
Eva Herzer is a California-based Mediator and Attorney at Law. An active member of the International Committee of Lawyers for Tibet she travels around the world mobilising people who believe in the force of law. She was instrumental in preparing a report — Violence and Discrimination Against Tibetan Women — that was submitted to the United Nations Committee on the Elimination of Discrimination Against Women. As a mediator and international lawyer she believes the Tibetan problem can be solved peacefully. She spoke to SHOBHAN SAXENA about the legal aspects of the Tibetan problem. Excerpts:
Q: What does the International Committee of Lawyers for Tibet do?
A:We want a peaceful solution to the Tibetan problem. The organisation was formed in 1989 with the purpose of providing legal help to the Tibetan cause and for the protection of human rights and democracy. There are more than 500 members of the organisation around the world. Some are lawyers and some are not, but they believe in the force of law. We formed the organisation with the objective of strengthening the legal case of Tibet. Our objective has been to provide a legal framework and perspective to the Tibetan government and leaders. Of course, it’s not our objective to suggest to them whether they should seek autonomy or complete independence.
Q:Have you made any progress in this direction?
A:Recently, we sent two fact-finding missions to Tibet to find out about the condition of women and children there. On the basis of our findings we prepared a report — the Fabric of Fear — on their condition.
Q:What are the findings of the report?
A:We found that in Tibet reproductive rights of women are being openly violated. They are being forced to keep the number of children down to one. There have been many cases of forced abortions and this is happening when Tibet doesn’t have a population problem. Tibet never had any population problem. This is being done to change the demographic profile of Tibet. In the prisons women prisoners are tortured and the form of torture is very gender-specific — most women prisoners are raped.
In case of children, we found that education in Tibet is forcing them to forget their religion, culture and language. In many cases children are being encouraged to spy on their parents and there are many children in prison who face most horrendous forms of torture. And most Tibetan children continue to suffer from poor health and malnutrition.
Q:What do you think was Tibet’s legal status when the Chinese forces occupied it in 1959?
A:Tibet was an independent country in 1959. There was no doubt that at the time of annexation Tibet was an independent and sovereign nation. The reason, I say, it was sovereign is that it had a government which performed all governmental functions — it conducted its home affairs, it took care of foreign affairs and it sent to and received delegations from foreign countries. It was a sovereign state for all practical purposes.
Q: And what is Tibet’s status now?
A:Today, Tibet is an occupied nation which is under colonial rule because it lost its independence through invasion. In international law, independence of a nation can not be taken away by acts of aggression as that violates the sovereignty of the nation.
Q:But when the Chinese forces moved into Tibet and the Tibetan government appealed for help, almost all nations, including India refused to help. It seems they had certain doubts about Tibet’s legal status?
A:Yes, there were some doubts. And doubts came to their minds because of history. Let us not forget that for a very long period both Tibet and China were under the rule of the Mongols. And this gave a false impression of the unification of Tibet and China. And Tibet was seen as a protectorate of China. But that is totally wrong and irrelevant.
Q:What right do the Tibetan people have to determine their future? Is their a legal basis to give them the right to self-determination?
A:Yes, they have an absolute right to determine their future. This is based on two separate legal pillars. First, every nation has a right to territorial integrity that protects it from any external aggression. Second is the right to self-determination which is guaranteed by the Article 1 of the UN Charter that guarantees right of a people to determine their own political, economic and cultural status. Since Tibet was independent at the time of Chinese invasion, they have a right to self-determination. Even if we assume that the Chinese are right in saying that Tibet was never an independent nation, the Tibetans have the option to decide what they want — total freedom, total integration into China or an autonomous arrangement with China.
Q:In his Strasbourg Proposals the Dalai Lama offered a five-point peace plan for Tibet which plans to get an autonomous status for Tibet. What are the merits and demerits of this plan?
A:It has many merits. First it will ensure the control of Tibetan affairs by the Tibetan government. Also they will be able to manage their foreign affairs in the fields of culture, science and environment. Second, it will lead to political stability and peaceful coexistence in China. From the strategic point of view it will be good as Tibet can be developed as a buffer state between India and China. The autonomous arrangement will also protect Tibetan culture and illegal population transfer of Chinese people from China to Tibet will be stopped.
As far as demerits are concerned I can see only one and that is the arrangement may fall short of the expectations of those Tibetans who want complete independence from the Chinese rule.
Q:Is such an arrangement feasible?
A:I think it’s a viable option. There are around 44 such arrangements in different countries of the world and they are working fine. I don’t see any reason why such an arrangement between Tibet and China won’t work. If there is willingness on both sides, autonomy for Tibet can be successfully achieved. In the 1980s, Deng Xiaoping told the Dalai Lama that everything but independence was negotiable. But unfortunately, the Chinese have not taken any initiative since then.
Q:How do you define autonomy?
A:Autonomy does not have a precise meaning in international law. It can be defined as an arrangement by which powers are divided between the government of the people of autonomous region and the government of the larger state. Depending upon how these powers are divided, the autonomous region can have limited self-governance or substantial self-governance.




