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The Position of Tibet in International Law

Published online by Cambridge University Press:  17 February 2009

Alfred P. Rubin
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Extract

The activities of the Communist Government of China in Tibet have been the object of international attention for some years. This attention has centred mainly around the occupation of parts of Tibet in 1950, which precipitated a discussion in the General Committee of the United Nations' General Assembly, and the continuing suppression of the civil unrest in Tibet which came to world attention in 1959 when the Dalai Lama fled from his capital and sought political asylum in India.

Type
Research Article
Information
The China Quarterly , Volume 35 , September 1968 , pp. 110 - 154
Copyright
Copyright © The China Quarterly 1968

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References

1 Cf. SirBell, Charles, Tibet Past and Present, Oxford, 1924 (hereafter Tibet), pp. 40–42Google Scholar; Lamb, H. A., “Tibet in Anglo-Chinese Relations: 1767–1842,” Journal of the Royal Asiatic Society (J.R.A.S.) (1957), pp. 161–172Google Scholar; Petech, L., China and Tibet in the Early 18th Century (T'oung Pao Monograph No. 1), Leiden, 1950Google Scholar, passim; Rockhill, W. W., “History of Tibet,” 23 J.R.A.S. (New Series) (1891) at p. 188Google Scholaret seq.; Rockhill, W. W., The Dalai Lamas of Lhasa and their Relations with the Manchu Emperors of China, 1644–1908, 11 T'oung Pao (1910) 1Google Scholar (hereinafter cited as Rockhill) at p. 1; Willoughby, M. E., “The Relations of Tibet to China,” 11 Journal of the Royal Central Asian Society (J.R.C.A.S.) (1924) 187CrossRefGoogle Scholar (hereafter cited as Willoughby) at pp. 187–192; Shulemann, G., Geschichte der Dalai Lamas, Leipzig, 1958, p. 340Google Scholaret seq.; Cammann, Schuyler, Trade Through the Himalayas, Princeton, 1951, pp. 16–18Google Scholar, 102 et seq., 144, 151–152; per contra, see Richardson, H. E., Tibet and its History, London, 1962 (hereafter Richardson), pp. 43–72Google Scholar.

2 SirBell, Charles, “China and Tibet,” 36 J.R.C.A.S. (1949) 54 at p. 55Google Scholar; British Parliamentary Papers, Cd. 5240 (1910) at p. 178; Lamb, , op. cit., Part II, J.R.A.S. (1958) 26 at pp. 401–442Google Scholar; Willoughby, p. 192; Lamb, H. A., Britain and Chinese Central Asia, London, 1960 (hereafter Lamb), passim; cf. also the treaty of September 1842 between the Lhasa authorities and China on the one side, and the ruler of Jammu on the other cited and analysed inGoogle ScholarFisher, M. W., Rose, L. E. and Huttenbach, R. A., Himalayan Battleground, New York, 1963, p. 49Google Scholaret seq. and, to rather different effect, Rubin, A. P., “The Sino-Indian Border Disputes,” 9 Inter-national and Comparative Law Quarterly (1960) 96 at pp. 121–122Google Scholar; reference to the payment of tribute to China by the Maharaja of Kashmir is in Aitchison, C. U., A Collection of Treaties, Engagements and Sanads …, Vol. XIV, Calcutta, 1929 (5th ed.) (hereafter Aitchison), p. 15Google Scholar.

3 Aitchison, pp. 49–50.

4 Willoughby, pp. 191–192; Landon, P., Lhasa, London, 1905, Vol. I, p. 6Google Scholar; Rockhill, p. 90; Petech, , op. cit., p. 240Google Scholar; see below, note 111.

5 See, e.g., SirMaine, Henry, The Kathiawar States and Sovereignty, Minute of 22 03 1864Google Scholar, reprinted in Sir M. E. Grant Duff, Sir Henry Maine …, London, 1892, p. 320 et seq.

6 Cf. Keeton, G. W., China, the Far East and the Future, 2nd ed., London, 1949, pp. 3–5Google Scholar; Vinacke, H. M., A History of the Far East in Modern Times, 5th ed., New York, 1950, pp. 17–18Google Scholar; Morse, H. B., The International Relations of the Chinese Empire, 3 Vols., London, 1910–1918, Vol. I, p. 9Google Scholar.

7 82 British and Foreign State Papers (B.F.S.P.) 9, 85 B.F.S.P. 1235; Imperial Maritime Customs, Treaties, Conventions etc., between China and Foreign States, Shanghai, 1908, Vol. I, pp. 321, 324Google Scholar; International Commission of Jurists, The Question of Tibet and the Rule of Law, Geneva, 1959 (hereafter Question), pp. 105, 107Google Scholar. Other British treaties with China concerning Tibet were made in 1876 and 1886. Imperial Maritime Customs, op. cit., pp. 299, 314Google Scholar. The provisions of the 1876 treaty relating to Tibet appear never to have been carried out and were, in effect, cancelled in 1886. There can be no doubt that the British treated China as possessing very great rights in Tibet and even in Nepal throughout the nineteenth century. Cf. Lamb, passim.

8 Cd. 1920 (1904), p. 29 et seq.

9 Id. p. 56; Cd. 5240 (1910), pp. 73, 79.

10 Cf. Cd. 1920 (1904), p. 56; Kawaguchi, E., Three Years in Tibet, Madras, 1909 (apparently written about 1902), pp. 504, 519–525Google Scholar. An account of Western participation in the collapse of China following the Sino-Japanese War is Joseph, P., Foreign Diplomacy in China, 1894–1900, London, 1928Google Scholar. Morse, , op. cit., Vol. III, pp. 55–56Google Scholar

11 Cd. 1920 (1904), pp. 113, 152–153, 187; Cammann, S., op. cit., p. 151Google Scholar; Lamb, A., “Some Notes on Russian Intrigue in Tibet,” 46 J.R.C.A.S. (1959) 46Google Scholar. A thorough study of the international forces involved in British actions in Central Asia at this time is Lamb, Alastair, The MacMahon Line, 2 vols., London and Toronto, 1966Google Scholar, passim.

12 Cd. 1920 (1904), p. 184.

13 Id. pp. 121–127.

14 Id. p. 303 et seq.; Cd. 2054 (1904) passim; Cd. 2370 (1905), pp. 1–49.

15 Cd. 2370 (1905), pp. 49, 225.

16 Id. pp. 54, 229.

17 98 B.F.S.P. 148; Aitchison, p. 23; Cd. 2370 (1905), pp. 61, 270–271; Question, p. 110.

18 Cd. 2370 (1905), pp. 62–63.

19 Id. pp. 62, 65.

20 Id. p. 65.

21 Article DC of the 1904 Convention says:

“The Government of Tibet engages that, without the previous consent of the British Government:

(a) no portion of Tibetan territory shall be ceded, sold, leased, mortgaged or otherwise given for occupation to any Foreign Power;

(b) no such Power shall be permitted to intervene in Tibetan affairs;(c) no representatives or agents of any Foreign Power shall be admitted to Tibet;

(d) no concession for railways, roads, telegraphs, mining or other rights shall be granted to any Foreign Power, or the subject of any Foreign Power. In the event of consent to such concessions being granted similar or equivalent concessions shall be granted to the British Government;

(e) no Tibetan revenues, whether in kind or in cash, shall be pledged or assigned to any Foreign Power, or the subject of any Foreign Power.”

