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The Legal Position of Tibet

Published online by Cambridge University Press:  28 March 2017

Tieh-Tseng Li
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Extract

Tibet for most people remains a land of mystery. Books continue to be published which deal with its strange cults and religious practices. It is also a land of romance and adventure. But very little has been written on its political history and still less on its legal status. That is why Professor Charles Henry Alexandrowicz-Alexander’s article in the April, 1954, issue of this JOURNAL must be regarded as a welcome contribution.

Type
Research Article
Information
American Journal of International Law , Volume 50 , Issue 2 , April 1956 , pp. 394 - 404
Copyright
Copyright © American Society of International Law 1956

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References

1 See Alexandrowicz-Alexander, Charles Henry, “The Legal Position of Tibet,” 48 A.J.I.L. 265 (1954)Google Scholar, in which the author concludes that “China has no right and has violated the independence of Tibet.”

2 Herbert W. Briggs, The Law of Nations 66 (1952).

3 Convention of Aug. 31, 1907; 1 A.J.I.L. Supp. 398 (1907).

4 Ibid. 80.

5 A. MacCallum Scott, The Truth About Tibet 59 (1905).

6 The Oxford History of India 771 (rev. ed., 1928).

7 see Lu Hsing-chi’s manuscript on Hsi-tsang chiao shê chi yao (Important Diplomatic Dealings concerning Tibet). Lu was an expert on Indian and Tibetan affairs on the staff of Tong Shao-yi and Chang Ying-tang between 1905 and 1908, was appointed acting High Commissioner in 1913, but was prevented from proceeding to Lhasa to take up his post. His manuscript was mimeographed by the Commission for Mongolian and Tibetan Affairs for official reference, Ch. VI, pp. 25a–27a; Ho Tsaohsiang, Tsang yü (the author was a secretary to the Chinese Delegation), pp. 18a–24b; Ch’ing chi wai chiao shih liao (Sources of Diplomatic History towards the End of the Ch’ing Dynasty), ed. by Wang Liang and Wang Yen-wei, Vol. 195, pp. 8b–9b; Ch’ing-shih kao (Draft History of Ch’ing Dynasty), compiled by Chao Erh-sun and others, 525, fan 8, p. 22b.

8 Accounts and Papers (1910, Vol. LXVIII), printed by order of the House of Commons, Cd. 5240, No. 218, p. 140.

9 Ibid., No. 141, p. 86.

10 For representations made by the British to the Chinese Government in this connection, see ibid., Nos. 287, 288, pp. 180–181; Nos. 298–301 and 303, pp. 188–190; No. 315, p. 195; No. 336, pp. 205–206; No. 347, p. 215; No. 350, p. 216. For Chinese replies see No. 319, p. 196; No. 325, p. 199; No. 329, p. 201; No. 334, pp. 203–204; No. 340, pp. 207–210.

11 Charles Henry Alexandrowicz-Alexander, loc. cit. 270.

12 Ch’ing shih-lu (Imperial Records of the Ch’ing Dynasty), Kao-tsung shih-lu, Ch. 1411, pp. 15a, 24b; Ch. 1417, p. 3b; Li-fan-pu tsê li (Regulations Enforced and Precedents Established by the Ministry of Dependencies), Ch. 61; Wei-tsang-t’ung chih (Records in Connection with Tibet and Its Administration), Ch. 9, p. 179; Ch. 12, p. 201.

13 W. W. Rockhill, The Dalai Lamas of Lhasa and Their Relations with the Manchu Emperor of China 1644–1908, p. 53 (1910).

14 Sir J. F. Davis, China During the “War and Since the Peace, Vol. I, p. 149 (1852).

15 Accounts and Papers (1905, Vol. LVIII), Cd. 2370, No. 97, p. 39.

16 Alexandrowicz-Alexander, loc. cit. 269.

17 Sir Francis E. Younghusband, India and Tibet 421–422 (1910).

18 Accounts and Papers, Cd. 2370, annex to encl. No. 362, pp. 274–275. The translation here used is the version sent by Younghusband to his government.

19 Ibid., Cd. 5240, No. 345, p. 213; No. 350, p. 216. Ch’ing chi wai chiao shih liao, op. cit. (Hsüan-t’ung period), Vol. 17, pp. 41a–b; Vol. 20, p. 31.

20 British Foreign Office, Peace Handbook, No. 70, “Tibet,” pp. 40–41.

21 Briggs, op. cit. 66, 73 et seq., and 240.

22 Sir Charles Bell, Portrait of the Dalai Lama 127.

23 Ibid. 366.

24 For details see Mong-Tsang yüeh-pao, the official publication of the Commission for Mongolian and Tibetan Affairs, Vol. 19, No. 6.

