Citizens in Exile: the struggle for ‘Free Tibet’

Refugees under international law

The international norms for treatment meted out to refugees are stated in the United Nations Convention relating to the Status of Refugees, 1951 (“Refugee Convention”) and the 1967 Protocol. The latter removes temporal and geographical limitations. In these two documents 34 rights and freedoms are granted to refugees. Around 137 countries have signed the Convention and the subsequent protocol. Contracting parties can express their reservations to all Articles except Article 1 (the definition of “refugee”), Article 3 (on non-discrimination), Article 4 (on freedom of religion), Article 16(1) (on access to courts) and Article 33 (the principle of non-refoulment (1). Once a nation signs the Convention it is under a duty to adhere to all its provisions except those to which it may have made a reservation.(2) India has not yet signed the Convention leaving its policy outside the jurisdiction of the United Nations (U.N.). even though refugee rights are recognized in practice. In March 1979 India acceded to the two 1966 Covenants on Civil /Political Rights and Economic / Social and Cultural Rights. Many of the provisions contained therein are relevant to the rights of refugees. However, since the Refugee Convention has neither been signed nor domesticated it does not have the force of law in India and hence not enforceable in the Indian courts. In the absence of a refugee specific legislation to regulate the entry and status of refugees, issues related to the influx of refugees and their conditions of stay are dealt with at the political or administrative levels.

History of annexation of Tibet

The army of the Peoples Republic of China (“PRC”) entered Tibet in 1950. Tibet then was an independent sovereign nation which had a fully functioning Government headed by the Dalai Lama. The Government administered the welfare of the Tibetan people through civil service, judicial and taxation systems without outside interference. It had entered into treaties as a sovereign with other states, including Great Britain, Ladakh, Nepal and Mongolia. Tibet also negotiated, as an equal sovereign, with China and Great Britain at the Simla Conference of 1913-14. (3)

On 7 October 1950, 40,000 Chinese troops under Political Commissioner, Wang Qiemi, attacked Eastern Tibet's provincial capital of Chamdo, from eight directions. Initially the Indian Government was disturbed by this act of aggression. Letters condemning the invasion of Tibet were written by the then Foreign Minister of India to Beijing. Letters of support were also issued by the United States and Britain. On the 7th of November 1950 the Tibetan Government wrote to the Secretary General of the United Nations, appealing for the world body's intervention. However, the issue was not discussed at the then UN General Assembly despite its being raised by El Salvador. A second letter sent by the Tibetan delegation to the United Nations on the 8th of December 1950 also did not change the situation.

Subsequently a delegation was sent by the Tibetan Government to China to put forward the Tibet stand and hear the Chinese position. This delegation lacked the authority to negotiate on behalf of the Tibetan Government. Despite this they were made to sign the “17 point agreement, 1951” which inter alia authorized the entry of Chinese forces into Tibet and empowered the Chinese Government to handle Tibet's external affairs. Consequently in a White Paper, China claimed the “17 point agreement” was “voluntarily” entered into by the Governments of Tibet. In addition to the discrepancies mentioned earlier, the voluntary nature of the “17 point agreement” can be contested on grounds that at the time of signing the agreement the PRC occupied large parts of Tibet

Status of Tibetan Refugees in India

Tibetans Refugees have settled in India in tens and thousands since 1959. The two major phases of displacement were- first in 1959 when the first batch of around 85,000 refugees came along with their spiritual leader, the Dalai Lama. The second was the exodus of the early 80’s. By the end of 2001 India hosted around 1, 10,000 Tibetans refugees. The number of refugees (4) which enters India fluctuates because of the arrival of more than 1000 refugees each year and the return of many unknown refugees. (5)

Section 3 of the Indian Citizenship Act, 1955 lays down the criteria which states that citizenship is granted by birth to every person born in India or anyone who’s either parent is a citizen of India. All those who are not citizens of India are “foreigners” according to the definition of the term “foreigner” under the Registration of Foreigners Act, 1939, the Foreigners Act 1946 and the Foreigners Order, 1948. The Indian Government has power to restrict the movement, limit employment opportunities and control opportunities of “foreigners”. (6)

In the early 60’s and 70’s India gave a preferential treatment to the Tibetan refugees. The Indian government provided land and housing to the refugees to establish “settlement camps”. They were also allowed to establish a Tibetan government in exile called the Central Tibetan Administration that had its base in Dharamsala. In addition the Indian Government issued to all Tibetans a document known as “residence certificate”.

