Brooke Burrows

Professor Peter Rosenblum

Human Rights Senior Seminar

Final Paper

18 December 2014

Identity Politics and Displacement Sovereignty in a Tibetan Exile Community:

Rethinking Refugee Space within Human Rights

Basic human rights for Tibet is the right to be oneself, to be who you are, your identity, your culture, your language and this is being denied and there is a systematic process where the occupational force is planning strategically to negate that to you and you are now having to assert that and the strategy being played against you insists on taking your identity and making you Chinese. That is one. Two, the basic right of sovereignty—how Tibet was an independent country and China led a military invasion and now is squatting in Tibet... So basic human rights are an issue of identity and of sovereignty—from there comes all other issues such as language and education.

~ Tibetan Writer and Activist Tenzin Tsundue1

Introduction

Within the framework of international human rights law, the precarious situation

of refugees, internationally displaced people, and other stateless populations is one of the

most complicated issues to both define and develop sustainable legal protections for.

While the human rights model necessarily works to establish a conceptual universality of

rights inherent to all human beings, its ability to enforce these rights is inherently tied to a

system of national realization, one that critically relies on sovereign states to respect,

implement, and protect the rights of their own citizens. When states fail in their

obligations to do such, regardless of either an active intention of persecution for a

particular population (as is the case for refugees) or because of the inability to function as

1 Interview conducted by Brooke Burrows with Tenzin Tsundue, Tibetan writer and activist, home in Dharamsala, April 30th 2014

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a consequence of extreme conflict or natural disaster, the extreme vulnerabilities of the

people left scattered without legal and political recourse is daunting. By the end of 2012,

The United Nations High Commissioner for Refugees (UNHCR) estimated that nearly

45.2 million people were forcibly displaced across the globe as a consequences of

persecution, conflict, generalized violence, and/or human rights violations—close to a

third of those being refugees.2 However, these statistics rely on a relatively narrow

definition of who a refugee is as well as who a refugee is not: While the 1951 Convention

Relating to the Status of Refugees and subsequent 1967 Protocol are well-established and

referenced within international law, definitional debates about their interpretation and

scope have persisted throughout the past half-century. From whether persons escaping

from environmental destruction should be considered refugees to the extent of the legal

and political obligations of host countries absorbing displaced populations, attempting to

first identify refugees and then provide them with appropriate access to basic human

rights remains a complex challenge in the case of refugees. Over a longer timeframe,

finding practical and durable solutions for refugees that take into account the complexity

of each particular situation is arguably one of the most pressing human right concerns of

the 21st century.

Helping to shed light on this concern is the specific case example of the Tibetan

exile community, the heart of which is located in the mountains of northern India in the

town of Dharamsala, though its entire diaspora spreads out across the globe. When the

14th Dalai Lama, Tenzin Gyatso, crossed the rugged and rocky landscape that separated

Tibet from India in 1959, he viewed his border passage as seeking a temporary safe

2 "UNHCR Statistical Yearbook 2012." UNHCR. United Nations High Commissioner for Refugees, 1 Jan. 2012. Web. 1 Dec. 2014. <http://www.unhcr.org/52a722559.html>.

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haven, an opportunity to ensure the preservation of Tibetan culture and governance

against Chinese aggression while cultivating resistance to the occupation from abroad.

Under the sympathetic leanings of Prime Minister Nehru, tens of thousands of Tibetan

refugees followed the Dalai Lama into exile, unaware that for many a return to the high

plains of Tibet during their lifetime would not be a feasible option. Over fifty years later

and the Tibetan community remains in a state of protracted exile, fixed between the grey

area of India’s policies towards refugees, the relative financial and social success of their

own settlements, and a relentless drive towards a homeland that exists more in memory

than reality. Fraught though it may be with these anxieties, the Tibetan exile community

of India remains a unique case study for the question of refugee resettlement: Having

forged a flexible and yet durable relationship with their host country while

simultaneously maintaining their distinct identity, Tibetans in India have, for all intents

and purposes, created a state out of statelessness. The research at hand will attempt to

demonstrate how the Tibetan exile community serves as a tool for reimagining how the

field of human rights both understands refugee communities in their social,

psychological, and legal identities as well as in their subsequent relationship to the

territorial areas and state structures that define their access to both legal and human

rights.

PART I: Are Tibetan Refugees Really Refugees?

In 2011, the UNHCR updated a Global Appeal for India to highlight their main

resource and activity goals in providing support for the large number of displaced persons

within the country. Within the document’s text, Tibetan exiles were referenced just two

times, both accounts differing in definitional content. In the first case, Tibetans were

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listed alongside of Sri Lankan as two refugee groups protected and assisted by the Indian

government.3 In the second case, the Tibetan population was only implied in a graph of

planning figures for India where 100,000 “others of concern” were listed as originating

from China, in contrast to the other categories of asylum-seekers and refugees.4 The

contradictory evaluations of Tibetan status bought forth from within the UNHCR itself

demonstrates that even on an international scale, refugee status is not a straightforward

identity to be claimed. Arising out of the aftermath of World War II and the ensuing

proliferation of displaced Europeans, the 1951 Convention relating to the Status of

