Follow @southasiaanalys

“Right of Return” - Tibetan Refugees

Paper No. 5728                               Dated 23-Jun-2014

By Dr. Parasaran Rangarajan

The United Nations (U.N.) via U.N. General Assembly Resolution 55/76[1] has dedicated June 20th of every year after 2000 noting the 50th anniversary of the “Convention relating to the Status of Refugees (1951)” as “World Refugee Day” for the “strength, courage and determination of men, women and children who are forced to flee their homeland under threat of persecution, conflict and violence” as Tibetans yearn to return to their homeland[2] for which the United Nations Commissioner on Refugees (UNHCR) was set up.

The People’s Republic of China (PRC) has stated it has good relations with the UNHCR[3].

There are certain international legal standards and treaties that the PRC is legally bound by in regards concerning visas of foreigners and more specifically; the “right of return” of Tibetan refugees in concert with “People’s Republic of China Immigration Control Act (2012)”[4] issued by Chinese Presidential Decree LVII. In voluntarily return, there are three main components of international legislation in addition to the principles of the U.N. Charter which every nation has adopted applicable guaranteeing the return of Tibetans to China the Tibet Autonomous Region (TAR):

1.      Article 49 of The 1948 Fourth Geneva Convention Relative to the Protection of Civilians Persons During War[5].

2.      Article 13 of The 1948 Universal Declaration of Human Rights (UDHR)[6].

3.      Article 12 (4) of The 1976 International Covenant on Civil and Political Rights (ICCPR)[7]

 “The Dayton Agreement (1995)” assigned to the U.N. High Commissioner of Refugees (UNHCR) in the case of Bosnia and Herzegovina was historical in the fact that it expressly stated that “all refugees and displaced persons have the right to return to their homes of origin” in a safe condition. This was after the wars in the former Yugoslavia such as the Bosnia Wars of 1990’s as refugees were allowed to return with amnesty including with a claim to previously owned property unless being called to appear by the International Tribunal for The former Yugoslavia (ITfY). The basis of the “right to return” of refugees goes back to the “Magna Carta (1215)” of The British Empire which stated “it shall be lawful in the future for anyone…to leave our Kingdom and to return, safe and secure by land and water..[8].

The PRC has stated that the return of H.H. Dalai Lama would pose a threat to national security and interests. There are six reasons for refusing an official Chinese visa in context of obtaining “permanent resident” status unlike tourist visas. These provisions are found under Article 21 of the “People’s Republic of China Immigration Control Act”:

Article 21 Foreigners have one of the following circumstances, shall not issue a visa:

(A)  be liable to expulsion or deportation was decided, under the provisions of years are not allowed entry;

(B)  suffering from severe mental disorders, infectious TB, or may cause other diseases of major public health hazard in;

(C)  may endanger China's national security and interests, disrupt public order or engage in other criminal activities;

(D) fraud in the visa application process or not security costs required during the Chinese territory;

(E) can not be submitted as required by the visa authorities related materials;

(F) the visa issuing authority considers other circumstances should the visa.

 For not issuing a visa, the visa office can not explain why.

While the PRC may cite Article 21 (c) of this Presidential Decree on his application which states Chinese national interest and security as a reason for non-issuance of a visa to H.H. Dalai Lama, it would be difficult to see the legal rationale behind this as he is no longer a political leader or calling for independence but requests autonomy in line with the Constitution of the PRC for peaceful practice of religion.

In the 1970’s, the then Chinese Leader Deng Xiapong stated that China would allow the return of H.H. Dalai Lama with no objects if he is a Chinese citizen and more recently, the Founder of the Tibetan Communist Party and Communist Party of China (CPC) Secretary-General Zhao Ziyang has called for H.H. Dalai Lama to return to TAR in March of 2014[9]. H.H. Dalai Lama on multiple he has no independence aspirations[10].

Looking past H.H. Dalai Lama, there are many regular Tibetan refugees who yearn to return to their homeland and are now in India as the government has accepted them as refugees. The government of India has also stated that they are free to become full-fledged citizens of India in line with the Indian Citizenship Act of 1950 and 1987[11]. Many Tibetan who have become Indian citizens have also recently voted in was the “largest exercise of democracy in history”; the 2014 Indian Elections[12]!

Although the government of India has made provisions and accepted them as such, it is understandable why one would want to return to their homeland in peace for practical reasons. If an Indian citizen who is of Tibetan ethnicity would like to enter the Tibetan Autonomous Region (TAR) in China with intent to seek permanent resident status, he or she may do so with a Chinese visa which conditions have been stated above and there should be no problem if they seek to return in peace despite the human rights violations they may face on return which is the main reason cited for seeking refugee status in India. However, the decision is of the individual.