According to the Tibet Justice Center the Indian Government stopped issuing these resident certificates to Tibetan new comers in about 1979. This means that “residence permits’ are now legally available only to children of Tibetans who arrived in India before 1979 . (7) This created major problems of employment, travel etc. Tibetan refugees who have resident permits must renew them every year. Tibetans do not generally have a problem in renewing their permits though the renewal is at the discretion of the Indian Government. For international travel the Tibetan refugees use an “Identity Certificate” issued by the Indian Home Ministry which is valid for two years and renewable thereafter. (8)

As earlier mentioned, most of the Tibetans in India live in “settlement camps”. These camps were set up on agricultural and farmlands granted by the Indian Government to the Tibetan families in the early years of the exodus. The idea was to resettle Tibetans in homogenous communities where they would be able to preserve their culture and tradition and enable them to be self sufficient. However, with the increasing number of Tibetans, problems have arisen in accommodating the new arrivals. In so far as the administration of the settlements is concerned- the Indian Government has the ultimate charge over the settlements particularly over criminal matters. The Representatives of the Tibetan Government in Exile, on the other hand, maintain relations within local communities and is given a free hand to run the day to day affairs of the settlements.

As far as the new Tibetan refugees traveling to India via Nepal are concerned, they generally lack valid travel documents and are unable to obtain residence permits once they reach India. Most enter Nepal through isolated mountain passes and lack Nepalese visas or any official travel document. Once they reach Nepal the Tibetans are eligible to receive a card issued by the UNHCR that lists their personal details and states that “the card holder is a person of concern to the UNHCR”. Since the Nepalese authorities want the Tibetans to be out of their country as soon as possible the people are divided in groups and sent to Dharamsala (seat of the Tibetan Government in Exile). The departing Tibetans receive a group exit permit from the Nepalese immigration that is taken from them on crossing the Indian border. This means that most of the Tibetans enter India without any valid papers. (9) Once they reach India (Delhi) they are taken to the Reception Center (under the Government in Exile) where they spend around 3-4 days. All their expenses are borne by the Reception Center. They are then sent to the Reception Center in Dharamsala from where they are sent to different schools, monasteries, nunneries etc run by the Government in Exile.

Right to life

Article 1 of the Universal Declaration for Human Rights (“UDHR”) starts by stating “All human beings are born free and equal in rights and dignity”. Article 3 states that “Everyone has a right to life, liberty and security of a person”. Further Article 19 and 20 guarantees to every person the right to freedom of opinion and expression and the right to freedom of peaceful assembly. Articles 19, 21 and 22 of the International Covenant on Civil and Political Rights guarantees to every person the freedom of expression, freedom of association and freedom to assemble peacefully.

Article 21 of the Constitution of India guarantees to “every person” the protection of life and personal liberty. The Indian Supreme Court has held that the rights of foreigners are limited to those contained in Article 21 of the Indian Constitution . (10) In the case of Chairman Railways Board and others v. Mrs. Chandrima Das and Ors(11) the issue on whether the right to life guaranteed under Article 21 extends to foreigners arose in the context of the rape of a Bangladeshi national. The Supreme Court held that the offence of rape is a violation of a fundamental right guaranteed under Article 21 of the Constitution hence the State was constitutionally and vicariously liable to pay compensation to victims of rape, foreign or otherwise, when such acts were perpetrated by employees of state abusing their position of authority.

The Supreme Court has also expanded the notion of right to life to include a right to live with human dignity. It has stated that the right enshrined under Article 21 of the Constitution means something more than mere survival or animal existence . (12) This right extends to all aspects of life which makes a person’s life meaningful, complete and worth living. (13) The right to life thus has thus been expanded to include a right to shelter, right to livelihood, a right to dignity etc. In the case Olga Tellis v. Bombay Municipal Corporation and others(14) slum dwellers dependent on the nearby railways station for their livelihood were being moved to a different area. The Supreme Court upheld the right to livelihood of slum dwellers as being an essential part of the right to life.

It is important to note here that while some of the provisions under Chapter III of the Constitution guarantees rights to “all persons” some of the freedoms are, however, been restricted to only “citizens”, Article 19(1) on the freedom of speech and expression, being one of them.

This means that though basic human rights are guaranteed to all persons under the international law regime, these rights are limited, to the extent of being nullified, by individual nations. Compartmentalizing people into categories of “citizen”, “foreigners”, “refugees”, “separatists” or “terrorist” allows the nation the discretion to decide on whether a category of persons is deserving of basic rights and if yes, to what extent.