Refugees and 1967 Protocol define a refugee as,

“A person who owing to a well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular social

group or political opinion, is outside the country of his nationality and is

unable or, owing to such fear, is unwilling to avail himself of the

protection of that country; or who, not having a nationality and being

outside the country of his former habitual residence as a result of such

events, is unable or, owing to such fear, is unwilling to return to it.”5

When Tibet was first occupied by China in the early 1950s, a timeframe neatly

paralleling the development of the Refugee Convention, there is a strong case to be made

that the Tibetans who fled to India would have fit international this legal definition. By

1956 major revolts had sprung up across Tibet protesting what the 14 th Dalai Lama

considered to be an ongoing “cultural genocide” that hit at both political and religious

3 "UNHCR Global Appeal 2011 Update: India." UNHCR. United Nations High Commissioner for Refugees, 1 Jan. 2011. Web. 1 Dec. 2014. 203. <http://www.unhcr.org/4cd96e919.html>.4 Ibid. 5 1967 Protocol relating to the Status of Refugees, Article I section 2, incorporating by reference with modifications article 1 A(2) of the 1951 Convention on the Status of Refugees.

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freedom.6 As the outbreak of violent resistance spread, the Dalai Lama fled to India in

1959 where Prime Minister Jawaharlal Nehru granted him and ten of thousands of

Tibetans political asylum.7 Under the 1966-1976 Chinese Cultural Revolution, conditions

in Tibet were particularly severe with land reforms resulting in food shortages and a

prohibition of all forms of religious practice being employed.8 For those able to escape

out of the country, long travel distances through treacherous mountain terrain,

altercations or abuse by border guards, and limited shelters and resources in refugee

camps became constant threats to life and health—all adding to a stereotypical image of

refugee life.

Moving closer to the turn of the century, whether or not Tibetan exiles in India

could still be recognized as refugees under international law became a less clear-cut

matter. As of 2008, approximately 3,000 Tibetans continued to make the journey out of

Tibet each year, but many for cultural and economic reasons than as a direct result of

violent persecution on behalf of China. Furthermore, the exile community continued to

grow in size not only due to Tibetans still escaping from China, but also from the

addition of second and third generation Tibetans born and raised in India without ever

having known a Tibet to depart from.9 While the question may seem like a moot point

when taken under the consideration that India is not party to either the 1951 Refugee

6 "Political Buddhism." Religion and Ethics NewsWeekly. Featuring Thurman, R., Weiming, T. Public Broadcasting Service: 27 Jun 2008. Web. 5 May 2013.7 Raje, Sudhakar. "Trivishtapa: Hindu Heaven Tibet." Trans. Array Tibet: From Tranquility to Turmoil. . 1st ed. New Delhi: India First Foundation, 2008. Print. 51.8 Ketzer, Eva, and Antonella Crescenzi. "Addressing the psychosocial and mental health needs of Tibetan refugees in India." Trauma, War, and Violence: Public Mental Health in Socio-Cultural Context. Springer US, 2002. 284.9 Sachs, Emily, et al. "Entering exile: Trauma, mental health, and coping among Tibetan refugees arriving in Dharamsala, India." Journal of traumatic stress 21.2 (2008). 199.

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Convention or the 1967 Protocol,10 the determination of international legal status of

Tibetans is not purely a rhetorical exercise without practical implications: In their guide

to Public International Law, Thomas Buergenthal and Sean Murphy demonstrate the

transition that international law has made from a traditional definition of, “law that

governs between states” to a more comprehensive and wider modern definition of “law

that deals with the conduct of states and of international organizations and with their

relations inter se, as well as with some of their relations with persons, whether natural or

judicial”.11 Even without a legal binding to the obligations of the Refugee Convention,

India has taken many norms from the UNHCR when granting asylum to refugees seeking

entrance to the country, having maintained a strong record of upholding the principle of

non-refoulement.12 Perhaps just as importantly for Tibetans, the title of refugee has

overwhelming maintained usage among international media, organizations, and

governments, keeping relevant an association between the rights obligated to refugees by

international law to the rights of the Tibetan exile community.

Still, the fact that India does not have a systematic framework for evaluating

national refugee protection comes with its costs. Under Indian law, Tibetans living in

India are not actually recognized as refugees but are instead listed as ‘foreigners’ by the

Foreigners Act of 1946. This means that they are not represented under any specific

legislation about refugee rights or protections, with the status of foreigner carrying a

broad and unstable legal definition—one that doesn’t allow for owning property,

10 "UNHCR Global Appeal 2011 Update: India." 202.11 Thomas, Buergenthal, and D. Murphy Sean. "Public International Law in a Nutshell." (2007). 1-2.12 Chimni, Bhupinder Singh. "Legal Condition of Refugees in India, The." J. Refugee Stud. 7 (1994): 380.

