation), Scotland (UK) and Gagauzia (Moldova), Nunavut (Canada), Kuna Yala in Panama, and Hong Kong and Macao (PRC), have served as examples and models to draw from when proposing and negotiating new autonomies, because they function well on the whole and have demonstrated the capacity of such arrangements to satisfy the needs of distinct peoples and minorities as well as those of sovereign unitary and federal states.26

These and other positive experiences have also served as inspirations and models for developing the proposals contained in the Memorandum for Genuine Autonomy for the Tibetan People and it should therefore be obvious to anyone familiar with the international practice of autonomy that the Tibetan proposals are well within the frameworks of existing and tested forms of autonomy as well as the international legal standards and norms in their regard.

For the Communist Party and government of the PRC to insist on accusing Tibetans of separatism and ‘splittism’ in response to the latter’s formal presentation of the Memorandum on Genuine Autonomy can only demonstrate their refusal to contemplate any sharing with or devolution of power to Tibetans, most likely motivated by the personal fear of China’s leaders that they might lose the monopoly on power they have worked so hard to cling to so far. It is therefore in Beijing that change must take place, just as it has and does with respect to other stubborn regimes that resist yearnings for democracy within their borders. Tibetans, under the leadership of the Dalai Lama, have shown their ability and preparedness to accommodate the interests of others and to behave in accordance with the norms of international law and the principles of democracy. The ball is clearly in China’s court.



Endnotes:

1 Max van der Stoel, July 2003, Prologomenon in Z. Skurbaty, ed., Beyond a OneDimensional State: An Emerging Right to Autonomy? (Leiden/Boston 2005) p. xix.

2 See M. van Walt van Praag and O. Seroo eds., The Implementation of the Right to SelfDetermination as a Contribution to Conflict Prevention, Report of the International Conference of Experts held in Barcelona, Spain ‐‐ 21 to 27 November 1998 (Centre UNESCO Catalunya, 1999). See also M. Weller, B. Metzger eds., Settling Selfdetermination Disputes: Complex Powersharing in Theory and Practice (Leiden 2008) for discussions on the forms of autonomy and other complex power‐sharing arrangements used in the resolution of conflicts involving self‐determination claims.

3 According to the Stockholm International Peace Research Foundation (SIPRI), for the seventh year running, no major interstate conflict was active in 2010. Over the decade 2001–2010, only 2 of the total of 29 major armed conflicts have been interstate. SIPRI Yearbook 2011: Armaments, Disarmaments and International Security (Oxford 2011) Appendix 2A. Similarly, from 1990 to 2002, of the 58 major conflicts recorded in 46 locations around the world, only three were interstate. 55 were intrastate. SIPRI Yearbook 2003: Armaments, Disarmaments and International Security (Oxford 2003) p. 109. If all armed conflicts are included in the survey, a similar picture emerges. Former UN Assistant Secretary General Francesc Vendrell assesses that 90% of all armed conflicts since WWII have been intrastate. F. Vendrell, ‘The Role of Third Parties in the Negotiation and Implementation of Intrastate Agreements: an Experience‐Based Approach to UN Involvement in Intrastate Conflicts’in M. Boltjes ed., Implementing Negotiated Agreements; the Real Challenge to Intrastate Peace (The Hague 2007) p. 193.

4 ‘Memorandum on Genuine Autonomy for the Tibetan People’ (referred to in this paper as the ‘Memorandum on Genuine Autonomy’ or simply the ‘Memorandum’) and ‘Note on the Memorandum on Genuine Autonomy for the Tibetan People’ (referred to simply the ‘Note’) presented to the central government of the People’s Republic of China on 31 October 2008 and on 26 January 2010, respectively. The full text of the Memorandum and the Note can be found on www.Tibet.net, the official website of the Central Tibetan Administration and the former is also reproduced in A Compilation of the Memorandum on Genuine Autonomy for the Tibetan People, His Holiness the Dalai Lama's Brussels Statement of 4 December 2008, and the Chinese State Council's Press Briefing of 10 November 2008, DIIR Publications (Dharamsala 2009).

5 Memorandum, section I ‘Introduction.’

6 Memorandum, section III ‘Tibetan aspirations’. This is recognized by the U.S. Department of State, Report on Tibet Negotiations, as required by the Foreign Relations Authorization Act 2003, Section 611 ‘Tibetan Policy Act of 2002’, p. 2 (Washington, D.C. 2011).