Protests around the torch.

In the past one month the issue of Tibet has constantly been in the headlines in the national and international press. With the nearing of the Beijing Olympics and the torch relay in progress, Tibetan activists have grabbed this opportunity to make the world aware of their grievances. Events in the past months have not particularly been in favour of China. It started with concerns being raised on China failing to keep its promise of improving its human rights standards; Steven Spielberg quit his role as advisor to the Beijing Olympics due to China’s involvement in Darfur.

The Tibetans living in exile organized a “return march home” to Tibet in light of these developments. They were, however, arrested and detained in Himachal Pradesh. Reacting to their detention protests broke out in Tibet. As a result there was an immediate and violent crackdown by the PRC in Tibet. The PRC proceeded to block all access to foreign media and journalists. This lead to world wide protests demanding fact finding investigations into the alleged human rights violations and free access to press in Tibet. The issue was being agitated when the torch relay commenced from Greece. Pro-Tibet activists have been protesting China’s oppression from then on resulting in major hurdles placed in the Olympic Torch relay that started in Greece, continued over Paris, London, San Francisco and finally as witnessed in India. Most of the protestors demanded a boycott of the Beijing Olympics.

In response the Olympic authorities and China have cautioned the protesters to desist from mixing “politics and sports”. However, history bears witness to the fact that countries have always used political reasons to boycott the Olympics when it suited their interests to create international pressure to fulfill their demands. Hence USA and countries in Western Europe boycotted the Moscow Olympics in protest over Russia’s invasion of Afghanistan. In retaliation the USSR and Soviet bloc states boycotted the Los Angeles Games. China, itself, boycotted the Olympics from 1948 to 1976, protesting Taiwan’s separate participation in the Games. Acceding to Chinese pressure the International Olympic Committee, in 1979, declared that athletes could only participate as representatives of “Chinese Taipei”, and not as the Republic of China or Taiwan. (15)

The selection of a country to host the Olympic Games symbolizes an acceptance of legitimate governance in that country by the world community. It is to contest this acceptance that the protestors are demanding a boycott of the Beijing Games. Other than the repression in Tibet, China’s human rights record is abysmal. A recent report released by the Amnesty International, demonstrates on empirical evidence, that 374 people will be executed in China while the 2008 Olympic Games goes on. This is based on the estimate of 22 prisoners being executed daily in China. Approximately 70 offences attract the death penalty in China, including civil or minor offences of tax fraud, stealing VAT receipts, damaging electric power facilities, selling counterfeit medicine, embezzlement, accepting bribes and others such as drug related offences. Present day prisons and Laogai camps in China hold a variety of political prisoners and prisoners of conscience who languish without any recourse to fair trial. These categories include- Tibetans independence activists, Uighurs, Falun Gong practitioners, Catholic bishops, pastors of underground Protestant churches, lamas, mullahs, monks, nuns, labour organizers, pro-democracy activists, human rights defenders, dispossessed peasants and the like. (17)

The founding principles of the Olympic Games - to promote peace, harmony and universal brotherhood must be borne in mind while choosing the host country. Here are some facts to demonstrate how policies adopted by China militate against the spirit and philosophy of the Olympic Games.

o Principle 1 of the Olympic Charter clearly says that Olympism is a philosophy of life, exalting and combining in a balanced whole the qualities of body, will and mind. Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example and respect for universal fundamental ethical principles. • 1.2 million Tibetans have died as a direct result of Chinese atrocities. Over 6000 monasteries and institutes of learning have been destroyed, precious Tibetan artifacts were vandalized and sold in international markets, over 6000 Tibetan religious and historical literature have been destroyed. (18)

o Principle 2 states that the goal of Olympism is to place sport at the service of the harmonious development of man, with a view to promoting a peaceful society concerned with the preservation of human dignity. • Arbitrary arrests, torture, intimidation and imprisonment without trial are the order of the day for Tibetans in their country. Thousands of Tibetans are still in prisons in China. 6 Million Tibetans have been outnumbered by 7.5 million Chinese inducted into Tibet causing demographic disadvantage to Tibetans in their own country. (19)

o Principle 5 states that any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement. • Tibetans in Tibet are second class citizen without basic Human Rights, such as Freedom of speech and expression, Freedom of religion, Right to education, etc. Tibetan women are subjected to forced abortion and sterilization . (20)