International law offers avenues for legal redress in regards to returning to Tibet. The first piece of international legislation to look at is “The 1948 Fourth Geneva Convention Relative to the Protection of Civilians Persons During War” as Article 49 states:

“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

 It is clear that the PRC was in clear violation before the Indo-Sino War when the 1959 uprisings in Tibet killed many of the militants and led to the exodus of H.H. Dalai Lama and his followers to Tibet. Since then and also after the Indo-Sino War of 1962 which India was ill prepared for as a newly independent nation; India has had to make accommodations for many Tibetan refugees who are in exile.

Regardless of the conditions including civil war or war with another country which is in the convention title itself as it is the 1948 Fourth Geneva Convention Relative to the Protection of Civilians Persons During War, this provision was violated and the Tibetan government in exile (TGIE) may petition a state party to The International Court of Justice (ICJ) to seek legal redress on this matter including protection for the right of return and compensation as well.

My previous article[13] had introduced the concept on calling for entry to the U.N. to conduct an initial “fact finding mission” due to the alleged human rights violations in Tibet and more recently; several Congressmen of the United States (U.S) have recently introduced a bill titled the “Reciprocal Access to Tibet Act of 2014” coded as H.R. Bill 4851[14] stating that all U.S. officials including its citizens should be allowed access into Tibet and for the Chinese visa officers that refuse issuing a visa, the U.S. refuse a visa for Chinese officials to enter the U.S.

The issue of immigration into Tibet is gaining the spotlight and should be brought to the international fora if there are reported cases of refugees being denied the “right to return” just as the Palestinian “right of return” was and eventually was successful in getting the U.N. General Assembly to pass a resolution guaranteeing this right along with supporting international opinions and law[15][16] as there are entire divisions of the U.N. such as the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA) now. This is in line with Article 55 (c) of the U.N. Charter in “promoting universal respect for all human rights without respect to race, sex, language, or religion”.

The second piece of international legislation applicable which is just as old as the Geneva Convention is “The 1948 Universal Declaration of Human Rights” (UDHR) which is given a great deal of consideration and gravity at the ICJ. The founder of The World Passport; Dr. Garry Davis was a unique and successful case of renouncing U.S. citizenship, therefore becoming a “stateless” person. He subsequently filed a case at the ICJ as an individual arguing that "stateless" persons had the rights of a "state" as an independent entity.  In filing this case against the Heads of State of the U.S. and the then Soviet Union invoked a positive response from the international community as he gained the rights to travel to any member State of the U.N. such as China which several visas have been issued on the passport he is the founder of[17][18]. He cited Article 13 (2) of the UDHR as the main universal legislation in this case as the article states:

“Everyone has the right to leave any country, including his own, and to return to his country.”

This is very basic and non-ambiguous leaving little room for varied legal interpretation as it Dr. Garry Davis’s case at the ICJ has been cited by various cases in the U.S. and other nations. As such, it would seem likely that a Tibetan refugee would get a similar judgment to travel to any nation as a stateless person to obtain a visa to enter TAR, perhaps on a World Passport itself.

Finally, there is The 1976 International Covenant on Civil and Political Rights (ICCPR) which is an integral part of the fabric of international legislation which the PRC is signatory to. Article 12 of The 1976 International Covenant on Civil and Political Rights (ICCPR) from subsections 1-4 in full state the rights one has in travel and returning to his homeland applicable to Tibetans in this case:

Article 12.

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Out of the specified sub-sections in Article 12, subsections 2 and 4 is most applicable. The Tibetan refugees who have become Indian citizens and thus are part of the Indian state may leave at any time they wish and apply for a Chinese visa to enter the re-integration process as it is “his own country” if they are natural born citizens.

Even H.H. Dalai Lama has been invited back by the founder of the Tibetan Communist Party and leading CPC leader this year so it would not be too speculative but a fact based judgment that there would be no issues prima facie for an average Tibetan to enter TAR or exercise the “right of return”. In any exceptional case where visa is denied, there would be sufficient locus standi to bring up this case at the ICJ for all Tibetans to enter their country of birth due to the personal affiliation to the rationale of the case.

[1] "U.N. General Assembly Resolution 55/76." UN News Center. United Nations, n.d. Web. <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/55/76>.