7 Memorandum, section VII, ‘The Way Forward’; Kalon Tripa Prof. Samdhong Rinpoche, paper presented in the conference on Regional Selfgovernment, cultural identity, and multinational integration: comparative experiences for Tibet, Trento University, 16 November 2009.

8 ‘Address to the plenary session of the European Parliament’, Brussels, 4 December 2008, in DIIR Publications, supra note 2. See also Kelsang Gyaltsen, Statement presented at the European Parliament Committee on Foreign Affairs Hearing on Tibet: An update on the current situation after the breakdown of negotiations with China, Brussels 31 March 2009.

9 Baogang He, ‘Democratization and Federalization in Asia’ in Federalism in Asia (Baogang He, Brian Galligan, Takashi Inoguchi eds., Cheltenham/Nothampton 2009) p.16.

10 See, e.g., Address of Kalon Tripa Prof. Samdhong Rinpoche at the 4th World Parliamentarians' Convention on Tibet, (Edinburgh, 18 November 2005); His Holiness the Dalai lama’s Appeal to Chinese Spiritual Brothers and Sisters, 25 April 2008. See also U.S. Department of State, supra note 6 p. 2.

11 This should not be confused with demands for ‘cultural autonomy’. The emphasis on the core objectives to be realized through autonomy in terms of culture, linguistic, spiritual and environmental values does not amount to a demand for ‘cultural autonomy’. For ‘cultural autonomy’ see T. Benedikter, The World’s Working Regional Autonomies: an Introduction and Comparative Analysis (New Delhi 2007) pp. 43‐44. To be sure, the Memorandum contains features of cultural autonomy, but it goes well beyond that to propose territorial and political autonomy in order to achieve those objectives. Once the central role of culture, language and religion in Tibetan society is understood it becomes clear why these can only be safeguarded with the degree of political selfgovernance proposed in the Memorandum.

12 Indications are that most Tibetans would want a political status for Tibet that would allow Tibetans as a people to rule themselves with no interference from China. For some this aspiration is conceptualized in terms of political independence, for others it simply means the Chinese must leave Tibetans alone and return to China. Tibetans use the word ‘rangzen’ to mean both freedom and independence. H.E. Kyabje Shingza Rinpoche, who recently escaped from Tibet, told the Tibetan Youth Congress gathering in Darjeeling on 22 August 2011 that “people in Tibet often advise fleeing Tibetans: ‘When you go into exile, you must fight for Rangzen because if it is autonomy you will fight [for] then you might as well come back. We in Tibet do all that we can inside here; your responsibility being outside is to keep the fight alive.’” ‘Largest pro‐independence group meets to chart future course of action’ Payul 25 August 2011.

13 There are differing opinions on the precise legal status of Tibet before the People’s Liberation Army marched into Tibet in 1950‐51. Some of us have argued that Tibet was independent in fact and law, while others question the de jure independence of Tibet at the time. For discussions of the issue, see M.C. van Walt van Praag, The Status of Tibet: History, Rights and Prospects in International Law (Boulder, London 1987); J.E. Esteve Moltó, El Tibet: La Frustración de un Estado, p. 233‐260 (Valencia, 2004); E. Sperling, The TibetChina Conflict: History and Polemics (East West Center, Policy Studies #7, Washington D.C., 2004). But see Wang Jia Wei and Nyima Gyaincain, The Historical Status of Tibet (Beijing 1997) for a contrary opinion. For a discussion of Tibet’s right to self‐determination, see International Commission of Jurists, Tibet: Human Rights and the Rule of Law (Geneva 1997), pp. 319‐345; Van Walt van Praag, above, pp. 190‐197; Tibetan Parliamentary and Policy Research Centre, Tibetan People’s Right to Selfdetermination (New Delhi 1996); N. Orosz and R. McCorquodale Tibet: The Position of International Law: Conference of International Lawyers on Issues Relating to Selfdetermination (London, 1994); H. Hannum, Autonomy, Sovereignty, and SelfDetermination, (Philadelphia, 1992) p. 424. But see A. Cassese, SelfDetermination of Peoples: A Legal Reappraisal (Cambridge 1995) pp. 95‐96, note 86 for an opposing view.

14 J. Packer, ‘Reflections on Implementation Mechanisms of Selected Autonomy, Self‐Rule and similar Agreements’ in Boltjes, supra note 3, p.69.