25 Meng, C. Y. W., “Tibetans Are Praying for China’s Victory,” China Weekly Review, Vol. 88, p. 205 (April 15, 1939).Google Scholar

26 “The Peril of Tibet,” Asia, Vol. 39, p. 505 (Sept. 1939).

27 For details see Lo Chia-lun (first and last Chinese National Government’s Ambassador to India), “Raising the Curtain on the Tibetan Issue in Sino-Indian Relations,” Tzŭ yu chung kuo, Vol. 3, No. 7, p. 235 (October, 1950), and also “Documentary Evidence on the Tibetan Issue in Sino-Indian Relations,” ibid., Vol. 4, No. 2, pp. 56–58 (January, 1951).

28 For the text of the letter see William Kirkpatrick, Account of the Kingdom of Nepaul (being the substance of the observations made during a mission to that country in the year 1793), pp. 349–350.

29 Accounts and Papers, Cd. 1920, No. 78, p. 185.

30 Parliamentary Debates, 4th Ser., Vol. 130 (1904), pp. 1116–1117.

31 Accounts and Papers, Cd. 2370, No. 55, p. 18.

32 Department of State Archives, Great Britain Instructions, Vol. 34, pp. 636–639, No. 1455 Hay to Choate, June 3, 1904.

33 Documents des archives des gouvernements imperial et provisoire (made public by the Soviet Government), Series II, Vol. 20, Pt. 1, No. 228, pp. 220–221.

34 Accounts and Papers, Cd. 5240, No. 143, p. 87; No. 302, p. 190; No. 354, p. 218.

35 U.N. Doc, Summary Records of Meetings 21 September-5 December 1950 of the General Committee, pp. 19–20.

36 Hsieh Pin, Hai-tsang chiao shê lüeh shih (A Short Diplomatic History Concerning Tibet), p. 52.

37 Bell, Portrait of the Dalai Lama 205.

38 Lo Chia-lun, “Raising the Curtain of the Tibetan Issue in Sino-Indian Relations,” loc. oit., pp. 229–231.

39 Sir Arnold D. McNair, Law of Treaties 135.

40 Sir Eric Teichman, Travels of a Consular Officer in Eastern Tibet 46.

41 Bell, Portrait of the Dalai Lama 345; Tibet: Past and Present 151–152.

42 Supra, note 35.

43 1 Hackworth, Digest of International Law 58; Briggs, op. cit. 115; Montevideo Convention on Rights and Duties of States, Art. I (d); 6 Hudson, International Legislation 620; and also the statement of Abba Eban, delegate of Israel, made at the Security Council of the United Nations, U.N. Security Council, Official Records, 3rd year, No. 98, pp. 29–30, and that of Professor Philip C. Jessup, representative of the United States, on the conditions of statehood, ibid., 3rd year, No. 128, pp. 9–13.

44 Bell, Portrait of the Dalai Lama 205; Tibet: Past and Present 152.

45 Ibid. 202.

46 Li Yu-i’s article in Tai chich fang ti Hsi-tsang (Tibet Pending Liberation), Shanghai, 1950, p. 36. As the Tibetan Bureau for Foreign Affairs had only one member who could do the translation of these letters from English, Li was often asked privately to lend a hand.

47 Lo Chia-lun, “Raising the Curtain on the Tibetan Issue in Sino-Indian Relations,” loc. cit., p. 234.

48 1 Moore, Digest of International Law 206 et seq.

49 So classified by William W. Bishop, Jr., International Law Cases and Materials 193 (1953), who gave as his reasons the fact of Chinese suzerainty and control and Tibet’s limited foreign relations. Professor H. Lauterpacht in L. F. Oppenheim, International Law (7th ed.), p. 233, classified Tibet as a half-sovereign state nominally under the protection or suzerainty of China.

50 For the full text, see Kuan yu ho ping chieh fang Hsi-tsang pan fa ti hsieh (Jen Min Press, Peking, 1951).

51 New York Times, April 30, 1954; April 2, 1955. Also reported in one of the Chinese newspapers in New York, China Daily News (April 4 and 14, 1955), was that India handed over to Communist China on April 1, 1955, Indian postal, telegraph and telephone facilities in Tibet without charge, but received 316,828 rupees as payment for the twelve resthouses and their equipment.

52 Its Arts. 3, 53, 54, and 67–72 made general provisions regarding regional autonomy, while the Constitution of the Chinese National Government proclaimed on New Year’s Day of 1947 specifically provides (Art. 120) that the self-government system of Tibet shall be guaranteed.

53 China Daily News in New York (March 23, 1955), p. 1.

54 Supra, note 35.