[2] "Tibetans Yearn for Their Homeland on World Refugee Day." Business Standard, 21 June 2014. Web. <http%3A%2F%2Fwww.business-standard.com%2Farticle%2Fnews-ani%2Ftibetans-yearn-for-thei....

[3] "China's Relationship with United Nations High Commissioner for Refugees (UNHCR)." China's Relationship with United Nations High Commissioner for Refugees (UNHCR). Permanent Mission of the People's Republic of China to the United Nations Office at Geneva and Other International Organizations In Switzerland, 16 Apr. 2004. Web. <http://www.china-un.ch/eng/rqrd/jblc/t85094.htm>.

[4] "People’s Republic of China Immigration Control Act (2012)." The Central People's Government of the People's Republic of CHina, n.d. Web. <http%3A%2F%2Fwww.gov.cn%2Fflfg%2F2012-06%2F30%2Fcontent_2174282.htm>.

[5] Matthias, John. "4th GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR."Chicago Review 52.2/4, SIXTIETH-ANNIVERSARY ISSUE (2006): 250-70. U.S. Library of Congress. Web. <http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-IV.pdf>.

[6] "The Universal Declaration of Human Rights, UDHR, Declaration of Human Rights, Human Rights Declaration, Human Rights Charter, The Un and Human Rights." UN News Center. United Nations, n.d. Web. <http://www.un.org/en/documents/udhr/>.

[7] Authentic Texts: English, French, Chinese, Russian And Spanish., and Registered. "The 1976 International Covenant on Civil and Political Rights (ICCPR)." No. 14668 MULTILATERAL International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 19 December 1966 Optional Protocol to the Above-mentioned Covenant. Adopted by the General Assembly of the United Nations on 19 December 1966 (n.d.): n. pag. United Nations High Commissioner For Refugees, 23 Mar. 1976. Web. <http://www.refworld.org/pdfid/3ae6b3aa0.pdf>.

[8] Magna Carta, Ch. 42. The translation quoted is from S.E. Thorne et al., The Great Charter: Four Essays

on Magna Carta and the History of Our Liberty, New York, Pantheon Books, 1965, p. 133. in S. Aglerhuis,

The right to return and its Practical Application

[9] Boehler, Patrick. "Founder of Tibet’s Communist Party Makes a Final Plea for Dalai Lama’s Return." South Asia Morning Post News, 7 Mar. 2014. Web. <http://www.scmp.com/news/china-insider/article/1441875/founder-tibets-co....

[10] "Tibet Is Not Seeking Independence from China: Dalai Lama." The Times of India, 3 Feb. 2014. Web. <http://timesofindia.indiatimes.com/india/Tibet-is-not-seeking-independen....

[11] "Tibetans in Exile Can Apply for Indian Citizenship." Zee News, 20 Aug. 2013. Web. <http://zeenews.india.com/news/nation/tibetans-in-exile-can-apply-for-ind....

[12] Soumya, Elizabeth. "Tibetan Exiles Prepare to Vote in India." Al Jazeera, 7 Apr. 2014. Web. <http://www.aljazeera.com/indepth/features/2014/04/tibetan-exiles-prepare....

[13] Rangarajan, Parasaran. "Tibet: Human Rights Violations." South Asia Analysis Group, 13 May 2014. Web. <http://www.southasiaanalysis.org/node/1517>.

[14] "Reciprocal Access to Tibet Act of 2014 (H.R. 4851)." GovTrack.us. U.S. Government, 12 June 2014. Web. <https://www.govtrack.us/congress/bills/113/hr4851>.

[15] "Question of the Observance of the Fourth Geneva Convention of 1949 in OPT - CEIRPP, DPR Study (1 January 1979)." Question of the Observance of the Fourth Geneva Convention of 1949 in OPT - CEIRPP, DPR Study (1 January 1979). N.p., 1979. Web. <http://unispal.un.org/UNISPAL.NSF/0/CEEE0A514875A47085256D65007B36C9>.

[16] Badil. "Palestinian Refugees and the Right of Return in International Law."Palestine-Israel Journal: Palestinian Refugees and the Right of Return in International Law. Palestine Israel Journal, 2 Nov. 2002. Web. <http://www.pij.org/details.php?id=145>.

[17] "THE INTERNATIONAL COURT OF JUSTICE." World Government of World Citizens, n.d. Web. <http://www.worldservice.org/intcourt.html>.

[18] "WSA Passport Acceptance - Visas on WSA Passports." World Government of World Citizens, n.d. Web. <http://www.worldservice.org/visas.html?s=1>.

 

Category: 
Countries: 
Topics: