LEGALITY OF IDENTITY
Whose struggle is it anyways?
By Tashi phuntsok
Since Tibetans inside Tibet are under rigid alien subjugation and are denied basic fundamental freedom, the primary responsibility of our national struggle falls upon the shoulders of the ones living in exile, who are free and have all the basic resources as well as opportunities to lead towards the achievement of the ultimate national goal of Rangzen. This common vision is shared by every one of us across the exile diaspora.
After almost five decades in exile, we still choose to remain a stateless refugee with the firm believe that one day we shall all return to our beloved Land of Snow.
The Indian Citizenship Act of 1955 expressly provides for acquisition of citizenship by birth in Section 3, which says “every person born in India on or after the 26th day of January 1950, but before the commencement of the citizenship(Amendment) act of 1986” are citizens of India and have the legal right to be so.
Instead we happily and willfully chose to remain refugee with the absolute conviction to preserve our Tibetan identity, and more importantly to keep the flame of our national struggle alive. It is something that we all are proud of.
Thus we have always argued at International forums that Tibet was a de facto Independent state before China’s illegal invasion of Tibet and subsequent 17 point agreement is a void agreement according to the Article 51 and 52 of the Vienna Convention on the Law of Treaties 1969.
So the Chinese unlawful act of Aggression has no justification whatsoever in International Law and as a result of it, Tibet came under illegal alien occupation and continuous to remain so.
Therefore Tibetan people as a Nation are rightfully entitled to claim the legal Right to Self determination under International law. Even United Nation General Assembly Resolution 1723 (XVI) of 1961 affirmed this view, it said “Member States of UN solemnly renews its call for the cessation of practices which deprive the Tibetan people of their fundamental human rights and freedoms, including their right to self-determination”.
After the adoption of the Middle way policy at Strasbourg in 1988 and subsequently United States Government’s initiative to resettle 1000 Tibetans in the US in the 1990s, it opened up the floodgate and started the whole new Green rush in our exile community towards the West, primarily for better opportunities in life and for better standards of living.
This creates a big worry in my mind because the ripple effect of that initiative is still very persistent today, infact our people move out towards the west at ever increasingly alarming rate.
But having said that, I’m not an Anti-Migration per se, infact I feel that such move towards a better opportunities in life are a positive step. But my argument is against taking the citizenship of that State and becoming a national of that country.
Infact the irony is that those who migrate to other places and adopt its citizenship are viewed as a normal thing (if not positive thing to do), whereas those who take citizenship here in India are seen more as something negative of sorts (if not treated as a deserter to the Tibetan cause).
So today the question is not whether we in India should also take up Indian nationality for better opportunity, but infact the question is whether we can go to or be where ever we wish to, and still remain a Stateless person by not taking up the nationality of that very country where we live.
My argument is not based upon any high moral grounds, but rather based on the pure legal ones. Till now we have been claiming our Right of Self determination on the basis of our status as Stateless people and refugees. But once we adopt a nationality of any other country, then what we are indeed loosing is the Legal right to rely upon such a principle (self determination) in International Law.
As a result of it, we at least in the diaspora are estopped from claiming such International legal right.
Notwithstanding above mentioned legal facts, we’ll always have our moral right to claim and struggle for our national goal of Independent Tibet. But the bad news is that morality has no place in today’s International Realpolitik and law.
Even though the Charter of Tibetans in Exile also provide for citizenship of Tibet in Article 8(2) which says “any Tibetan refugee who had to adopt citizenship of other countries under compelling circumstances may retain Tibetan citizenship provided he or she fulfils the duties prescribed in the Article 13 of this charter”.
What is the exact legal interpretation of the term “compelling circumstances” is something vague and still indeterminate.
Thus our judiciary must consider the legal implication of the said provision and shall interpret the term strictly so that it is not seen as expressly authorizing dual citizenship in any circumstances.
So I feel that the best way out is through retaining our existing legal status as stateless people by not adopting the nationality of any other country, provided that such an initiative is consistent with the legal system of that resident country.
In this way we can be a lawful permanent resident of any country (like US, UK, Australia, Canada etc.) and still not a national of that country.
Well it may sound naïve and impractical to many, but the advantage is that we’ll retain our Legal right to struggle for our beloved country and prevent Chinese accusation that “Tibetan struggle is led by some foreign nationals”.
The writer is an M.Phil student of International Law at the Jawaharlal Nehru University, Delhi. He can be contacted at taphun@hotmail.com)