The expression “Foreign Power” is nowhere defined in the Convention.

22 A contrary view is expressed in Sen, D. K., “La Situation Internationale du Thibet,” 55 Revue Générate de Droit International Public (1951) 417Google Scholar. Sirdar Sen apparently does not consider the events of 1906 to 1911 (see below) as of any legal significance, although he gives no reasons for this belief. His interpretation of the 1904 Convention seems to be insupportable in fact or in logic.

A confusing argument is similarly made by the International Commission of Jurists in their final report, Tibet and the Chinese People's Republic (hereinafter Report), Geneva, 1960, pp. 140, 145–146, 154–157Google Scholar, to the effect that China was properly considered a “Foreign Power” for purposes of Article IX of the 1904 Convention. This argument seems to rest on the assumption that the intention of the British in 1904 can be drawn from their political wishes in 1912 and later (i.e., that British policy in 1904 was to minimise Chinese authority in Tibet, and accepting as persuasive these later British wishes to the complete exclusion of indications of British, Chinese and, to some extent Tibetan, intentions and desires in 1904–06). In so far as the argument of the Commission is understandable, it appears to be inconsistent with all the available evidence.

23 Cd. 2370 (1905), pp. 270–271.

24 Id. pp. 70–72, 77, 93–94. The style of the Younghusband expedition was the subject of much critical comment in England and India at the time.

25 Cd. 5240 (1910), pp. 69, 86; Lamb, , The McMahon Line, p. 117Google Scholaret seq.

26 Cd. 5240 (1910), p. 87.

27 Id. pp. 87–88.

28 99 B.F.S.P. 171; Cd. 5240 (1910), pp. 46–47, 51–52; Aitchison, p. 27; Question, p. 113.

29 Cd. 5240 (1910), pp. 109–110, 132–133. The Chinese have attempted t o “colonise” Mongolia in this way also. Friters, G. M., Outer Mongolia and its International Position, introd. by Lattimore, O., London, 1951, p. xviiGoogle Scholar. More recently the Chinese are reported to be encouraging a similar movement into Tibet of Chinese settlers. Cf. Henze, P. B., “The Strategic Significance of Recent Events in Tibet,” 40 J.R.C.A.S. (1953) 169 at p. 173Google Scholar. See also Lattimore, O., Inner Asian Frontiers of China, New York, 1951Google Scholar, passim, for insight into the historical significance of these moves.

30 Cd. 5240 (1910), pp. 69, 73, 79, 96, 110.

31 100 B.F.S.P. 558; Question, p. 116.

32 101 B.F.S.P. 170; Aitchison, p. 28; Question, p. 118.

33 Cd. 5240 (1910), p. 151 et seq.; Tibet, p. 91.

34 Cf. 151 B.F.S.P. 89.

35 Cf. Aitchison, p. 20. The Chinese, apparently unsuccessfully, sought to invoke it as recently as 9 October 1948. Li, T. T., “The Legal Position of Tibet,” 50 American Journal of International Law (A.J.I.L.) (1956) 394 at p. 401CrossRefGoogle Scholar.

36 A further discussion of this Convention is below, in which I attempt to show that the 1908 Convention can be regarded as having terminated sometime between 1911 and 1914.

37 From 1910 on, the Lhasa authorities apparently interpreted the 1904 Agreement as giving them a right of direct access to the British authorities. Shakabpa, Tsepon W. D., Tibet; A Political History, 232, 234–236 (Yale, 1967)Google Scholar. There is no evidence that the British concurred in this strained interpretation of the 1904 Agreement, and the Anglo-Russian Convention of 1907 would seem to have precluded the British communicating with the Lhasa authorities on any but trade matters. The co-operation of Lhasa in the elaborate British attempt to avoid the appearance of direct discussions with Lhasa authorities in 1913 (see below, note 71) is evidence of the British interpretation of the 1904 Agreement being concurred in by Lhasa.

38 Cf. Rockhill, p. 90; Tibet, p. 218.

39 It may be noted that the Panchen Lama, in the nineteenth century, was normally thought to be less concerned with temporal matters than the Dalai Lama (and, to some extent, more holy since he was less involved with the affairs of the material world) (Waddell, L A., The Buddhism of Tibet, 2nd ed. (1934), Cambridge, 1958, p. 235)Google Scholar, yet even he signified his desire in 1906 to be an independent temporal ruler (SirBell, Charles, Portrait of the Dalai Lama, London, 1946: hereafter Portrait, p. 128)Google Scholar. One must be careful to distinguish between the sort of nationalism which appears as a cohesive force, binding opposing political and economic groups together, and the equally potent nationalism which prefers to achieve cohesiveness by excluding disturbing elements or narrowing the political or social horizon to the point at which the myopic viewer can claim to be lord of all he surveys.

40 There would seem to be no reason in international law why a constitutional agreement should not be denounceable unilaterally when such a denunciation does not give rise to an international claim. In seeking her own advantage, it may be noted, China has claimed that the events of 1911 and after are sufficient grounds to terminate an international agreement much less closely connected with constitutional affairs than this under the doctrine of rebus sic stantibus. Scelle, G., “La Xe Assemblée de la Société des Nations,” Revue Politique et Parlementaire, 10 10 1929, p. 66Google Scholar, cited in Ténékidès, C. G., “Le Principe Rebus Sic Stantibus; Ses Limites Rationnelles et sa Récente Evolution,” 41 Revue Générate de Droit International Public (1934) 273 at p. 278Google Scholar, n. 14.

41 Cd. 2370 (1905), p. 229; Cd. 5240 (1910), pp. 159–160, 170–171.

42 Cd. 5240 (1910), p. 165.

43 Id. pp. 145, 161, 173, 182; Lamb, , The McMahon Line, pp. 181Google Scholaret seq., 271 et seq.

44 Cd. 5240 (1910), pp. 182, 185, 187.

45 Id. p. 189.

46 Id. p. 190.

47 Id. pp. 190–193.

48 Id. p. 196.

49 Id. p. 205.

50 so Id. p. 215.

51 Id. p. 218.

52 Id.

53 Id. p. 220, where it appears that the treaties of 1890, 1893 and 1908 were to be considered as binding on the territory of Tibet.

54 Tibet, p. 120.

55 Id. pp. 121–124; cf. Rockhill, pp. 46–73; Portrait, p. 124 et seq. Bell's assertions that the Dalai Lama was held to strict neutrality while he remained in India are misleading. In fact the Dalai Lama was actively directing anti-Chinese activities from his sanctuary. Shakabpa, , loc. cit., 239–242Google Scholar.

56 Tibet, p. 124.

57 Id. pp. 121–122, 140.

58 Id. pp. 190–195.

59 Cammann, , op. cit., p. 17Google Scholar, n. 56.

60 SirGould, Basil, “Tibet and Her Neighbours,” 25 International Affairs (1950) 71 (hereafter cited as Gould) at p. 76Google Scholar; Report, p. 139; Fawcett, J. E. S., “Intervention in International Law,” 103 Hague Recueil des Cours (1961, II) 347 at p. 413Google Scholaret seq.

61 Cf. Lattimore, O., op. cit., p. 138Google Scholar; Morse, H. B., The International Relations of the Chinese Empire, Vol. III, New York, 1918, p. 411Google Scholar, citing an Imperial Decree of the Empress Dowager dated 1 February 1902; Schulemann, , op. cit., p. 276Google Scholaret seq.

62 On 17 August 1912, the British presented a memorandum to the Peking Government denying that the 1908 Convention implied Chinese “sovereignty” in Tibet and asserting that Chinese authority there was merely that of a “suzerain.” The extent of a suzerain's authority was not defined, but the British apparently felt that the Chinese military actions from 1909 onward were too much. Although nothing contrary to the Convention of 1908 is alleged to have occurred, it was said Chinese actions were opposed to the spirit of the 1908 treaty, apparently because it was impossible to trade freely in Tibet without Chinese co-operation and the Chinese were too busy with other things in Tibet to attend to British trade interests. The British memorandum also threatened to withhold recognition from the new Republican Government of China until Tibetan affairs were adjusted to British satisfaction, and forbade the passage of Chinese into Tibet via India. See U.S. Foreign Relations, 1912, Washington, 1919, p. 86Google Scholar. This dispatch giving the gist of the British memorandum is also reprinted in Report, p. 318. A somewhat different account of the British position is in Tibet, pp. 148–149.

In view of later British argument and practice it is interesting to note the attempt to use “recognition” to extract political benefits in this case. The British attempted to manipulate legal relations in Tibet by “recognising” or refusing to “recognise” Chinese rights as suited British political purposes in Tibet throughout the span of this study.

63 Willoughby, pp. 197–198.

64 Report, p. 139; U.N. Doc. A/1549, Attachment dated 11 November 1950 containing the complaint of Tibet to the U.N., reprinted in C. Sen, Tibet Disappears, London, 1960, p. 94 at p. 95; Letter of the Dalai Lama to the Secretary-General of the U.N. dated 29 September 1960, paragraph 6, reprinted in Dalai Lama, My Land and My People, London, 1962, p. 239 at p. 240.

The text of this alleged declaration does not appear to be printed or cited directly in any of these sources, but perhaps it is the same as that referred to in Portrait, p. 135, as occurring some months after the Dalai Lama's return to Lhasa.

This “declaration” was the Dalai Lama's reply to the offer of Yuan Shih-K'ai, the President of the Chinese Republic, to restore him to his former rank. This reply mere said that the Dalai Lama was not asking the Chinese Government for rank as he intended to exercise both temporal and ecclesiastical rule in Tibet. Compare Sir Charles Bell's version of this “declaration,” in which it appears that Yuan's offer was rejected as merely “unnecessary.” Bell, , “China and Tibet,” 36 J.R.C.A.S. (1949) 54 at p. 55Google Scholar. Since the Dalai Lama must have regarded his rank and position as divine (even in temporal matters) during the high tide of Chinese authority in Tibet, it is difficult to see how this assertion of the Dalai Lama can have been a “declaration of Tibetan independence” as now apparently argued. It was not the Dalai Lama's personal position which was at issue except in so far as the Chinese had been attempting to oust him—a feat patently beyond their authority in Tibet at any time (which is why Dalai Lamas tended to die young during the days of greatest Chinese power in Tibet. Cf. Portrait, p. 38). It was the extent of his temporal authority within the Sino-Tibetan constitution, not the existence of a scintilla of that authority, which was at issue.

The Lama, Dalai, op. cit., p. 69Google Scholar, mentions “declarations” issued by his predecessor using a Tibetan seal in place of the apparently customary Chinese seal, and changing the heading on some ancient documents from the formula “By order of the Emperor of China, the Dalai Lama is the Pontiff of Buddhism” to the formula “By order of the Lord Buddha.” It is not clear whether this action by the former Dalai Lama was merely a bit of forgery performed on ancient texts, or was the fixing of a new style on legislative documents. But, assuming the latter to have been the case, all that appears to have been asserted was the ecclesiastical competence of the Dalai Lama independent of Chinese delegation. This is hardly a “declaration of independence” in temporal matters. It is noteworthy that the American colonies of Great Britain in the 17th and 18th centuries normally enacted their own laws in the sole name of the local government and not in the name of the King or of the Government in London. Snow, A. H., The Administration of Dependencies, New York, 1902, pp. 117–118Google Scholar.

Most recently a proclamation dated 8 February 1913 (the date is not absolutely certain; on the difficulty of translating Tibetan dates into Christian dates see Shakabpa, , loc. cit., pp. 15–16Google Scholar) has been argued to have been a “Declaration of Independence.” Shakabpa, , loc. cit., pp. 246–248Google Scholar. Read closely that document will not bear the weight ascribed to it by Shakabpa, a former official of the Lhasa Government now in exile. While it recites in the name of the Dalai Lama the acts of the Lhasa Government in 1913 in attempting to drive out Chinese troops and circumvent the Chinese intention of colonising Tibet, the Proclamation does not purport to cut the governmental ties between Peking and Lhasa in areas in which Peking had actively exercised authority in the past. There is nothing in the Proclamation inconsistent with the Dalai Lama deriving temporal authority from Chinese delegation of some years before. Furthermore, there is no evidence that the Proclamation was in fact delivered to any Chinese authorities or to the world in general.

The patent distortion by the Dalai Lama and his supporters of the meagre evidence of the political intentions of the Lhasa officials in 1911–13 argues powerfully against the proposition that Lhasa's political ties with China were truly intended to be cut at that time. As noted in the text above this note, the issue is of negligible legal significance in this context. It is of substantial legal significance, although still not decisive, with regard to the validity of the McMahon Line border between India and China today. See Rubin, , “Tibet's Declarations of Independence?” 60 A.J.I.L. 812 (1966)Google Scholar.

65 See, e.g., Lauterpacht, H., Recognition in International Law, Cambridge, 1948, p. 10Google Scholar, citing long gaps between declarations of independence and recognition by the mother country (and other countries) of the new state or government. The prize might go to Spain's delay in recognising the independent Netherlands. The “Act of Abjuration” was in 1581, recognition by Great Britain and France came some 15 years later, and Spain did not unequivocally renounce its sovereignty (or cease to fight with the Netherlands over the question) until 1648.

66 The text is in Tibet, pp. 304–305.

67 Lama, Dalai, op. cit., p. 240Google Scholar.

68 Tibet, pp. 228–230.

69 On the status of Mongolia at this time see Friters, , op. cit., p. 163Google Scholaret seq.; Tibet, pp. 224–225. See also Rubin, A. P., “Tibet's Declarations of Independence?” 60 A. J.I.L. 812 (1966)Google Scholar.

70 Aitchison, p. 35; Question, p. 124. The so-called McMahon Line, defining the border between Tibet and Assam, was another result of the Simla Conference.

71 The use of the term “middleman” in describing the British role in these negotiations was a British one. See SirTeichman, Erich, Travels of a Consular Officer in Eastern Tibet, Cambridge, 1922, p. 46Google Scholar. It seems clear that, except for certain matters connected with trade, the Anglo-Russian treaty of 1907 precluded the British dealing directly with Tibet. In so far as the British representatives at Simla did negotiate with representatives of Lhasa on questions not within the exceptions to the treaty of 1907, British obligations to Russia were violated.

72 Teichman, , op. cit., p. 46Google Scholar; 151 B.F.S.P. 89; 470 H.C.Deb. 5s. 255–256.

73 Willoughby, p. 198.

74 Aitchison, p. 38 (note). Lamb, The McMahon Line, contains the full story of these negotiations and their results.

75 This agreement has never been accepted by the Government of China, which denies the legal authority of the Lhasa representative to have made a boundary concession without the concurrence of the Peking Government. Whether the boundary agreed upon at Simla, the McMahon Line, was in fact a yielding of rights by Tibet or merely a confirmation of the customary boundary has been at the centre of the Sino-Indian border dispute in this area. See Green, L. C., “Legal Aspects of the Sino-Indian Border Dispute,” 1 (3) The China Quarterly (1960) 42 at pp. 42–46CrossRefGoogle Scholar.

76 Lama, Dalai, op. cit., p. 241Google Scholar; Question, p. 86; Report, p. 140.

77 Had that recognition been forthcoming, then the legal position of Great Britain vis-à-vis the Chinese in Tibet might have been affected, although in fact this is doubtful since the purported “recognition” was linked to a complete negation of most of the rights a “suzerain” might have been expected to assert. In any event, the British, regardless of their unwillingness to “recognise” it, continued to assert that China had in fact an undefined “suzerainty” over Tibet. See Question, pp. 91–92. The point will be referred to again below.

78 The mere contemplation of permanence or lack of permanence may in some contexts be significant. See Jennings, R. Y., “Government in Commission,” 23 British Year Book of International Law (B.Y.I.L.) (1946) 112 at p. 123Google Scholar.

79 Cf. Chen, T. C., The International Law of Recognition, London, 1951, p. 33Google Scholar; Kelsen, H., “La Naissence de l'Etat …,” 4 Revue de Droit International (1929) 613 at p. 615Google Scholar; Lauterpacht, H., Recognition in International Law, Cambridge, 1948, p. 38Google Scholaret seq.; “ … toute communauté politique a le droit et le devoir de pourvoir chez elle, d'une manière indépendante ….”—Rolin-Jaequemyns, G., 2 Revue de Droit International et de Législation Comparé (1870) at p. 300Google Scholar; Wolff, K., “Les Principes Généraux du Droit Applicable dans les Rapports Internationaux,” 36 Hague Recueil (1931) 483 at pp. 495, 503–504Google Scholar; per contra Wright, Q.et alit, Legal Problems in the Far Eastern Conflict, New York, 1940, pp. 25–29Google Scholar.

80 The actual extent of the authority of Lhasa is not and has never been in fact entirely clear to Western writers.

81 One may ask, for example, what the legal situation would be if the Chinese Government in Taiwan were to renew its struggle against the Communist Government in the mainland today, 19 years after the establishment of the latter government. What would the legal situation be if the United States were to become involved in hostilities directly with the Communist Chinese? There is, fortunately, no need to answer these speculative questions now; however, it is submitted that the legal position of at least the Nationalist Chinese in these circumstances would be affected if not determined by the non-recognition by that government of the Chinese Communist Government in China. See Wright, et alii, op. cit., Part II on p. 129Google Scholaret seq. (essays by H. Lauterpacht, and E. M. Borchard and P. Morrison on the problem of non-recognition in the Far East). Lack of recognition has been held irrelevant in some cases, e.g., the Tinoco Arbitration (1923), 1 United Nations Reports of International Arbitral Awards 369 (1948). But those cases seem to deal only with the position of third countries to the entity in question, and not the position of the parent state vis-à-vis that entity. Cases dealing with the legal effects of third states withholding recognition deal typically with recognition or non-recognition of governments, which involve different issues than arise in considering the legal effects of not recognising statehood. See Cheng Fu-sheng v. Rogers, 280 F. 2d 663 (1960)Google Scholar.

82 For a clear statement of the division of views see 11 J.R.C.A.S. (1924) at p. 47Google Scholar, discussion following the reading of a paper by Sir Charles Bell, particularly the remarks of Sir John Jordan.

83 See Richardson for a work that is both painstakingly accurate as far as it goes and unabashedly partial.

84 Willoughby, pp. 201–202 (remarks by Sir John Jordan); Teichman, , op. cit., pp. 46Google Scholar, 51–54.

85 Teichman, , op. cit., p. 58Google Scholar. See also the map between pp. 46 and 47.

86 Portrait, p. 231. Shakabpa, , loc. cit., p. 266Google Scholar, denies that any Chinese visited Lhasa during the 1920s. It is difficult to believe that Bell's report of the visit is untrue.

87 Tibet, p. 176.

88 Portrait, p. 231.

89 Tibet, pp. 191–192.

90 Portrait, p. 366.

91 151 B.F.S.P. 90. In later years this formal recognition of Chinese “suzerainty” over Tibet was considered to be the earliest British attempt to resolve the legal question of Tibet's status left open by the Simla Conference. Cf. U.S. Department of State, Foreign Relations of the United States, 1943, China, Washington, 1957 (hereinafter cited as 1943, China), pp. 637–638Google Scholar. As pointed out in note 62 above, however, the British position recognising an undefined Chinese ” suzerainty “over Tibet after the Manchu had been overthrown had been reached before the Simla Conference. The International Commission of Jurists nonetheless takes the view that “Britain was still withholding from China a formal recognition of suzerainty over Tibet.” Report, p. 153. The logic of the Commission is obscure.

92 Report, p. 150; Lama, Dalai, op. cit., p. 241Google Scholar.

93 Portrait, pp. 362–364; Shakabpa, , loc. cit., p. 263Google Scholar; Richardson, pp. 125–128; Schulemann, , loc. cit., p. 409Google Scholar.

94 Portrait, p. 366, speaks of a Mongolian-Communist mission to Lhasa in 1927; p. 367 tells of a Soviet agent visiting Lhasa in 1928. Shakabpa, , loc. cit., p. 266Google Scholar, also speaks of these missions. Russia played a major role in detaching Outer Mongolia from Chinese authority after 1911. See Friters, G. M., op. cit., p. 44Google Scholaret seq.

95 Calvocoressi, P. and others, Survey of International Affairs 1949–1950, Oxford, 1953, p. 368Google Scholar. Most of the background information appears to have been taken from Sir Basil Gould's article on Tibet in Chambers' Encyclopaedia.

96 Alexandrowicz-Alexander, C. H., “The Legal Position of Tibet,” 48 A.J.I.L. (1954) 265 at p. 273Google Scholar.

97 Calvocoressi, , op. cit., p. 368Google Scholar

98 Snow, E., Red Star Over China, London, 1937, p. 204Google Scholar; see also Calvocoressi, , op. cit., p. 368Google Scholar, note 3. The dates differ, but it is possible that the same incidents are referred to in both books. Cf. Shakabpa, , loc. cit., p. 274Google Scholar.