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attaining certain job, and carrying the right to protest.13 Owing largely to this reason, the

UNHCR points outs out that the Government of India’s approach to refugee issues,

“results in different standards of protection and assistance among refugee groups.”14

Unfortunate though this is from a legal perspective, by most accounts Tibetans have

overwhelming benefitted from special governmental assistance and favor that is unique to

their population. The 14th Dalai Lama writes of reaching the Indian town of Bomdila after

three weeks into exile and being handing a telegram from the Prime Minister:

“My colleagues and I welcome you and send greetings on your safe arrival

in India. We hall be happy to afford the necessary facilities to you, your

family and encourage to reside in India. The people of India, who hold

you in great vernation, will no doubt accord their traditional respect to

your personage. Kind regards to you. Nehru.”15

Nehru’s initial support provided the backbone for the later creation of the Central Tibetan

Administration (CTA) that helped centralize political leadership for Tibetans, and the

1990 establishment of an Office of the Reception Centers that offers relief aid to

incoming refugees in the form of food, medical care, and accommodation assistance.

Dedicated to the preservation of Tibetan culture, the CTA has persevered in establishing

46 agricultural or handicraft-base settlements and 82 Tibetan schools throughout

Southeast Asia.16 These accomplishments serve as evidence for the analysis that legal

13 Moynihan, Maura. "Tibetans in India: the Case for Citizenship." Tibetan Political Review, 27 Aug. 2012. Web. 26 June 2014. <http://www.tibetanpoliticalreview.org/articles/tibetansinindiathecaseforcitizenship>.14 "UNHCR Global Appeal 2011 Update: India." 202. 15 Lama, Dalai. Freedom in exile: The autobiography of the Dalai Lama. HarperCollins, 1991. 144.

16 Gyatso Bhutia, Lhendup. "Secret of the world's 'most successful' refugees, the Tibetan community." DNA India, 13 Feb 2010. Web. 30 Nov 2013.

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scholar B.S. Chimni provides in line with that of the UNHCR’s, stating that by making

the choice not to pass overarching refugee-specific legislation, India has dealt with

individual refugee influxes on a political and administrative level, allowing for special

treatment of certain displaced populations.17 While Chimni chastises this absence of a

uniform treatment for different refugee groups, it is hard to deny that to some degree

India’s bilateral approach has not only granted Tibetans a large amount of initial support

but also greater flexibility in formulating their own understanding of what being a

refugee means.

When the first Tibetan exiles sought refuge in India, it was a reactionary decision

based primarily on the fear of violence and persecution by the Chinese: India was viewed

as supportive neighbor from where immediate threats to life could be prevented at the

same time that petitions to the international community could be made to respond to the

Chinese occupation.18 A return to Tibet was viewed as both pressing and inevitable, in the

words of the Dalai Lama, “As to the future, I stated my belief that, with Truth, Justice

and Courage as our weapons, we Tibetans would eventually prevail in regaining freedom

for Tibet”.19 As the duration of time spent in exile continued to extend, the importance of

preserving traditional Tibetan identity and culture within India became a defining ideal

for the exile community. Even with the ability to take Indian citizenship, thereby

accessing opportunities for employment, mobility, and property rights, many Tibetans

have willfully maintained their refugee status.20 In researching this phenomenon, Dorsch

Marie de Voe found that for Tibetans, the refugee status expressed an allegiance to a past

17 Chimni, Bhupinder Singh. 379. 18 Lama, Dalai. 136.19 Ibid. 159.20 Marie de Voe, Dorsch. "3: Keeping Refugee Status: A Tibetan Perspective." Center for Migration Studies special issues 5.2 (1987): 59.

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homeland—it was “viewed as an action, an act of integrity in defense of faith” as

opposed to the taking an Indian citizenship that would render a Tibetan national identity

meaningless.21 The strength of loyalty to Tibetan identity is perhaps best exemplified by

the way in which the Tibetan Government in Exile, or Central Tibetan Administration,

has historically advocated against taking Indian citizenship, instead promoting a form of

pseudo-legal citizenship for Tibetans recognized by the Rangzen Lag-Teb or ‘Green

Book’ passport and the annual payment of chatrel, voluntary taxes.22 In making the

conscious choice to reject a legally valid citizenship for the legally unrecognized status of

refugee, Tibetans have been able to keep international focus on their continued political

and social struggle against China while maintaining a degree of cultural preservation rare

for most displaced populations.

However, the application of refugee identity by the Tibetan exile community does

not exist without its negative consequences. In her paper, The Problem with Rich

Refugees, anthropologist Audrey Proust proposes that lacking recognition of refugee

status from the both the perspective of international law as well as the Indian

government, Tibetans are forced to conform to an ‘essentialised’ version of “Tibetan

refugeehood’ in order to maintain outside financial sponsorship and support.23 Without

legally recognized citizenship that allows for property ownership as well as for certain

academic and career advancements, Tibetans are limited in their ability for independent

economic prosperity, creating a reliance on depictions of a poor and helpless refugee in

order to garner support from outside sponsorship. Proust explains that through, “failing to

21 Ibid. 63. 22 McConnell, Fiona. "De facto, displaced, tacit: the sovereign articulations of the Tibetan Government-in-Exile." Political Geography 28.6 (2009). 347.23 Prost, Audrey. "The problem with ‘rich refugees’ sponsorship, capital, and the informal economy of Tibetan refugees." Modern Asian Studies 40.01 (2006): 234.

