ARTICLES
 
INTERNATIONAL LAW AND UNIVERSAL JUSTICE
The right to self-determination
By José Elias Esteve, May 2007

issue : AT n°2 - 2007
author: José Elias Esteve
file :
other language: French
 

The principle of territorial integrity and non intervention in internal affairs still invoked by China, the Asian giant, so as to reject any allegation in defence of human rights in Tibet, including that of self-determination recognised by the UN General Assembly, questions the effective exercise of the power of Beijing's administration over this territory.

But that apparent antithesis of international principles, such as effectiveness and legitimacy, sovereignty and human rights, territorial integrity and the right to self-determination, where China's objectives clash with those of Tibet, has in fact been resolved by International Law. The protective legislation regarding human rights has been recognised as legally binding for all states in the international community (Barcelona Traction case, International Court of Justice, 1971) and is considered fundamental, with the result that other international legislation should be interpreted in its light. Thus, respect for human rights is a prerequisite for any government that considers itself legitimate and seeks to invoke the principle of territorial integrity. This principle of legitimacy brings together the argument of territorial integrity (this being a "precondition" for said principle) and the right to self-determination; which is what should follow in the case of Tibet.

The crime of genocide, the systematic violation of the Tibetans' civil and political rights, and the policies of racial discrimination applied in Tibet by the government of Beijing, which has been considered to constitute apartheid and goes hand in hand with a massive transfer of Chinese, the indiscriminate exploitation of the plateau's natural resources and its use as a nuclear launch site and dump, all indicate that China is not the legitimate government of this people and that the latter's demanding the right to self-determination in the form of separation is the only solution.

After the decolonisation era, the inverse process occurred in Tibet, whose situation was denounced in the General Assembly of the United Nations and was similar to the experience of Southeast Africa (now Namibia) under apartheid, Portuguese colonialism in Angola and French colonialism in Algeria. All these cases ended in the independence of these states, unlike the colonial treatment endured by the Tibetan people where, despite Resolution 1723 (XVI) of 1961 that recognised their right to self-determination, said exercise has not materialised.

Thus, the international crimes that were committed and form the basis for Tibet's claim to independence (by means of a referendum) should be denounced to the criminal courts of the different states of the international community, using the mechanism of universal jurisdiction.   It is precisely the fight against impunity through international justice, irrespective of the praiseworthy aim of dignifying the suffering of the victims and making it possible to try some of the leaders responsible for these crimes (which contributes to the prevention and repetition of such acts), that shows the international community (after detailed investigation by independent judges and the presentation of evidence by the plaintiffs), that the prerequisites required for holding a referendum in Tibet are more than accredited and examined, and above all, have been judged and condemned by law courts.   This initiative is being successfully pursued in the Spanish courts, after the admission of the lawsuit submitted by the CAT (Comité de Apoyo al Tíbet), in which the Audiencia Nacional recognised in a judicial decree of January 2006 that, "without a trace of doubt" the acts committed by the Chinese authorities in Tibet could be considered a crime of genocide.

Therefore, the effective exercise of the right of the Tibetan people to self-determination in the form of secession, first of all does not have as its main aim a political objective as such, but is in fact presented as a last resort or as a preventive and protective guarantee against the systematic violation of the human rights of an entire people.   Universal justice contributes towards this objective; an objective that cannot be ignored by either the Chinese authorities or the Tibetan Government in Exile in the highly improbable event of their reaching an agreement in the future after negotiations, as the last word on Tibet's political status lies in the hands of the will of the Tibetan people through popular consultation.

J.J.E.
Spanish lawsuit research lawyer
Vice President of Comite de Apoyo al Tibet (Madrid)