99 Portrait, p. 370.

100 Calvocoressi, , op. cit., p. 368Google Scholar; Hopkinson, A. J., “The Position of Tibet,” 37 J.R.C.A.S. (1950) 228 (hereafter cited as Hopkinson) at p. 230Google Scholar; Concerning the Question of Tibet, Peking, 1959 (hereafter Peking), p. 194Google Scholar; Lama, Dalai, op. cit., p. 71Google Scholar.

101 Neame, P., “Tibet and the 1936 Lhasa Mission,” 26 J.R.C.A.S. (1939) 234Google Scholar. An account of the Tibetan Government of this time is on pp. 240–241.

102 Portrait, pp. 369–370; Hopkinson, p. 230.

102a Shakabpa, , loc. cit., pp. 280–283Google Scholar.

103 Portrait, pp. 397–400; Hopkinson, p. 233; Heinrich Harrer, Seven Years in Tibet, London (Reprint Society), 1953 (hereafter Harrer), pp. 298–302; Peking, pp. 194–195. A detailed account of the ceremonial is in Gould, B. J., The Jewel in the Lotus, London, 1957, p. 214Google Scholaret seq. See also Lama, Dalai, op. cit., p. 33Google Scholaret seq. But see Report, p. 146, which indicates that the true role of the Chinese may have been greater than the British were led to believe.

104 Calvocoressi, , op. cit., p. 369Google Scholar; Hopkinson, p. 235.

105 Calvocoressi, , op. cit., pp. 369–370Google Scholar; Harrer, pp. 246, 264, 285–287, 302; Richardson, H. E., “The State of Tibet,” 38 J.R.CA.S. (1951) 112 (hereinafter cited as State) at p. 115Google Scholar.

106 Hopkinson, p. 234; Harrer, p. 224.

107 Gould, p. 76. The same author, in The Jewel in the Lotus, p. 228, also mentions a delegation from Sikkim in Lhasa in 1940.

108 Alexandrowicz, C. H., “India's Himalayan Dependencies,” Yearbook of World Affairs (1956), London, 1956, p. 136Google Scholaret seq.

109 See Harrer, pp. 262–263 for a description of Tibetan reception of diplomatic missions. Gould, p. 76, speaks of the British-Indian Mission as “informal.”

110 Cf. Harrer, pp. 46–47; Hopkinson, p. 230; Pallis, M., Peaks and Lamas, London, 1939 (Readers Union edition, 1948), pp. 84Google Scholar, 90 and 101; Thomas, L. Jr, Out of this World, New York, 1950, p. 16Google Scholar; Shakabpa, , loc. cit., p. 267Google Scholar. The possible exception was in 1943 when an American mission to Lhasa was sent with Chinese approval and the separate permission of the Lhasa Government. U.S. Department of State, Foreign Relations of the United States, 1942, China, Washington, 1957 (hereafter cited as 1942, China), pp. 625Google Scholar, 626. Cf. Report, pp. 151–152.

111 Hopkinson, p. 230, points out that although Tibet was not free of the Chinese Ambans until 1912 (sic), foreign affairs had been conducted from Lhasa as early as 1856 without reference to China. The 1856 affair to which he refers is undoubtedly the altercation which resulted in a treaty between the Tibetan Government of the Dalai Lama and Nepal. Aitchison, pp. 15, 49–50. There is no evidence that this treaty in any way was intended as a derogation from China's rights in Tibet, and the events of later years would make drawing highly questionable any conclusion of Tibetan independence from the fact of her conducting apparently independent foreign relations. Cf. Meadows, T. T., The Chinese and Their Rebellions, London, 1856, p. 3Google Scholar n. There can be no serious doubt of continuous Chinese supreme authority in Tibet prior to 1895. Cf. Rockhill, p. 90; Kawaguchi, , op. cit., pp. 504Google Scholar, 506–507. The British negotiated with China as sovereign over the territory of Tibet directly in 1890 and 1893 (see above), and the British Foreign Office advised a British traveller in 1897 to obtain “passports” for the territory of Tibet from China. Landor, A. H. S., In the Forbidden Land, London, 1898 Vol. II, p. 225Google Scholar.

112 Cf. Willoughby, pp. 198–200; Lama, Dalai, op. cit., p. 71Google Scholar.

113 1943, China, p. 622. The supply route correspondence is set out in 1942, China, p. 624 et seq. and in 1943, China, p. 620 et seq. See also Question, pp. 89–91; Ford, Robert, Captured in Tibet, London (Pan Books), 1958, p. 18Google Scholar.

114 1943, China, pp. 626–627, 633–634, 641–642.

115 Id. pp. 626–628, 630, 634–636, 638, 639–640, 643.

116 Id. p. 629.

117 Hopkinson, p. 233. 1942, China, p. 630. In fact, the Tibetan Government did agree to the transportation of non-military goods to China, but did not agree to permit any foreign supervision of the goods shipped. 1943, China, pp. 629–630. As “foreign supervision,” supervision by Chinese authorities was clearly intended to be forbidden. Id. pp. 632–633.

118 Id. p. 632 et seq.

119 1942, China, p. 627; 1943, China, pp. 621, 641–642.

120 1943, China, p. 639.

121 1942, China, p. 626; 1943, China, pp. 626–628, 634–636, 637–638, especially para. 3 of the British Note to the United States Department of State dated 22 July 1943 on pp. 635–636. The International Commission of Jurists seems to view the British position as amounting to a recognition of Tibetan independence, but they add no evidence or argument to support this conclusion. Report, p. 154.

122 1942, China, p. 631; 1943, China, pp. 629, 630.

123 Hopkinson, p. 233; Shakabpa, , loc. cit., pp. 290–291Google Scholar.

124 Dutt, V. P., East Asia 1947–50, Oxford, 1958, p. 19Google Scholaret seq.; Keeton, G. W., op. cit., Appendix iv, p. 465et seq. The translations differGoogle Scholar.

125 See, e.g., Article 64 (3).

126 Hopkinson, pp. 231–232; Harrer, pp. 247–248; Alexandrowicz-Alexander, , op. cit., p. 273Google Scholar; Calvocoressi, , op. cit., p. 369Google Scholar, n. 4; Li, , op. cit., pp. 402–403Google Scholar; Peking, pp. 201–203. Shakabpa, , loc. cit., p. 291Google Scholar, points out that one Mission attended the Intra-Asian Conference in New Delhi on 23 March 1947, and the British Government of India raised a Tibetan national flag along with the flags of other attending delegations' countries.

126a 460 H.C.Deb. 5s. 96.

127 Shakabpa, , loc. cit., pp. 295–297Google Scholar. Harrer, p. 248, mentions the Mission buying gold ingots in the United States. If this were true it might have implied some American recognition of governmental status. See 12 United States Code, s. 95a. According to Shakabpa, however, although the purchase of gold was discussed it was not in fact made. Shakabpa was head of the Tibetan delegation.

128 Li, , op. cit., p. 403Google Scholar; Peking, p. 203; Lama, Dalai, op. cit., p. 243Google Scholar; Report, pp.157–158. See also Mitter, M. J., Betrayal of Tibet, New Delhi, 1964, p. 14Google Scholaret seq. Photographs of official passports issued by the Lhasa Government of Tibet are inserted after page 48 of Mitter's book, and in end-papers of Shakabpa's book.

