Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Nikhil Mahadeva
Nikhil Mahadeva is a fourth year B.A./LL.B. (Hons.) student at the National University of Advanced Legal Studies, Kochi.
Sovereignty, in its simplest understanding, implies an ultimate authority over something, usually some form of polity. Nowadays, it is a term used to describe the independence and autonomy of states, i.e. the right of each state to decide its own affairs. This ultimate authority is said to derive from the people that form that state. In this regard, international law forbids nations from interfering with the sovereign matters of other nations . This concept is complemented by the principle of self-determination, which is the right of people to choose who or what governs them. However, this element of choice does not always lend itself to the recognition of sovereignty. So how does one determine its sovereignty?
Sovereignty can be legitimately acquired by accretion, cession, conquest, effective occupation and prescription. This list excludes less legitimate methods, such as outright annexation. When considering ‘occupation’ as a prerequisite, two of these methods come to mind.
Effective occupation occurs when someone stakes a claim to something heretofore unclaimed. In judicial terms, it is a display of authority over the territory in question, on a continuous, peaceful basis . Conquest is simply where a state takes over a territory by force, with little concern for other factors, and exercises its authority over it. At present this is not permitted in international law by virtue of the 1907 Hague Convention and the UN Charter, among other cautionary statutes .
However, incidents of conquest are not infrequent. It is just done less openly and justified to the world through political exercise (such as Saddam Hussein insisting on Iraq’s historical claim to Kuwait or the Crimean Referendum). In most of these cases, there is an active resistance to these actions not only from those who are ‘conquered’ but also from the world community .
An excellent, albeit overlooked, example is the case of Tibet. Tibet was, as maintained by its people and its leader the Dalai Lama, an independent state. However, following World War 2 and consolidation of power under Chairman Mao Zedong, China set its sights on Tibet, arguing that it was historically controlled by Chinese dynasties between the 13th and 14th century, as well as between the 18th and 20th centuries . While the relationship between these dynasties and Tibet is debated (with no particular side having stronger evidence), it is undisputed that China’s control ended in 1911 and Tibet was independent of Chinese influence until 1951 . China engaged in negotiations with the then Tibetan government, a process which failed when Tibet asserted their independence. China then attacked Tibet, fighting the Battle of Chamdo in 1950, in order to pressure Tibet into ceding. This tactic succeeded, and Tibet signed the Seventeen-Point Agreement, which effectively signed over their sovereignty to China.
This raises the end question: can sovereignty be bought in such a manner, and is occupation and control sufficient to consolidate it?
International law makes annexation as a whole illegal, under the same documents that outlaw conquest. Taking into account the Tibetan stance that the Seventeen-Point Agreement was signed under duress, it would only make China’s position in Tibet one of military occupation.
The law of military occupation recognizes the notion of a ‘temporary sovereign’ in the form of the occupying force. It does not, however, grant that force any form of permanent legitimacy; the occupier is a placeholder, seemingly justified in order to prevent anarchy. The law considers the continuance of the ousted sovereign’s government, along with the resistance of its citizens, as an example of the continuing sovereignty of the nation .
However, it is difficult to say that this right is timeless. Where the occupier is inclined to keep its role temporary, and where other states refuse to recognize them, perhaps it is fair to say it persists indefinitely; so long as there is resistance. Despite this, the ousted sovereign’s rights are theoretical until they can enforce them against a presumably militarily superior occupier. At some point the distinction between occupier and legitimate authority begins to blur. It is perhaps best to say then, that the ousted sovereign has a theoretical right in persistence, but the fact remains that the occupier exerts their authority and takes on the position of sovereign for so long as the occupation continues.
In the case of Tibet, there exists an active government in exile and the people of Tibet have resisted in both armed and peaceful manners, as well as in ways such as self-immolation . The unfortunate reality remains that a large part of the world has forgotten about the plight of this mountainous nation over the past 67 years, with few willing to challenge China over the issue. This is reflective of a larger concern in international law and diplomacy: might and political power remain the true ‘ultimate authority’, and while Tibet may still have a legal claim at independence, their sovereignty has, for all intents and purposes, been effectively taken over by China by virtue of their occupation.
 U.N. Charter art. 2, ¶ 4
 Hanish Islands (Eritrea v. Yemen), 21 R.I.A.A. 211 (Perm. Ct. Arb. 1998); Clipperton Island (Mexico v. France), 2 R.I.A.A. 1105 (1931); Island of Palmas (U.S.A. v. The Netherlands), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).
 Also refer to G.A. Res. 95 (I), The Nuremberg Principles (Dec. 11, 1946); Kellog – Briand Pact, Aug. 27, 1928, 94 L.N.T.S. 57; G.A. Res. 3314 (XXIX), Definition of Aggression (Dec. 14, 1974).
 Refer to G.A. Res. 68/262, Territorial Integrity of Ukraine (March 27, 2014); S.C. Res. 678 (Nov. 29, 1990); The formed condemned the annexation of Crimea, while the latter authorized the First Gulf War.
 Elliot Sperling, "Don't know much about Tibetan history," April 13, 2008, The New York Times, https://www.nytimes.com/2008/04/13/opinion/13sperling.html
 Eckart Klein, "Tibet’s Status Under International Law," February 1995, Tibetan Buddhism,
 Peter M.R. Stirk, The Politics of Military Occupation. (Edinburgh: Edinburgh University Press, 2009).
 Central Tibetan Administration, last modified 2018, http://tibet.net/
Chen Jian, "The Tibetan Rebellion of 1959 and China's changing relations with India and the Soviet Union," Journal of Cold War Studies 8, no. 3 (2006): 54-101; Central Tibetan Administration, 2008 Uprising in Tibet: Chronology and Analysis, (2008), accessed July 17, 2018, http://tibet.net/wp-content/uploads/2011/08/tibetprotest2008.pdf
 Lhamo Thondup (Dalai Lama), "Five Point Peace Plan" (speech, Washington, DC, September 21, 1987), https://www.dalailama.com/messages/tibet/five-point-peace-plan ; Lhamo Thondup (Dalai Lama), "Strasbourg Proposal" (speech, Strasbourg, France, June 15, 1988), https://www.dalailama.com/messages/tibet/strasbourg-proposal-1988
 Andrew Jacobs, "Tibetan Herder Dies After Setting Himself on Fire in Government Protest," June 15, 2012, The New York Times, https://www.nytimes.com/2012/06/16/world/asia/tibetan-herder-self-immolates-in-government-protest.html
Photo Credit: Wikimedia Commons: Antoine Taveneaux
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