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abide by the explicit or implicit rules of ‘refugeehood’, for example by becoming

relatively prosperous in business, means facing the label ‘rich refugee’ and loosing one’s

entitlement to sponsorship”.24 By making the concept of refugee a central tenant of the

Tibetan exile community’s identity, not only can assimilation into the host country be

damaging to this reputation, but forms of economic prosperity as well to the extent that

they repositions the community away from international perceptions of a fragile

population in need of assistance and support. Now over a half-century into exile and this

challenge becomes particularly felt by younger Tibetans growing up in India: “Protracted

exile however has produced a new generation of India-born Tibetan refugees who

oscillate between the need to keep the notion of the homeland alive on the one hand and

of the different kinds of material investments and emotional or social ties with host

populations as a creative result of being the heirs of the displaced”.25 In continuing to

self-determine as refugees, the exile community refuses to accept the possibility that

there may not be a Tibet to return to in future, never quite settling into India as a home

and never quite embracing economic and social platforms that might take away from this

identity.

Overall, the question of refugee identity in the Tibetan exile community creates a

moment of tension moving into the next decades, a return to Tibet becoming a more and

more distant reality and the 14th Dalai Lama growing older into his eighties. Utilizing the

normative power of refugee status under international law, Tibetans have successfully

stayed in the awareness and sympathy of the international community, the term giving a

rhetorical structure for advocacy against Chinese human rights violations. At the same

24 Ibid. 251.25 Basu, Sudeep. "Interpreting the Tibetan Diaspora: Cultural Preservation and the Pragmatics of Identity." CEU Political Science Journal 03 (2009). 423.

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time, the unique treatment of Tibetans by the Indian government has provided a means to

flexibly adapt to the environment of a new host country, the settlement system of

independent hubs of Tibetan exiles living and working together providing one such

example. In self-determining the status of refugee, and at the same time rejecting both

Indian and Chinese citizenship, the Tibetan community has been able to distinctively

define a cultural identity that even Tibetans who have never faced direct Chinese

persecution can still participate in. More importantly, by choosing to remain in a state of

refugeehood, Tibetans have denied China full sovereignty over traditionally Tibetan areas

while maintaining the political objective of either Tibetan independence or genuine

autonomy. At the same time, however, opting into refugee identity has proven to be

counterproductive for addressing the economic and development needs of the community

as it exists in India in a manner that will demand further evaluation depending on the

future likelihood of exile Tibetans either returning to Tibet or resettling in another

country.

PART II: Tibetan Sovereignty: Human Rights Within and Without State

The ability for the Tibetan exile community to successfully mediate the different

potential sources of refugee identity—international law, India’s national law, and through

self-determination--is closely tied to the way in which the Tibetan Government in Exile

(TGiE) has been able to establish a functional and influential governing body for

Tibetans not only within India, but across the globe. In doing so, the TGiE has challenged

traditional notions of where human rights come from and how they are implemented by a

certain population. Historically, human rights have been placed within the domain of

domestic jurisdiction, involving the way in which a state treated its own citizens in its

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own territory: In International Human Rights, Jack Donnelly describes the tension, “The

conceptual universality of human rights—they are held by all people simply because they

are human—has been paired with a highly relativist system of national implementation.

International human rights treaties create obligations for states to respect, protect, and

implement the right of their own citizens (and foreigners under their jurisdiction”.26 Even

as this framework for understanding the power of state sovereignty has slowly morphed

away from such encompassing strokes, conversations about universal jurisdiction and

humanitarian intervention becoming more commonplace, states still maintain critical

significance both for solidifying universal norms and providing a direct legal bond to

their citizens.27 It is for this reason that those who find themselves in a position of

statelessness are so vulnerable: Without having a recognized citizenship by a state, an

individual no longer has the ability to vote, hold public office, enter and exit a country

freely, and may be discriminated against in obtaining housing, health care, and

employment. As political theorist and German philosopher Hannah Arendt reflected,

being in a position of statelessness lacks even, “the right to have rights”.28

In the process of rejecting Indian citizenship of favor of a Tibetan refugee

identity, many members of the Tibetan exile community have effectively made a

declaration that the vulnerability risk of being stateless remains less important than

preserving the cultural and national identity of being Tibetan, even if Tibet no longer

exists as a recognized state. In his article Beyond Human Rights, philosopher Giorgio

26 Donnelly, Jack. International human rights. Boulder, CO: Westview Press, 1993. 200.27 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005. 18.28 Hannah Arendt, “The Origins of Totalitarianism”, quoted in: Matthew J Gibney, “Statelessness and the right to citizenship”, Forced Migration Review, Oxford, Vol.1, Number 32, April 2009. 50.

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pinpoints this sentiment, noting the existence of, “refugees who have lost all rights and

who, however, no longer want to be assimilated at all costs in a new national identity”.29

In Agamben’s terms, human rights are not the rights of the human, but rather the rights of

the citizen, marking the refugee as the “radical crisis of the concept” instead of the

embodiment of it.30 Agamben remains convinced that that within the law of the nation-

state, there remains no room for the existence of inalienable human rights outside of the

relationship preconceived by citizen status. For this reason, Agamben views the refugee

as a pivotal figure with the capacity to unhinge normative human right assumptions based

on a state-nation-territory mapping. Agamben uses the term “denizens,” coined by Tomas

Hammer, to describe a “permanently resident mass of noncitizens that do not want to be

and cannot be either naturalized or repatriated”.31 By rejecting the benefits from the

protection of a host country, these denizens find themselves in a form of de facto

statelessness under the traditional framework of state sovereignty in the human rights

dialogue.

Under this line of thinking, the refugee problem then becomes one that is

contained within the scope of acquisition or reacquisition of nationality—completed

either by incorporation of refugees into a host society or in voluntary repatriation.

Championing this viewpoint in his work Revisiting the Debate on People, Place, Identity,

and Displacement, Gaim Kibreab argues that place remains a major source for rights and

membership by offering “access to sources of livelihoods, social services, rights of

freedom of movement and residence, etc…apportioned on the basis of territorially

29 Agamben, Giorgio. "Beyond human rights." Journal, no. l 1 (1943): 90.30 Ibid. 92.31 Ibid. 94.

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anchored identities”.32 Kibreab takes on the assumption that there is a generalized sense

of displacement in the modern world, one caused by an era of globalization where

mobility defines human existing, reducing the significance for national borders, and that

elevates all of humankind into citizens of a deterritoralized global world. Instead, Kibreab

maintains that even alongside of a desire to treat all people as global citizens, regardless

of place of origin, territory and physical location still backbone the social and cultural

identity of different populations.33 Because of this, Kibreab views the refugee in the

context of exile as a problem that cannot be solved:

“(a) If host governments do not subscribe to the norm of naturalization or

even integration of refugees;

(b) If the larger society is unwilling to accept refugee 'others' as equal

members;

(c) If refugees are unwilling to be incorporated into host societies; or

(d) If there are no opportunities that enable refugees to support themselves

independently.”34

What Kibreab fails to consider, and what the Tibetan Government in Exile demonstrate

by its very existence, is that while territory and place may be crucial for the development

and success of any population, it is possible to create territories that exist concurrently

within a state but outside of its total legal and political jurisdiction. The Tibetan exile

community defies Kibreab’s criteria on multiple levels, refusing to be accepted as India

citizens and setting up independent settlements that prevent total integration as they

32 Kibreab, Gaim. "Revisiting the debate on people, place, identity and displacement." J. Refugee Stud. 12 (1999): 385.33 Ibid. 387. 34 Ibid. 398.

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simultaneously draw support from the India government and give back to local Indian

communities.

In March 0f 1963, the 14th Dalai Lama Tenzin Gyatso publicized a draft for a

democratic constitution for a future Tibet.35 This draft became the basis for the Charter of

the Tibetans in Exile of June 14, 1991, the supreme law governing the functions of the

Central Tibetan Administration (CTA) that guarantees to all Tibetans equality before the

law and enjoyments of rights and freedom without discrimination on the basis of sex,

religion, race, language, and social origin. Broken down in judiciary, legislature, and

executive branches, the Charter sponsors a Justice Commission that deals with

community disputes, a 44 member Parliament, and the Kashag (cabinet) that serves as the

highest executive office of the Central Tibetan Administration. With the political

resignation of the Dalai Lama in 2011,36 the CTA has developed into a stronghold of

democratic self-governance for Tibetan exiles across the world, but particular within

India where the administration is based. Professor of Human Geography Fiona

McConnell has investigated the way in which the Central Tibetan Administration,

referred to in her work as the Tibetan Government in Exile (TGiE), performs numerous

state-like functions even as it remains internationally unrecognized and without de jure

sovereignty either in what is now China or in India. Not only does the TGiE organize

democratic elections, provide health and education services for Tibetans in India and

Nepal, issue a Tibetan ‘passport’, but it also has a annual payment of chatrel, a voluntary

35 Constitution." Restoring Freedom for Tibetans. Central Tibetan Administration. Web. 1 Dec. 2014. <http://tibet.net/about-cta/constitution/>.36 "Statement of His Holiness the Dalai Lama on the 52nd Anniversary of the Tibetan National Uprising Day." His Holiness the 14th Dalai Lama of Tibet. 10 March 2011. Web. 16 Dec. 2014. <http://www.dalailama.com/messages/tibet/10th-march-archive/2011>.

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taxation system undertaken by nearly every member of Tibetan exile community.37 While

the TGiE has no law-making or enforcing abilities, McConnell argues that because of the

exclusivity of TGiE’s political authority within the Tibetan exile community, it serves as

a de facto sovereignty: TGiE is looked upon by Tibetans as their only legitimate

government, and societal pressure and the cultivation of moral authority allows it to

achieve compliance to its rules.38

Perhaps the most interesting facet of McConnell’s argument is the idea that state,

sovereignty, and territory can be conceptually disentangled, allowing for legitimate

claims of authority outside of a territorial state. For her, the Tibetan community has “re-

territorialized itself precisely in displacement, in a refugee camp”39. In doing so, the

Tibetan exile community has demonstrated the possibility of entities other than territorial

states claiming sovereignty and holding the capacity to utilize international human rights

norms both to mediate with other states and to use within own community (one clear

example of this is the way in which the Tibetan governmental charter is modeled after the

UN Universal Declaration of Human Rights40). McConnell positions a large part of her

argument around the unique way in which Tibetans have disrupted and reconfigured the

“citizen-refugee binary” so that the legally unrecognized Tibetan citizenship supplied by

the TGiE has still managed to maintain a crucial role in defining the legal, political, and

social identities of Tibetans who opt into it. McConnell views the refusal of Indian

citizenship, a choice encouraged by the TGiE, as a powerful self-declaration of political

identity, one that, “turns on its head the assumption that the insecurity and marginality of

37 McConnell, Fiona. 347.38 Ibid. 345.39 Ibid. 347.40 “Constitution”.

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the ‘refugee’ is countered by the ‘citizen’ whose identity is stable and unproblematic”41.

In McConnell’s opinion, what the success of the exile administration represents in

creating a pseudo-legal status for the Tibetan community is the possibility of blurring

boundaries between citizen and refugee, statehood and statelessness. While not

conclusive in either decreasing or increasing the relevance of state sovereignty within the

framework of international human rights law, the Tibetan case does make an argument

for a wider interpretation of types of governmental legitimacy in international law.

At the same time that McConnell’s work highlights the TGiE as a remarkable

testament to the potential for sovereignty outside of a nation-state, the practical reality of

her implications remain to be seen. Any recognition of a ‘Government of Tibet’ would

hold the implication of Tibet as a sovereign independent state to the resentment and

alienation of the People’s Republic of China.42 It is primarily for this reason that many

states take the same stance as that of the German Foreign Minister who declared on June

20th, 1996 in the Federal Parliament:

“The Federal Government, as all governments in the world, regards Tibet

as part of the Chinese State. From this clear statement of international law

it follows that the Federal Government will not recognize the self-styled

Government of Tibet in exile. This is not a formality but a question of

international law.”43

41 McConnell, Fiona. "A state within a state? Exploring relations between the Indian state and the Tibetan community and government-in-exile." Contemporary South Asia 19.3 (2011): 303.42 Talmon, Stefan. Who is a legitimate government in exile? Towards normative criteria for governmental legitimacy in international law, in Guy Goodwin-Gill/Stefan Talmon (eds.), The Reality of International Law. Essays in Honor of Ian Brownlie (Oxford University Press, 1999. 18.43 Ibid.

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Without clear support and recognition from other states in the international community,

the TGiE may remain effective in serving as the final source of governance within its

community, but will be severely limited in its influence beyond the Tibetan population.

The TGiE’s true independence and sovereignty would require more than just the

privileges and immunities that India has provided as a host country as well as the

argument for self-determination which indicates that all peoples have the right to

determine their political status.44 Professor of Law Stefan Talmon defines that for an

authority in exile to qualify as a ‘government’ in international law, it must fulfill the

criteria of having functioning state power, representative character over its governed

population, independence from another State’s government, and internationally illegality

of the government with effective control over territory.45 With China’s occupation of

Tibet almost fully assented to across the international community, it seems unlikely that

government status in international law will apply to the TGiE unless India is willing to

engage with conversations about the long-term future of the Tibetan settlements and

governmental bodies that are currently hosted on its land.

PART III: Durable Solutions for Refugee Situations

Keeping in mind both the successes that Tibetan Exile Government has had in

creating elements of sovereignty in its governance of the Tibetan population as well as

the challenges that remain persistent to it in the face of recognition by international law, it

is worth considering the Tibetan cases as illustrious of different facets of a durable

solution to a refugee problem. Road mapping long-term, sustainable solutions to the

hundreds of thousands of individuals forced to flee across international borders has been

44 Ibid. 19.45 Ibid. 34.

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a serious project of the international community following the aftermath of the Second

World War, and although three general solutions---voluntary repatriation, resettlement

and local integration—have dominated conversations, different strategies have been

promoted depending on the time period and displaced population. In his 1955 address on

“Refugee Problems and their Solutions,” Dr. Gerrit Jan van Heuven Goedhard, the UN

High Commissioner for Refugees at the time, spoke on these solutions in the context of a

post-war Europe:

“As far as we can predict, voluntary repatriation will in the years to

come account for not more than one per cent of the solutions to refugee

problems still to be solved, and it should be remembered that the effect of

repatriation may be offset by the arrival of an equal number of refugees.

On the other hand, not more than twenty per cent of the refugees today in

difficulties may find a solution to their problems through resettlement

overseas. Consequently, it is reasonable to suppose that approximately

eighty per cent will have to look towards integration into the economy of

their countries of present residence.”46

Reflecting on the history of durable solutions to refugee problems, B.S. Chimni also

indicates that from the years 1945 until 1985, integration and resettlement were promoted

with much greater frequency in practice than voluntary repatriation which was accepted

in principle as the preferred solution.47 However, for the period after 1985 leading up

into the early 2000s, Chimni proposes an argument that sees a reverse trend with

46 Jan Van Heuven Goedhart, Gerrit. ""Refugee Problems and Their Solutions"" The UN Refugee Agency. Statements by High Commissioner, 12 Dec. 1955. Web. 1 Dec. 2014. <http://www.unhcr.org/3ae68fb918.html>.47 Chimni, Bupinder S. From resettlement to involuntary repatriation: towards a critical history of durable solutions to refugee problems. Geneva: UNHCR, 1999. 55.

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voluntary repatriation coming to exist as the durable solution, going so far as to put forth

the idea that even involuntary repatriation has been gaining credibility in so much that

richer Northern states with higher levels of asylum and resources see little benefit in

sharing the burden of displacement populations coming predominantly from the global

South.48

A more recent report on durable solutions for refugees from the UNHCR sees a

further change in how refugees are being dealt with in the 21st century, noting that

voluntary repatriations have continuously decreased since 2004, and that as of 2009, the

level was at the lowest it had been in twenty years.49 Instead, the UNHCR has seen as

steady increase of identification and submission of people in need of resettlement.50

While resettlement offers comprehensive protection to refugees, particularly to those still

at risk in their country of asylum, as an international responsibility-sharing mechanism

that requires the support of multiple states, it is a formidable task to undertake. Although

the UNHCR has worked in recent years to encourage new countries to establish

resettlement programs as well as work with programs already established to increase

resettlement intakes, the number of refugees actually resettled still remains relatively

small: For every refugee resettled since 2000, 12 refugees were repatriated.51 The process

of local integration, however, is harder to numerically quantify—many countries do not

distinguish between the naturalization of refugees from other individuals and others have

national laws that do not permit refugees to be naturalized. Still the UNHCR estimated

that between 1999 and 2009, 1.3 million refugees were granted citizenship by their

48 Ibid. 73.49 "Durable Solutions and New Displacement, Chapter III." UNHCR Statistical Yearbook 2009. UNHCR, 1 Jan. 2009. Web. 1 Dec. 2014. 45.50 Ibid. 30.51 Ibid.

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country of asylum.52 Overall, while repatriation still holds the position as the most

frequently used refugee solution, there remain many cases like that of the Tibetans where

a return to the home country is simply not viable, and perhaps just as importantly, is not

desirable. In these cases, more involved strategies for protecting refugees over a long

period of time require analysis and the prompting of a a multi-lateral conversation

between host countries, possible countries for resettlement, and the entire international

community.

Also implicit to both Chimni’s article and the 2009 report by the UNHCR is a

preliminary concern with how changing modes of travel, migration, and national identity

may intersect with what type of durable solutions are most applicable for the 21 st century.

Chimni notes the way in which an era of globalization can change inter-State dynamics to

put increasing pressuring on countries in the global South53 while the UNHCR cautions

against the increasing gap between resettlement needs and countries open to have

resettlement programs.54 Digging further into impact of globalization on forced

migration, Nicholas Van Hear posits the question of whether the notion of durable

solutions can be reconciled with the transnational character of refugees. In his article,

Refugees in Diaspora: From Durable Solutions to Transnational Relations. Van Hear

challenges the UNHCR’s conception of the three durable solutions noting that an

assumption of displacement as a temporary phenomenon underlines all three. Rejecting

this convention as oversimplified, Van Hear writes:

52 Ibid. 53 Chimni, Bupinder S. From resettlement to involuntary repatriation: towards a critical history of durable solutions to refugee problems. Geneva: UNHCR, 1999. 7354 "Durable Solutions and New Displacement, Chapter III." UNHCR Statistical Yearbook 2009. UNHCR, 1 Jan. 2009. Web. 1 Dec. 2014. 32.

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“Needless to say, the real world is messier than in this ideal

scheme. First, as is well known, ‘resolution’ of displacement often takes a

long time, which the original architects of the refugee regime did not

anticipate. The displaced often find themselves in a state of protracted

limbo. Nationality or citizenship may not be easily acquired or re-

acquired, and are often disputed or problematic. People in such

circumstances develop ambiguous relationships towards the places in

which they find themselves.”55

For him, the UNHCR’s lack of attention to transnational dimensions in their policy

initiatives are ineffective for dealing with the concerns brought up by the wide variety of

spatial relations shared within a refugee diaspora. Finally, based on the proliferation of

refugee diasporas, Van Hear raises the question of whether using categories such as

“home,” “country of first asylum,” and “resettlement country,” remains applicable.56 In

doing so, he makes the argument that the notion of transnationalism in itself may

represent a durable solution, one that is already pursued by those displaced in everyday

life as refugees and other migrants find themselves interconnected with diaspora

communities vital for sustaining societies in upheaval as well as for assisting the same

societies as conflict lessons.57 Van Hear’s argument cuts to the heart of the case example

of the Tibetan exile community where traditional refugee solutions would have only

served to limit the Tibetan identity and sovereignty: Although Tibetans have integrated

into their country of first asylum to the degree that India provides the ability to take

55 Van Hear, Nicholas. "Refugees in diaspora: from durable solutions to transnational relations." Refuge: Canada's Journal on Refugees 23.1 (2006). 2.56 Ibid. 12.57 Ibid. 14-15.

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citizenship and supports many of their economic processes, Tibetans have aspired to

maintain their own nationality and governance, keeping a diaspora that spreads out across

the world in constant interaction with itself (the Parliament-in-Exile necessitates a

minimum of two members from Europe, and one from both the United States and Canada

in additional to members from certain Tibetan geographical regions and religious

traditions).58

A further factor to analyze on the issues of durable refugee solutions as it relates

to the Tibetan exile community is the way in which the international community has

given relatively little attention to more flexible approaches of local integration and

settlement of refugees in current years and how utilizing a more adaptive approach could

provide better protection for vulnerable populations. In The Local Integration and Local

Settlement of Refugees: A Conceptual and Historical Analysis, the Director of Policy and

Research for the Global Commission on International Migration Jeff Crisp argues that

voluntary repatriation is not an immediately attainable solution for a large portion of the

world’s refugees. In contrast, Crisp articulates a need for a comprehensive strategy for

addressing refugee problems that rely on a “revitalized approach to local integration,

local settlement, and the promotion of self-reliance.59 Even more powerfully stated, Crisp

calls into question the commonly used definition of local integration that place

significance on a refugee becoming a naturalized citizen of his or her asylum country:

“The definition used in this paper, however, which emphasizes the

multidimensional nature of local integration, casts some doubt upon such a

58 Legislature" Restoring Freedom for Tibetans. Central Tibetan Administration. Web. 1 Dec. 2014. <http://tibet.net/about-cta/legislature/>.59 Crisp, Jeff. The local integration and local settlement of refugees: a conceptual and historical analysis. UNHCR, Evaluation and Policy Analysis Unit, 2004.1.

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restrictive interpretation of the concept. For it is quite possible for a

refugee to acquire and exercise a wide range of rights, to become entirely

self-reliant and to develop close social ties with the host country and

community, without becoming a naturalized citizen of the asylum state. In

such circumstances, it would be pedantic to suggest that such a person had

not attained a very real degree of local integration.”60

While the option of flexible local integration such as the one Crisp describes remains

available for some refugee populations, many industrialized States have decided to create

more temporary forms of asylum for refugees, assuming an eventual repatriation. The

same is true elsewhere in the world with refugees becoming constrained to specific

camps or designated zones, often as a consequence of fear for negative economic and

environmental impact, fear of exiled populations for local and national security, and even

a anxiety that states be losing the ability to control the movement of people across

international borders.61 To counter this trend, Crips recommends several main principles

that make local integration in the adaptive style that the Tibetan community has

developed worthwhile. As a practical reality many of the world’s refugees are likely to

remain in their countries of asylum for long periods of time, and preventing adaptive

integration limits the potential of refugees to make a positive contribution to their country

of asylum, especially when refugees share commonalities such as culture or language

with the host community.62

While Crisp’s points are particularly helpful in constructing refugee solutions

based on the complexities inherent to an interconnected world where national and cultural

60 Ibid. 2.61 Ibid. 4.62 Ibid. 6.

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identity are often multifaceted and fluid, the scale of need for displaced populations all

with varying political, economic, and cultural components begs the question of what

situations are most likely to benefit from the type of flexible local integration solutions he

proposes. Similarly, while the Tibetan exile community and its governmental structure

has been weighed for both its pros and cons in sustaining a refugee identity in order to

bolster a form of sovereignty, it remains unclear how far the case can be extended to

other situations, and even how long the Tibetan exile community can maintain its

ongoing balance with the Indian government. The adaptive form of local integration for

Tibetans initially rested on the firm belief in a homecoming to Tibet, a belief that

sponsored less investment in full integration into the Indian host community and

necessitated a strong government system capable of handling the diaspora created in the

wake of Chinese occupation. Should the protracted exile of Tibetans continue on for a

long period of time, policies made by the TGiE, the India government, and the

international community regarding how to refer to the community as well as what legal

rights they have will be powerful indicators of the direction in which the conversation

surrounding sustainable solutions for refugee problems will head.

Conclusion

Even as the Tibetan exile community may be called upon in the future to

reexamine its position in exile and its relationship to the refugee identity as well as to

India and the international community, many lessons can still be drawn from over a half-

century of its unique existence. The Tibetan exile community shows clearly that there are

multiple sources from which legal status can be drawn and that the current debate of

international legal norms as well as ambiguous national legislature leaves room open for

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displaced populations to self-determine their own identity based on their community

needs. Not only can this identity be of social and cultural significance, but it can also gain

an element of legal credibility when combined with the full consensus of the displaced

population both supporting and relying on a governmental structure that is successful in

mediating community conflicts and creating policies that represent those governed. While

the limits to this form of de facto sovereignty are determined largely by the acceptance of

the international community and the host country, the Tibetan case demonstrates that a

balance can be struck between a relatively independent government for the displaced

population and a positive, adaptive relationship to the host country. From this

perspective, durable solutions to current refugee problems have the potential to better

understand the transnational character of refugees, specifically when utilizing a flexible

form of local integration that works with the cultural and social identity of the displaced

community as well as with potential changes in political situations in order to best meet

the needs of refugees, internally displaced persons, and stateless populations.

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