129 The “degree of unity” which prompted American recognition of the Kuomingtang Government of China in July 1928 was broken, if it had ever really existed, by Chinese Communist activities of 1931 and afterwards. The “degree of unity” did not include Kuomingtang claims to Tibet. See Snow, , op. cit., p. 173Google Scholar; U.S. Department of State Publication 3573 (Far Eastern Series 30), United States Relations with China, Washington, 1949, p. 12Google Scholaret seq.; Vinacke, H. M., op. cit., pp. 227–253Google Scholar, 437–456; Fitzgerald, C. P., Revolution in China, London, 1952, p. 33Google Scholaret seq. Shakabpa, , loc. cit., p. 268 points out that Chiang Kai-Shek's Government in Nanking had no effective control over the Chinese “Governor of Szechuan” in the early 1930sGoogle Scholar.

130 151 B.F.S.P. 89, Note from the Government of the United Kingdom to the Government of China dated 5 August 1943. As noted above, this recognition was first made explicit in 1912. It was implicit in the terms of the Simla Convention of 1914. The restrictions on the suzerain there were very heavy indeed, although the term “suzerainty” itself was left undefined. It was made explicit again in 1912. 470 H.C.Deb. 5s. 255–256, reiterates in full the British Note of 1943 on 14 December 1949. The position was reiterated with no apparent change on 21 June 1950 (476 H.C.Deb. 5s. 1267) and 6 November 1950 (480 H.C.Deb. 5s. 602) (see below).

131 1942, China, p. 626: “We have over a long period recognised Chinese suzerainty over Tibet, but only on the understanding that Tibet is regarded as autonomous. For many years this Chinese suzerainty has been no more than nominal, and indeed since 1911, Tibet had enjoyed de facto independence.…”—Statement by the Under Secretary of State for Foreign Affairs in an oral answer to a question in Parliament, 6 November 1950. 480 H.C.Deb. 5s. 602.

132 602 H.C.Deb. 5s. 126.

133 About which see below.

134 Statement by Prime Minister Nehru reported in the (London) Times of 17 January 1951, p. 7, col. 2. See also Carlyle, M., ed., Documents on International Affairs 1949–50, Oxford, 1953, p. 552Google Scholar, in which the Indian view is stated fully in a note to the Communist Government of China dated 31 October 1950. The series of Notes of which this is a part may also be found in Question, p. 132 et seq.

135 Harrer, p. 246.

136 State, p. 114; Lama, Dalai, op. cit., pp. 57–61Google Scholar.

137 Ford, , op. cit., p. 25Google Scholar; Lama, Dalai, op. cit., pp. 74–75Google Scholar.

138 state, p. 115.

139 That intention was announced by Peking in January 1950. See Hopkinson, p. 234;Harrer, p. 285 et seq.

140 state, pp. 115–116; Shakabpa, , loc. cit., pp. 299–300Google Scholar.

141 State, p. 116; Shakabpa, , loc. cit., p. 301Google Scholar; Harrer, p. 303; Question, p. 94; Lama, Dalai, op. cit., p. 75Google Scholar. It is interesting to note that one of the routes the Chinese followed into Tibet apparently was the Aksai Chin road, lying through the area of Ladakh now in dispute between China and India. The Indians do not appear to have been aware of the use of the road by the Chinese at this time. Note from the Government of China to the Government of India dated 26 December 1959, Peking Review, No. 1 of 5 January 1960 (Supplement), pp. 4–5. Several of the more recent Notes make the same assertion.

142 Note to Correspondents No. 233; see U.N. Docs. A/1549, A/1565 and A/1658.

143 Meeting No. 73; U.N. Doc. A/1534.

144 State, p. 117; Shakabpa, , loc. cit., pp. 303–304Google Scholar.

145 487 H.C.Deb. 5s. 8.

146 Foliot, D., ed., Documents on International Affairs 1951, Oxford, 1954, p. 577Google Scholar; Question, p. 139.

147 Carlyle, , op. cit., p. 550Google Scholaret seq.; Question, p. 132 et seq.

148 These views did not appear until later as reason for the 1950 activities of China in regard to Tibet, as far as available documentation seems to indicate. For later propaganda see Question, pp. 178–182; Peking Review, 1959, passim. The Chinese in 1951 seem to have been convinced that it was the influence of the British that kept Tibet from joining the body of the Chinese State during the period 1911–51. See Ford, , op. cit., passim, especially pp. 169–170Google Scholar. The theme is constant in the later propaganda. See Peking, passim, especially p. 198 et seq.

149 P. B. Henze, op. cit., passim.

150 Ford, , op. cit., p. 129Google Scholar.

151 Lauterpacht-Oppenheim, , International Law, Vol. I, 8th ed., London, 1955, pp. 349–350, 575–578Google Scholar; The Island of Palmas (Miangas) Arbitration (Huber, M., Arbitrator), 22 A.J.I.L. 867 et seq.Google Scholar

152 Cf. above note 79, Report, p. 155.

153 Cf. Lauterpacht, , Recognition in International Law, Cambridge, 1949, p. 246Google Scholar; Lauterpacht-Oppenheim, , op. cit., p. 576Google Scholar.

154 Cf. Goodrich, L. M. and Hambro, E., Charter of the United Nations, revised ed., Boston, 1949, p. 109Google Scholar. Even if the Communist Government of China is not deemed to be bound by the terms of the United Nations Charter as such, the prohibition of the use of force in international relations is considered by many to be a rule of customary international law. But the question at issue is whether the Chinese actions in Tibet constitute part of the “international relations” of China (or Tibet) within the meaning of Article 2 (4) of the Charter or its customary law analogue, and whether “international” peace and security was threatened within the sense of Article 2 (6) of the Charter, or whether there was an “international” dispute within the sense of Article 2 (3), or their customary law analogues. Unless this issue can be resolved in such a way as to permit the observer to infer an international personality properly attributable to Tibet at least to some extent distinct from the international personality of China, the rules of international law would not be applicable in theory to the relations between the Governments of Tibet and China.

155 See above note 146.

156 Dalai Lama's statement of 29 June 1959, reported in Question, p. 196.

157 Portrait, p. 149.

158 The Dalai Lama has referred to them as “duplicate Tibetan seals.” Lama, Dalai, loc. cit., p. 81Google Scholar.

159 Report, p. 163

160 The (London) Times, 20 11 1951, p. 3, col. 5Google Scholar; Strong, Anna Louise, Tibetan Interviews, Peking, 1959, pp. 46–47Google Scholar. The Dalai Lama's confirmatory telegram to Mao Tse-tung is dated 21 October 1951. Its text is set out in Id. p. 47.

161 Strong, , loc. cit., p. 46Google Scholar; Lama, Dalai, loc. cit., p. 82Google Scholar. The basic policy decision had apparently been made in April 1951, when the Dalai Lama telegraphed Mao Tsetung his (Dalai Lama's) decision to use his power for the further development of “the Chinese motherland and Tibet under Mao Tse-tung's leadership.” Schulemann, , loc. cit., p. 443Google Scholar.