15 Yash Ghai points out that the collapse of federal states –such as those of Pakistan, the Soviet Union, Czechoslovakia, Yugoslavia “are not the result of autonomy, but of the denial of meaningful autonomy.” Y. Ghai, ‘Public Participation, Autonomy and Minorities’ in Skurbaty supra note 1, p. 40. This can be said also of the break up of unitary states, such as Georgia, Serbia and Sudan. Despite a popular belief, there is little evidence that autonomy leads, over time, to secession. Idem, p. 41

16 UNGA Res. 61/295, 13 September 2007, adopted by 143 votes to 4 with 11 abstentions.

17 Tibetans can be recognized as an indigenous people, fulfilling all the criteria in that regard. The CTA has in the past chosen not to argue its case in terms of indigenous people’s rights because of its perceived stronger position that Tibet was an independent country under illegal occupation with a right to self‐determination, including independence. Today, in a number of official Tibetan statements and documents, including the Memorandum and Note on Genuine Autonomy, Tibetans refer to themselves by the label accorded to them by the Chinese government itself, as a “minority nationality.” In the amended Charter for the Tibetans in Exile reference is made to the ‘Tibetan Nation.”Charter for Tibetans‐in‐Exile, 1991, amended 29 May 2011. These self‐definitions indicate a preparedness to identify with both indigenous peoples and national minorities in terms of the rights to autonomy that the Dalai Lama and the CTA are claiming for the Tibetan people. See Y. Ghai, in Y. Ghai ed., Autonomy and Ethnicity; Negotiating Competing Claims in Multiethnic States (Cambridge 2000) p. 3.

18 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA Res. 47/135, 18 December 1992.

19 Adopted on 16 December 1966

20 Autonomy features in the Lund Recommendations on the Effective Participation in Public Life (OSCE High Commissioner on National Minorities, September 1999), with several principles devoted specifically to self‐government and territorial arrangements.

21 See Report of the Independent Expert on Minority Issues, UNGA Doc. A HCR/13/23, 7 January 2010; M. van der Stoel, in Skurbaty, ed. supra note 1, p. xix. Francesco Palermo, while arguing in favour of the potential for territorial autonomy solutions, describes the caution with which the HCNM has approached the issue of autonomy and emphasizes that each situation merits a different approach. F. Palermo, ‘When the Lund Recommendations are Ignored. Effective Participation of National Minorities through Territorial Autonomy’, in International Journal on Minority & Group Rights Vol.16 No. 4 (2009), pp.653‐663.

22 See Palermo, supra note 21, p. 661; H‐J. Heintze, ‘erritorial Autonomy and International Stability’in Skrurbaty, supra note 1, p. 52. For a discussion of the public participation rights of minorities, see Y. Ghai, ‘Public Participation, Autonomy and Minorities’ in Skurbaty, supra note 1, pp. 3‐45.

23 Y. Ghai, ‘Public Participation, Autonomy and Minorities’ in Skurbaty, supra note 1, pp. 3‐45p 13. See also A. Rosas, ‘Internal Self‐government’ in C. Tomuscat ed., Modern Law of Self-determination (Dordrecht 1993).

24 In relation to indigenous peoples, such an entitlement is contained in the ‘soft’ law of the UN Declaration mentioned above. Before the declaration was adopted Zelim Skurbaty concluded that here was “no explicit right to autonomy in international law” but the beginnings of “an emerging right to autonomy” and called the 21st century “the Age of autonomy,” given the growing demands for application of self‐rule throughout the world. Skurbaty, ‘ntroduction”in Skurbaty supra note 1, pp. xliii‐xliv. It is significant that a number of constitutions, such as those of the Philippines, Spain, Russia, Papua New Guinea and Ethiopia to mention but a few, recognize such entitlements with respect to population groups within those countries’borders.

25 See Ghai, supra note 17, pp. 15‐16.

26 For a concise discussion of the elements of autonomy that contribute to stability and good functioning of such arrangements, see R. Lapidoth, Elements of Stable Regional Autonomy Arrangements, Centrum für angewandte Politikforschung Working Paper, München, August 2001. A number of relevant case studies can be found in Benedikter, supra note 11, and T. Benedikter ed., Solving Ethnic Conflicts through SelfGovernment: A Short Guide to Autonomy in Europe and South Asia (EURAC – Bozen/Bolzano 2009). See also Weller and Metzger, supra note 2 and H. Hannum, supra note 13.

Dr. Michael C. van Walt van Praag is the Executive President of Kreddha ‐ International Peace Council for States, Peoples and Minorities, Amsterdam and Visiting Professor, Modern International Relations and International Law Institute for Advanced Study, Princeton

Originally published at www.tibet-envoy.eu.



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