162 Portrait, p. 149; Lama, Dalai, loc. cit., p. 69Google Scholar.

163 It is possible, although not probable, and, in view of the ratification, irrelevant, that he was corrupted by promises of personal advantage. His career in Tibet under the Chinese has been spectacular: he was made Secretary-General and Deputy Chairman of the new Chinese administration and in 1965 succeeded the Dalai and Panchen Lamas as Chairman of the “Tibet Autonomous Region of China.” Question, p. 20; Peking, p. 108; New York Times dated 10 September 1965, p. 4, col. 5.

164 Cf. Report, p. 164.

165 61 A.J.I.L. 263 (1967).

166 See above text relevant to note 143.

167 It has been suggested by a reader of a preliminary version of this paper that the failure of either party to register the agreement with the United Nations may be significant. That suggestion seems empty, since the duty to register treaties and international agreements under Article 102 of the Charter applies only to members of the United Nations. Tibet has never been a member nor is the Government of the Chinese People's Republic represented in the U.N. In any case failure to register a treaty or international agreement does not void it; it merely makes it improper to invoke that treaty or agreement before any organ of the United Nations. Neither party has attempted to invoke it there. If an attempt were made to invoke it there, there would remain the question of whether it is better viewed as a “treaty” or a constitutional document—the failure to register it may be taken as evidence that both China and Tibet regarded it as a constitutional document and not a treaty or international agreement. Yet, although that is undoubtedly the view of China, it seems unlikely that that view is now taken by the Dalai Lama's supporters. Thus, to the extent that the point is significant, it would ironically add a scintilla more to the hesitations expressed with regard to the tentative conclusion that the Agreement is void.

In the argument above, based on the views of the International Commission of Jurists, the position most favourable to the Dalai Lama's supporters has been set forth and adopted for purposes of this discussion. For the sake of completeness two counterarguments should be pointed out. First, the views of the International Commission of Jurists, published in 1967, do not reflect agreement as to the state of law in 1951, when the coercion was applied and the Sino-Tibetan Agreement concluded. The views of the Special Rapporteur of the Commission, Sir Hersch Lauterpacht, advocating in 1953 the “rule” that was eventually adopted in the 1967 draft as Article 49, were strongly disputed in 1958 by his successor as Special Rapporteur, Sir Gerald Fitzmaurice. Compare U.N. Doc. A/CN.4/63 and A/CN.4/115. An interesting summary of the two arguments is in Jennings, R. Y., The Acquisition of Territory in International Law, Manchester, 1963, p. 57Google Scholaret seq. Second, the views of academics as to the existence or precise formulation of a “rule” of international law are not always persuasive in the harsh world in which those “rules” must be applied. There are even cases in which academic formulations of “rules” have been adopted by states in so-called law-making treaties, only to be ignored without apology or explanation being felt necessary. Cf. Smith, Delbert D., “The Geneva Prisoner of War Convention: An Appraisal,” 42 N.Y.U. Law Rev. (1967) 880Google Scholar; Rubin, A. P., “The Seizure of the PUEBLO; Some International Law Aspects,” U.S. Cong. Rec. for 6 02 1968, p. E523Google Scholar, n. 17; Weissberg, G., “Fisheries, Foreign Assistance, Custom and Conventions,” 16 (3) International and Comparative Law Quarterly (1967) 704CrossRefGoogle Scholar.

168 Bell, C., Survey of International Affairs, 1954, Oxford, 1957, p. 245Google Scholar. The text of the Agreement which implied this recognition is in the Government of India White Paper, Notes, Memoranda and Letters Exchanged and Agreements Signed Between the Governments of India and China, 1954–1959, New Delhi, 1959, beginning on p. 98Google Scholar. The Nepalese recognition can be seen in Chinese People's Institute of Foreign Affairs, New Developments in Friendly Relations Between China and Nepal, Peking, 1960, p. 1Google Scholar.

169 See above note 78.

170 Set out in Dutt, , op. cit., pp. 14, 157 et seq.Google Scholar

172 Question, pp. 17–71, 143–162, 192–208; Hutheesing, Raja, ed., Tibet Fights for Freedom, Calcutta, 1960, passimGoogle Scholar.

173 The possibility that China breached the standard of behaviour probably required by international law of a government dealing with insurgents has not been considered due to a lack of reliable information on the true state of affairs in Tibet. Even were adequate and reliable information available, the relations between insurgents and the government against which they are fighting, being internal by definition, the conditions in which international law can be said to apply seem to be unclear. Cf. Lauterpacht, H., op. cit., pp. 239–240, 243–246Google Scholar; Chen, T. C., op. cit., pp. 400, 407Google Scholar.

Colonel G. I. A. D. Draper has pointed out to the author that common Article 3 of the four Geneva Conventions of 1949 to ameliorate the conditions of victims of armed conflict certainly carries into international law some humanitarian limitations on the rights of a government engaged in an “armed conflict not of an international character.” The Communist Government of China has adhered to these Conventions. It is a question of fact, however, whether these provisions have been violated by the Chinese Communists in Tibet. It does not appear to be on public record that any truly impartial person or organisation has requested permission to enter Tibet to determine whether the facts will support the conclusion that China has violated the provisions of those Conventions. The case seems probable, but is certainly not proved.

174 Lauterpacht-Oppenheim, , op. cit., p. 641Google Scholar; however, see Mandelstam, A., “La Généralisation de la Protection Internationale des Droits de l'Homme, 11 Revue de Droit International et Législation Comparé, 3e Ser. (1930), 297Google Scholar, 699. The asserted right of humanitarian intervention has enjoyed a long and chequered career in international law, but except when the intervening state had some other interest than humanity it is difficult to find cases in which the asserted right has been exercised. See Stowell, E. C., “La Théorie et la Pratique de I'Intervention,” 40 Hague Recueil (1932) 91Google Scholar. The same author, in his classical work, Intervention in International Law, Washington, 1921, while upholding a legal right to “humanitarian intervention” (p. 51Google Scholaret seq.) cites an extremely long and impressive list of publicists who disagree with him in this point (footnotes 12 and 13 on pp. 58–62). In any event, he bluntly denies the legality of interference in support of insurrection against a recognised government (p. 345).

175 Goodrich, and Hambro, , op. cit., p. 109Google Scholar. It may be argued that since Communist China has repeatedly sought the right to represent the State of “China” in the United Nations, her acquiescence in the terms of the Charter may be implied. However, in view of the repeated rejection of Communist China's claim by the United Nations, it may be doubted that the Peking Government is bound by the terms of the Charter as such. An opinio juris appears to have been expressed by the international community that whatever the Peking Government may in fact represent, it does not at this time represent the “Republic of China” mentioned in Article 23 of the Charter.

176 See Fujii v. The State of California (1952) 242 Pac. 2d 617; Rajan, M.S., United Nations and Domestic Jurisdiction, Calcutta, 1958, pp. 390–392, 396–397Google Scholar; Goodrich, and Hambro, , op. cit., pp. 320–321Google Scholar.

171 See especially Articles 5, 49 and 53 of the CPPCC. It must be remembered, however, that these words mean only what their authors intended them to mean, and thus Article 41, dealing with the substitution of Communist ideology for “fascist” must be regarded as a strong qualification. The humanitarian terms of the 1951 Agreement are looked at in Question, pp. 35–53.

178 Of course, one of the sources of international law is normally considered to be “the general principles of law recognised by civilised nations” (Statute of the International Court of Justice, Article 38 (1) (c)). This “recognition” is normally considered to be indicated by the adoption of a rule by the municipal law of the preponderance of civilised states. See Lauterpacht, H., Private Law Sources and Analogies of International Law, London, 1927, p. 62Google Scholaret seq.; Verdross, A., “Les Principes Généraux de Droit Considéréd comme une Source du Droit des Gens,” 7 Revue de Droit International (1931) 446, esp. thesis 3 on p. 455Google Scholar; Verdross, A., “Les Principes Généraux du Droit et le Droit des Gens,” 13 Rev. de Dr. Int. (1934) 484Google Scholar. However, even if a rule of international law can be found which forbids the sort of acts under discussion, unless the qualification of Tibet as a state were attempted it would be difficult to find a state with standing to raise the matter against China a tribunal with standing to hear about it. It may be noted in passing that Article 2 (7) of the Charter of the United Nations expressly withholds authority from the Organisation to “intervene in matters which are essentially within the domestic jurisdiction of any state” and no member (a fortiori, no non-member) is required to submit such matters to settlement under the Charter.

179 Question, pp. 58–67.

180 so On the differentiation between morality and law in this sort of context, see Lauterpacht-Oppenheim, , op. cit., p. 8Google Scholar; Brierly, J. L., The Basis of Obligation in International Law, Oxford, 1958, p. 14Google Scholar; Verdross, A., “Règies Générates du Droit International de la Paix,” 30 Hague Recueil (1929) 275 at p. 293Google Scholar.

181 Question, pp. 68–71.

182 U.N. Doc. A/810, pp. 174–177; Question, pp. 72–74. Article II of the Convention defines “Genocide” as “… any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.” Article III of the Convention says:

“The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(c) Complicity in genocide.”

Articles IV-VI refer to “persons” who commit genocide. The only obligations of states under the Convention are to enact appropriate legislation and to grant extradition “in accordance with their laws and treaties in force” in appropriate cases.

183 Kunz, J. L., “The United Nations Convention on Genocide,” 43 A.J.I.L. (1949) 738 at pp. 740–741Google Scholar.

184 Id. at pp. 741–742; Goodrich, and Hambro, , op. cit., p. 152Google Scholar. The Resolution is Number 96 (I) of 1946.

185 Kunz, , op. cit., p. 742Google Scholar. The Nationalist Government of China has ratified the Convention, but the Communist Government of China has neither ratified it nor otherwise acceded to it.

186 Cf. Lemkin, R., “Genocide as a Crime under International Law,” 41 A.J.I.L. (1947) 145 esp. p. 150Google Scholar; Finch, G. A., “The Genocide Convention,” 43 A.J.I.L. (1949) 732, esp. p. 733Google Scholar.

187 Kunz, , op. cit., p. 743Google Scholar.

188 Id. pp. 742–743; Finch, , op. cit., p. 734Google Scholar.

189 Cf. Lemkin, , op. cit., p. 147Google Scholar; Finch, , op. cit., pp. 733–734Google Scholar.

190 Cf. Kunz, , op. cit., p. 743Google Scholar.

191 Id.

192 Cf. id. pp. 745–746.

193 Question, pp. 99, 202; Report, p. 165; Lama, Dalai, op. cit. p. 245Google Scholar. 194 But even so, not very much substance considering the context. See, e.g., the analyses of similar arrangements between Great Britain and the Indian Princely States in Cmd. 3302 (1928–29). The case of Tibet seems a fortiori, as no part of Tibetan “sovereignty” was purportedly retained through the legal adjustments. It is believed that a careful analysis will show the role of sufferance, volitional acquiescence in new encroachments upon what remained of the sovereignty of the Indian Rulers, has never played a significant part in determining the rights of the Paramount Power, despite repeated soothing assertions to the contrary. Of the many legal works in this field the following are outstanding: Hall, W. E., A Treatise on the Foreign Powers and Jurisdiction of the British Crown, Oxford, 1894Google Scholar; SirJenkyns, H., British Rule and Jurisdiction Beyond the Seas, Oxford, 1902Google Scholar; SirLee-Warner, William, The Native States of India, London, 1910Google Scholar; Westlake, J., “The Native States of India,” 26 Law Quarterly Review (1910) 312Google Scholar (reprinted in The Collected Papers of John Westlake on Public International Law, Cambridge, 1914, p. 620 et seq.).

195 The debates are reported in the Official Records of the General Assembly Fourteenth Session, Plenary Meetings, New York, 1959, p. 469Google Scholaret seq.; U.N. Doc. A/PV. 831, 832, 833 and 834. The Resolution is 1353 (XIV). The record of the vote is on p. 528 of the Official Records.

The Debate in the General Committee of the General Assembly on inclusion of the Tibetan question as an agenda item for the General Assembly is in U.N. Doc. A/BUR/SR. 124. U.N. Doc. A/4234 contains the request for inclusion of this item submitted by Ireland and Malaya. The Draft Resolution submitted by those two countries, U.N. Doc. A/L. 264, was adopted without change. See the Annex to the Official Records cited above, Agenda Item 73.

196 U.N. Doc. A/4444. The item was accepted into the Agenda by the General Committee as Agenda Item 79 after a short debate. U.N. Doc. A/BUR/SR. 127 at pp. 5–6. It actually became Agenda Item 78 in the Report of the General Committee, U.N. Doc. A/4520.

197 U.N. Doc. A/PV. 995 at pp. 508–510. See, for further background, U.N. Review, Vol. VIII, No. 10, 10 1961, p. 59Google Scholar.

198 At the request of Malaya and Thailand, U.N. Doc. A/4848, the item was inscribed in the agenda of the General Assembly as Agenda Item 83 after a short debate in the General Committee. U.N. Doc. A/BUR/SR. 136. The debate is in U.N. Docs. A/PV. 1084 and A/PV. 1085. The record of the vote is in U.N. Doc. A/PV. 1085, in Official Records of the General Assembly, Sixteenth Session, Plenary Meeting, New York, 1962, p. 1138Google Scholar. Great Britain voted for the Resolution, although India and Nepal continued to abstain. The Resolution was Number 1723 (XVD and is that submitted by El Salvador, Malaysia, Ireland and Thailand as U.N. Doc. A/L. 376 without change. The Draft Covenant on Economic, Social and Cultural Rights of May 1953, U.N. Doc. E/2447, pp. 39–50, provides in Article 1 that “All peoples and all nations shall have the right of self-determination…” The terms “peoples” and “nations” are not defined in the Covenant. The Covenant has not come into legal force.

199 A distinction has been drawn between the positive competence of the United Nations and the application of customary rules of international law to the question of the international position of Tibet. This paper deals solely with the latter subject. Discussion of the U.N. competence and practice in questions of human rights may be found in Rajan, , op. cit., p. 298Google Scholaret seq. and Higgins, R., The Development of International Law Through the Political Organs of the United Nations, London, 1963, esp. pp. 123–125Google Scholar.